Although the battle lines have been drawn and intense behind-the-scenes lobbying efforts are under way, employers and unions alike still await the introduction of the Employee Free Choice Act (EFCA) in the 111th Congress. We anticipate that the EFCA will be introduced in the same form as the similarly-named bill passed by the House of Representatives in 2007. If that bears true, the EFCA would make three substantial and fundamental changes to the National Labor Relations Act (NLRA):

  1. A union would become certified as the exclusive representative of employees in a sought-after bargaining unit simply by obtaining signed authorization cards from a majority of employees – 50 percent plus 1 – in the proposed unit (referred to as card check);
  2. The mutual obligation of an employer and union to bargain in good faith would be altered by imposing a 90-day time period for bargaining a first contract and requiring mediation and binding arbitration of unresolved contract issues; and
  3. Employer penalties would be increased for unfair labor practices committed during an organizing period and during the period of negotiations for the first contract.

Card Check

The card check process would make it significantly easier for a union to organize employees. Under current federal law, a union must first obtain signed authorization cards from a minimum of 30 percent of the employees in the proposed bargaining unit. The union then files a petition for an election, supported by the cards, with the National Labor Relations Board (NLRB). During the period after the petition is filed, and before the secret ballot election is held, an employer has an opportunity to campaign against the union and educate employees about the pros and cons of union representation. When the NLRB conducts the secret ballot election, all of the employees in the bargaining unit are eligible to vote for or against the union and a majority vote of those employees who cast ballots in the election is required in order for a union to be recognized as the exclusive representative of that group of employees.

As proposed, card check would strongly favor unions by eliminating both the pre-election opportunity for employers to campaign against the union’s effort to organize the employees and the secret ballot election. Instead, after the union obtains signed authorization cards from a majority of employees, the NLRB would be required to recognize the union as the employees’ exclusive representative. As a result, employees who did not sign cards, and employees who signed authorization cards without knowing the significance of their action, would not have the opportunity to receive information about the union nor vote on the important issue of union representation.

Bargaining Process

Under current law, the duty to collectively bargain requires good faith negotiations, but does not require either party to make a concession or reach an agreement. If an employer and the union cannot reach an agreement, the employees have several options, including continuing to work without a contract, engaging in a strike until an agreement can be reached, if ever, or decertifying the union.

Under the EFCA, this process would be significantly altered in several respects. When bargaining for the first contract, if the employer and the union did not reach agreement within 90 days, either party could refer the matter to federal mediation. If mediation did not result in a collective bargaining agreement within 30 days, the unresolved issues (such as wages, hours and benefits) would be referred to an outside party for binding arbitration. The arbitration decision would be binding on both parties for two years, unless the parties agreed otherwise.

Employer Penalties

If modeled after the 2007 House version, the EFCA would increase the penalties against employers, but not unions, for a violation of the NLRA (referred to as an unfair labor practice) during the time period when employees are seeking representation by a union and during the bargaining period after a union has been recognized as the exclusive representative until the first contract is entered into between the employer and the union. The increased penalties include: a civil penalty of up to $20,000 per violation, back pay plus two times that amount as liquidated damages, and stronger injunctive relief. As a result of the increased penalties, unions and employees would likely file more unfair labor practice charges, which would result in added costs for employers.