Card Check – Dead, But Not Buried

The Employee Free Choice Act (“EFCA”), better known as Card Check, came within one or two votes in the Senate of becoming law.  Despite President Obama’s rhetoric that Card Check would be good for employers as well as workers, we can tell you, firsthand, that many of our non-union employer clients thought otherwise.  In hindsight, the length of time that the Health Care Reform Act took in Congress meant that the Senate could not concentrate on getting the vote or votes needed to get cloture on EFCA. 

Certainly, with the poll numbers where they are, and the election being less than 100 days away, there is no prospect that EFCA will become law before then.  However, Senator Harkin has been working with the AFL-CIO in trying to find a way to get EFCA passed.  President Obama, on August 4, 2010, vowed to the AFL-CIO Executive Council that “we’ll keep on pushing.”  But President Obama, Senator Harkin and the AFL-CIO aren’t talking about how they will get Card Check.  One of the ways that analysts following this issue are talking about is Congress passing EFCA in the lame duck session late this year.  We don’t see how that could happen realistically, although it is possible.  For example, Senator Blanch Lincoln, if she doesn’t lose in November, perhaps could be persuaded to vote for cloture and EFCA.  Nevertheless, no matter who wins in the general election, President Obama’s appointments to the National Labor Relations Board could make many aspects of EFCA law through regulation.  Furthermore, Secretary of Labor, Hilda Solis, is a big supporter of EFCA, and to the extent that she can, she could also work with the National Labor Relations Board to make aspects of EFCA law through regulation.

In the meantime, employers should consider whether they want to get their union-free message out to their employees.  We believe that it certainly cannot hurt, as the only downside is that employees would know that their employers don’t want a union. 

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