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April 4, 2009

Wikipedia: Employee Free Choice Act

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The Employee Free Choice Act (EFCA) (H.R. 1409, S. 560) is pending legislation in the United States. Its text states that it would “amend the National Labor Relations Act to establish an easier system to enable employees to form, join, or assist labor organizations, to provide for mandatory injunctions for unfair labor practices during organizing efforts, and for other purposes.”[1] The latest version was introduced into both chambers of the U.S. Congress on 10 March 2009.[2]

In order for a workplace to organize under current U.S. labor law, the card check process begins when an employee requests blank cards from an existing union, and requests signatures on the cards from his or her colleagues.[3] Once 30% of the work force in a particular workplace bargaining unit has signed the cards, the employer may decide to hold a secret ballot election on the question of unionization.[3] In practice, the results of the card check usually are not presented to the employer until 50 or 60% of bargaining-unit employees have signed the cards.[3] If the employer decides to demand an election, and the majority of votes in the election favor the union, the National Labor Relations Board (NLRB) will certify it as the exclusive representative of the employees of that particular bargaining unit for the purpose of collective bargaining.

If enacted, the EFCA would change the currently existing procedure to require the NLRB to certify the union as the bargaining representative without directing an election if a majority of employees signed cards.[1] The EFCA would take away employers’ present right to decide whether to use only the card-check process or to hold a secret-ballot election among employees in a particular bargaining unit, and instead give the right to the employees to choose a secret-ballot election in cases where less than a majority of employees has chosen to unionize through card-check.[3][4] The proposed legislation would require a secret-ballot election when at least 30% of employees petition for an election.[3][5]



A U.S. House Committee on Education & Labor report has pointed out that the overall purpose of the Employee Free Choice Act is “allowing employees to make their own decision about whether they want to bargain together—to advocate for fairer wages, benefits and working conditions—without the threat or fear of harassment and retribution and fear of losing their livelihood.”[6] However, the “Minority Views” section of the same report declares that “H.R. 800, the deceptively-named ‘‘Employee Free Choice Act,’’ would strip [the right to a secret ballot] from every American worker. Moreover, the bill makes changes to federal labor law’s scheme of penalties and remedies that are one-sided, unnecessary, and unprecedented. Finally, H.R. 800, for the first time in labor law’s history, imposes a one-size-fits-all scheme of mandatory, binding interest arbitration with respect to initial contracts, on bargaining parties, again stripping American workers of the right to vote on the terms and conditions of their employment.”

The committee’s Democrats quoted the conclusion of the nonpartisan international human rights organization Human Rights Watch:

At present, “a culture of near-impunity has taken shape in much of U.S. labor law and practice. Any employer intent on resisting workers’ self-organization can drag out legal proceedings for years, fearing little more than an order to post a written notice in the workplace promising not to repeat unlawful conduct. Many employers have come to view remedies like back pay for workers fired because of union activity as routine costs of doing business, well worth it to get rid of organizing leaders and derail workers’ organizing efforts.”[7]

The minority (Republican) views of the committee quoted multiple Federal and Supreme Court decisions:

A secret ballot election is the] ‘‘most satisfactory—indeed the preferred—method of ascertaining whether a union has majority support.’’ Gissel Packing, 395 U.S. 575, 602 (1969).

‘‘[I]t is beyond dispute that secret election is a more accurate reflection of the employees’ true desires than a check of authorization cards collected at the behest of a union organizer.’’ NLRB v. Flomatic Corp., 347 F.2d 74, 78 (2d Cir. 1965).

‘‘Workers sometimes sign union authorization cards not because they intend to vote for the union in the election but to avoid offending the person who asks them to sign, often a fellow worker, or simply to get the person off their back….’’ NLRB v. Village IX, Inc., 723 F.2d 1360, 1371 (7th Cir. 1983).

