EFCA (“Card Check”) Legislation: The Stalemate In Congress May be Over

As most of you know, the Employee Free Choice Act (“EFCA”) has been stalled in Congress for months because of opposition to its “card check” provisions, which would require employers to recognize a union without a secret ballot election if the union obtained authorization cards from a majority of employees. “Card check” recognition would have eliminated the secret ballot election process that has been in place at the NLRB since the 1930s.

It appears that a tentative agreement has been reached to drop the card check provisions from EFCA. None of this is final as negotiations are continuing to determine what the final statutory language will actually provide. It appears that the revised bill will probably retain secret ballot elections but establish a very short timetable between the filing of an election petition and the actual election (probably something like ten days). This will make it extremely difficult for any employer to conduct a meaningful election campaign once a petition is filed.

Another controversial issue in EFCA is the provision that would require arbitration if the company and the union were unable to agree on contract terms. This provision effectively would allow an arbitrator to set the terms of the first contract following recognition. There are numerous problems with this kind of provision since the arbitrator would have the ability to set the costs of the contract without the company’s consent. Whether interest arbitration continues in the bill, and whether there are other significant changes, such as increased penalties for unfair labor practice violations that occur during the election process, all remain to be seen.

We will keep you advised.