The day unions have been anticipating – and businesses have been dreading – has arrived. The Employee Free Choice Act (EFCA) was formally introduced in the 111th Congress today in both the House and Senate, although with noticeably fewer co-sponsors this time around. The Senate bill, sponsored by Senators Tom Harkin (D-Iowa) and Ted Kennedy (D-Mass.), was introduced with 40 co-sponsors, compared to 46 in 2007. In the House, Rep. George Miller (D-Calif.) introduced a companion bill with 223 co-sponsors, 7 fewer than when the bill was originally introduced last session. The discrepancy is compounded by the fact that Democrats gained seats in both houses in the past election, and may be a harbinger of the fight to come.

The version of EFCA introduced today is believed to be identical to that introduced in the 110th Congress two years ago. The most contentious aspect of this bill is the “card check” provision, which enables the National Labor Relations Board to certify a union as the employees’ exclusive bargaining representative based on signed authorization cards only. No longer will a secret ballot election be required. Republican lawmakers had introduced legislation in both the House and Senate recently attempting to preserve the employees’ right to a secret ballot election.  Last week, a Democratic lawmaker introduced a modified version of EFCA called the National Labor Relations Modernization Act (H.R. 1355) which, while similar, did not include the card check provisions contained in EFCA. The introduction of the Secret Ballot Protection Act (S. 478; H.R. 1176) is what may have spurred the introduction of EFCA earlier this session than what had until recently been anticipated.

The mandatory binding arbitration provision in the event a first contract cannot be reached has not been as widely publicized as the card check provisions, but is equally – if not more – controversial. Also included in the bill are tougher sanctions against employers if they are found to be in violation of the National Labor Relations Act (NLRA).

As expected, EFCA will be considered in the Senate first, as support there is more tenuous. While many conservative Democratic lawmakers in the House have begun to voice their opposition to EFCA, its passage in the lower chamber is virtually guaranteed. It is more questionable whether EFCA in its current, un-amended form, will be able to obtain sufficient backing in the Senate. Recently, Sen. Claire McCaskill (D-Mo.) acknowledged that there may not be enough votes to invoke cloture and avoid a filibuster. Given the focus on the economy and the lack of overwhelming support, EFCA is not expected to sail through Congress as organized labor had predicted following the 2008 election, basking in the glow of the Democratic gains in both Houses of Congress and the White House. However, when introducing this legislation, Sen. Harkin claimed that there is no erosion of support among Democrats for EFCA, and that “[b]y the time we bring it up, we’ll have our 60 votes.” Time will tell.

For a more in-depth analysis of EFCA, see the Littler Report: The Employee Free Choice Act: A Critical Analysis.