Skip to main content
A Better Partnership


Nov 2008
November 25, 2008

Watch For Union Activity With The Passage Of Employee Free Choice Act

With a new Democratic administration set to take office next January under President-elect Barack Obama, many employers will be anxious to know what effect, if any, this development may have on their businesses.

In terms of labor and employment law, the most substantial change promises to be quick passage of the Employee Free Choice Act (EFCA). Throughout most of the presidential campaign, the EFCA was under the radar. Be assured, its passage will change federal labor laws as they pertain to unionization.

Historical Perspective

The EFCA was originally proposed in the 108th Congress by Representative George Miller (D-CA). Initially, the EFCA failed to sustain any momentum as the Committee on Education in the Work Force and the subcommittee on employer-employee relations took no action on it other than to hold a series of hearings. Miller again introduced the bill in 2007 as House Bill 800. It passed in the House on March 1, 2007, by a vote of 230-195. Later that month, the EFCA was introduced in the U.S. Senate by Senator Edward Kennedy (D-MA). It was reported out of the Committee on Health, Education, Labor and Pensions but failed a cloture vote in the Senate on June 26, 2007, by a 51-48 margin. There can be no doubt that the newly formed 111th Congress will pass the EFCA and it will be signed into law by President-elect Obama.

What’s In Store

The EFCA contains many changes warranting a closer inspection.

The measure has three critical components that employers must familiarize themselves with in order to prevent potentially significant and extensive consequences in their workplace. First, the EFCA provides certification of unions as the exclusive bargaining agent of employees upon presentation of authorization cards signed by a simple majority of the employees in an appropriate bargaining unit. Under current labor law, the National Labor Relations Board will certify a union as the exclusive representative of employees if it is elected by either a majority signature drive, the card check process, or by secret ballot NLRB election, which can be held if more than 30 percent of employees in a bargaining unit sign cards authorizing representation by a union.

This so-called card check certification is a significant change in the current state of the law and can give an advantage to unions during an organizing drive.

Second, once a union is certified as the bargaining representative, the EFCA changes the process of collective bargaining. The Act imposes strict time limits on the negotiation of a collective bargaining agreement. Employers would have to begin negotiations within 10 days of receiving a demand for bargaining from the union unless the parties agree to a longer period of time. Further, if an initial collective bargaining agreement is not reached within 90 days, either party may request mediation with the Federal Mediation and Conciliation Service. If the parties do not reach an agreement after 30 days of mediation, the dispute would be referred to an "arbitration board."

The arbitration board, according to the EFCA, may render a decision settling the dispute and impose a collective bargaining agreement that will be binding on the parties for up to two years. The EFCA’s vague legislative language fails to define who or how many individuals make up the arbitration board. It also does not provide guidance as to how that panel would settle bargaining disputes and how it would dictate economic terms and conditions.

Additional Provisions

President-elect Obama’s public support of the EFCA is well documented. In fact, he has suggested he would propose additional provisions to the National Labor Relations Act that would make it illegal to replace economic strikers. Under current law, employers have the right to continue operations during an economic strike by hiring permanent replacement workers. The Obama proposal would change the current negotiation dynamic and provide unions a significant strategic advantage in the negotiation process by providing strikers with reinstatement job security.

Preventive Strategies

While the EFCA may seem to favor unions, employers are not powerless to implement enhanced preventive strategies.

First, employers should assess the possibility of union activity and determine the potential success of card check certification. Then make sure management carefully educates employees on the process of unionization. Care should be taken to ensure that educating the employees about the implications of unionization is advanced without reflecting any anti-union animosity. If employees know in advance how the union and the collective bargaining process may impact them personally, it will make their decision easier and help them avoid any pressure to sign union authorization cards without knowing all the facts.

Once employees learn about the process and consequences of unionization, employers should train front-line supervisors to recognize early signs of organizing activity in the workplace. Early recognition and action in identifying union organizing is critical.

NOTICE. Although we would like to hear from you, we cannot represent you until we know that doing so will not create a conflict of interest. Also, we cannot treat unsolicited information as confidential. Accordingly, please do not send us any information about any matter that may involve you until you receive a written statement from us that we represent you.

By clicking the ‘ACCEPT’ button, you agree that we may review any information you transmit to us. You recognize that our review of your information, even if you submitted it in a good faith effort to retain us, and even if you consider it confidential, does not preclude us from representing another client directly adverse to you, even in a matter where that information could and will be used against you.

Please click the ‘ACCEPT’ button if you understand and accept the foregoing statement and wish to proceed.



+ -