Three weeks after the November 4 elections, two United States Senate seats remain undecided, with a runoff election scheduled for December 2 in Georgia and a recount ongoing in Minnesota. Accordingly, the Employee Free Choice Act (EFCA) similarly remains in limbo. Democrats are currently scheduled to occupy 58 Senate seats in January and Republicans 40. The two undecided seats would provide Democrats the filibuster-proof majority of 60 needed to push through the Employee Free Choice Act.
How would EFCA impact the unionization process?
If enacted, EFCA would alter the unionization battleground in several key ways:
- By simply obtaining signed union authorization cards from a majority of potential members of a unit, a union would be granted certification as the representative for the entire group of employees.
- There would be no private ballot election, as required under current law.
- Employers would be obligated to prepare to begin collective bargaining within ten days.
- While these points have received most of the attention in the press, an even more egregious provision lurks in the background. If a collective bargaining agreement cannot be agreed upon after 120 days of negotiations, wage rates, insurance and retirement benefits, and other critical provisions would be subject to mandatory arbitration.
How would EFCA impact pending organizational drives?
Union authorization cards are valid for one year after execution. Unions that are currently in the midst of organizing businesses would be able to utilize cards already in hand toward the 50% majority that would be required under EFCA should it be enacted early in 2009.
President-elect Barack Obama has indicated his support for the Act, but Republicans have countered that they will solidly oppose such legislation, with filibustering the obvious procedural tactic. Should the two currently undecided Senate seats go to Democrats, their super majority could enable them to pass the legislation over Republican opposition. In the event there is no super majority, it remains to be seen whether a watered down version of the Act would be enacted or nothing at all. Stay tuned. In the meantime, I welcome your comments or questions about this issue and other labor or employment matters. Please feel free to contact me at gcummings@preti.com or 207-791-3000.