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The proposed Employee Free Choice Act (EFCA) is the most significant workplace reform legislation pending before Congress. If passed, it would materially change federal labor law. First, it would all but eliminate secret ballot elections by allowing unions to obtain representative status through presentation of authorization cards signed by a majority of employees. Second, it would essentially take from the employer and union the right to bargain the terms of their initial collective bargaining agreements by requiring a government-appointed arbitrator to set binding terms for two years if the parties cannot agree after 120 days of bargaining. Third, the EFCA would make much more strict the penalties for employer (but not union) labor law violations during organizing campaigns and first contract negotiations.

The EFCA may become law early in the new administration. President-elect Obama has pledged to support the bill and a more-Democratic Congress makes its passage more likely. The EFCA is heavily supported by unions, and the SEIU plans to devote much of its staff to an effort to ensure the enactment of the EFCA. While its final form may differ somewhat from what is currently proposed, the impact will be the same — unions will organize more easily, and employers will need to take signs of organizing very seriously.

We don’t have a union. What will be different?

The EFCA would fundamentally change how organizing occurs. Instead of the employer reacting to a union organizing campaign with its own campaign before a secret ballot election, an employer may not know about a union's card signing campaign until it is underway or finished. The EFCA requires an employer to recognize and immediately begin bargaining with a union that presents a majority of signed cards.

What is card check?

Unions ask employees to pledge their support to the union by signing union authorization cards. Each signed card counts toward the 50 percent plus one card one needed for union recognition.

Mandatory interest arbitration

Under the EFCA, the employer and union must commence bargaining within 10 days of the employer's receipt of a written request from the union to do so. If no agreement is reached after 90 days, either party may request mediation with the Federal Mediation and Conciliation Service (FMCS). If 30 days thereafter, the parties have not reached agreement, the FMCS will refer the dispute to an arbitration panel, which will render a decision binding the parties for two years. In other words, EFCA's answer to how to bring about the negotiation of initial collective bargaining agreements is not to use collective bargaining, but to require interest arbitration.

Changes to enforcement and employer sanctions

Under the EFCA, the NLRB would be required to seek injunctions against employer unfair labor practices in organizing and first contract situations. Even more worrisome, however, is the increase in monetary penalties. Employers could also face treble back pay for violations in these contexts and civil fines up to $20,000.

What should employers do?

Because under a card check regime, employers may never know that union organizing is occurring until cards are presented, they cannot wait until they see signs of union organizing to start educating employees about unionization and the realities of collective bargaining. A proactive approach to inform supervisors and employees about this these topics likely will be critical.

Upcoming webcast

We hope you will join us in January for a webcast presentation that will cover this and other likely changes to occur after President-elect Obama's inauguration. In the meantime, please contact the Buchanan Ingersoll & Rooney attorney with whom you work, or any labor and employment attorney on our website.