On March 10, 2009, the Employee Free Choice Act (EFCA) was introduced in both the House of Representatives and the Senate by Sen. Tom Harkin (D-Iowa) and Rep. Miller. EFCA would allow labor unions to become employees' bargaining representatives on the basis of a "card check" recognition process, thereby allowing employees to vote without a secret ballot election to determine whether they want union representation. In addition, the bill mandates binding arbitration of initial collective bargaining agreements and provides more stringent penalties against employers who commit unfair labor practices during an organizing campaign or while negotiating a first time labor contract.

Support for EFCA in Congress is split along party lines with Democrats mostly favoring the legislation and Republicans generally opposing it. While passage of the legislation in the House is virtually assured, the critical question is whether EFCA supporters have the 60 votes necessary to overcome an anticipated filibuster in the Senate by opponents of the legislation.

It is expected that the Senate will not consider the legislation until the Minnesota race between Republican Norm Coleman and Democrat Al Franken is decided. Assuming that Mr. Franken is seated in the Senate, Democrats will have 59 members in their caucus and will need at least one additional vote to beat the expected filibuster. In 2007, Sen. Arlen Specter (R-Pa.) joined the Democrats in voting to end the Republican filibuster. At this point, several senators on both sides of the aisle are refraining from announcing their position on EFCA, and it is impossible to predict whether it will survive a filibuster in the Senate.

Organized labor and the business community have promised intensive lobbying efforts over the next few months as the bill moves through Congress. However, it is widely anticipated that attempts will be made to negotiate a compromise version of EFCA to allow for its passage. Potential compromises could include elimination of the binding arbitration provision, a requirement that card check recognition only be allowed where a super majority of employees support the union or substitution of an expedited election procedure for the current election process.

Unions active in the healthcare industry -- including SEIU and the California Nurses Association -- have been mobilizing for massive organizing efforts in anticipation of EFCA becoming law. Given that labor unions win nearly 70 percent of the NLRB representation elections they participate in currently, the organizing risk facing employers in this industry will be substantial. Employers should begin preparing for EFCA today by auditing their current employee relations practices, planning for the anticipated changes in a post-EFCA world and training their managers and employees with regard to union awareness in general and card signing in particular.

To obtain additional information on how employers can prepare for EFCA, along with news about the legislation, its history and other resources, please visit Baker Hostetler's dedicated website at www.EFCAnewswire.com.