Employment Law Report
Proposed Employee Free Choice Act Legislation Undergoing Changes
It was reported on July 17, 2009, by the New York Times that several key Democratic moderate Senators are working on a revised Employee Free Choice Act (EFCA) bill so as to obtain the necessary 60 votes in the Senate to avoid a filibuster. The original legislation to amend the National Labor Relations Act’s union representation provisions would have provided for union certification by card check rather than the traditional secret ballot election conducted by the NLRB to determine if workers want to be represented by a petitioning union. The proposed EFCA also provides enhanced penalties for unfair labor practices committed early in the process along with mandatory arbitration of the first contract if the parties cannot agree within 120 days after the union’s demand for bargaining. Support for the proposed legislation had begun losing the support of key U.S. Senators including Senator Diane Feinstein of California who reportedly objected to elimination of the secret ball election.
The compromise being discussed would eliminate the card check provision, keeping the secret ballot election, but accelerate NLRB representation elections from the current 56 days from the filing of the petition to the holding of most elections to 5 or 10 days following the filing.
Even with the elimination of the card check provision, it can be anticipated that business groups will continue to oppose the EFCA. According to New York Times sources the vote in the Senate on the revised EFCA may happen as soon as September, 2009.