If enacted next year, the Employee Free Choice Act (“EFCA”) would amend the National Labor Relations Act by doing away with secret ballot elections and replacing them with a card-check procedure that would require unions only to obtain signed authorization cards by a majority of employees in order to organize.
Employers’ current concern that the law will be enacted is causing some to overreact by, among other things, implementing grievance and arbitration procedures that mimic those in union contracts. But doing so at this stage makes little sense, whether or not the EFCA is passed. If it is not, employers would find themselves with unwieldy and expensive procedures that might not be suitable for their workplaces. And they would be handing the unions an argument in favor of organizing – pointing to adoption of these procedures as something almost all union contracts already have, and being able to puff about how much more the potential union members can expect if they agree to unionize. Moreover, by adopting these procedures now, employers deprive themselves of a major bargaining chip in the event they do reach the table for collective bargaining negotiations. All in all, adopting a wait and see approach makes a great deal of sense in this situation.