What Does the Employee Free Choice Act Mean for Employers?

Fast Politics: Latest News on the Employee Free Choice Act

Labor union membership numbers have changed in the last few decades and so have the union’s political efforts. As an HR professional, it’s important that you stay up-to-date on union activities since these politics can affect your company’s bottom line.

The two different, but linked, pieces of legislation to learn about and prepare for are the Employee Free Choice Act (EFCA) and the Re-Employment of Skilled and Professional Employees and Construction Tradeworkers Act (RESPECT Act).

The Latest Union Statistics

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Union membership in the private sector has dropped below 8 percent – a historic low. However, unions won 66.8 percent of representation elections conducted by the National Labor Relations Board in 2008, which, according to the NLRB, is the highest win rate since 1955 when unions won 67.6 percent of the elections. This statistic is inconvenient, perhaps, for proponents of the Employee Free Choice Act, who argue the new law is necessary because unions cannot win elections due to employer interference. The union win rate in 2007 was a mere 60.4 percent in 2007.

Despite organized labor’s recent win rates, they have invested both political and economic capital in calling for labor law reform. At the top of their list are the two proposed pieces of federal legislation mentioned above: the EFCA and the RESPECT Act.

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Arguably, labor’s skillful approach to labor law reform is demonstrative of politics and bargaining at their best. You have to pay attention to keep up with all of the political efforts happening lately. Let’s get up to speed.

What Is the Employee Free Choice Act (EFCA)?

At the top of labor’s wish list is the EFCA, a bill that would drastically alter seven decades of statutory federal labor law governing the representation rights of employees in the work place.

A bipartisan piece of legislation, the EFCA was originally introduced by Senator Edward Kennedy (D-Mass.) and Reps. George Miller (D-CA) and Peter King (R-N.Y.). On March 1, 2007, the EFCA passed the U. S. House of Representatives, by a vote of 241-185. The EFCA gained majority support in the U.S. Senate but was blocked by a Republican filibuster.
In its original format, the EFCA, also known as the “card check” bill, would have changed three fundamental sections of the National Labor Relations Act (NLRA), accomplishing the following:

  • Provide for the elimination of NLRB-supervised secret ballot elections in favor of card checks.
  • Change the rules of collective bargaining and impose mandatory “interest arbitration” on parties that fail to reach a first time agreement.
  • Strengthen penalties against employers who commit unfair labor practices.

What Is the Re-Employment of Skilled and Professional Employees and Construction Tradeworkers Act (RESPECT Act)?

The RESPECT Act is an effort to more narrowly define the scope of individuals who would be classified as “supervisors” under the NLRA. If passed, this legislation would substantially reduce the number of employees considered supervisory, thereby increasing the number of employees eligible for union representation.

What Is the Very Latest News on the Employee Free Choice Act?

The big news coming out of Capitol Hill these days is that the “card check” provision has been dropped. Seen as a major stumbling block for passage, but also viewed as a bargaining chip to be used by organized labor to assure eventual reform, the “card check” segment was eliminated in favor of the following:

  • Quick elections in 5 to 10 days after 30 percent of workers sign cards indicating their support for a union.
  • Union access to employers’ property.
  • The elimination of “captive audience” speeches.

Mandatory arbitration remains, and seemingly is, the legislation’s most important component. Why? Because it mandates an initial labor agreement and changes the landscape and education piece of union campaigns.

At greatest risk from this legislation are employers with multiple facilities. Unions could organize one facility, obtain a first labor agreement though the arbitration process and use that contract as an organizing tool at other locations.

It has been my opinion that organized labor has always measured success by attaining reform that includes the following:

  • The creation of a fair and direct path for workers to form and join unions.
  • The imposition of real penalties to those employers who violate the law.
  • Guaranteed first time labor agreements in a reasonable period of time.

Clearly, the revised version of EFCA meets those three metrics.

What Does the Employee Free Choice Act Mean for Employers?

Given the current economic downturn, most employers are under financial strain and feel increased pressure to avoid wasting time and money. Those employers that take a wait-and-see approach before this legislation passes could find that they’re acting too late. In the meantime, unions are advancing their organizing efforts and anticipating the passage of both bills.

What should employers be doing if they haven’t done so already?

  • Educate senior leadership about the consequences of EFCA and RESPECT Act passage.
  • Build and communicate a pro-employee track record.
  • Review your key policies.
  • Conduct vulnerability assessments.
  • Review your pay and benefits programs to ensure you are competitive.
  • Conduct third party avoidance training with your supervisors.
  • Address the RESPECT Act by reviewing job descriptions for your supervisors and compare those desciptions to the work they actually perform.

Following these recommendations will benefit you regardless of the outcome of the proposed legislation. In other words, by developing plans to address these issues you will improve upon your employee relations, position yourselves to avoid card-signing regardless, and eliminate the disruption that leads to costly litigation, morale problems, and poor productivity.


Steve Cibull

The Cibull Group

Guest Blogger Bio: Steve Cibull is the Principal of the Cibull Group, an HR consulting firm based in southern California. Mr. Cibull has over 27 years of HR experience in talent acquisition, human capital enhancement programs and labor and employee relations. His corporate experience includes working with many leading companies, including Lucas Aerospace/TRW, Republic Services, Inc., Coca Cola Enterprises. Mr. Cibull earned his Bachelor of Arts degree in Economics from Indiana University’s Bloomington campus and a J.D. from the Widener University School of Law, located in Wilmington, Delaware.

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