The Employee Free Choice Act (“EFCA”), which would revolutionize labor–management relations in the United States and fundamentally alter the way unions organize and bargain, has been just reintroduced before Congress.  

The bill would vastly increase the rate of unionization in the United States, and is identical to the House bill that passed in 2007, but later died in the Senate. Originally sponsored by President Barack Obama and Vice President Joe Biden when both still were senators, the new bill likely will pass in the House, leaving the Senate a probable battleground.  

Should EFCA become law, it will change current U.S. labor laws in three major ways:  

  1. Unions will have the option to completely forgo a secret ballot election. Any union will be permitted to petition the National Labor Relations Board for certification as bargaining agent for a group of employees once it obtains a majority of such employees’ signatures on union authorization cards;
  2. A federally appointed arbitrator would decide the terms of a first contract if an employer and union are unable to reach an agreement within 120 days; and  
  3. The penalties for employer unfair labor practices during union organizing and bargaining for an initial contract would be significantly increased.  

With EFCA back on the front burner, employers are urged to assess their workforces in order to minimize the risk of unionization. Employers should immediately:  

  • Educate supervisors on the threat of union organization and outline acceptable communication with employees;
  • Educate employees on the pros and cons of unionization;
  • Maintain an open dialogue with employees;
  • Promptly address employee concerns and issues; and  
  • Assess how vulnerable employees and business units will be to union organizing.