“In terms of the NLRB, we’re going to get it done. In the fight for EFCA, we’ve got to sit down and figure out where we go from here….I think we’re going to get it done.” –Remarks of Vice President Joe Biden before the AFL-CIO, March 1, 2010

Election years provide plenty of fodder for political junkies, but election year posturing too often produces suspect public policy.

Case in point: the so-called “Employee Free Choice Act” (HR 1409/S 560). You might think that by this time, we could say “card check is dead” and move on. But the truth is, EFCA remains a priority for organized labor and the Obama Administration (as evidenced by the vice president's recent comments). And while the 60 votes needed to prevent a Senate filibuster on EFCA remain elusive, there are other factors at play. 

For example, there are growing concerns within the business community (see National Association of Manufacturers and U.S. Chamber of Commerce) that President Obama will appoint Mr. Craig Becker to the National Labor Relations Board (NLRB) through a “recess appointment,” thereby avoiding the need to obtain 60 votes for Senate confirmation. If seated to the NLRB, Mr. Becker — who serves as counsel for the Service Employees International Union and has written about the NRLB's ability to rewrite union election rules — could implement aspects of EFCA through NLRB actions, without approval of Congress.

Media reports also have highlighted that political candidates’ positions on EFCA will be a focus in this year’s primaries and fall congressional mid-term election. The question is: who has the political stomach to take a strong stand and let the consequences fall where they may? In this political environment, there are plenty of Members of Congress with heartburn over EFCA. That isn’t likely to get better.

At any rate, EFCA may be on life support, but it still has a pulse. Stay tuned for developments.


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