In a much anticipated move, on March 10, 2009, the Employee Free Choice Act (EFCA) was reintroduced in both the Senate and the House of Representatives. EFCA was originally introduced in 2007 but failed to gain sufficient support in the Senate after passing the House by an overwhelming margin. If passed, EFCA will dramatically change the law regarding both union organizing and the negotiation of first collective bargaining agreements.

Since 1935, the National Labor Relations Act (NLRA) has allowed employees to exercise their right to be for or against union representation in a government supervised secret ballot election.

Such elections are typically held after voters are exposed to a period of pre-election campaigning by both sides during which the advantages and disadvantages of union representation are often vigorously and openly discussed. After exposure to information provided by both the employer and the union, employees cast their ballots in secret and without the risk that anyone will know how they voted. If either the employer, the union or other employees attempt to intimidate or coerce employees to deprive them of their “free choice,” the election can be invalidated.

For 74 years, the system has worked to safeguard the “free choice” rights of employees. As an indicator of how well the system works, historically unions have won representation rights in about half of all NLRB elections conducted. BUT, IF EFCA BECOMES THE LAW, BOTH EMPLOYERS AND EMPLOYEES WILL BE IN FOR A VERY DIFFERENT SYSTEM FOR DETERMINING UNION REPRESENTATION. Union push for this law has been so strong because unions regard EFCA as the only way to stop the dramatic decline in union membership. Employers simply cannot remain unprepared for this potential dramatic change.

What EFCA Does

The most significant changes under the EFCA are that:

  • Union representation will no longer be decided by government supervised secret ballot elections.
  • Instead, the NLRB will “certify” the union as the employees’ bargaining representative WITHOUT ANY ELECTION IF A MAJORITY OF THE EMPLOYEES SIMPLY SIGN UNION CARDS.
  • The determinative card signing can take place WITHOUT THE EMPLOYEES EVER LEARNING ABOUT THE DISADVANTAGES OF UNION REPRESENTATION. In fact, the union can collect cards from a majority of the employees BEFORE THE EMPLOYER IS EVEN AWARE OF THE CARD SIGNING CAMPAIGN. Typically, card signing activity is done in such a way that employees are only exposed to one side – the union side – of the story.
  • EFCA contains no provision for the right of employees to change their minds, rescind or revoke their card, or in any other way exercise their right to a fully informed choice.
  • Once the union collects enough cards and gets certified by the NLRB, the employer will have 10 days from the union’s request to bargain to begin contract negotiations.
  • If after 90 days no agreement has been reached, the parties are subject to mediation. If mediation doesn’t produce a contract, the outstanding issues are subject to BINDING ARBITRATION, meaning that an arbitration board will issue a decision RESULTING IN A BINDING UNION CONTRACT WHICH REMAINS IN EFFECT FOR TWO YEARS. The employer loses its right, which exists under current law, to reject any proposal it feels will not be in the best interest of the business, its customers or its employees.
  • In addition, under EFCA, employers risk TRIPLE BACK PAY for certain unlawful discharges (which will certainly encourage the filing of even frivolous charges) AND CIVIL PENALTIES of up to $20,000 for EACH unfair labor practice found to be willful or repeated.

Why are Unions Pushing so Hard for EFCA?

Beneath all of the rhetoric about protecting employee rights to union representation, EFCA is a very thinly disguised attempt to INCREASE UNION MEMBERSHIP.

Currently, unions represent less than 8% of the private sector employees in the U.S. Union membership – and union financial resources – has dramatically dropped since the 1970s. There are many reasons for that decline but the primary reason is that to most employees, unions have simply become irrelevant, unnecessary or ineffective at protecting their workplace rights and interests. When they are given a real “free choice” most employees reject unionization.

So, in an effort to bolster sagging membership rolls and treasuries, unions are attempting to change the law to eliminate any meaningful and legitimate resistance to unionization, to eliminate real “free choice” and to force union representation onto employees – and bargaining obligations onto employers – all because unions have been unsuccessful at gaining new members through legitimate appeals on the merits.

What Should Employers Do?

