President-elect Obama is an advocate of organized labor. He has expressly stated that passage of the Employee Free Choice Act (EFCA) is a top priority. EFCA is without a doubt the most controversial labor initiative facing his administration. Organized labor is pushing hard to put EFCA at the top of the agenda for the First 100 Days of the new administration, but with other pressing economic priorities, and with strong opposition from the business community, it remains to be seen if EFCA will get top billing. Rep. George Miller (D-CA), Chair of the House Education and Labor Committee, has already stated that EFCA will not be the first bill considered by his committee. Nevertheless, there is no doubt that EFCA will be debated sooner rather than later.

Obama was a co-sponsor in the Senate of EFCA, first introduced in 2007 (H.R. 800; S. 1041). The key – and most contentious – provisions of this legislation seek to amend the National Labor Relations Act (NLRA) by:

• Requiring the National Labor Relations Board (NLRB) to certify a labor union as the exclusive bargaining representative of employees based on the union submitting authorization cards signed by a majority of employees (“card check”), without employees voting in a government-supervised, secret-ballot election;
• Requiring binding interest arbitration to set the terms of a new contract if an employer and a newly certified union are unable to reach a first contract within a specified number of days; and
• Expanding the NLRB’s remedial power for employer unfair labor practices during union organizing campaigns and during bargaining for first labor contracts, including the authority to award civil penalties.

Whether and in what incarnation EFCA becomes law during the new administration will likely be determined by the ultimate composition of the Senate – the law is clear to pass in the House. Currently, Democrats maintain 58 seats (including two Independents who caucus with the Democrats), with one seat up for grabs. Moreover, the last time EFCA was up for consideration, Republican Senator Arlen Specter (Pa.) voted in favor of this legislation. Therefore, assuming all Democrats vote in favor of EFCA, or if some Republicans can be persuaded to permit a vote, it is possible that the Democrats could invoke cloture and prevent a Republican filibuster, enabling the Act’s passage. Despite heavy union pressure and publicity to enact EFCA, it is not a foregone conclusion that all Democratic senators will vote in its favor. Many representing states with small percentages of union members will face considerable pressure from their business constituents to deny EFCA’s passage, or to remove some of its teeth. The U.S. Chamber of Commerce and others are already ratcheting up efforts to galvanize the business community against EFCA. Fearing strong business opposition, unions may attempt to slip EFCA provisions into a second economic stimulus bill instead of a stand-alone piece of legislation. Also possible is a compromise bill, such as one where employees, but not the employer, could seek a secret ballot election during a limited time period after a union card check certification is done (which is something the NLRB will do now in limited circumstances involving voluntary card check situations).

The evolution of EFCA will be closely monitored and reported. Employers should act now to prepare for EFCA, including evaluating their union susceptibility, through audits conducted by knowledgeable counsel. For more information on EFCA and its implications in the workplace, see The Employee Free Choice Act: A Critical Analysis, and The Employee Free Choice Act: It’s More Than Just a Misleading Name.