On March 10, 2009, Representative George Miller (D California) and Senator Edward Kennedy (D-Massachusetts) reintroduced the Employee Free Choice Act ("EFCA") into the United States Congress.

The EFCA would change nearly 75 year old collective bargaining laws established by the National Labor Relations Act of 1935. The EFCA would eliminate the right to a secret ballot election if a majority of bargaining unit employees have designated a labor representative by signing union authorization cards.

In addition to the elimination of secret ballot election requirements, additional provisions of the EFCA would:

  • Impose a 10-day limit between a request for collective bargaining by a newly organized bargaining unit and the commencement of such bargaining with the employer;
  • Authorize a request by either party for federal mediation if, after 90 days of bargaining, no collective bargaining agreement (CBA) is reached; and  
  • Mandate binding arbitration if, after 30 days of federal mediation, no CBA is reached.  

This is a summary of the current version of EFCA. Under the proposed bill, the careful balance arrived at under the current National Labor Relations Act would be swept away in a true revolution of labor law. A competing bill, "The Secret Ballot Protection Act" ("SBPA"), was introduced by Senator Jim DeMint (R-SC) on February 25, 2009, promptly moved through committee and placed on the Senate calendar of business the very next day. As its name accurately reflects, the SBPA focuses strictly on "the right of employees to choose by secret ballot [as] the only method that ensures a choice free of coercion, intimidation, irregularity, or illegality . . . ." It is possible that a compromise bill might ultimately be passed. Yet, even a compromise labor bill which might retain the secret ballot election protections would likely shorten the time to an election from the employer's first notice of union authorization card signing.

What appears to have been lost in the press reports and the onslaught of television commercials sponsored by unions in favor of the EFCA is another fundamental change the EFCA would bring - the imposition of a first contract by an arbitrator if the parties fail to reach a first contract on their own in as little as 120 days. As anyone who has negotiated a first CBA is aware, the first CBA requires the careful crafting of language which will govern the workplace of that particular employer. Under current law, there is an obligation to bargain in good faith but there is no requirement to reach an agreement, and the employer may implement its last best offer after impasse is reached. Imposing a CBA by decree from an arbitrator nullifies this fundamental right to freedom of contract and may leave the employer with an unworkable or financially problematic contract.

While some form of the current EFCA appears inevitable, employers need not resign themselves to unionization. Employers are encouraged to undertake vulnerability assessments that take into account a number of factors that can lead to an increased risk of unionization. Coupled with this assessment and with the assistance of labor counsel, employers can develop strategies, begin or refresh supervisor training and even address employees, to begin inoculating the workplace against unionization. While implementing these strategies requires special attention to NLRB case law and legal regulations, such preparations can be effective in deterring union card signing and ultimately avoiding unionization altogether. Unions are likely to go after the "low hanging fruit" and continue taking advantage of those employers who are not prepared for card signing campaigns.