Employment Free
Choice Act
Robert K. Robinson, PhD, SPHR
Sam Causley, PhD
Dave L. Nichols, PhD, CPA
The University of Mississippi
Overview

On the House passed H.R. 800 (the
Employee Free Choice Act) with a vote of
241 to 185.

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99% of House Democrats voted for the bill.
94% of House Republicans voted against it.
On June 26, 2007 the Senate voted 51 to
48 to invoke cloture on the motion to
consider S. 1041 (the Senate version of
the bill (9 votes short of the 60 votes
needed), thus killing the bill for 2007.
Overview

With a Democrat majority in both houses
of Congress and a Democrat in the White
House, the Employee Free Choice Act
EFCA enactment appears inevitable.
Employee Free Choice Act
(EFCA)

EFCA is a major amendment to the
National Labor Relations Act which will

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Radically change the union certification
process.
Impose major changes in the CBA
negotiations process.
Increase fines and liquidated damages for
ULPs by management.
Both will have a major impact on private
sector organizations operating in the
United States.
Authorization Card Campaign


A Union Authorization Card is a card that
authorizes the Union to negotiate with an
employer over your wages, hours and other
conditions of work.
Under current law, signing a union authorization
card does NOT obligate an employee to vote for
the union in a certification election.
Authorization Card
Current State of the
Representation process


Showing of interest – the percentage of
a proposed bargaining unit who sign
authorization cards
Currently the union have a minimum of
30% to file for certification.
Unions generally look for 60-70%.
 Certification process stops dead for 12 months if
the union cannot get 30% within 30 days [in most
cases].


Must have a simple majority (50%+1) if to
seek recognition.
Recognition

A.k.a., Card Check. If more than 50% (a
simple majority) of a proposed bargaining
unit sign authorization card, an employer
may voluntarily chose to forego a
representation campaign and election and
recognize the union as the bargaining
agent for his/her employees.

Must be >50% or both the employer and the
union commit a ULP.
Certification

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Under §9, the union must get at least a 30%
showing of interest.
File a certification petition in a timely manner
(typically 30 days).
Employer may consent to an election, or
contest the petition in a formal hearing.
NLRB will set an election date.
Both parties will campaign.
The outcome is determined a simple majority
of the ballots cast in a secret ballot election.
Current Representation Process
Authorization Card Campaign
Recognition
[a.k.a., Card Check]
Certification
[30%]
File Recognition
Petition
File Certification
Petition
Consent Election
Decree
Collective Bargaining
Begins
Formal Election
Hearing
Represenatation Election
Change In the Recognition
Process

EFCA proposes to change the recognition
process by:
(1)
(2)

Having the NLRB certify any union receiving
a showing of interest greater than 50%
during the authorization card campaign.
Situations in which the union receives less
than a majority showing of interest will be
resolved by an secret ballot election.
In effect, all organization efforts begin as
a card check.
EFCA Representation Process if
Showing of Interest is <50%
Authorization Card Campaign
Certification
[30%]
File Certification
Petition
Consent Election
Decree
Formal Election
Hearing
Representation Election
NLRB Bargaining Order
EFCA Representation Process if
Showing of Interest is >50%
Authorization Card Campaign
File Certification
Petition
Formal Election
Hearing
NLRB Issues Bargaining
Order
Bargaining Orders

Under the EFCA unions can demand that
employers begin CBA negotiation within
10 days of certification.
Interest Arbitration for the
Private Sector

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If an impasse cannot be reovled within 90
days, either party can request mediation
from the FMCS.
If mediation fails to resolve the impasse
within 30 days, the EFCA provides for
binding interest arbitration.
If the contract is decided by arbitration,
the bargaining unit does not ratify the
CBA.
Time frames

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10 days following certification: Bargaining
order.
90 days after impasses: mediation
30 after mediation fails: interest
arbitration.
Increased Civil Penalties for
ULPs
Penalties for §8a(3) violations during
organizing campaigns

Current
Back pay less wages
earned when hired by
another employer

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EFCA
Three time back pay
(back pay plus
liquidated damages to
two times back pay)
Fines not to exceed
$20,000 per each
willful and repeated
violation