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EFCA: Controversial Card Check Provision Dropped

July 17, 2009
Labor and Employment Advisory

The New York Times reported late yesterday that Senate Democrats sponsoring labor law reform legislation known as the "Employee Free Choice Act" have agreed to drop the "card check" portion of that proposed legislation.

The EFCA had proposed to change the existing National Labor Relations Act to allow unions to become the collective bargaining representative of employees simply by submitting "authorization cards" signed by a majority of an employer's employees. That proposal marked a substantial change from the law as it currently exists, in which most employees select or reject union representation by voting in a secret ballot election conducted by the National Labor Relations Board.

The EFCA's "card check" provision had been highly controversial, with labor leaders arguing that it was necessary to curb perceived employer abuses of the election process and employer groups objecting to the removal of the secret ballot process as undemocratic and subject to abuse by union organizers. The decision of EFCA's Democratic sponsors to withdraw the card check provision appears to be the result of reluctance by more moderate Democratic senators to support the bill as originally written (it appears that EFCA's other proposed components - including mandatory interest arbitration for first contracts and enhanced penalties for employer violations of the National Labor Relations Act - are unaffected by this political calculation).

For now, it appears that the secret ballot election will survive – at least in some form. However, this development does not represent total victory for employers. EFCA's supporters have indicated that the card check proposal will likely be replaced by other proposed amendments including, potentially, a "quickie" election regime in which elections are held just five to ten days after the filing of an election petition with the NLRB. Other potential proposals that could replace card check include restrictions on an employer's ability to require employee attendance at meetings during which an employer's opposition to unionization is discussed and/or a provision requiring employers to allow union organizers on company premises.

Obviously, the debate over the Employee Free Choice Act bears watching by any employer wishing to stay union-free. Labor law reform will remain an evolving legislative issue.

If you have questions about the Employee Free Choice Act, or if you are an employer concerned about union organizing initiatives, the attorneys of Varnum's Labor and Employment Group stand ready to assist.

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