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Back from the Dead

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Back from the Dead

The Employee Free Choice Act is dead, long live the Employee Free Choice Act.

On Tuesday Sen. Arlen Specter D-PA announced he will be switching over from the Republican to the Democratic Party; a switch which may allow for a new version of EFCA to pass both the House and Senate. Specter, who was a key supporter of EFCA in the past, announced in March he would not support the current bill. Sens. Dianne Feinstein (D-Calif.), Blanche Lincoln (D-Ark.), and Jim Webb (D-Va.) soon followed, denying Democrats the 60 votes needed in the Senate to bring the bill to the floor.

EFCA has sparked fierce debate between Democrats and Big Labor, who support the bill, and Republicans and businesses who fear the effects on the economy and worker freedom. The measure has two main provisions. The "card check" portion would make the secret ballot nearly impossible in elections to create a union, and the "arbitration" provision would allow for forced government contracts if an employer and a union cannot come to an agreement within 120 days of a new union forming, if one side asks the government to step in.

Specter's opposition was considered a "serious setback" at best or "a death blow" at worst to EFCA. His objection, however, came with a caveat. In his floor statement he pointed to the current economic condition of the country, saying this would be a "bad time" to bring up the legislation. He further softened his opposition by saying, "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."

During his press conference Tuesday Specter maintained he will still not support EFCA, but both the left and the right believe this commitment is not set in stone. Even before he became a Democrat, Anna Burger, Service Employees International Union Secretary Treasurer, when asked about Specter possibly flipping and again supporting EFCA, responded, "Oh sure, this is Arlen Specter we're talking about."

Specter's lukewarm dissent and other senatorial defections have not brought solace to Republicans who oppose the bill. Sen. John Ensign (R-Nev.) remarked last week, "It definitely has lost support, but there's a caveat.… They say they can't support the bill 'as it stands now.' I get nervous when I hear that saying." In other words, small changes to the language of the bill could provide cover for Specter and the other defectors to flip once again and support it.

EFCA supporters have already signaled they could entertain the possibility of a compromise on certain aspects of the bill. Andy Stern, President of SEIU and one of the key advocates of EFCA, told the Washington Post on April 20 he would consider an alternative to the card check provision. He elaborated, "No matter what you do, you have to change the election process. Whether it's majority sign up or not, workers have to have a choice about having an election. The bill has to address...fast elections, eliminating employer behavior and what happens if there are employer violations. Regardless, that needs to be done."

Even with a compromise on card check, EFCA opponents are still leery of the bill. Many are now pointing to the forced government contract or "arbitration" provision as the main problem with the legislation. Newt Gingrich has called arbitration the real threat in EFCA, saying, "EFCA's imposed binding arbitration would irreparably wound one of the most extraordinary features in American society, the willingness to take risk to build an enterprise that generates prosperity for one's family and community. It must never be allowed to be signed into law."

If passed, EFCA would allow either a union or an employer to request an arbitrator to write a contract from scratch if the parties could not agree on one of their own within 120 days of the formation of a new union. EFCA opponents maintain this forced government contract could be created by a bureaucrat without any experience in the company and could create provisions that could harm both the worker and the employer. Both parties would be bound by the agreement for two years and could only modify it by mutual consent. Employers are fearful of the provision because the arbitrators will be appointed by members of the Obama Administration, which was heavily supported by organized labor in the 2008 election.

The only sure thing in the current EFCA debate is that it is not over. The ever changing political landscape as well as the possibility of the elimination of the card check could allow for EFCA's passage in the near future. Arlen Specter's switch does not change the playing field but does illustrate his unpredictability on many issues including EFCA. A new bill without card check but with the forced government contract provision may give Specter and others an excuse to flip yet again and support the bill.