The obligation to bargain with a Union without the opportunity for employees to vote on representation? Undemocratic, Unfair and...a reality if Senator Obama wins the White House!

Senator Obama and Democrats in Congress have promised to pass the Employee Free Choice Act (EFCA) if elected. EFCA would amend the National Labor Relations Act (NLRA) to make it significantly easier for unions to organize employees by allowing unions to use card check recognition in place of secret ballot elections. EFCA will also require binding arbitration of first contracts after 120 days so that an arbitrator (not the employer) would set wages and benefits for the first two years of the relationship. Finally, EFCA will stiffen penalties for employers who misstep during an organizing drive or a first contract negotiation.

In fact, Senator Obama and Democrats in the House and Senate have promised to make this one of the first measures passed next year. After years of political contributions - almost a billion dollars in donations and hundreds of thousands of volunteer hours -- Organized Labor will look for a big payoff early next year and cut out the employer in the battle to attract new union members.

EFCA - What It Is and Is Not

As currently drafted, EFCA will provide:

  • certification on the basis of signed authorizations (card check);
  • first contract mediation and arbitration;
  • stronger penalties for violations while employees are attempting to organize or obtain a first contract;
    • including mandatory applications for injunctions;
    • treble back pay; and
    • civil penalties up to $20,000 per violation.

EFCA will leave to the National Labor Relations Board (NLRB) many open questions, including:

  • How will the employee voting unit will be determined?
  • Will anyone police union conduct in obtaining the authorization cards needed for certification?
  • Will the employer be entitled to notice of the organizing activity?
  • How will unions be decertified once they are certified?
  • Will there be any controls on arbitrators who will set wages and benefits in a first time contract?

A wide variety of important issues like these will be left to administrative action by a newly-constituted NLRB appointed by President Obama and confirmed by the Senate.

The Threat to Employers

EFCA will pose a significant threat to virtually every private sector employer. However, some industries face greater pressures than others. Here are some of the specific industries which will be under siege once EFCA is signed into law: 1) Small businesses; 2) Industries that cannot be moved offshore; 3) "Hot industries" such as health care, communications, utilities and transportation which are already targets of organized labor; 4) Employers whose work force is partially organized; and, 5) Employers with massed employees such as manufacturing and retail and service. Experience with card check systems in the United States and other countries strongly suggests that EFCA will make it far easier for unions to organize employees -- because card check representation will limit (or eliminate) the opportunity for employers to respond to the union's organizing drive. In other words, it will be much easier for unions to win if employees only hear one side of the story.