According to Union proponents, the biggest obstacle to a modern organizing campaign is management delay tactics. In a traditional organizing campaign, union representatives meet with bargaining unit employees (i.e. all the mechanics at a car dealership) and talk with them about union representation. The union then attempts to secure signed authorization cards from the employees. If the union can show that a majority of the employees in the bargaining unit favor union recognition, the employer may voluntarily forego an election and recognize the union. If, however, the employer refuses or the card-check process generates at least 30%, but not majority, employee support, the union may petition the NLRB for a secret ballot election administered by the NLRB. Unions plead for majority card-check rules because they claim that employees suffer at the hands of underhanded management tactics during traditional Board elections. “These delays make it too easy for employers to intimidate and coerce workers, including by dismissing them for organizing. And this in turn diminishes employee interest in unions and thus undercuts the right to collective bargaining they are supposed to enjoy.” However, unions still have the same success rate in traditional elections (approximately 60%) as they did in 1965.

Organized Labor’s pleas were answered when the Employee Free Choice Act (EFCA), which was co-sponsored by then Senator Barack Obama, was introduced. Under the EFCA, unions would no longer have to go through the NLRB traditional election process to gain recognition. Instead, a union must obtain signed authorization cards from a majority of employees in the bargaining unit. Additionally, the EFCA would invoke binding interest arbitration if labor and management cannot agree upon the first contract within nine months. Once in arbitration, a government appointed arbitrator would decide the parties’ obligations in the first contract. Because of the results of the November 2008 national elections, we are likely to see some sort of change in 2009. Barack Obama promised to sign EFCA. Should the EFCA pass, unions estimate that they will be able to organize millions of new workers. Below are some of the more notable features of the EFCA in detail:

 a. Card Check

Instead of a traditional election process, Labor will be able to conduct a card check campaign. Under the EFCA, if the NLRB “finds that a majority of the employees . . . has signed valid authorizations . . . the Board shall not direct an election but shall certify the individual or labor organization as the representative. . . .” Under the current version of the EFCA, signed authorization cards never expire. This means union organizers can take months, and even years, to collect signed cards.

b. Mandatory Arbitration

Experts in the Labor law field often view the first contract as the most important negotiation of the bargaining relationship. The first contract sets the tone because many of the negotiated terms are apt to remain unchanged throughout the years (For example, look at the relationship between the United Auto Workers and the Big Three automakers.) The EFCA fast tracks this delicate process, requiring the parties to begin collective bargaining within 10 days of a certified union’s request. If, after 90 days of bargaining, the parties fail to reach agreement, either party may demand mediation with the Federal Mediation and Conciliation Service (“FMCS”). If, after 30 days, the parties still have not reached an agreement, FMCS must “refer the dispute to an arbitration board” to be “established in accordance with” FMCS regulations. Thereafter, the arbitration panel “shall render a decision settling the dispute,” which “shall be binding upon the parties for a period of 2 years, unless amended during such period by written consent of the parties.” The EFCA does not grant either party the right to appeal the arbitrator’s decision and it fails to provide any standards for the arbitrator to apply.

c. Employer Penalties

In its current form, the EFCA will stiffen sanctions against employers, but not unions, for NLRA violations committed during organizing campaigns and first contract negotiations. For example, section 4(a) of the EFCA requires the NLRB to request an injunction against an employer if there is reasonable cause to believe that an employee was discharged, threatened, or otherwise discriminated against employees while they were “seeking representation by a labor organization or during the period after a labor organization was recognized . . . until the first collective bargaining agreement” is reached. Section 4(b) also increases the amount of back pay and civil fines ($20,000 per occurrence) that can be recovered by an effected employee.