Background: In March 2009, Sen. Kennedy (D-MA) and Rep. Miller (D-CA) reintroduced the Employee Free Choice Act (H.R. 1409/S. 560) which would undo seventy years of settled labor law. The legislation would allow unions to sidestep employees' current right to vote in a private, federal government-supervised election in organizing campaigns. Under the Employee Free Choice Act (EFCA), unions would be guaranteed the right to represent workers by the National Labor Relations Board if they collected signed authorization cards from fifty percent plus one of employees in a bargaining jurisdiction -- a process known as "card check" -- during a union organizing effort.

After gaining certification, the union and employer would have 90 days to agree on a contract governing all terms of employment conditions. If an agreement could not be reached during this time period, negotiations would be referred to a government mediation agency. Finally, if 30 days of mediation failed to bring about an agreement between union and management, an arbitrator would step in and establish a mandatory two-year contract that would be binding on both labor and management.

Concerns that the Senate will not be able to obtain the sixty votes needed to stop debate and vote on EFCA have prompted several lawmakers to begin searching for alternatives to the bill.
Possible variations include:

• The “mail-in” ballot – referred to as “postcard check.” This option means that a union organizer would hand out cards, which employees would sign and mail to the NLRB. Problems with this option include:
• it’s basically card check, the only difference is the cards are mailed
• historically, mail-in ballots have a much lower participation percentage
• the process and options are harder for everyone to understand
• if the issue with the current process is the speed in getting an election, this will make it worse – the delay in mail-in ballots is legendary.
• “Last, Best Offer” – This is a mandated government arbitration. 130 days from certification, the union requests an arbiter to come into the process. This arbiter would pick either a union’s proposed offer, or the employer’s. There are no compromises; it is one or the other. This is a big gamble for unions, but in this case, they would have nothing to lose. They would be likely to sweeten the first offer, and then really dig in after they had started collecting dues.

Impact: As a small manufacturer in a non-union shop, you could leave work on a Friday afternoon and return on a Monday morning to find that your workers have organized and formed a union if the EFCA were to become law. Furthermore, this bill would mandate binding arbitration on first contracts if an agreement cannot be reached within 120 days. A government arbiter will essentially be determining your business’s profit margins.

Outlook: Congressional leaders have indicated they will move on card check legislation (H.R. 1409/S. 560) sometime this summer. The different variations of the bill are being passed around in an effort to gather support among Senators who had previously been on the fence. After the Minnesota Senate race is resolved, we are likely to see swift action.

For more information, contact Stephanie Salmon, Metalcasting Industry Government Affairs Washington Office, at 202/842-4864 or ss@wafed.com.

To download sample EFCA letters for the U.S. Congress and the U.S. House of Representatives, click on the appropriate link below.

Sample EFCA U.S. House of Representatives Letter
Sample EFCA U.S. Senate Letter