The Employee Free Choice Act: A Critical Analysis


This Littler Report analyzes the Employee Free Choice

Act of 2007 (EFCA). The EFCA was introduced in the 110th

United States Congress and passed the House of Representatives, but stalled in the Senate. The EFCA, if enacted, would result in the most sweeping changes to the National Labor Relations Act (NLRA) since the original Wagner Act was passed in 1935. It would amend the NLRA to: (1) require the National Labor Relations Board (NLRB or ?the Board?) to certify a labor union as the exclusive bargaining representative of employees through union authorization cards signed by employees, without the

benefit of a government-supervised, secret-ballot election;

(2) require mandatory interest arbitration if an employer and a newly certified union are unable to reach a first contract within a specified number of days; and (3) expand the NLRB?s remedial power for employer unfair labor practices during union organizing campaigns and during bargaining for first labor contracts, including the authority to award civil penalties.

Organized labor has publicly stated that one of its top priorities in the 111th Congress, which begins in January 2009, is passage of the EFCA. That stated objective, coupled with the election of a new President and members of Congress, lead to the inescapable conclusion that the EFCA will, in some form, be re-introduced in the next Congressional session. The election of a Democratic

majority in the House and Senate, and of Democratic Presidential Nominee, Senator Barack Obama (D IL), one of the co-sponsors of the EFCA in the Senate, would virtually guarantee passage of the EFCA, and signature by the President, in some form. It is, therefore, appropriate, at this particular juncture, to engage in a thoughtful and thorough analysis of the EFCA ? its practical and legal effects, and its impact upon the American worker and


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