The Employee Free Choice Act, which was passed by the U.S. House last week on a vote of 241-185, could have a dramatic impact on the American workplace if it were ever to become law.

The legislation would require employers to recognize and bargain with a union when a majority of employees sign union authorization cards --in the presence of union organizers and absent supervision by an independent third party. It would eliminate the long-standing secret ballot election process, which has ensured that workers could determine whether or not they want union representation in privacy, and without pressure or coercion from union organizers, fellow employees or their employers.

		Allison L. Feldstein specializes in labor and employment law with Downtown law firm Eckert Seamans Cherin & Mellott LLC.

Under the National Labor Relations Act, a union must prove that it represents a majority of employees before it has the right to bargain on their behalf. When organizing employees, unions have employees sign "authorization" cards to prove that they have such support.

Under the current law, an employer can elect to grant a union representation rights upon proof that a majority of employees have signed cards, a process called a "card check." However, the employer is not required to agree to a "card check" and instead can demand that the union petition the National Labor Relations Board to hold a secret ballot election.

Because they want to ensure that their employees' expression of support has not been coerced by union organizers and fellow employees, most employers require that an election be held. In a 1974 case, the U.S. Supreme Court held that a government-run, secret ballot election was the "superior" method for determining union majority support.

The legislation would eliminate the secret ballot portion of this process and require the NLRB to certify a union when a majority of workers sign authorization cards designating the union as their representative. Consequently, employees would be forced to make a decision about union representation on the spot and in the presence of union organizers or fellow employees.

Under these circumstances, there is no guarantee that the employee knows the ramifications of what he/she was asked to sign, or that the signature was not obtained through fraud, misrepresentation or undue pressure or coercion by the union representative obtaining the signature. Under the current secret ballot election process, the NLRB strictly regulates the conduct of employers and unions and will invalidate an election won by a party that engages in threatening or coercive conduct.

In addition, if passed, the legislation would effectively eliminate an employer's ability to communicate with employees regarding union organizing efforts, as card signing is often done secretly and without employer knowledge.

Aside from the "card check" provision, the bill also proposes referral to mediation and, in some cases, binding arbitration if the employer and union are unable to reach an initial collective bargaining agreement. Employers also would be subject to stiffer penalties for taking action against employees for engaging in protected union activity.

The proposal comes at a time when union membership is down, according to the U.S. Department of Labor's Bureau of Labor Statistics. The Bureau reported that the number of union members dropped from 12.5 percent in 2005 to 12 percent in 2006. The decrease represents a loss of 326,000 union members in one year. The Bureau reported that union membership in the United States has "steadily declined from 20.1 percent in 1983."

Against this backdrop, organized labor has thrown its support behind the Employee Free Choice Act and has conducted an intensive campaign to achieve passage of the legislation. On the other hand, employer groups, including the U.S. Chamber of Commerce, have organized their own aggressive campaigns to voice opposition to the bill and convince elected officials that the it would serve to erode democratic "free choice" in the workplace.

Politics being what they are in Washington, D.C., it is difficult to know whether or not the bill, in its current form, actually will pass through Congress and be signed into law by the president, though the president already has promised to veto the legislation.

However, with Democrat majorities in both the House and Senate, the proposed changes to the current law stand their best chance yet to become reality. Should that occur, employers will find their organizations navigating in waters more volatile than ever when it comes to facing the challenge of union organizing campaigns.