In an attempt to save the Employee Free Choice Act (EFCA) from filibuster and potential failure, a handful of Democratic Senators have reportedly agreed to remove the highly contentious “card check” from the current version of the bill (H.R. 1409, S. 560).  According to an article published in The New York Times, the card check provision would be replaced by a shorter campaign period prior to an election, but other controversial EFCA measures would remain. Specifically, the article notes that expected EFCA revisions would require union elections to be held in as few as 5 or 10 days after 30 percent of workers sign authorization cards favoring union representation. In addition, lawmakers are reportedly considering provisions allowing union organizers to access company property during an organizing campaign, and preventing employers from requiring employees to attend employer-conducted information sessions often dubbed “captive audience” meetings. Since a revised EFCA bill has not yet been unveiled (much less negotiated or challenged), it is uncertain at this point which of these conditions, if any, will be included.

While the card check provision has received the most negative publicity, talks of an EFCA “compromise” have not addressed the mandatory arbitration clause, which would be equally if not more troubling for businesses. Under the terms of this provision, if parties cannot agree to the terms of a first contract within 120 days after bargaining commences, the union can submit the matter to mandatory, binding arbitration. The decision of the arbitrator as to terms of employment would be in effect for two years. Commentators have criticized these provisions on the grounds that the 120 day limit is unreasonably short, that they will encourage posturing for arbitration rather than true bargaining, they ultimately substitute the judgment of a government-appointed arbitrator for a bargain between the union and the employer, and that arbitrators are particularly poorly equipped to decide the many complex contract language issues that arise in bargaining a first contract.

Also not mentioned in The New York Times article is any revision to the EFCA clauses that would impose stiffer penalties on employers who are found to have committed unfair labor practices during organizing campaigns. Some believe these enhanced penalties are an attempt by organized labor to discourage companies from effective election campaigning.

The impetus for revising EFCA is likely the fact that despite their 60-vote majority, the Democrats in the Senate cannot muster the votes necessary to prevent a filibuster of EFCA in its current form, given that Senators Kennedy and Byrd, staunch labor advocates, may be absent for health reasons. Moreover, a number of Democratic Senators have voiced concern over the bill, particularly the elimination of the secret ballot union representation election process. With the card check section gone, EFCA supporters hope that those who opposed the legislation because of that concern will vote for cloture when/if the bill reaches the Senate floor. Other compromise changes to the bill have also been proposed, and at this time it is impossible to know in what final form, if any, it will reach the Senate floor. Although union supporters have been pushing for a vote before the August recess, the Times reports that with healthcare reform dominating lawmakers’ time, EFCA – in whatever incarnation – will not likely be put to vote until September at the earliest.