The Employee Free Choice Act: The Unanswered Questions

Saturday, November 1, 2008 - 01:00

The debate surrounding the Employee Free Choice Act (EFCA) has focused on the act's most headline-inducing provision - the elimination of secret-ballot elections in determining union representation. The political and philosophical debate about the propriety of eliminating a process that allows employees to make a decision about unionization in a neutral and anonymous environment, free from coercion and intimidation, rightly has been at the forefront of the discussion. However, with Sen. Obama vowing that as president, he would sign the legislation into law, it is time to pay attention to EFCA's other provisions, which are equally groundbreaking and troublesome, as well as the practical issues raised by moving to a system of card-recognition. Indeed, there are many questions that are raised by EFCA that have yet to be considered, let alone answered, in the context of what would be a radically different environment for union organizing and labor-management relations in a post-EFCA world. This article will attempt to identify some of those questions, most of which only serve to highlight the problems endemic to EFCA.

A Brief Overview Of EFCA

On March 1, 2007, the House of Representatives passed EFCA, 241 to 185. In June 2007, a majority of the Senate indicated support for EFCA. As a result of procedural maneuvers by senators opposing the legislation, however, EFCA never was sent to the full Senate for a vote. Given the likelihood that a new presidential administration would support EFCA, many observers believe that a version of the act will pass in 2009.

It is not an exaggeration to say that EFCA would dramatically alter the landscape of labor-management relations in the United States. First, EFCA requires that the National Labor Relations Board (NLRB) certify a union as a bargaining representative based merely upon the fact that a majority of the employees in the proposed bargaining unit signed cards indicating their support for a union. Under the current process for certifying unions as bargaining representatives, the NLRB conducts a secret-ballot election for bargaining-unit employees after a union files a petition. Clearly, movement away from secret-ballot elections toward the use of union-recognition cards may expose employees to having to decide whether to support a union in the face of bullying or other coercive tactics by union supporters.

Second, EFCA establishes a 120-day period for the parties to reach an initial collective bargaining agreement. That period includes 90 days for bargaining between the parties, followed by a 30-day mediation period. If, after the 30 days, the parties have not reached an agreement, the Federal Mediation and Conciliation Service then refers the matter to an arbitration board to establish the terms for the initial collective bargaining agreement through binding interest arbitration. Currently, there is no such requirement of binding interest arbitration and the parties must reach agreement on an initial contract through collective bargaining. Thus, EFCA would require employers to live with contracts established by an arbitrator, who is unlikely to be familiar with their respective business or industry. Clearly, the interest arbitration process would result in deals for unions more favorable than what they would be able to achieve through collective bargaining.

Finally, EFCA carries stronger penalties for certain violations of the National Labor Relations Act (NLRA), including back-pay damages and civil penalties for offenses such as unlawful discrimination and bad-faith bargaining.

In short, the passage of EFCA would significantly shift the balance of power in union-organizing campaigns and first-contract negotiations away from neutrality and in favor of unions.

Some Unanswered Questions

There has been scant discussion about EFCA's introduction of interest arbitration to private-sector employers and how EFCA's groundbreaking provisions would be integrated into the NLRB regulation of union-organizing campaigns. Consider the following questions left unanswered by EFCA:

1. How Closely Will The NLRB Regulate Cards And Card-Signing?

Given the use of union cards in the current NLRB representation process - to establish the requisite 30 percent support for filing a union representation petition - the NLRB has traditionally taken a hands-off approach with respect to their regulation. Employers are not allowed to inspect cards, and the NLRB does not generally allow employers to litigate at a representation hearing issues such as fraud, forgery, or coercion in the union's obtaining of cards. The NLRB also generally does not invalidate cards on the basis of timeliness so long as the cards were signed during the current organizing campaign.

A hands-off approach towards the timeliness and manner in which cards have been obtained makes sense in a system in which cards do not determine the final result. However, when the signing of cards is the whole ballgame - as it is with EFCA - the NLRB cannot continue to cast a blind eye toward card abuses. Moreover, how can a six-month-old card, or a month-old card for that matter, be viewed as a current expression of an employee's interest in union representation? Feelings change about unions, particularly when there is not a union organizer blocking an employee's car in his driveway and asking the employee to sign a card so that he can leave his house. Will the NLRB continue to keep its distance from card abuses and timing questions in an EFCA world?

2. What Is The "Laboratory Conditions" Period For Purposes Of A Card Campaign?

The NLRB generally requires that there be "laboratory conditions" during union representation campaigns. Such a requirement is important so that employees can express their true desires about unionization free of threats and coercion. To support the "laboratory conditions" necessary for a fair election, employers are generally prohibited from changing the terms and conditions of employment for bargaining-unit employees during a campaign. The NLRB is particularly stringent about violations of the "laboratory conditions" period with respect to abuses that take place immediately before or during the voting period.

This concept encounters problems with EFCA because there are potentially no starting or stopping points for union campaigns. Will an employer be expected to maintain the status quo indefinitely once a few cards have been signed? How will the NLRB establish notice of a card-signing campaign in the absence of a petition? Will the NLRB strictly apply the "laboratory conditions" standard to the behavior of union representatives obtaining cards? Will the current NLRB scheme of regulating campaign conduct be scrapped once we enter the realm of the never-ending union campaign? These questions simply must be dealt with if there is any hope of a fair and rational NLRB-representation process in an EFCA world.

3. What Would The Process Be For A Decertification Campaign?

EFCA is silent on the process for decertifying a union as the representative of employees. Surely, unions cannot promote the replacement of secret-ballot elections when it comes to representation elections while also advocating those same purportedly faulty secret-ballot elections for decertification campaigns. Would decertification be ordered based purely on an employee petition signed by more than 50 percent of the bargaining unit? Would the NLRB develop a sample decertification card for employees' use in such a campaign? Why should it be harder to get rid of a union than it is to get one?

4. Would Employers Have A Right To Appeal Unfavorable Interest Arbitration Decisions?

EFCA provides nothing about an employer's (or union's) right to appeal an interest arbitration decision that it believes is unreasonable or economically infeasible. If there is a right to appeal interest arbitration awards (and there is nothing in the proposed legislation to suggest that there is), what court or agency would hear it? What standards would be used to consider such an appeal? Is there any way to obtain relief from an untenable and burdensome interest arbitration award?

5. Do Employees Have The Right To Strike During Interest Arbitration Proceedings?

Most public-sector employees who fall under interest arbitration laws, such as police officers and firefighters, do not have the right to strike. EFCA is silent on employees' right to strike while an interest arbitration proceeding is pending. Would employees have the right to strike while participating in an interest arbitration proceeding? How can arbitrators calmly and rationally decide what a first contract should be while employees are on strike?


The questions set forth above are just the tip of the iceberg when it comes to analyzing all the problems and concerns raised by EFCA. Employers must be prepared for the challenges to come if EFCA becomes the law. Supervisors and employees must be educated as to the meaning and legal effect signing a union card would have in an EFCA world. Employer policies in such areas as nonsolicitation and trespassing should be reviewed and tightened. Good employee relations practices should be implemented, reviewed, and paid attention to on a regular basis. Should EFCA become law, union organizing and labor-management relations would be played out on a field much different from today's. Employers must be prepared to deal with it.

Daniel V. Johns is a Partner in the Litigation Department of Ballard Spahr Andrews & Ingersoll, LLP and a Member of the Labor, Employment & Immigration Group, the Higher Education Industry Group and the Health Care Group. His practice includes the representation of employers and management in a wide variety of labor and employment issues.

Please email the author at with questions about this article.