Let the Games Begin . . .

On March 10, the House of Representative and the Senate both introduced the Employee Free Choice Act ("EFCA").  The much anticipated introduction was once thought to come much later in the Obama Administration, but now that the stimulus and appropriation measures are off Congress' plates it can focus on other legislation.  There seems to be very little doubt that the EFCA will pass in the House, but get much stronger opposition in the Senate.  

As this Blog has said, the EFCA is legislation that, if passed, will bring about the most drastic overhaul of private sector labor relations since 1935. The EFCA, commonly referred to as the “card-check” law, will strip employees’ rights to vote, in a secret-ballot election conducted by the National Labor Relations Board (“NLRB”), to determine whether they wish to be represented by a union in dealing with their employer. 


As the National Labor Relations Act (“NLRA”) stands now, unions can file a petition at the NLRB with only thirty percent of a given workforce “pledging” support for the union and that will trigger the secret-ballot election. The EFCA will up the requirement for filing a petition to a majority of a given workforce, but eliminate the election. Instead, by mere presentation of a majority of the given workforce “pledging” support for the union, the NLRB will certify that union as the representative of those workers in dealing with the employer. 


As if eliminating a democratic process was not enough, the EFCA includes a mandatory arbitration provision that would have an arbitration panel impose a contract upon the parties that is binding for two years. Currently the NLRA requires that the parties meet and confer in good faith, but does not require that either agree to any terms or conditions. Under the EFCA, if within 100 days from the certification the employer and union do not reach a contract covering the wages, hours and other working conditions for the given workforce, the Federal Mediation and Conciliation Service (“FMCS”) must intervene and mediate between the parties to bring them to an agreement. If the parties do not agree to a contract within thirty days of FMCS’ involvement, the arbitration panel will then decide the terms of the contract for the parties and that decision will be binding upon the parties for two year. 


We will soon begin to see the lines drawn in the sand and hear from experts on both sides as to why they favor oppose the EFCA.  As important developments arise, we will post.  We encourage readers to comment and become engaged in the debate.  We look forward to the months ahead.