What are the implications of the proposed Employee Free Choice Act (“EFCA”) and what can we do as employers to better prepare ourselves if this new measure is enacted into law?

The EFCA would significantly change federal law with regards to the rights of workers to unionize. The EFCA allows the union to be “certified” as the bargaining representative if a majority of employees sign authorization cards.

Under current law, after employees show an interest by signing authorization cards, a secret ballot election is held to allow employees to make an un-coerced decision regarding whether a union has majority support.

The elimination of secret ballot elections, ironically, gives the long-term care employee virtually no choice in making an informed decision as it does not practically afford employers to state their position.

The EFCA also requires employers to enter “binding arbitration” if they are unable to reach an initial contract after 90 days of negotiations.

In contrast, under current law, collective bargaining requires each party to bargain in good faith and incentivizes each side to come to an agreement. Neither party, however, is required to agree to any specific term or condition. Binding arbitration undermines the dynamics of collective bargaining as it currently exists.

Threats of a Senate filibuster and a presidential veto prevented EFCA's passage in 2008. Recently, Sen. Arlen Specter (R-PA) [and Sen. Blanche Lincoln (D-AR)] made a statement against the Act, and this is critical because EFCA proponents now lack the necessary votes to prevent a filibuster in the Senate. Although this is a temporary block to the Act's passage, the threat of EFCA will surely reoccur if it does not pass during this Congress.