The nursing home industry is a juicy target for labor unions. Out of its two million plus members nationwide, the Service Employees International Union (SEIU) currently boasts that more than 170,000 members come from the nursing home and home care industries. In fact, the SEIU reports that is has recently organized more nursing home workers than ever before.

According to the SEIU, the union recruited 347 nursing home employees from five different nursing homes in California between May 23 and June 20 of this year, with three of the five facilities joining in the same week.  Now there is pending legislation that would simplify unionization procedures for workers, and make the SEIU's job that much easier.

While not receiving the same media attention as the sub-prime mortgage crisis, the misleadingly named Employee Free Choice Act (EFCA) is sure to be a hot-button issue in the 2008 election, and threatens to have just as big an affect on this country's economic well-being. The EFCA may bring about the most drastic overhaul of private sector labor relations since the passage of the National Labor Relations Act (NLRA) in 1935. Ironically, if passed, the EFCA would severely restrict employees' free choice when it comes to workplace unionization campaigns. 

The EFCA was first introduced in 2003, and passed in the House of Representatives last year, before being blocked in the Senate.  However, the bill may be reintroduced should the Democrats solidify control of the Senate and gain control of the White House, since Democratic presidential candidate Barack Obama has pledged to support the EFCA. 

The Act would significantly alter current private sector labor laws in several ways. First and foremost, the EFCA would allow "card-check" certification of unions, meaning that in order for the union to become the bargaining representative, it only needs a majority of workers to sign authorization cards. 

In a card-check procedure, an employer views union authorization cards presented by the union and determines whether the union has gathered cards from a majority of employees.  If the union has received a majority of employee support, the employer can recognize the union as the employees' exclusive collective bargaining representative. This procedure eliminates a secret-ballot election, which allows the employees to educate themselves regarding the benefits and downsides of union representation.

Under current labor laws, once 30 percent or more of employees sign union authorization cards, a labor organization can file a representation petition with the National Labor Relations Board (NLRB). The NLRB then processes the petition, which can lead to an NLRB-conducted secret-ballot election. Employers have the option to recognize a union based on a card-check, but are under no obligation to do so.   

Under the EFCA, unions could bypass the election process by providing the NLRB with union authorization cards from a majority of employees, and the NLRB would certify the union as the employees' exclusive collective bargaining representative. Employer recognition based on a card-check would no longer be optional. 

The EFCA also would impose binding contract mediation and arbitration when the employer and union are negotiating their first contract. If no agreement is reached within 90 days, either side can request mediation. If no agreement is reached within 30 days of the mediator's involvement, an arbitrator is appointed to decide the contract's terms. The arbitrator is not bound by any of the prior negotiations when deciding those terms.  As a result, the arbitrator will have carte blanche to set the contract's terms.  

Finally, the EFCA would drastically increase penalties for employers found to have violated the law during a union organizing campaign or during contract negotiations. 

Contrary to its name, the EFCA would severely limit an employee's free choice during a union-organizing campaign. Under current labor laws, unions are either approved or rejected by workers through a secret-ballot election. While both employer and the union are free to actively campaign and convey their positions to workers on the issue, ultimately, every employee's vote at the ballot box is kept private. 

This dynamic would change dramatically under the EFCA's mandatory card-check procedure. Every employee's position on unionization would be public knowledge because union organizers would know whether the employee signed an authorization card.  Employees' views on unionizing would no longer  be private.

Card checks also allow union officials to badger employees into signing. There is nothing under current laws that prohibits union organizers from repeatedly soliciting the same employees to sign authorization cards. The EFCA risks subjecting workers to constant harassment until they support the union by signing an authorization card-hardly a case of an employee's "free choice."     

Employers will be at a severe disadvantage if the EFCA passes. Not only will companies be subject to more frequent unionization campaigns, but their hands will be tied trying to fight them. 

Unions will be able to conduct card-check campaigns behind employers' backs, and theoretically could obtain the majority of signatures needed for certification before the employer even knows that the campaign is occurring. 

Not only may employers be kept in the dark regarding an ongoing unionization campaign, but even if the employer knows a card-check campaign is taking place, there will be limited opportunities to convey its position to workers. In essence, the card-check procedure acts as a one-way information tool for the union to extol its virtues, without allowing the employer to rebut.   

If passed, the EFCA is likely to reinvigorate the labor movement in the private-sector. In fact, the SEIU estimates that the ease of unionizing under the EFCA would allow it to organize one million workers per year, as opposed to the 100,000 workers it currently organizes annually. 

The EFCA has the potential to cause significant harm to the American economy and will lead to even greater unionization efforts in the nursing home industry.  If passed, unions will surely ratchet up the pressure on nursing homes, because the likelihood of successful unionization campaigns will increase.  Nursing home operators must educate themselves about the EFCA's potential ramifications, and plan for the potential onslaught of unions accordingly.