The Employee Free Choice Act ("EFCA"), also known as the "Card Check" legislation, is facing mounting challenges from opponents. As proposed, EFCA would change federal labor laws by allowing the formation of a new bargaining unit at a company if a majority of workers sign authorization cards requesting a union. EFCA would also require the parties to submit to mandatory mediation and binding arbitration if the union and the employer are unable to reach an agreement on an initial contract within 90 days. Stiffer penalties would be imposed against employers found to have engaged in conduct that interferes with employees' rights during union organizing. However, there is no provision for penalties against unions who interfere with employees' rights during union organizing.

Many business owners and business associations consider EFCA to be a serious threat and have expressed their concerns to legislators. Members of COSE, the Council of Smaller Enterprises, reported sent 1,500 letters to legislators opposing the legislation. Large groups have been formed to coordinate trade associations in opposing EFCA, including the U.S. Chamber of Commerce. These groups have spent millions of dollars in an attempt to defeat the legislation. Their concerns have not gone unnoticed by legislators. It appears that key components of EFCA are now in jeopardy.

While there has been relative solidarity among Republican senators in opposing EFCA, Democratic support of the bill appears to be declining. It has been reported that at least six senators who supported moving forward with EFCA in 2007 now either oppose the legislation or have expressed reservations, including Arkansas Senator Blanche Lincoln, Arkansas Senator Mark Pryor, Louisiana Senator Mary Landrieu, and Pennsylvania Senator Arlen Specter. As a result, it appears that there are no longer enough senate votes in favor of the bill to ensure its enactment.

Given the dwindling support for EFCA in its current iteration, there are already discussions concerning the introduction of a compromise bill. It remains to be seen what compromises will be proposed. It also remains to be seen whether the proposed compromises will be sufficient to garner enough support for the passage of the bill. Roetzel & Andress will be closely monitoring the legislative process for further developments in order to assist employers in preparing for the implications of EFCA.