Employee Free Choice Act: It’s Back… Or Is It?
*By Jessica Tucci

On August 11, 2010, the Arizona legislature approved a referendum that guarantees a worker’s right to vote in a secret ballot election when deciding whether to be represented by a labor union. The referendum will appear as Proposition 113 in Arizona’s next general election. Proposition 113, if approved by voters, will amend the Arizona Constitution by “guarantee[ing] the right to vote by secret ballot where local, state or federal law permits or requires elections, designations or authorizations for employee representation.”

Currently, the National Labor Relations Act (NLRA) requires a secret ballot election once a petition is filed with the National Labor Relations Board (NLRB). However, President Obama publicly supports the Employee Free Choice Act (EFCA) or card check, which allows the NLRB to certify a union as an exclusive bargaining agent if the union collects a majority of union authorization cards from a bargaining unit. As proposed, EFCA also requires binding arbitration of labor contract terms after only 90 days of negotiation. While EFCA failed to pass in 2009, opponents fear its rebirth with a potential swing of power in Congress looming. Legislation like Proposition 113 attempts to block EFCA’s card check provision but may not survive a legal challenge if a lame-duck Congress enacts EFCA.

In anticipation of a renewed effort to pass EFCA, employers should consider updating their solicitation, distribution, posting, and workplace attire policies to ensure compliance with the NLRA and consistent enforcement. Employers should also and consider updating or training supervisors regarding company policies for identifying and dealing with a union organizing campaign.

*Jessica Tucci has extensive experience in all aspects of workplace law. For more information about this legislation or other employment matters, please contact Jessica at 216.696.4441 or jtt@zrlaw.com.

This newsletter is not intended as a substitute for professional legal advice and its receipt does not constitute an attorney-client relationship. If you have any questions concerning any of these articles or any other employment law issues, please contact Stephen S. Zashin at 216.696.4441.
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