The Employee Free Choice Act

The Employee Free Choice Act (EFCA), which is highly likely to be adopted in some form by the current Congress, is the most sweeping revision of the National Labor Relations Act (the “Act”) since the Labor Management Relations Act (Taft Hartley) of 1947. There were major amendments in 1959 and 1974, but none of those reached the very core of the Act–union organizing–in the way the EFCA does.

The proposed statute, which has now been introduced into both the House (HR 1409) and the Senate (S 560) with numerous sponsors, would make three major changes to the Act. In order to provide some background for readers not familiar with the Act, I will divde the discussion into three parts.

Part 1. Union Organizing By Card Check

Under current law, if a union wants to organize the employees of an employer, it distributes union authorization cards to the members of the proposed bargaining unit. These cards authorize the union to act as the exclusive bargaining representative of the employees. If the union presents cards from over 50% of the members of the proposed bargaining unit, the employer may recognize the union voluntarily. However, in almost every instance, the employer will insist that the union file a petition for an election to be administered by the National Labor Relations Board (NLRB). Unions can simply file petitions on their own with cards from merely 30% of the members, but they rarely do so as statistically they are unlikely to win an election unless they have 50% to 75% of the employees supporting the union at the time of the filing of the petition.

Once the petition is filed the appropriate bargaining unit is determined (by the NLRB when the parties do not agree or when the proposed unit is not “appropriate”) and an election is scheduled. Then the union and the employer launch into intensive campaigns. As a broad generalization (with myriad exceptions), employers have the upper hand in such campaigns as they have greater resources. There are consulting firms, for example, that specialize in helping companies defeat a union organizing drive. In addition, employers can have captive audience speeches on work time, whereas unions generally are limited to offsite meetings.

If the union receives a majority of the votes cast in the secret ballot election on election day, it wins. If not, the employer wins and the employer can be assured that there will be no more organizing attempts by the defeated union at least for another year.

If the union does prevail, the parties must negotiate “in good faith” to reach agreement on a contract. Although most parties do so successfully, some employers will seek to drag negotiations out long enough that support for the union wanes.

The Significance of the EFCA

The EFCA as proposed introduces a radical change. Under the legislation, once a union presents the NLRB with cards signed by a majority of the employees (50% plus 1) and the Board is satisfied that the cards are legitimate, then the Board must certify the union as the collective bargaining representative without an election. The EFCA is unlikely to be adopted in its current form, as there are many vocal opponents. However, it is highly likely to pass in some form. Whatever the final bill looks like, unions will have a much easier time of organizing employees.

Employers are not always aware of union organizing campaigns until they are well underway. Consequently, if a union is able to collect signed authorization cards from over 50% of the members of the proposed bargaining unit without the employer’s being aware of the campaign, an employer could be shocked to suddenly find a union on its doorstep.

There are rationale arguments both for and against this change. The one thing that is certain, however, is that the EFCA is sure to change the landscape for employers and unions for years to come.