Employee Free Choice Act Update: Key Democrats Consider Dropping Card Check Provisions

Key Democrats May Abandon Card Check To Secure Filibuster-Proof Majority

In the wake of waning support for organized labor's proposed Employee Free Choice Act (EFCA), national news sources report that six (6) Democratic senators have decided to abandon EFCA's card-check provisions. This news greatly increases the odds of the passage of some type of EFCA compromise.

Currently, unions gain recognition through secret ballot elections. The EFCA as currently introduced would replace secret ballot elections with card check arrangements whereby unions could gain recognition merely by obtaining signed authorizations from a majority of the employees comprising the bargaining unit. Senate Democrats have acknowledged that scrapping EFCA's card check provision will help secure support for the bill from more moderate members of the party, who opposed the card-check provision as undemocratic, and could result in a filibuster-proof 60 vote majority.

More Union-Friendly Changes On The Horizon?

Although Senate Democrats have abandoned card check, other union-friendly changes to EFCA remain likely. Democrats reportedly plan to replace card check with provisions that would require the National Labor Relations Board (NLRB) to conduct elections within five (5) to ten (10) days after the union files an election petition. A dramatically-shortened election period would be an important victory for labor because it would minimize the time employers have to encourage workers to vote against unions. Democrats are also considering including provisions that would require employers to give unions access to company property to campaign and prohibit employers from conducting "captive audience" (group) speeches at work. EFCA's provisions regarding binding arbitration appear to remain under negotiation.

Planning and Preparation Are Still Necessary

Even if EFCA is modified through political compromise, make no mistake, it will contain provisions that are pro labor and that will make it easier for unions to organize. Consequently, many employers are taking steps now to protect themselves.