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A Better Partnership


Mar 2009
March 11, 2009

Congress Considering Employee Free Choice Act

On Tuesday, March 10, Democrats introduced the Employee Free Choice Act in both the House and the Senate. The EFCA requires certification of a union as the exclusive representative of employees if a majority of employees in an appropriate bargaining unit sign "union authorization cards." This is a significant change from current law, under which an employer has the right to insist on a government supervised secret ballot election to determine unionization of employees.

The EFCA also provides for mandatory arbitration of "first union contract" terms if the employer and the union cannot agree on a contract within 120 days after the union is certified. The contract imposed by the government-appointed arbitration board would remain in effect for two years. This aspect of the EFCA is an even more substantial change. Under current law the terms of union contracts are set by negotiations between the employer and the union, and there is no contract unless and until agreement is reached.

The EFCA also provides for triple back pay if an employer discharges or otherwise discriminates against an employee in violation of the National Labor Relations Act during a union organizing campaign or during the period from certification of the union until a first contract is agreed upon or imposed by arbitration.

Congressional analysts believe that the bill has majority support in both the House and the Senate, and that the only issue is whether the Democrats will be able to muster the 60 votes needed to invoke cloture and forestall a filibuster.

Union representatives and allies are lobbying heavily in support of the bill. The U.S. Chamber of Commerce, the Society for Human Resource Management, and other employer groups are lobbying heavily to defeat the bill.

If you have questions about this important piece of legislation and its potential impact on your company, please contact any member of the Labor & Employment Group.

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