The Employee Free Choice Act - Bracing for Change - ABA YLD 101 Practice Series

By Matthew Levine

Prior to Barack Obama's presidential election victory, labor leaders made it clear to the business community that the Employee Free Choice Act ("EFCA") topped their legislative agendas. Anna Burger, the top ranking officer at the Service Employees International Union and Chair of the Change to Win Coalition, charged, "The EFCA is larger than any single issue for us - even more important than health care reform. It will make the difference between incremental change and transformational change. It is the fuel - the opening for the SEIU to immediately change our growth curve from 100,000 annually to 1 million or more."

"You talk about something that could jumpstart the labor movement. The Employee Free Choice Act, that's it," Jim Hoffa, president of the International Brotherhood of Teamsters.

EFCA, in its current form (H.R. 800; S. 104), proposes three significant changes to the National Labor Relations Act ("NLRA"):

  • an employer will be required to recognize and bargain with a union that has obtained a majority of authorization cards from an appropriate bargaining unit (amending section 9(c) of the NLRA);
  • after 90 days of initial bargaining either party may request mediation through the Federal Mediation and Conciliation Service, and if the parties cannot reach an agreement after 30 days of mediation, an "arbitration panel" will determine the terms of a binding, 2-year initial collective bargaining agreement (amending section 8 of the NLRA);
  • any unfair labor practice charge alleging employer misconduct during organizational campaigns or initial bargaining will be given priority for investigation, will include increased penalties and damages, and could lead to civil penalties "not to exceed $20,000 for each violation" (amending section 10 of the NLRA).

Labor and business agree on one thing at least - EFCA represents the most drastic change to the labor laws in over 50 years.

The House passed EFCA in March 2007 by a vote of 241-185, but the Bill fell short in the Senate three months later, nine votes short of the sixty needed (51-48) to limit debate and proceed to final consideration of the Bill. It soon became clear that passage of EFCA hinged on a Democratic victory in the recent presidential election.

Following the 2008 November elections, which saw Democratic gains in every branch of government, business interests weighed in on the war of words brewing between labor and management over EFCA. On November 25, 2008, the U.S. Chamber of Commerce ("Chamber") released a series of white papers disclaiming the "union rhetoric" espoused in support of EFCA. Entitled "The Union Representation Process Under the [NLRA]: Maintaining Employee Free Choice for Over 70 Years," the Chamber's leading white paper argues that current NLRA procedures have protected employees' free choice for decades through democratic, federally-administered, secret-ballot elections.

"If true employee free choice is to remain at the core of U.S. labor policy, then the public and Congress should not be beguiled into allowing unions or employers to coerce, intimidate, or discriminate against employees in an effort to influence their decision on the important question of union representation. . . . The secret ballot election is recognized by federal courts as the best vehicle for employees to render an uncoerced decision about union representation," reads the Chamber's white paper.

Given EFCA's title and the media's coverage of the Bill, the authorization card issue may seem paramount. But the business community might fear even more the binding interest arbitration provision, with presidential appointees having final say on the terms of private sector collective bargaining agreements. As one employer advocate asserts, "while this aspect of EFCA is certainly not receiving the focus of public attention, it should be the most troubling for employers."

President-elect Obama originally promised that EFCA would a first 100-day piece of legislation for his administration, but the global economic meltdown should delay Obama's efforts. Nonetheless, considering labor's overwhelming support (both voter-turnout and financially) for Obama during the election cycle, employers should be wary of a push for EFCA's quick passage despite the grave economic conditions. The sole potential stumbling block may be that the Senate will not be filibuster-proof. It is also unclear whether the bill will pass in its current form. Employers should closely track this legislation.



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About the Author

Matthew Levine is an attorney with Ogletree Deakins Nash Smoak & Stewart, P.C., in the firm's Chicago, IL office. Licensed in Illinois, he practices labor and employment law and represents management exclusively, concentrating his practice on traditional labor law as well as the FLSA, Title VII, ADEA, ADA, and FMLA.

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