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EFCA "compromise", the latest round

Since the card-check element of the Employee Free Choice Act has been politically dead for months, and talk of fallback "compromise" pro-union legislation has been going on for just as long, it's far from clear why Thursday's New York Times gave prime billing to a report by Steven Greenhouse which presented the backtracking and attempted reformulation of the bill as if it were something exciting and novel. Especially since still part of the bill, apparently for now at least, is the equally radical imposed-arbitration scheme (critique: Shikha Dalmia in the WSJ) which Mickey Kaus proposes to call "federal pay determination" for short, and which, as Carter at ShopFloor notes, most business-side advocates view as utterly unacceptable under any circumstances.

Carter suggests that the underlying stratagem at work here may resemble a two-stage booster rocket: with card-check gone, labor and Democrats can later pose as reasonable by jettisoning arbitration as well in favor of a bill with just the other, supposedly miscellaneous provisions such as heightened employer penalties (to "bludgeon employers into submission", as he has put it). Among the miscellaneous provisions, as Michael Fox notes: quickie elections, perhaps as fast as 5 days, and "equal access provisions to allow unions to campaign on an employer's premises".

The miscellaneous provisions are probably the biggest political danger to bill opponents. Both card check and compulsory arbitration are relatively easily grasped as drastic changes in the existing labor-law regime for private workplaces, and both can be effectively criticized as curtailing worker choice (arbitration would impose new working conditions not just without management's consent, but also without a vote by workers). On the other hand, proposals that can be presented as merely increasing penalties for violations tend to go down easy in our system, and many of the other ideas can be couched as if there were incremental adjustments in things like the speed or logistics of elections -- even if their cumulative effect might prove drastic.

P.S. Jon Hyman at Ohio Employer's Law has a further roundup of blog reactions.

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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.