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The 'Revised' Employee Free Choice Act

By Michael Pepperman

Over the past several months, behind-the-scenes “legislative wrangling” has led to several proposed modifications to the poorly titled Employee Free Choice Act (“EFCA”), a bill currently pending in both the House and Senate. These modifications apparently will result in the elimination from EFCA of the “undemocratic” provisions concerning card check (as the sole way to determine if employees want a union) and the restoration of secret ballot elections as the primary means of determining if employees desire union representation. In doing so, however, legislators will likely modify the bill by significantly shortening the period in which elections are held after a union requests an election (from the traditional 42 days to approximately 10 days). The rationale behind such a move is that while card checks obviate traditional democratic principles, shortened periods for union elections will permit unions to operate stealthily and curtail management's options for presenting its own case of why workers should not join unions. It is obvious that the significantly shortened election period is intended to increase the current success rate of union organizing efforts.

The revised version of EFCA will still provide for huge fines (up to $20,000 per violation) for any employer that violates the National Labor Relations Act (NLRA) during an organizing drive or during negotiations for a first contract. EFCA also will continue to mandate binding arbitration for those items that management and the union cannot agree upon in negotiating that first contract. In effect, government arbitrators will impose a labor relations contract on companies that cannot reach agreement with new unions.

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