EFCA Likely to Be Up for Consideration this Summer

Despite vigorous employer opposition and declining political and public support, the Employee Free Choice Act (EFCA) will likely become a focal point this summer. According to an article published in the Las Vegas Sun, Senate majority Leader Harry Reid (D-Nev.) still considers this bill an “important piece of legislation,” that the Senate hopes to address “sometime this summer.” The delay represents a significant deviation from expectations for the bill’s early consideration and a temporary setback for organized labor.

This highly contentious piece of legislation would require the National Labor Relations Board (NLRB) to certify a labor union as the exclusive bargaining representative of employees based on the submission of authorization cards signed by a majority of employees (“card check”), without employees voting in a government-supervised, secret-ballot election. EFCA would also require binding interest arbitration to set the terms of a first contract if the union and employer cannot agree within a specified time period, and increase employer penalties for committing unfair labor practices.

President Obama was a cosponsor of the Senate version of the bill when it was first introduced in 2007 (S. 1041; H.R. 800). The bill died in the Senate when its proponents could not garner sufficient votes to invoke cloture and stave off a filibuster. Although the situation has changed, Democrats in the Senate still do not have sufficient votes to stop a filibuster, assuming all vote in EFCA’s favor. Moreover, at least two Democratic senators have expressed reluctance to pass EFCA in its current incarnation, and others – including Arlen Specter (R-Pa), the only Republican senator to support EFCA the first time around and newly-elected Senator Mark Warner (D-Va.) – have been noncommittal in their backing.  Business groups continue to educate legislators and the public regarding how employee “free choice” is actually curtailed by eliminating secret ballot elections, and how the compulsory interest arbitration provisions are likely to deter meaningful collective bargaining.

Unions, on the other hand, are waging their own media campaign to push EFCA and other labor-friendly legislation through Congress. Organized labor had hoped to pass EFCA within Obama’s first 100 days in office. The financial crisis has helped to derail that plan, if only temporarily. Under similar circumstances in 1933, organized labor waited a full two years to be rewarded for its election support of President Franklin D. Roosevelt with the passage of the National Labor Relations Act in 1935.

The battle over EFCA will surely heat up now that Sen. Reid has acknowledged the intent to reintroduce it. House Majority Leader Steny Hoyer (D-Md.) indicated earlier this month that the bill would not be introduced in the House until April at the earliest, setting the bill up for Senate consideration this summer. Whether and in what form EFCA will take this legislative session remains to be seen.

Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.