As you know, we have been advising employers for the past year of the likelihood of the passage of EFCA. Now, with the support of Democrats in both houses of Congress and President Obama (who recently told union officials: “We will… pass the Employee Free Choice Act”), the passage of EFCA (at least in some form) appears to be an even greater possibility. Given this great possibility that EFCA will become law, what should employers do?

1. Contact Elected Representatives

Of course, every employer should learn everything possible about EFCA. Any employer who believes that EFCA does NOT protect either the employer’s interests or the interests of its employees should work for its defeat. At the least, employers should contact their elected officials to make sure they fully understand the significant long term negative consequences – to employers, to employees and to the entire U.S. economy – if union membership is increased through the superficial decision-making processes of EFCA.

2. Understand – In Advance – Why Employees May Be Vulnerable to a Union Card Signing Campaign

Although EFCA will result in an increased number of union organizing drives, such a drive can only be successful if employees are vulnerable to the union’s pitch that they “need” a union.

Organizing drives most often succeed because of discontent within the workforce. That discontent can take many forms, both economic and non-economic. In most organizing drives, one or more of these common areas of discontent exist: (1) lack of meaningful communication with supervisors and managers; (2) feelings of insecurity or uncertainty about the company’s future or the employee’s future with the company; (3) unfair or unequal treatment or favoritism (real or perceived); (4) wages or benefits below the area or industry standard or not keeping up with the cost of living; (5) ignored grievances, complaints or employee concerns; (6) disregard for experience, longevity or “seniority”; (7) lack of, or inconsistent application of, written policies, procedures or guidelines; and (8) lack of individual recognition.

In most successful organizing drives, union organizers easily get employees to sign authorization cards simply by exploiting employee frustrations or discontent, then convincing the employees that the employer has failed to live up to its obligations and responsibilities to its employees and that the union can do a better job of satisfying their needs. By promising “more” or “better” or “faster,” getting a card signed is easy – particularly if the employee isn’t informed of the limits and risks of union representation.

An employer’s best weapon is to recognize its areas of vulnerability, and then reduce or eliminate them to prevent the union from exploiting any existing discontent.

3. Educate Employees – in Advance – to “Just Say NO”

In the past, many union-free employers were reluctant to even mention “union” to their employees for fear that the mere mention of the concept would create interest where, perhaps, there was none. Under EFCA, that will likely change. Employers will no longer be able to wait to educate employees until an active organizing drive manifests itself. The key to preventing a union from getting cards signed by a majority of the employees is to EDUCATE EMPLOYEES IN ADVANCE of their rights and of the potential risks of unionization.

Employers who desire to remain union-free should develop a “union free” philosophy and communicate the philosophy to the employees – so the employees know in advance the employer’s views on unionization. Employers should also communicate to employees – perhaps as early as orientation – the possibility that they may be approached to sign a union card and that BEFORE THEY SIGN ANYTHING they should make sure they understand the significance and the potential risks of unionization. In other words, employers should recognize that unless THEY communicate first to employees on this important subject, they may not have any chance to communicate since, under EFCA, once the card is signed, it’s too late.

4. Educate Supervisors and Managers - in Advance - on How to Spot and Respond to a Card Signing Campaign

An educated group of supervisors and managers is also critical. Supervisory training is essential on how to recognize and eliminate areas of employee discontent, how to spot the early warning signs of a union organizing drive, how to react in the event of perceived card signing activity, the rights of both employers and employees in the event of an organizing drive and how to respond to employee questions about the organizing drive. The best “early warning system” if organizing activity should occur is a group of informed and alert supervisors and managers with good lines of communication with their employees. Learning of organizing activity early enough to make a difference is essential.


Being a “target” of a union organizing drive does not necessarily mean becoming a “victim.” Although EFCA will dramatically change the nature of union organizing drives, proper advanced planning and the right approach can give the vigilant, aggressive employer a substantial opportunity to provide the right working environment and the right kind of employee education so that the chances of a successful union organizing drive are greatly diminished. Employees – educated in advance about their rights – still have the opportunity to “JUST SAY NO.”