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EFCA: on to the next round

"Prospects dim for labor bill", reports Politico, as Sen. Arlen Specter's withdrawal of formal support for the Employee Free Choice Act confirmed what was already considered likely given jitters among moderate Democrats. Interestingly, the Obama White House was said to be "happy (but very quietly so)" at the fading of the bill's prospects -- a theme that surfaced enough in the coverage to make it seem likely that the White House was knowingly allowing word to be put out to that effect. The Economist pronounces card check "dead for now".

A lot, however, is packed into that phrase "for now". To begin with, if the AFL-CIO is only one or two votes short of the finish line, it might not take much -- a Senator's surprise resignation or medical crisis, a swing in already volatile public opinion about the economic crisis, perhaps a string of plant occupations following the Republic Windows pattern -- to dislodge a vote or two.

For that matter, Specter himself has positioned himself to be a possible 60th vote. Michael Fox notes the Pennsylvania Republican's comment: "If efforts are unsuccessful to give Labor sufficient bargaining power through amendments to the NLRA, then I would be willing to reconsider Employees' Free Choice legislation when the economy returns to normalcy." (Similarly: Daniel Schwartz). And Fox follows up with an account of Specter's "12 revisions".

So we're very likely going to remain for the indefinite future in a world where union-sought changes to the National Labor Relations Act are not too far from the front burner. Some ideas for compromise that fell flat in recent weeks, such as the "Starbucks skim-milk card-check" idea endorsed by a few businesses with liberal reputations to protect (Starbucks, Whole Foods, Costco) will be brought out for re-examination. Supposedly less controversial elements of labor law reform, such as drastically stiffening penalties for businesses' violations, may be pressed on their own, and will benefit from the postures struck during the card-check debate, in which many EFCA opponents more or less endorsed the penalty provisions so as not to come off as complete rejectionists. Moreover, there may be a tendency to roll over on labor issues not directly related to the NLRA's provisions on unions and their contracts -- on regulation of pay and benefits, OSHA, ERISA, even ergonomics -- on the grounds that the union side has to be given something. Indeed, in the first two months of the Obama administration the union side has already been given more than just a couple of things -- in the form of the Ledbetter act, several executive orders, Davis-Bacon extensions in the stimulus, and so forth. Much more can be expected from the NLRB itself as Obama appointees begin reversing Republican-era precedents.

One problem is that on the rhetorical level, almost everything can be made to sound moderate compared with card check and imposed federal contracts. Peter Kirsanow: "Now that card check may be off the table, EFCA opponents have lost their most effective talking point. ... Senator Specter's announcement merely concludes Round Two."

Carter at ShopFloor, I see, has been thinking along similar lines.

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Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.