After much speculation, the Employee Free Choice Act of 2009 (EFCA) was introduced on March 10 in the 111th Congress. The new bills introduced in both the House of Representatives and Senate are identical to last year’s bill, which passed the House but was stalled in the Senate by a filibuster on the motion to debate the bill on the Senate Floor.

Mounting Campaign to Pass EFCA

EFCA’s introduction was preceded by a steady stream of pro-EFCA events and publicity since the 111th Congress convened in early January. The effort to pass EFCA officially commenced on February 4, when organized labor and its progressive allies conducted a Million-Member Mobilization Rally on Capitol Hill in Washington, D.C. Thousands of union members and their allies attended this rally and presented the signatures of 1.5 million working women and men from around the country calling for Congress to pass the legislation.

More recently, President Barack Obama predicted that EFCA would pass Congress in a videotaped speech presented to over 100 top labor officials who were meeting in Florida for the winter meeting of the AFL-CIO’s Executive Council. As the President told the AFL-CIO leaders, “[t]o me, and to my administration, labor unions are a big part of the solution. We need to level the playing field for workers and for unions that represent their interests – because we cannot have a strong middle class without a strong labor movement … And as we confront this [economic] crisis and work to … pass [EFCA], I want you to know that you will always have a seat at the table.”

Same Provisions as from Last Congress

Both the House and Senate versions of the new legislation provide:

CARD CHECK CERTIFICATION. The bills would establish a “card check” procedure for union representation when 50% plus one of the employees in an appropriate bargaining unit sign union authorization cards. Under the legislation, the National Labor Relations Board (NLRB) must certify a union based on valid signed union authorization cards from 50% plus one of the employees in an appropriate bargaining unit, and may not schedule an NLRB-supervised secret ballot election.

COMPULSORY FIRST CONTRACT INTEREST ARBITRATION. The bills would mandate a first contract by requiring that where the parties have failed to reach agreement after 120 days of collective bargaining and mediation, a federally-appointed arbitrator will be selected to write the terms and conditions of employment binding on the parties for a period of two years.

ANTI-EMPLOYER PENALTIES. The legislation also imposes three new penalties for employer unfair labor practice conduct during the period of union organizing and bargaining for an initial contract. Those penalties are: (1) liquidated damages equivalent to triple back pay for employees terminated in violation of the National Labor Relations Act (the Act); (2) fines of $20,000 for each unfair labor practice; and (3) mandatory injunction proceedings under Section 10(l) of the Act for campaign related unfair labor practices.

Congressional Action Uncertain

The specific timing for EFCA’s consideration by the Senate or House of Representatives is unclear at this point. However, the Senate Health, Education, Labor and Pensions (HELP) Committee conducted a hearing on March 10 entitled “Rebuilding Economic Security: Empowering Workers to Restore the Middle Class.” Also, Senate Majority Leader Harry Reid has stated publicly that the Senate will not act on the legislation until this summer.

Senate action, whenever it occurs, would require 60 votes to invoke cloture on a filibuster to take the bill to the Floor for a vote on final passage. Some Senators who voted for cloture in the last Congress are reportedly having second thoughts now that it is clear the bill would not be vetoed. Recently, AFL-CIO President John Sweeney was quoted as saying that it may require a union amendment to EFCA to gain the needed Senate votes. Business groups are concerned that a union-drafted alternative could be as bad, or worse, than the original bill while only providing “political cover” for elected officials in the form of superficial changes.

According to Washington, D.C.-based Ogletree Governmental Affairs principal Hal Coxson: “The key vote in the Senate is on cloture, no matter how many cloture votes are taken. Senators must vote against cloture every time on EFCA or any equally bad union alternative bill.”

What Business Should Do

According to Tom Davis, a shareholder in Ogletree Deakins’ Nashville office: “The commitment of organized labor and its progressive allies to pass EFCA is obvious. However, denying employees the protections of a private, government-supervised, secret ballot election to determine their choice of union representation, and then imposing the terms of employment by an outside federally-appointed arbitrator without employees having the right to vote to approve those terms under which they will be required to work, is anti-democratic and contrary to employee free choice. Many employees will be the losers if EFCA were to pass.

“More importantly, given the President’s support for EFCA and the progressives’ urgency to press for its passage, businesses small and large need to contact their elected officials and explain to them why they need to oppose EFCA. Also, business needs to counter big labor’s public misinformation campaign for passage of EFCA that it has funded through vast sums of member contributions to elected officials.”

Additional Information

If you have any questions about this legislation or its impact on employers, contact the Ogletree Deakins attorney with whom you normally work or the Client Services Department at (866) 287-2576 or via e-mail at

Note: This article was published in the March 10, 2009 issue of the National eAuthority.

Browse More Insights

New York City, NY, USA - October 11, 2017: American flag flapping in front of corporate office building in Lower Manhattan
Practice Group

Governmental Affairs

Ogletree Governmental Affairs, Inc. (OGA), a subsidiary of Ogletree Deakins, is a full service legislative and regulatory affairs consulting firm, dedicated to helping clients solve their problems with the public sector. OGA unites the skills and experience of government relations professionals with the talent of the Firm’s lawyers to provide solutions to regulatory issues outside the courtroom.

Learn more
Street protest against war in Ukraine in town square.
Practice Group

Traditional Labor Relations

The attorneys in Ogletree Deakins’ Traditional Labor Practice Group have vast experience in complex and sophisticated traditional labor law matters. This includes experience advising and representing employers of all sizes and across virtually all industries in connection with union representation campaigns, collective bargaining negotiations, strike preparations, labor arbitrations, and National Labor Relations Board proceedings.

Learn more

Sign up to receive emails about new developments and upcoming programs.

Sign Up Now