The Employee Free Choice Act (EFCA) may be dead. It passed the House of Representatives in March 2007, but with the election of Republican Scott Brown to replace Ted Kennedy of Massachusetts, Senate Democrats lost their filibuster-proof supermajority. There is little chance the Senate will pass the bill in its present form.

The EFCA is organized labor's Christmas list. It amends the National Labor Relations Act, taking away employees' right to an election by secret ballot, requiring arbitration if no contract is agreed upon within 120 days, and increasing penalties for unfair labor practices on the part of the employer. Here are links to the NLRA and the EFCA:

National Labor Relations Act
Employee Free Choice Act

Secret ballot. Elections by secret ballot are not actually banned by the EFCA, but if a majority of employees can be persuaded to sign a petition requesting representation - referred to as "card check" - no election is held. One would expect organized labor to be in favor of the NLRA-required election by secret ballot when "a question of representation exists". They are not, they say, because the employer has overwhelming access to workers and is able to frighten them into rejecting the union. In reality, however, union organizers also have plenty of access to workers, else they wouldn't be able to present them with the petition. And regardless of pressure from either side, the employee has nothing to fear once inside the voting booth with the curtain drawn. What the unions really fear is that in the privacy of that voting booth, away from the eyes and physical presence of the union rep, the employee will vote against the union.

All Republican senators oppose the EFCA, along with a handful of Democrats. One well-known former senator - George McGovern - wrote a piece for the Wall Street Journal opposing the EFCA, specifically objecting to the "card check" provision. Why does he, a friend of organized labor, disagree with his fellow Democrats? My guess is that unlike current office holders, he doesn't crave labor's campaign contributions.

Compulsory arbitration. The NLRA requires the employer and the representative of the employees to bargain collectively, "but such obligation does not compel either party to agree to a proposal or require the making of a concession." That's not good enough for organized labor. If the union can't get the employer to agree to its terms, they want the government to step in. Here is how it is addressed in the EFCA:

Section 8 of the National Labor Relations Act (29 U.S.C. 158) is amended by adding at the end the following:

(h) Whenever collective bargaining is for the purpose of establishing an initial agreement following certification or recognition, the provisions of subsection (d) shall be modified as follows:

(1) Not later than 10 days after receiving a written request for collective bargaining from an individual or labor organization that has been newly organized or certified as a representative as defined in section 9(a), or within such further period as the parties agree upon, the parties shall meet and commence to bargain collectively and shall make every reasonable effort to conclude and sign a collective bargaining agreement.

(2) If after the expiration of the 90-day period beginning on the date on which bargaining is commenced, or such additional period as the parties may agree upon, the parties have failed to reach an agreement, either party may notify the Federal Mediation and Conciliation Service of the existence of a dispute and request mediation. Whenever such a request is received, it shall be the duty of the Service promptly to put itself in communication with the parties and to use its best efforts, by mediation and conciliation, to bring them to agreement.

(3) If after the expiration of the 30-day period beginning on the date on which the request for mediation is made under paragraph (2), or such additional period as the parties may agree upon, the Service is not able to bring the parties to agreement by conciliation, the Service shall refer the dispute to an arbitration board established in accordance with such regulations as may be prescribed by the Service. The arbitration panel shall render a decision settling the dispute and such decision shall be binding upon the parties for a period of 2 years, unless amended during such period by written consent of the parties.

George McGovern didn't like this provision, either, and explained his opposition in a second piece in the Wall Street Journal.

Recess appointments. The EFCA may never become law, but a recess appointment to the National Labor Relations Board may allow some of its provisions to be implemented through administrative interpretation of the NLRA. On March 27, 2010, President Obama announced that he would make 15 recess appointments to boards and agencies, including Craig Becker to the NLRB. According the the Associated Press, "Republicans had blocked his nomination on grounds he would bring a radical pro-union agenda to the job." Becker is currently Associate General Counsel of the Service Employees International Union (SEIU). This 7/24/2009 letter to senators Ted Kennedy and Michael Enzi from the U.S. Chamber of Commerce explains the business community's objections to the appointment.