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Professional Service Agreement

Employee Free Choice Act: An Update

The continuing debate on health care reform has put the Employee Free Choice Act (EFCA) on the sidelines, but only temporarily. EFCA would allow workers to form unions when a majority of them sign cards authorizing a union. Under current law, companies can demand secret-ballot elections run by the National Labor Relations Board. Another controversial provision would impose binding arbitration on the employer if an agreement on a first contract is not reached within 120 days. The bill would also increase penalties for employer unfair labor practices, calling for treble damages.

Opponents of the bill state the legislation would effectively eliminate secret-ballot union elections, subject workers to coercion by union bosses, and drive up labor costs for companies struggling to cope with the recession. These concerns about the EFCA, particularly the elimination of the secret-ballot election, have persuaded several Senate Democrats to resist the bill, and there have been negotiations over a compromise.

In a September 15, 2009 speech at the AFL-CIO convention, Senator Arlen Specter predicted a compromise version of the bill "which will meet labor's objectives" will be passed in Congress this year. Specter's assurance was a reversal from his stance earlier this year, when he declared on the Senate floor that he could not vote for the Employee Free Choice Act. Since then, Specter has switched from the Republican to the Democrat Party, giving the Democrats a 60-vote majority in the Senate.

Although details of a compromise bill have not been released, it is likely to drop the controversial provision that would give employees the right to form unions by signing cards instead of holding a secret-ballot election. However, Specter indicated that the revised bill would speed up the process for holding secret-ballot elections. Currently, a campaign for a union election runs for 60 days after employees sign union cards saying they would like union representation. It is rumored that the new bill would require the election after 5 or 10 days. Also, the requirement of binding arbitration is expected to remain in any compromise bill. Key senators are said to be considering a measure that would require employers to give union organizers access to company property and a measure that would bar employers from requiring employees to attend anti-union sessions that labor supporters characterize as "captive audience meetings."

With or without the card-check provision, the EFCA is not good news for employers. The business community has vowed to keep up the fight against the EFCA.