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One of the most discussed pieces of legislation in Washington D.C. this past year has been the Employee Free Choice Act (EFCA). In brief, this legislation would do away with the traditional practice of allowing employees to decide by secret ballot election whether they wish to be represented by a union. Instead, a union could attain representative status merely by persuading a majority of the employees to sign authorization cards indicating their desire to unionize. All of this could occur "below the radar," leaving the employer no opportunity to educate the employees regarding the benefits of remaining union free. Worse still, once a union achieved representative status via this "card check" method, the proposed law would require the employer to immediately begin bargaining with the union to establish a labor contract setting forth the terms and conditions of employment. If the employer and the union failed to reach an agreement within a few months, arbitrators could decide the terms of the agreement and force it upon the employer for at least two years. Needless to say, the EFCA would be a dreadful blow to employer independence and fundamental free market principles.

On March 1, 2007, the House of Representatives passed the EFCA by a vote of 241 to 185. On June 26, 2007, Senate Republicans blocked the bill as Democrats mustered only 51 of the 60 votes needed to force a vote on the bill. The outcome was not a surprise, with Senate Minority Leader Mitch McConnell fulfilling his promise to stop the legislation in the Senate. President Bush also made it clear that if the bill had passed Congress, he would have vetoed it.

While the Democrats lacked the votes needed to force the EFCA through in this session of Congress, it is widely speculated that they will hold 56 or 57 seats in the Senate following this Fall's elections, and a few races will decide whether the Democrats can attain a filibuster-proof supermajority. Moreover, Senator Obama has pledged his full support of the EFCA if elected President.

If enacted, the EFCA would create numerous significant problems for employers, including, for example: (1) making it much easier for workers to unionize, by abolishing the secret ballot; (2) preemptively depriving employers of the opportunity to effectively present their case to employees; (3) allowing the first labor agreement to be decided by arbitration rather than negotiation; and (4) imposing stiff penalties for unfair labor practices committed by employers during a union organizing campaign, with no corresponding penalties for violations by unions. These are but a few of the EFCA's list of horrors for employers. In sum, this is one of the biggest pieces of labor legislation in recent history and has the potential to have an enormously negative impact on American employers and the economy in general.

If the Democrats gain seats in Congress and/or Senator Obama becomes President of the United States, it is likely that the EFCA or something very similar will be enacted in 2009. If and when that happens, many employers are likely to discover that it is already too late to take steps to avoid unionization. Employers who hope to avoid unionization should begin taking action now to convince their employees that they do not need a union. Don't be the first on your block to fall victim to the EFCA.

If you have any questions regarding this, or any other legal issue, please feel free to contact a member of Greenebaum's Labor and Employment Practice Group. Click here for a complete roster.

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