EFCA, as introduced in Congress in February 2009, includes sweeping changes to the rules for union organizing. (Please read our earlier blogs for further discussions on EFCA.)  The two most controversial original EFCA provisions are: (1) card-check recognition, which would allow unions to demand recognition rights based solely on union cards that they can pressure employees to sign through face-to-face interaction; and (2) mandatory binding arbitration to resolve impasse in first labor contract negotiations. The card-check provision has been especially controversial because it would result in unions obtaining bargaining rights without a secret ballot election. No doubt sensing that the general public favors secret-ballot elections, a number of moderate Democratic senators have begun to pull back support for card-check recognition as EFCA nears debate in the Senate.

As expected, the waning support for card-checks has generated talk of compromise among Democratic senators in order to get some sort of labor law reform passed. The New York Times reported recently that some Democratic senators have persuaded their colleagues to drop card-check recognition from EFCA in order to get sufficient Democratic support so that they can withstand Republican opposition. With this compromise, it appears the Democrats have sufficient support to push EFCA through over any effort by Republicans to filibuster or otherwise get it off track. Although current attention in Congress on health care and the economy may cause EFCA to take a back seat until later this year, when EFCA does come to the floor, it now looks like the chances for passage are very good.


Before employers become too pleased about the apparent death of card-check recognition, consider the fact that the provisions for binding arbitration in labor contract negotiations will apparently remain in the bill. Just as concerning is the fact that compromise provisions being built into the “new” EFCA are designed specifically to give unions a much greater chance to successfully organize a company in an election campaign. The following are three provisions being touted as union-favoring election rules changes that will likely find their way into EFCA if card check-recognition goes out. 


1.         Quickie Elections

Reports are that the new EFCA will call for elections to take place in just five to 10 days after a union files a petition for election. A union can file a petition for election after obtaining cards signed by just 30 percent of an appropriate voting unit. Many union organizers are very sophisticated about running an “under the radar” campaign to get cards signed, keeping the campaign from management’s attention as long as possible. If a company is unaware that card-signing is going on or finds out too late, the company may face a union election in a matter of days. That would be completely inadequate time for a company to develop a fair and thorough communication campaign to educate employees before they vote. These quickie elections would likely cause a dramatic increase in the number of organizing campaigns that reach election and in the number of union wins. When you consider that the union win rate in cases that go to election is already more than 60 percent, labor law reform that will make it even easier for unions to win elections is reason for continued concern about EFCA.


2.         Union Access to the Property

Under current rules, outside union organizers have no right to insist on access to a company’s property during work time to lobby employees. The revisions to EFCA apparently will include some guaranteed access to company property for outside union organizers.


3.         Company Meetings with Employees

Under current rules, when an election is to occur, company representatives typically have meetings with workers to explain the company’s position and the realities of collective bargaining. Union supporters claim that company representatives routinely use these meetings to unfairly intimidate and threaten employees. In fact, in most cases, these company-run meetings are simply the employer’s opportunity to communicate its side of the story. Reports are that revisions to EFCA will make it illegal for companies to require employees to attend these meetings. This would be yet another concession to organized labor pressure designed to make it easier for unions to have success in organizing and harder for employers to communicate a fair and legal message about the company position.


Right now, there is very little “official” information about where EFCA is headed. However, it seems clear that even if card-check recognition is falling out of the deck, organized labor is still prepared to play a very strong hand for improving union organizing efforts in this country.