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Was Card Check Just A "Red Herring?"

There has been a fierce battle this year over a piece of legislation known as the Employee Free Choice Act, a bill the potential to revitalize the U.S. labor movement. On one side of the debate is organized labor, which has seen its rolls shrink dramatically in the past 50 years. Just 7.6 percent of private-sector workers now belong to a union.

On the other side are business groups, who say the legislation will cripple businesses by increasing labor costs at the worst possible time. (Here's Hotsheet's primer on the bill.)

On Friday, the New York Times ran a front-page story declaring a key provision in the bill known as "card check" -- which would mandate that a union is formed when a majority of a company's employees sign cards saying they want one -- effectively dead. According to the Times, moderate Senate Democrats killed the provision during negotiations, arguing that it is undemocratic because it effectively eliminates secret ballots. Since Democrats need all sixty of their Senate votes to overcome a filibuster of the legislation, these moderates -- among them Arlen Specter, Ben Nelson and Blanche Lincoln -- are key to the bill's passage.

But representatives on both sides of the issue signaled in interviews with Hotsheet Friday that they are skeptical of the Times report. Josh Goldstein of American Rights at Work said in an interview that it is "premature to make any assumptions about what's going on in negotiations when the people who are in those negotiations are clearly stating that there is no deal."

"As far as I know, majority sign up is still on the table," he said. "And we're still fighting for it."

And Mark McKinnon of the Workforce Fairness Institute, a business group, told Hotsheet, "I don't think it's so much a compromise as it is a trial balloon."

But it's logical that a compromise had to come -- Democrats simply did not have the votes to push through the legislation without one. Indeed, from a pragmatic perspective, the deal outlined in the Times might actually be a victory for labor, since it may have saved a bill that still has a lot in it that would help unions, even without the card check provision. Someone like Specter, who announced his opposition to EFCA earlier this year, could plausibly change his mind and back it with the card check provision stripped out.

And according to McKinnon, card check isn't the most important provision in the legislation -- "the more onerous provision," he says, "is the forced arbitration component."

"The notion of federal bureaucrats coming in and dictating your contracts is a nightmare," he told Hotsheet. "And it will unquestionably lead to additional costs."

That talking point is countered by Goldstein of the labor-backed American Rights at Work, who says language in EFCA mandating binding arbitration if a union and company cannot agree on a contract is key to helping interested workers successfully form unions.

The latest version of the bill, according to the Times, would also mandate faster elections (giving companies less time to lobby against a possible union), require companies to offer union organizers access to their property, and keep companies from mandating that workers attend what critics call "captive audience meetings" in which the case against the union is made.

It also includes something called injunctive relief, which would mandate that if the National Labor Relations Board believes an employee was fired for forming a union, the employee would immediately be reinstated to his job.

As one A.F.L.-C.I.O. official told the Times: "This bill will bring about dramatic changes, even if card check has fallen away."

American Rights at Work's Goldstein, meanwhile, referred to card check as a "red herring" used by the opposition in an interview, though he maintained that his group "strongly" believes in the principle of majority sign-up.

Now both sides are digging in for a new round of fighting, and though labor is maintaining its allegiance to card check -- SEIU President Andy Stern said Friday "we expect a vote on a majority signup provision in the final bill or by amendment in both houses of Congress" -- it appears likely that labor groups would accept a bill without the provision so long as the watering down doesn't go too much further.

As for business interests, who have poured millions of dollars into lobbying against EFCA, the possible death of the card check provision is a mixed blessing. A bill that looked dead thanks to the opposition of moderate Democrats now has new life, and the debate now shifts toward the arbitration question, which from their perspective is less friendly turf.