Among the many employment-related pieces of legislation before Congress, the Employee Free Choice Act (EFCA) remains on a fast track. Organized labor continues to pressure the Senate. In response, some senators, including the majority leader, have stated their intent to bring the matter to the Senate floor by the end of June, regardless of how the language reads. (For a discussion on EFCA provisions, see our November 2008 Alert.) Most observers continue to believe some sort of change in the current law is inevitable and will occur this year.

A variety of compromises have been suggested including proposals to:

  • Treat decertification and certification equally (unlike the current language, which does not address decertification);
  • Provide that if penalties for unfair labor practices are to be increased for employers, they should also be increased for unions;
  • Provide equal access for unions to campaign in the workplace (employer groups have found such proposals equally onerous as the existing proposed EFCA);
  • Replace binding arbitration for initial contract impasses with mandatory use of mediators instead; and
  • Provide for expedited elections (to be held within 10-28 days of the filing of a petition rather than 42 as currently provided in NLRB procedures), instead of the proposed card check.

The time to take appropriate preventive measures is now, before any new law is passed. As such, it is worthwhile remembering that the first defense to unionization is good management policies and practices including a proactive plan. Because it is highly likely any changes to law will be made applicable immediately, this is the time to institute a formal plan and to train administrative and supervisory staff.