The Employee Free Choice Act ("EFCA") bill, previously defeated in 2007, has been given new life under the Obama administration and was recently re-introduced into both houses of Congress. The EFCA would make it easier for unions to be certified as bargaining representatives by allowing unions to bypass the well established NLRB secret ballot election process and instead obtain certification upon a showing of majority support through a "card check" (i.e., signed union authorization cards). In addition, the bill seeks to impose tight deadlines for bargaining over a first contract; it requires an arbitration panel to set initial contract terms if the union and employer cannot agree on a contract within 120 days; and it mandates increased penalties against employers who engage in certain unfair labor practices.

In response and in opposition to the EFCA, the primarily Republican-sponsored Secret Ballot Protection Act ("SBPA") was recently introduced. The SBPA seeks to validate the NLRB secret ballot election process by making it an unfair labor practice for an employer to recognize or bargain with a union that has not been certified by secret ballot election, and for a union to cause or attempt to cause an employer to recognize or bargain with a union that has not been certified by such an election.

The EFCA has strong support in Congress and in the new administration. However, this issue is likely headed for a very intense debate in Congress in light of the attempt to overturn well-established union election procedures.