James H. GilliamBrownWinick

666 Grand Avenue, Suite 2000Des Moines, IA 50309-2510

Telephone: 515-242-2446Facsimile: 515-323-8546

E-mail: gilliam@brownwinick.com

IOWA ASSOCIATION OF BUSINESS AND INDUSTRY

Employee Free Choice Act

What is the Employee Free Choice Act?

EFCA (also known as “Card check”) is a bill that would amend the National Labor

Relations Act and significantly change the process by which

unions are “certified” to represent employees

How do unions win certification under current

law?

Unions can be voluntarily recognized by the employer. If the employer refuses to do so,

certification can only be granted by the National Labor Relations

Board after it supervises a secret ballot election

How does the union demonstrate it has enough employee support to merit voluntary recognition or a

secret ballot election?

Unions typically organize employees by convincing employees to sign “union

authorization cards.” Once the union believes it has majority

support from the employees, the union will approach the employer for voluntary recognition or will file a petition with the NLRB to hold an

election.

What does a union authorization card look like?

The typical card is postcard-sized. The employee is

asked to provide personal information and sign an

attestation to the following statement:

“I hereby designate and select the ____ union as my representative and agent for

negotiation and collective bargaining with respect to

wages, hours and conditions of employment.”

Under current law, what happens after a petition for an election is filed with the

NLRB?

The NLRB will determine the appropriate bargaining unit and

conduct the secret ballot election after a 42 day campaign period. During the campaign period, both

the union and employer can attempt to persuade the

employees regarding unionization.

How will EFCA change this process?

EFCA will eliminate the employer’s right to a secret election. Instead, employers would be required to recognize a union upon being

presented with authorization cards signed by 50% plus 1 of its

employees

How will the loss of the secret ballot election affect

employers?

EFCA prevents an employer from educating employees and responding to union

arguments if it is unaware of the organizing activity

How will employees be affected by the loss of the

secret ballot election?

Employees lose their ability to hear both sides of the issue and lose their right to vote anonymously, creating an

atmosphere of coercion and retaliation when union organizers know which

employees support the union

Will EFCA make any other changes to existing labor

relations law?

EFCA will also significantly change the way the first

collective bargaining agreement is negotiated. Under current law, there is no time limit to negotiating

the first CBA

Under EFCA, either party may request mediation after

90 days. Within 30 days thereafter, EFCA mandates

binding arbitration

Will EFCA make any other changes to existing law?

• Back pay damages trebled

• $20,000 civil penalties

• Mandates NLRB seek federal injunction

What is the current status of EFCA?

Introduced in both houses of Congress on March 10,

2009. Speaker Pelosi has stated it will not come up for

discussion in the House (where it is expected to

pass) until after it passes the Senate

What are prospects for passing the Senate?

As currently configured, 60 votes are needed to prevent a filibuster. All Republicans reject EFCA “in its current

form.” At least one Democrat (Webb) rejects

EFCA also.

What should an employer be doing?

Studies routinely indicate employees unionize for three

reasons:

• Job security

• Pay and Benefits

• Supervisory Treatment

Studies also show that typically 30% of workforce

supports unionization

Adopt a Philosophy on Unions and Labor Relations

Audit Employee Satisfaction

Make first line Supervisors Responsive to Employee

Concerns

Review Employment Policies and Practices

Website: www.brownwinick.comToll Free Phone Number: 1-888-282-3515

OFFICE LOCATIONS:

666 Grand Avenue, Suite 2000Des Moines, Iowa 50309-2510

Telephone: (515) 242-2400Facsimile: (515) 283-0231

616 Franklin PlacePella, Iowa 50219

Telephone: (641) 628-4513Facsimile: (641) 628-8494