Union-free employers beware! The Employee Free Choice Act (EFCA) could be coming soon to a Congress near you.  

In 2007, the Act passed overwhelmingly in the House of Representatives and fell only a few votes short of the necessary 60 to block a filibuster in the Senate. With expanded Democratic majorities in both houses of Congress — and a new president who has vowed to sign the bill — the EFCA seems likely to become law in 2009.  

What would the new law mean for union-free employers? Bad news, in three ways.

First, the new law would make it much easier for labor unions to organize (unionize) a workforce because it eliminates the need for a secret-ballot election, and instead, allows unions to become bargaining representatives through the mere signing of cards.  

Under the law, in effect since the Roosevelt Administration, unions must obtain signed cards (or another comparable show of interest) from 30 percent of the employees in an appropriate grouping of employees (a “bargaining unit”) in order to merit a secret-ballot election sponsored by the National Labor Relations Board. In that election, the union must receive a majority of the votes cast in order to become the exclusive bargaining agent for the employees.  

Under the inaptly named “Free Choice Act,” the union would be certified as the bargaining representative just by obtaining signed cards from a majority of the employees in the bargaining unit, without the need, or the opportunity, for the employees to cast a secret ballot. In addition, the employer would have little or no opportunity to campaign against the union, because the union could obtain the necessary signatures before the employer became aware of the organizing effort.  

Second, the new law would require binding arbitration of the first contract if no agreement were reached after 120 days. Thus, newly-unionized employers would have their wages, benefits, and other terms and conditions of employment decided by a third-party arbitrator who is wholly unfamiliar with the workplace. Not only that, the arbitrator would be deciding pay issues and other terms and conditions of employment, not the employer.  

Finally, the new law would increase penalties against employers found to have interfered improperly with union organizing efforts, including expanded civil fines of up to $20,000 per violation.