On February 5, 2007, House Education and Labor Committee Chairman George Miller (D-CA) with 230 cosponsors introduced H.R. 800, the “Employee Free Choice Act (EFCA) of 2007.”  That is a terrible misnomer since the bill actually denies employees the right to a democratic secret ballot vote on union representation and limits the employees’ right to make an informed choice by hearing both sides of the issue.  This legislation would turn traditional labor relations on its head because it bypasses time-honored National Labor Relations Board (NLRB) procedures and mandates union certification without secret ballot elections.  Moreover, once certified, the union is guaranteed an initial two-year contract binding employees and employers with the wages, terms and conditions of employment decided by compulsory arbitration through outside arbitrators.

House Speaker Nancy Pelosi has promised to put the EFCA on a “fast track,” hoping for passage before the business community is mobilized to fight the measure.  On Thursday, February 8, hearings on the measure will be held before the Subcommittee on Health, Education, Labor & Pensions of the House Education and Labor Committee.

Simply put, EFCA is a forced card-check, anti-secret ballot union representation bill that would radically alter labor relations in America.

  • First, it would require the NLRB to certify a union seeking representation rights based on signed union authorization cards (“card check”) without a secret ballot election among employees. Certification would create an obligation to begin bargaining immediately.
  • Second, if the parties cannot agree, the EFCA would mandate arbitration of initial union contracts, setting wages, terms and conditions of employment for a two-year period.
  • Third, the EFCA contains new anti-employer penalties, including prioritizing investigations of unfair labor practice charges with possible injunction proceedings in federal court, as well as liquidated damage and civil penalties (up to $20,000 per violation).

The EFCA is organized labor’s top legislative priority.  AFL-CIO President John J. Sweeney described this bill as “the most important work we’ll be doing, because it’s a key to succeeding on everything else.”  With unions representing only 7.4 percent of the private sector workforce and 12 percent of the private and public sectors combined, organized labor views this legislation as a way to rapidly increase union membership and dues income, as well as enhanced economic and political clout.

It is imperative that the business community act now and is united and committed to opposing this legislation.  Not since the ill-fated 1977-78 Omnibus Labor Law “Reform” Bill has there been a more aggressive campaign to overhaul union organizing rules.  The 1977-78 bill passed the House by a nearly 100 vote margin and was stopped only by a one vote margin after a 19-day, 6-cloture vote Senate filibuster.  The coordinated commitment to pass the EFCA by organized labor and its “progressive” allies, together with the leadership of the 110th Congress, means it has a real threat of enactment.  The EFCA may also be attached as an amendment to “must pass” legislation that is a priority for the Bush Administration (making the chances of a veto less and less likely, especially as the 2008 elections draw nearer).

Jimmie Stewart, a founding shareholder of Ogletree Deakins with more than 35 years of experience in labor law, observed: “It seems inconceivable that the very people who just won their important positions in Congress would support legislation that stifles meaningful debate and denies access to a secret ballot.  Many of those elected, however, accepted financial and grassroots support from organized labor.  Labor leaders will now hold these elected Representatives and Senators hostage to past promises and future support to get this law passed.  It is a clever attempt to accomplish labor law reform under the radar screen.  If business does not unite to shed light on the real purpose and impact of the proposed law, the future landscape of labor relations will be very hostile to employers.”

About Ogletree Deakins

Ogletree Deakins and its public policy subsidiary, Ogletree Governmental Affairs, Inc., have over 30 years’ experience in governmental affairs and public policy debates.  It will play an integral role in a business coalition – the Coalition for a Democratic Workplace – in Washington and other states to help lead the opposition to the EFCA.  To learn what you can do about this legislative proposal or if you have questions about any other labor, employment or workplace matter, please contact the Ogletree Deakins attorney with whom you normally work or the Client Services Department at 866-287-2576 or via e-mail at clientservices@ogletreedeakins.com.


While it is unusual for Ogletree Deakins to use its Client E-Alert system when legislation is introduced in Congress, this bill is so extreme it warrants this E-Alert.

 Note: This article was published in the February 6, 2007 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