Following the 2008 elections, businesses prepared for what they believed was the inevitable: Passage of the Employee Free Choice Act (ECFA). Companies conducted vulnerability assessments and, in response, implemented strategic union avoidance programs. These programs included lengthy training sessions for managers and supervisors on how to identify and respond to potential union activity. Employers also focused on those most vulnerable to union pressure, the rank-and-file employees, and outlined all the reasons why union-free workplaces were better, including the financial benefits and long-term successes of the companies. In essence, employers finally were communicating with their employees and fixing problems that could be fixed all in an effort to keep unions out.

Since then, despite the Senate Democrats having a filibuster-proof number to overcome any Republican attempts to block passage of EFCA, Democratic support for the bill steadily declined especially prior to and following the November 2010 elections. Many proclaimed EFCA to be “dead,” including, most recently, Senator Mark Pryor (D-Arkansas). The lack of support for EFCA was due in large part to the inclusion of the “card-check” provision. This provision would have forced employers to immediately recognize unions if a majority of employees signed cards authorizing a bargaining unit and, thus, eliminating the secret-ballot election. So strong was the opposition to this particular provision that in November 2010, four states – Arizona, Utah, South Carolina and South Dakota – overwhelmingly passed initiatives to preserve the secret-ballot election.

While EFCA may have been declared “dead” by some, others viewed this as a temporary setback for unions. Indeed, given the fact that three of the four members on the National Labor Relations Board (NLRB) are strongly connected to unions, many believe that key components of EFCA will be implemented through rule changes rather than passage of the bill. It is anticipated that the NLRB will make rule changes including dramatically shortening election periods and permitting unions more access to employees prior to an election, both of which follow the goals of EFCA.