The Employee Free Choice Act (EFCA), commonly referred to as “card check,” proposes the most sweeping changes to federal labor law since the National Labor Relations Act was enacted in 1935. EFCA would make three substantial amendments to the Act: (1) a union would be able to organize employees by simply obtaining signed authorization cards from a majority of employees (50 percent + one) in a proposed bargaining unit; (2) a 90-day time period would be imposed for bargaining a first contract, followed by mandatory mediation and binding arbitration of unresolved issues; and (3) employer penalties would be increased for unfair labor practices committed during an organizing campaign and during the negotiations for the first contract.

EFCA has been the object of intense publicity campaigns and public lobbying by business interests seeking to derail the proposed legislation and by organized labor determined to steamroll the legislation through Congress. Meanwhile, confidential behind-closed-doors “intense” negotiations to craft compromise legislation are being carried out among key senators whose support is necessary for passage of any landmark labor reform measure.

As a result, the true status of EFCA continues to be the question of the day. President Obama has publicly acknowledged that it is unlikely that Democrats have the votes to bring EFCA, in its current form, to a floor vote in the Senate, and significant compromises will likely be required in order to move the legislation forward. While expressing full support for EFCA as introduced, Sen. Harkin (D-Iowa), a key EFCA sponsor, is privately pushing to retain three “core” principles in labor reform legislation: (1) give workers the ability to choose between majority sign-up (card check) and secret ballot elections; (2) provide newly-organized workers a first contract by a “date certain” after the union becomes certified as the collective bargaining representative; and (3) impose “meaningful” penalties for labor law violations.

Although the compromise options are numerous, some of the more noteworthy compromise proposals under active discussion include: allowing employees to vote by mail rather than “public” card signing; establishing a maximum period of time for negotiating a first contract, but allowing more time for bargaining (e.g., six months rather than the 90 days contained in EFCA) before a dispute resolution mechanism is triggered; and reducing the time for the National Labor Relations Board to hold a secret ballot election (from the current 35 to 45 days to 15 days or less).