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On Tuesday, March 10, the controversial Employee Free Choice Act (“EFCA”) was introduced in both the U.S. Senate and House of Representatives. The bill (H.R. 1409, S. 560), which is sponsored by House Education and Labor Committee Chair Rep. George Miller (D-California) and Senator Tom Harkin (D-Iowa), would amend federal labor laws in several critical areas, significantly impacting how employers address union organizing activity.

As has been reported widely in the media, EFCA allows unions to become employees' bargaining representatives on the basis of a “card check” process, thereby depriving employees of the right they presently have to vote in secret-ballot elections. A lesser-known, but equally important, provision of the bill mandates arbitration of initial collective bargaining agreements when the parties cannot come to agreement on their own. EFCA also provides triple back pay to employees who are the victims of employer unfair labor practices (“ULP’s”) during an organizing campaign or in the period leading up to a first contract, allows for civil fines upon employers of up to $20,000 per violation for willful and repeated ULP’s committed during the same time period, and enhances the ability of the National Labor Relations Board to obtain injunctions in federal court against employers with respect to organizing campaigns or initial contract negotiations.

Supporters of EFCA claim that the legislation would make it easier for employees to organize, which they believe would lead to greater protections for workers. Opponents argue that the bill would violate workers’ rights and cause substantial economic harm to businesses and consumers. Congress is split on EFCA, mainly along party lines—with Democrats for the most part favoring the legislation and Republicans generally opposing it. President Obama supported previous attempts to enact EFCA when he was in the Senate, and he repeatedly endorsed the legislation during last fall’s presidential campaign.

While passage of the legislation in the House is almost assured, the critical question is whether EFCA supporters have 60 votes in the Senate to overcome an anticipated filibuster by opponents of the legislation. In fact, many believe that what happens to the bill may hinge upon the as-yet-unsettled Senate race in Minnesota between Republican Norm Coleman and Democrat Al Franken.

The Labor Relations Team at Baker Hostetler has a long history of assisting businesses confronted with union organizing campaigns, and we have developed programs for preparing management and supervisors to address potential union organizing in an EFCA environment. You can obtain information on how we believe employers can prepare for EFCA, along with news about the legislation, its history and other resources, at the firm’s “EFCA News Wire” web page. You also may contact any of the members of our team to discuss the issue directly; we will be glad to speak with you.

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