Professional Service Agreement

Employee Free Choice Act Update

September 18, 2009

Activity concerning the Employee Free Choice Act (EFCA), better known as card-check legislation, appears to be heating up again in Congress, and this is not good news for the nation's employers. The continuing debate on health care reform has put EFCA on the sidelines, but only temporarily.

EFCA would allow workers to form unions when a majority of them sign cards authorizing a union. Under current law, companies can demand secret-ballot elections run by the National Labor Relations Board. Another controversial provision would impose binding arbitration on the employer if an agreement on a first contract is not reached within 120 days.

Opponents of the bill state the legislation would effectively eliminate secret-ballot union elections, subject workers to coercion by union bosses, and drive up labor costs for companies struggling to cope with the recession. These concerns about the EFCA, particularly the elimination of the secret-ballot election, have persuaded several Senate Democrats to resist the bill, and there have been negotiations over a compromise.

In a September 15, 2009 speech at the AFL-CIO convention, Senator Arlen Specter predicted a compromise version of the bill "which will meet labor's objectives" will be passed in Congress this year. Specter's assurance was a reversal from his stance earlier this year, when he declared on the Senate floor that he could not vote for the Employee Free Choice Act. Since then, Specter has switched from the Republican to the Democrat Party, giving the Democrats a 60-vote majority in the Senate.

Although details of a compromise bill have not been released, it is likely to drop the controversial provision that would give employees the right to form unions by signing cards instead of holding a secret-ballot election. However, Specter indicated that the revised bill would speed up the process for holding secret-ballot elections. Currently, a campaign for a union election may last up to 45 days after a petition for an election has been certified. It is rumored that the new bill would require the election be held after only 5 or 10 days from receiving a petition greatly shorting the time management has to run an effective communications campaign. This is critical as when management has time to communicate the facts of unionizing they likely win. The union wants to take away from management the opportunity to effectively communicate with employees thereby greatly increasing the chance of a union win..

Also, the requirement of binding arbitration is expected to remain in any compromise bill. The bill would require federal arbitration should the company and union not be able to negotiate a 1st contract. This measure could be devastating to a company in that a federal arbitrator would be establishing wages rates, benefits and working conditions for the company and its employees.

With or without the card-check provision, the EFCA is not good news for employers. The business community has vowed to keep up the fight against the EFCA. Kevin Smith of the National Association of Manufacturers stated, "We are going to aggressively engage on this issue as Congress returns to urge opposition to this job-killing legislation in any form."

Just like last year, there are more than enough votes in the House of Representatives to support the EFCA. Any hope of defeating the bill would have to come in the Senate. Therefore, we urge you to contact your Senators and urge opposition to this bill. You may call or write your Senators or contact them at

SESCO has prepared an important manual to include background information on the Employee Free Choice Act. Order "How to Prevent and Combat Unionization Successfully" from our online store or by calling SESCO at 423-764-4127. If you feel that you need to take steps now, as we strongly suggest, please contact SESCO to develop a proactive strategy to address any workplace vulnerability issues that a union salt or organizer could exploit.