While a small group of moderate Sen­ate Democrats tries to broker a filibuster-proof compromise on the Employee Free Choice Act (EFCA), political observers remain skeptical about the bill’s prospects. Business groups dislike the heavily lobbied measure, while organized labor strongly supports it and appears unwilling to budge on key principles. But business groups and unions alike agree the Obama administration has created a sea change on labor issues, and some of EFCA’s objectives could be accomplished by another means: a much more union-friendly National Labor Relations Board.

The White House has sent three nominations to the Senate to fill vacant seats on the board. If Democrats Craig Becker, associate general counsel for the AFL-CIO and the Service Employees International union, Mark Gaston, a long-time union-side attorney, and Republican Brian Hayes, an aide with the Senate labor committee, are confirmed, NLRB will have a full five-member complement for the first time since December 2007.

Glenn Spencer, executive director of the U.S. Chamber of Commerce’s Workforce Freedom Initiative, says, “I think the new board will look for opportunities to use cases to advance the goals of EFCA as far as they can” within the confines of existing law, which permits secret-ballot elections.

As introduced, EFCA would allow unions to organize if a majority of workers signed a petition supporting a collective-bargaining agreement. Sources say Senate negotiators, led by Tom Harkin (D-Iowa), are considering jettisoning the majority signup, or “card-check” provision, to appease moderate Democrats, but are also considering permitting new provisions to hold unions’ support. Those sweeteners could include allowing union organizers to have jobsite access to workers and shorter election periods.

HARKIN

Sen. Tom Harkin (D-Iowa) is leading a group of moderate Democrats to craft a compromise plan for the Employee Free Choice Act that can garner enough support to avoid a GOP filibuster.

“The conversations…are very much in flux, but everything we’re hearing we don’t like,” says Geoff Burr, Associated Builders and Contractors’ vice president for government affairs. Even if the card-check language were eliminated, the bill still includes binding arbitration, which would be problematic for employers, says Kelly Knott, Associated General Contractors’ director of congressional relations for human resources and labor. “It would mean someone from the government, not knowledgeable of the business, would determine work rules [and] pay structures of a company,” she says.

Unions are taking a wait-and-see approach. “We still think majority signup is the best way to ensure a fair organizing process,” says Jacob Hay, a spokesman for the Laborers International Union of North America. “We wouldn’t automatically dismiss something out of hand…but it would have to have something to make it easier for unions to organize.”