Late last week, news hit that Democrats were striking the "card check" provision from the Employee Free Choice Act (EFCA). This is the infamous provision which sought to prevent secret ballot in union voting. You might think that businesses would now be willing to compromise to allow passage of a watered-down version of the EFCA. You'd be wrong.

Another portion of the EFCA would allow either party in a first contract dispute to defer to the Federal Mediation and Conciliation Service for mediation after 90 days. That means that the federal government could ultimately decide issues like pay, pensions, health care and working conditions for private sector employees.

A few months back, when card check was still a hot topic, I remember speaking to several of the most prominent business lobbyists. They all agreed that there could be no compromise so long as the arbitration provision remained. According to them, this provision is just as harmful as card check.

Why's that? They complain that this provision amounts to taking management out of the equation. Because the federal government is so heavily lobbied by labor unions, those against the measure argue the unions would have a distinct advantage in achieving a favorable decision through such mediation. They also worry that federal mediators might not have the all industry knowledge necessary to rule in the best interest of businesses.

A piece from the New York Times late Friday concurs with this assessment, quoting Brad Close of the National Federation of Independent Business:

"Our members hate the idea of losing a secret ballot election, but if you want to see their blood really boil, then explain to them the arbitration part of the bill," Mr. Close says. "To them, it's like turning the keys of their business over."

Business lobbying giant, U.S. Chamber of Commerce, agrees. They do not believe that moderate Senators will be swayed by the exclusion of card check. The Times piece also quotes Randy Johnson, senior vice president for labor law at the Chamber:

"We've done a good job of educating senators on the arbitration provisions -- we've done polling, we've done studies, there've been a lot op-ed pieces. Even if they dropped card check, they'll have a very difficult time finding 60 votes."

Could some version of the EFCA eventually pass? Maybe, but I'd be surprised if it did without more revision. Specifically the arbitration provision will also have to be axed.

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