During a question and answer session held in Fairfax, Virginia on September 13, President Obama acknowledged the political reality that the Employee Free Choice Act’s (EFCA) (H.R. 1409, S. 560) prospect of passage this session “is not real high.” Obama claimed that EFCA, often referred to as the “card check” bill, “is in response to 20, 30 years where it’s become more and more difficult for unions to just get a fair election and have their employers actually negotiate with them” – ignoring substantial evidence to the contrary.  The President recognized, however, that “[f]rankly, we don’t have 60 votes in the Senate” to pass it. Given the current political trends leading up to this year’s mid-term Congressional elections, it seems unlikely that this situation will change in the foreseeable future.

While EFCA’s passage appears to be a lost cause for organized labor, those opposed to this bill have expressed concern about its possible advancement during the upcoming lame duck congressional session. Some senators who have opposed the bill in the past could change their minds if they will not be returning in January and therefore feel they have nothing to lose politically. However, the possibility of this occurring seems remote.

Another more likely possibility for keeping EFCA alive is to implement some of its provisions administratively in some form. During the Q&A session, Obama noted that his administration has tried “to do as much as we can administratively to make sure that it’s easier for unions to operate and that they’re not being placed at an unfair disadvantage.” These efforts include seating controversial labor scholar and union attorney Craig Becker (D) as a member of the National Labor Relations Board (NLRB) via recess appointment last Spring, as well as recent changes to the National Mediation Board election processes that make it easier for unions to win elections in the railway and airline industries. Becker is on record as believing that portions of EFCA can be imposed by the NLRB without legislation. Becker’s term will last until the end of 2011, unless the Senate confirms his nomination. It is believed that the President will soon resubmit his nomination back to the Senate.

Presently, the NLRB consists of Chair Wilma Liebman (D), Members Becker, Mark Pearce (D), and Brian Hayes (R). The fifth Board member, Peter Schaumber (R), left the NLRB after his term expired in August. As a result, theNLRB could institute a number of changes via Board decisions and/or rulemaking to effectuate the goals of some of EFCA’s provisions.

The most likely of these changes are modifications to the Board’s current election processes, which could result in greater win rates for unions through expedited elections and internet/electronic voting.  A major concern under EFCA was the ability of union organizers to obtain employee signatures on authorization cards, which could have been used to bypass the traditional secret-ballot election process. Under EFCA, through a procedure called a “card check”, the union would present the cards of a majority of employees to an employer who would have been required to recognize and bargain with that union as the representative of its employees. The two primary concerns about this proposed system were 1) employees would not have the benefit of an election period to become educated about the realities of unionization; and 2) the lack of a secret-ballot election could have led to possible issues such as coercion and intimidation of employees by union organizers pressuring them to sign cards.

The possibility of expedited elections and internet/electronic voting are causing many to have these same concerns. Depending on how short the election period is under an expedited election (some are suggesting it should be as little as 14 days), the practical effect will be to deny employees the opportunity to become fully educated about unionization so that they can make an informed decision. And historical data from the NLRB’s and NMB’s mail ballot election processes tell us that a change from a manual (in-person) ballot to a internet/electronic voting process will likely decrease voter participation significantly. Additionally, without the protection of the voting booth, the possibility of coercion and intimidation in the voting process increase. None of these changes would enhance the current process and would likely make it easier for unions to organize. These changes also do not seem necessary to protect employees’ rights under the NLRA to decide whether or not to unionize given that the win rate for unions in elections last year was a 25-year high of 68.5%.

The NLRB also will have the opportunity to explore mimicking other aspects of EFCA such as enhanced penalties for employer violations during the critical period leading up to an election as well as for employer misconduct and delay during the initial contract bargaining. Whether these changes will take place through NLRB directives, case law, or the Board’s seldom-used rulemaking authority remains an open question. However, there is little doubt that there will be pressure on the NLRB to achieve Obama’s stated goal “to make sure that it’s easier for unions to operate” before Becker’s recess appointment expires at the end of 2011.

Photo credit: Pinewood Portrait Studios