Pending labor legislation set to alter workplace landscape

Issue December/January 2008 By Peter Moser and Sheryl Eisenberg

Labor and employment attorneys need to keep an eye on two controversial bills in 2009: the Employee Free Choice Act (EFCA)1 and the Re-Empowerment of Skilled and Professional Employees and Construction Tradeworkers Act (RESPECT Act).2  Each bill has a strong chance of passage in some form. If enacted, these new laws would have far-reaching implications for employers and workers alike, and together or alone would be among the most significant labor legislation passed since the enactment of the National Labor Relations Act (NLRA) in 1935.

What is EFCA?

In 2007, EFCA was easily approved in the House but was defeated in the Senate via Republican filibuster. President-elect Barack Obama was a co-sponsor of the Senate bill and has indicated his strong support for the legislation. EFCA will be reintroduced in 2009 and is labor’s number one legislative priority.

Based on the language most recently proposed, there are three components to EFCA:

1. Recognition by card check – EFCA would effectively eliminate the secret ballot election system by which workers vote on whether or not to form a union at their workplace. Instead, under EFCA, unions would be able to gain recognition on the basis of signed authorization cards alone. Specifically, if a union obtains signed authorization cards from more than 50 percent of employees in a proposed bargaining unit, then the employer must recognize the union. EFCA contains no express restrictions governing how the union may obtain these signatures.

2. Mandatory settlement of first contract – EFCA would impose a strict and very short timetable for a union and newly organized employer to reach a binding first contract. Currently, it might take an employer and union more than a year to negotiate a first contract. Under EFCA, within 10 days of a union being certified and requesting bargaining, an employer must meet with the union and begin bargaining. If the parties don’t reach an agreement within 90 days, EFCA provides that either party may request mediation through the Federal Mediation and Conciliation Service (FMCS). If mediation is not successful within 30 days, EFCA provides that the FMCS must “refer the dispute to an arbitration board.” This arbitration panel “shall render a decision” which “shall be binding upon the parties for a period of two years.”

3. Increased Penalties – EFCA would increase the penalties imposed on an employer found to have unlawfully discharged an employee based on union activity during an organizing drive. Currently, a discharged organizer would be entitled to reinstatement and back pay. Under EFCA, the discharged worker could receive triple back pay damages, and an employer that “willfully or repeatedly” engages in this type of unlawful behavior could be subject to a civil penalty of up to $20,000 per occurrence.

What is the RESPECT Act?

The RESPECT Act was first introduced in Congress in early 2008 in response to the NLRB’s decision in Oakwood Healthcare Inc.3 and two related cases. These cases broadened the definition of “supervisor” contained in the NLRA.4  This definition is important because the law treats supervisors as members of management who cannot organize.

The RESPECT Act would go much further than merely reversing the effects of the Oakwood cases. The RESPECT Act would fundamentally change the definition of supervisor by eliminating two of the most common qualifying supervisory duties from the definition – those of “assigning” and “responsibly directing” other employees. In addition, the legislation would require that an employee perform the remaining supervisory functions for a “majority” of their work time, namely, “hiring, transferring, suspending, laying off, recalling, promoting, discharging, rewarding or disciplining other employees.”

If the RESPECT Act passes, many of today’s supervisors would not be able to satisfy the more narrow statutory definition. These supervisors might soon find themselves placed in the same bargaining unit as their subordinate workers, and it is difficult to imagine how the conflict of interest would play out in the workplace.

Like EFCA, the RESPECT Act has the potential to dramatically increase union membership in the United States. The RESPECT Act has not garnered the same level of attention as EFCA in the media or among practitioners, but like EFCA, the RESPECT Act will be aggressively pursued by organized labor in 2009 as part of its legislative agenda.


Labor and employment attorneys should keep a close watch on EFCA and the RESPECT Act in 2009. These two pieces of legislation could result in historic changes to long-standing labor law and would alter the workplace landscape by dramatically increasing union organizing efforts and membership.

The upcoming edition of Section Review will include a more comprehensive discussion of EFCA and the RESPECT Act.

Peter Moser and Sheryl Eisenberg are labor attorneys at Hirsch, Roberts, Weinstein LLP, in Boston.

1. H.R. 800, S. 1041
2. H.R. 1644, S. 969
3. 348 N.L.R.B. No. 37 (2006)
4. 29 U.S.C. sec 152(11)

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