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Is the Employee Free Choice Act (EFCA) Dead?

Krugliak, Wilkins, Griffiths & Dougherty Co., L.P.A.

The Employee Free Choice Act (“EFCA”) isn’t dead just yet.  But, after the defections of key Senators like Arkansas Democrat Blanch Lincoln and Democrat Sherrod Brown of Ohio, not to mention Senator Arlen Specter’s decision to switch to the Democratic Party, it is becoming more and more likely that EFCA, in its current form, will not pass.  The most likely scenario, at this point, is a watered down version of EFCA, which many are calling EFCA Lite or EFCA 2.0.

EFCA, labor’s top priority in the Obama era, has taken a number of unexpected hits.  However, the labor movement is determined to fight on and according to AFL-CIO spokeswoman Amaya Smith:

Union organizers held more than 400 grass roots events, sent more than 27,000 letters to members of Congress, and put in nearly 100,000 calls of supporting EFCA.  Additionally, the unions spent more than $1 million on two TV ads over the recess. 

Recently, even Andy Stern, the Change to Win labor federation leader, signaled a compromise is on the horizon, given the recent defections in the Senate.  As a result, the Democrats would not have the 60 votes required to request cloture and cut off a Republican filibuster in the Senate.

The most likely outcome at this point is a modified version of EFCA.  Recently, the CEOs of Starbucks Corp., Costco Wholesale Corp., and Whole Foods Market, Inc., proposed an alternative to EFCA that would remove the “card check” provision and instead use an expedited election process that likely would occur within five to 25 days after the filing of an election petition.
 
This EFCA Lite alternative solves a political nightmare for Senators who oppose the current form of EFCA as it would permit Senators to oppose the anti-democratic “card check” procedure, but support a “reform” that preserves the secret ballot election.

However, an expedited election process does not solve the problem for employers.  Unions would still have a huge advantage as the union would still be the employees’ sole source of information and the election would most likely occur at the peak of employee support, not to mention the fact that the employer would still be forced to react very quickly to the union organizers’ misstatements, and misrepresentations about the benefits of a union.

In addition, another EFCA Lite proposal exists which would grant unions access to an employer’s workplace in order to campaign among the employees.  In fact, Senator Arlen Specter supports this component granting unions “equal time under identical circumstances” to meet with employees on company property so long as the employer uses “captive audience” meetings.  However, if granting a union access to an employer’s facility is combined with an expedited election process, this form of EFCA Lite would make it much easier for unions to win secret ballot elections. 

Various EFCA Lite options have been proposed regarding the negotiation of a first contract.  Under EFCA, as proposed, if the union and a company cannot agree to a first contract within the first 90 days within the start of bargaining, then a federal government mediator can be asked to mediate for 30 days.  If there is still no contract after 30 days of mediation, then the federal government will appoint an arbitration panel that will set the terms of the first two-year contract.  One suggestion to this provision has negotiations starting for a first contract within 21 days after the union is certified and permitting the use of a federal mediator after 120 days from the start of the negotiations.

For employers, the best steps are to continue to educate their workforce about the strengths of remaining union-free and continuing to write their politicians and elected officials regarding their concerns with EFCA and the more likely EFCA Lite.

NOTE: This general summary of the law should not be used to solve individual problems since slight changes in the fact situation may require a material variance in the applicable legal advice.

 
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