Jordan Ramis pc. Attorneys at law
What's Left of the Employee Free Choice Act?
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This article is intended to inform the reader of general legal principles applicable to the subject area. It is not intended to provide legal advice regarding specific problems or circumstances. Readers should consult with competent counsel with regard to specific situations.

By John Hickey
Fall 2009

A group of senators has reportedly agreed to eliminate the card check provision of the Employee Free Choice Act ("EFCA"). The compromise is a result of Arlen Specter (D-PA), a former cosponsor, and Blanche Lincoln(D-AR), among other democrats, announcing their opposition to the EFCA. Without their support, it is unlikely that the EFCA could overcome a filibuster that would block the bill's passage. Supporters hope that without card check, formerly the most prominent provision, the EFCA will draw less opposition. However, many business groups have already shifted their lobbying efforts to the other provisions of the EFCA.

From Card Check to Speedy Elections
Under the original EFCA, if a majority of bargaining unit employees signed authorization cards and the National Labor Relations Board ("NLRB") validated the cards (its "card check"), the union would be certified as the employees' representative — no election required. Opponents argued that card check was unfair because it would cause unions to conduct authorization-card campaigns in secret and employers and employees opposed to unionization would not have an opportunity to voice their opinions.

The compromise eliminates card check, but would require accelerated secret ballot elections (elections would be held within 10 days instead of the current average of more than 30) and provide unions with greater access to employer property. Supporters say that speedy elections are important because union support usually declines during any election campaign and there would be less time for employers to influence their employees to vote against the union. The other provisions of the EFCA remain unchanged.

From Bargaining to Arbitration
Currently, in negotiating a first collective bargaining agreement (after a union becomes the employees' representative), employers must bargain with a union in good faith. The parties are not required to reach an agreement, and one may not be imposed by the union, the employer, the NLRB, arbitrators, or anyone else.

Under the EFCA, if a collective bargaining agreement is not reached in 90 days, either party may submit the dispute to mediation. If mediation does not result in agreement in 30 days, the dispute will be submitted to arbitration and an arbitration panel will decide the terms of the contract, which will be binding on the parties for two years. While in other contexts a contract requires an agreement between the parties, under the EFCA the arbitrators would have sole discretion over the terms of the contract.

From Penalties to More Penalties
Currently, if an employer commits an unfair labor practice (e.g., firing or suspending employees thought to be union supporters), the NLRB may seek a court order against the employer and may award back pay to affected employees.

The EFCA requires the NLRB to seek a court order and award any affected employee back pay and twice that amount as liquidated damages. Any employer found to have willfully or repeatedly committed any unfair labor practice would also be subject to a $20,000 civil penalty. The penalties for unfair labor practices committed by unions do not change under the EFCA.

More Compromises
Whether there will be more compromises is unclear. One key supporter of the EFCA, Ted Kennedy (D-MA), recently passed away and another, Robert Byrd (D-WV), may not be healthy enough to vote. Additionally, Congress is currently focused on health care legislation. As a result, the battle over the EFCA will probably continue into late fall.

Nonetheless, Congress is expected to pass some form of the EFCA this year, and nonunion employers should start planning for the likely changes now. For example, employers should document any plans to reduce employee compensation or benefits. If any such reductions are implemented after the commencement of a union organization effort, without proof of proper justification an employer will be subject to the increased unfair labor practice penalties. Supervisors should know the dos and don'ts of responding to an organizing effort. Educating employees about the facts of unionization and the employers' opinions about unionization is also something to consider — especially since under the recent compromise elections will take place quickly.

Some commentators question the EFCA's constitutionality, and if it becomes law contentious legal battles are expected. Even if those commentators are right, the legal battles might not be decided for years. Now is the time for open-shop employers to start developing strategies to deal with the EFCA.