Employee Free Choice Act

 By Paul Cherner

There has been a substantial amount of debate concerning the proposed federal legislation entitled the Employee No cost Choice Act (”EFCA”).

In 2007, EFCA was passed by the U.S. House of Representatives, but failed to win a cloture vote to end a filibuster  in the Senate.   Labor unions have listed the passage of EFCA as one of their major priorities.  There has been fierce debate about this legislation, often accompanied by statistics supporting either the necessity or the lack of necessity for passing this law.

This law is intended to expedite the process by which unions can organize workers.  For the past 60 years, unions were recognized as the collective bargaining representative of a group of employees by either an employer voluntarily agreeing that a majority of their employees wanted the union as their representative (usually through a “card check”) or by the NLRB conducting a secret ballot election.  Initially, employees sign union authorization cards, which are then used by a union to obtain voluntary recognition or to petition the NLRB to conduct a secret ballot election.  In an overwhelming majority of the situations involving union organizing, the NLRB conducts a secret ballot election.

EFCA would allow a union to have the NLRB certify ‘em as the representative of a group of employees based solely on a card check, which would determine whether a majority of employees in the group have signed cards.  This proposed change would have the practical effect of obviating the need (or opportunity) for an NLRB secret ballot election and would expedite the procees of unionization.  

According to the NLRB ’s  2008 Operations Report, it conducted elections within 56 days after a petition was filed in 95% of the cases.  Where there were post-election matters to consider, the NLRB finalized these elections within 100 days after the petition was filed in 84% of their cases.   The unions argue that undue delay has allowed employers to coerce employees into voting against the union.  In contrast, employers argue that a secret ballot election is needed to allow employees to weigh the pros and cons of union representation and permit them to vote in privacy without coercion.

EFCA would also expedite the first collective bargaining process by providing a short time (Ten days) for the parties to meet and then Ninety days to reach an agreement. If an agreement is not reached at that time, either party may request an FMCS Mediator, who has an additional Thirty days to persuade the parties to reach an agreement.  If a contract has not been agreed to within that time period, the dispute would be submitted to an FMCS Arbitration Panel, which has the authority to resolve the dispute and impose the resolution on the parties for a 2 year period.  There would also be enhanced penalties and fines in this new law to protect employees against discrimination during the organizing period until the first contract is entered into.

It will be interesting to see what happens to this legislation during the next Congressional term given the current state of the economy.

Paul Cherner is a labor and employment attorney in Chicago, IL. Visit his blog at http://hrcounselblog.com.

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