Look Out—The Check Card Is Back

The misnamed Employee Free Choice Act ("card check" or "EFCA") is publicly quiet but privately very much alive and being enthusiastically worked on by the unions and their Democratic allies in Congress. This economy-depressing and jobs-killing piece of legislation will be publicly resurrected after the health care debate this fall.

Last year, when discussions regarding the EFCA began to heat up, former senator and the 1972 Democratic nominee for president George McGovern penned a thoughtful opinion piece opposing it. Despite his long and ardent support of the labor movement, McGovern said that EFCA was "a disturbing and undemocratic overreach [that was] not in the interest of either management or labor." As EFCA supporters try desperately to repackage this measure to achieve the 60 votes they need to cut off debate and speed the bill toward passage in the Senate, McGovern's words are more valuable now than ever.

ONE OF THE central provisions of card check is the elimination of the secret ballot for union-organizing elections. Organized labor and some of its Democratic supporters have been unable to convince enough of their fellow Democrats -- let alone the people of Virginia -- that removing the protections a secret ballot affords (like the ability to express your views free of coercion and intimidation from all parties) is in the best interest of workers. The secret ballot is a fundamental freedom, and as card-check supporters found out, pushing for its elimination is simply indefensible.

EFCA supporters are now back with a "compromise" that bears a striking resemblance in both substance and intent to the original bill. While details are sketchy, the proposed compromise will preserve the secret ballot . . . sort of. While workers would be able to vote via the secret ballot, the "new and improved EFCA" will deny them the opportunity to be fully informed of their choices because the election (which under the current law occurs within approximately 40 days), would now occur in as little as five days.

This ridiculously short time period makes it nearly impossible for an employer to share his side of the story with his or her workers. These snap elections, which seem more appropriate for a banana republic, are a transparent attempt to rig the election process in favor of organized labor.

ONE OF THE original and most destructive elements of EFCA, the forced binding arbitration provision, is apparently intact and unchanged. After 120 days of collective bargaining, EFCA mandates that a federally appointed arbitrator would have the absolute authority to dictate the terms of the contract between the employer and his or her workers. Under binding arbitration, workers would be stripped of their right to vote on their own employment contract. The most fundamental and important business decisions related to an employment contract (wages, benefits, working conditions, etc.) would be determined by an arbitrator who may know nothing about the company's business model or the marketplace in which it operates.

For example, an arbitrator may determine it would be appropriate to force a company to participate in an existing, but unrelated, employer pension plan, effectively making that employer an insurer of the plan. If another plan participant goes bankrupt, then the rest of the corporate participants would be forced to "pick up the tab" by increasing their contributions to keep the plan solvent. These kinds of disastrous decisions could be forced upon businesses and their employees and could quickly turn a profitable business into a bankrupt one and employed persons into unemployed!

THE COMMONWEALTH of Virginia, due in part to its right-to-work laws, has drawn employers and employees alike from all over the world who share a common goal of building a more secure and prosperous future. This is the Virginia way, and it stands in stark contrast to the values embodied by the EFCA, which seeks to weaken the protections of the secret ballot and rob employers and employees of their right to have the final say in labor agreements that will affect them collectively every single day.

Contrary to popular belief, EFCA is much more than a partisan issue. It is a bipartisan, economic-prosperity-and-jobs-killing issue, which makes it very relevant to all Virginians -- especially in the middle of the worst recession since the Great Depression. Consequently, Virginians have a right to know where their two U.S. senators stand on card check.

There is no question that this is a politically difficult issue for Sens. Jim Webb and Mark Warner. Organized labor is a key constituency for the Democratic Party in general, and these two men specifically. However, as McGovern observed, part of being a good steward of democracy is being able to tell your friends no. It is time for Warner and Webb to heed McGovern's sage advice, stand up for Virginia's business-friendly climate, and tell their friends in organized labor that Virginia's answer on card check is no.
James P. "Jimmie" Massie, III, represents the 72nd district in the House of Delegates. He can be reached at or (804) 698-1072.