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Employee Free Choice Act Introduced - Are You Prepared?

April 20, 2009

The Employee Free Choice Act (EFCA) is proposed legislation which, if passed, will amend the National Labor Relations Act to streamline the process by which the employees of an employer may unionize. Specifically, it would allow employees to form unions by signing cards authorizing union representation, establish harsher penalties for employers who violate employee rights when workers seek to form a union, and institute new mediation and arbitration processes for first-contract disputes.

The EFCA was introduced during each of the last three congressional sessions. The EFCA passed in the House on March 1, 2007 for the first time but was filibustered by Senate Republicans. The bill was reintroduced in both the House and the Senate on March 10, 2009 and is a major priority of labor organizations. President Obama has indicated his support for the EFCA.

Under current labor law, the National Labor Relations Board (NLRB) will certify a union as the exclusive representative of employees if it is selected by a majority of employees through a signature drive ("card check") process, or, more commonly by the employees through a secret ballot NLRB election, which is held if more than 30% of employees in an appropriate bargaining unit sign statements asking for representation by a union. If enacted, the EFCA would require the NLRB to certify a bargaining representative without directing an election if a majority of the bargaining unit employees signed authorization cards. The current employer option of rejecting the cards and demanding an election would be eliminated.

Strict timelines imposed by the EFCA will change the face of collective bargaining. Under the EFCA, a union can demand that an employer begin bargaining within ten days of certification of the union as the exclusive bargaining representative. In addition, if the union and employer cannot agree upon the terms of a first collective bargaining contract within 90 days, either party can request federal mediation, which could lead to binding arbitration if an agreement still cannot be reached after 30 days of mediation. The results of the arbitration would be binding on both parties for two years. The EFCA would also provide enhanced monetary damages if employers were found to have unlawfully terminated pro-union employees. Finally the EFCA would impose additional penalties upon employers for each employer violation of the proposed legislation if the NLRB and/or a court deem the violation willful or repetitive.

Employers should anticipate that some version of the EFCA will be passed in the current legislative session. Employment policies and employee handbooks should be reviewed. Supervisors and managers will need training to be able to recognize and respond to union organizing efforts and to handle employee questions that typically arise in an organizing situation. Employer communications concerning unions and organizing will need to be fine-tuned. Employers must be ready to respond quickly under the EFCA so careful planning now is critical.

Watch our website for more information concerning this legislation that will significantly affect many employers. If you have any questions regarding the EFCA, or would like assistance with your preparations for it, including policy development, training, and communication strategies, please contact Jon E. Anderson ( or 608-258-2901) or another member of the Godfrey & Kahn Healthcare or Labor and Employment Teams.

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