The Employee Free Choice Act is dead now that Massachusetts State Senator Scott Brown (Rep) won the battle with State Attorney General Martha Coakley (Dem) for the late Senator Edward Kennedy’s seat in the U.S. Senate. The Democrats lost their 60-seat, filibuster-proof Senate. American businesses are heaving a collective sigh of relief. Not so fast… EFCA was only the simplest, surest path to Big Labor objectives (and payback for the millions of dollars and hours spent on behalf of Democratic candidates in the 2008 election cycle). As we have stated for months in our e-newsletter, almost all of EFCA can be accomplished via regulation, without any vote by Congress. Keep in mind,
Obama is Big Labor-Friendly. His appointments to the Dept. of Labor and the National Labor Relations Board indicate his willingness to put labor ideologues in key positions of power. The regulatory power within those positions is vast.
Big Labor almost spent itself into insolvency to obtain the labor-friendly majorities it now has in both Houses of Congress, not to mention the White House.
Most unions took the first half of last year off from their normal pace of organizing efforts, most likely hoping that the EFCA would pass much sooner. Their organizing activity picked up near the end of last year to a frenzied pace, and their win rate has been rising.
Juxtapose those last two items, and you realize that Big Labor must find new blood (i.e. new union dues-payers).
There are still strategies for placing EFCA within other legislation, such as a jobs bill.
D.C. is still a big, unpredictable political animal. Who knows what horse-trading might eventually end up giving us the EFCA, even though it couldn’t stand on its own merits.
So what should you expect? Our best estimate includes:
Quickie Elections – once the NLRB is at full strength it will regulate a shortened election cycle (most likely 7-14 days).
Increased penalties for employers for Unfair Labor Practice charges. The new, aggressive NLRB is also likely to test the waters on more aggressive penalties, including punitive damages.
Some type of extreme penalty for bad-faith bargaining, including a time limit set for bargaining a first contract, which would trigger mandatory mediation or arbitration.
The growth of “stealth” card signing campaigns. We have already begun to experience this tactic – union organizers keeping their head low for as long as possible.
Don’t fall into the trap of thinking the “EFCA” is dead. As an intact piece of legislation, it has probably met its demise. But the proponents of EFCA are alive and well and placed in positions where they can make many of its provisions happen.
