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HR Guide to the Employee Free Choice Act

Unionworker Employee Free Choice Act 101: A History for HR Professionals

If you have spent time on HR or labor relations issues, you’ve likely heard of the Employee Free Choice Act (EFCA), often referred to as the “card-check bill. When I first heard about it, I wondered, “How could something with a title like that be controversial?”

The EFCA is controversial. The Employee Free Choice Act did not pass when it was introduced in 2007 and the act became an issue in the 2008 presidential campaign.

Who’s Behind the Employee Free Choice Act … and Why?

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The AFL-CIO and other major unions have reintroduced the Employee Free Choice Act to address what they see as a long-term problem of employers thwarting the will of employees to unionize. Opponents to the act see it as a way to do away with the ability of employees to secretly vote for or against unionizing.

Organizing a Union - The Process

Here is some background on how union organizing happens in the private sector.

Union organizers talk to employees to see if they’re interested in having a union in their workplace. If there is interest, the next two steps take place.

Sign authorization cards. With the help of union organizers, employees who wish to join a union talk to other employees and ask them to sign authorization cards in support of the union. Only 30 percent of the employees need to sign these cards to cause an election to be called. But, unions often prefer to have 50 to 60 percent of the employees sign these cards before petitioning for an election.

Hold an election. Based on the showing of interest from the authorization cards of at least 30 percent of employees, a secret ballot election is held to see if the majority of the employees want a union. If 51 percent of the employees vote for union representation, the union that helped organize the employees will become the employee’s exclusive bargaining representative.

What Is a Bargaining Unit?

A bargaining unit is the group of employees that shares something in common and decides, by majority rule, to unionize. The bargaining unit is not a union, but it is part of it. Your whole company may be one bargaining unit, or it may be several, depending on things like shared similarities. It is the group that will be represented by the union in negotiating with the employer.

Bargaining unit was defined back in the 1930’s. A federal law, called the National Labor Relations Act (NLRA), was passed back then, to govern this process.

The Employee Free Choice Act Eliminates the Vote: How Can That Make Sense?

Labor unions believe that the EFCA helps them with their main goal: to represent the majority interest of their bargaining unit. They believe this because the EFCA eliminates, what they consider, a problem: the lag time between signature-gathering and the election. During this time, pro-union employees campaign for unionizing and the employer, typically, campaigns against it.

The employer must be very careful, by law, about what they do and say during this campaign. The unions have fewer restrictions. Despite the existing laws keeping employers in check, unions still think that employers go too far in what they do to discourage employees from unionizing. Since the Employee Free Choice Act eliminates the time employers would have to influence their employees, the unions see it as an improvement to the system.

As a bit of background and to provide a different perspective on this issue, it is important to know that, sometimes, employees use this “lag time” to consider a commitment to unionize. Often times, employees sign an authorization card so they can participate later in the democratic process of putting the question to a vote. At the time they sign, in my experience, some employees may not feel, yet, that they have had enough time to study the pros and cons of unionizing. They’re signing authorization card to buy time to study while the voting process is being developed. If the EFCA goes into effect this time to research and consider options goes away.

Binding Arbitration: Another Change from the EFCA

If the union is brought in through elections or cards, a contract is then hopefully agreed on between the employer and the union. I recently saw a statistic that only 44 percent of the time that a union is voted in are they successful in reaching a contract with the employer. When a contract cannot be finalized it is said, in the labor relations world, the sides “are at impasse.” This can be a frustrating time for both employers and the bargaining unit.

The Employee Free Choice Act attempts to address this difficulty by requiring binding arbitration within 120 days after a card-check process if the employees and the union are unable to agree on a first contract. Binding arbitration means an unbiased mediator comes into the negotiation and decides if there will be a contract. Both sides are bound by the decision and the impasse ends.

Other EFCA Restrictions and Employer Rights

Besides eliminating the election and enacting binding arbitration, the EFCA makes some other changes, such as the following:

  • Restricts employer communications during a campaign to unionize.
  • Increases penalties to employers who discriminate against pro-union employees during a campaign. These penalties may include back pay plus an additional amount, called liquidated damages.

For now, the rules governing union organizing come from the NLRA. The NLRA does the following:

  • Gives employers the right of free speech on matters affecting the operation of the business.
  • Prohibits employers from watching or keeping tabs on employees regarding their involvement with organizing union campaigns.
  • Charges employers or union organizers with unfair labor practice if either side breaks regulations. The NLRA court decides what should be done to fix it.
  • Says that an employer’s expression of views, arguments, or opinion is not an unfair labor practice, as long as they do not contain a threat of reprisal or a promise of benefit.


Labor law is complicated and fascinating. This short summary is meant to give you a starter-kit of knowledge on the Employee Fair Choice Act as it stands right now. Legislation can change significantly as it moves through the process of review and debate in Congress. EFCA provisions may change in the future. You can use this information as a place to begin learning more about labor relations, generally, and about this act specifically.

Regards,

Joe Gross
HR & Policy Solutions, PLLC

Note: Even though I have worked with employment laws for over 20 years, I am not a lawyer. Nothing in this blog post should be taken as legal advice or interpretation of laws.

Sources: Gilbert Law Summaries- Labor Law by Robert J. Gelhaus and James Oldham; SHRM HR Public Policy Update for April/May 2009; Washington Employers Face Double-Whammy This Year: Dramatic Labor Law Changes Pushed in Legislature, Congress, Kris Tefft, General Counsel and Government Affaris Director for the Association of Washington Business, Washington Business Magazine, Spring 2009; The 2008 Employment Law Guide: A Practical Guide for Washington Employers by Dorsey & Whitney, LLP Labor and Employment Practice Group.

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