Under current labor law, workers can select union representation either through an election process or through majority sign-up (also known as “card check”). However, the U.S. National Labor Relations Board will certify a union as the exclusive representative of employees only if it is selected by a secret ballot NLRB election or if the employer agrees to a card check process (often called a “neutrality agreement”.) An election may be held if more than 30 percent of employees in a bargaining unit sign cards asking for representation by a union. A company can refuse to bargain with a union chosen by workers through majority sign-up, even if 100 percent of the workers want to be represented by the union. The choice of whether to use an election process or majority sign-up to form the union is now exclusively controlled by companies.[3] If enacted, the Employee Free Choice Act would require the NLRB to certify a bargaining representative without directing an election if a majority of the bargaining unit employees signed such cards through the majority sign-up process.[1]

Majority sign-up is not a new procedure. Since the inception of the National Labor Relations Act in 1935, it has been legal for workers to form a union when a majority of employees in a bargaining unit sign cards indicating their intent to be represented by the union, in order to negotiate a contract with the employer to gain better wages and benefits.[8]

The Employee Free Choice Act also provides a process to ensure that workers who choose a union can obtain a contract. Pursuant to the bill, a union can demand that a company begin bargaining within ten days of certification of the union as the exclusive bargaining representative for an appropriate unit of employees via either an NLRB election or majority sign-up (card check).[1] If the union and company cannot agree upon the terms of a first collective bargaining contract within ninety days, either party can request federal mediation, which could lead to binding arbitration if an agreement still cannot be reached after thirty days of mediation.[1] Finally, the Act would provide for liquidated damages of three times back pay if employers were found to have unlawfully terminated pro-union employees.[9] The Employee Free Choice Act would also impose a $20,000 penalty upon employers for each employer violation of the proposed legislation if the NLRB or a court deems the violation willful or repetitive.[1][10] Injunctive relief is available to make sure remedies are meaningful and effective.

On March 1, 2007, the House of Representatives passed the act by a vote of 241 to 185. The Senate on June 26, 2007 voted 51 to 48 on a motion to invoke cloture on the motion to proceed to consider the bill. The bill failed to pass during the 110th United States Congress because it came nine votes short of the 60 votes required to enforce cloture, which may be possible to obtain in the 111th United States Congress.[11]

Certification on the basis of signed authorizations

The National Labor Relations Act (NLRA) allows government resolution of labor-management disputes affecting commerce. Section 9(c) of the NLRA provides for a secret ballot election if there is “a question of employee representation” of an individual or labor organization seeking collective bargaining with an employer. If the recognizing of the individual or labor organization is not disputed by the company, then the NLRB does not conduct an election.[12]

The most widely publicized change the Employee Free Choice Act would make is a change to employer disputes over recognition of an individual or labor organization claiming to represent employees. Currently an employer can demand a secret ballot election even if a majority of employees has signed cards authorizing a representative to bargain on their behalf, also known as majority sign-up or card check. Under the Employee Free Choice Act, the National Labor Relations board will adopt regulations providing for the acceptance and challenges of cards and oversight of the majority recognition procedure.

The process of forming a union through secret ballot elections does not explicitly change under the Employee Free Choice Act. Workers may still utilize the election process to achieve union representation. However, a union’s collecting cards from over 50% of employees can force unionization on a company without a secret ballot. Opponents of the Act claim that this would effectively abolish the secret ballot election, as union officials would submit cards every time and not choose to hold an election.[13] The process of union decertification does not change under the Employee Free Choice Act. An employer can voluntarily reject a union when a majority of employees sign decertification cards or otherwise demonstrate that they no longer want to be represented by a union, or when 30 percent of employees sign a petition to hold a secret ballot election and a majority of workers vote to decertify the union.[14]

The amended text proposed in lines 8 through 24 reads:

(6) Notwithstanding any other provision of this section, whenever a petition shall have been filed by an employee or group of employees or any individual or labor organization acting in their behalf alleging that a majority of employees in a unit appropriate for the purposes of collective bargaining wish to be represented by an individual or labor organization for such purposes, the Board shall investigate the petition. If the Board finds that a majority of the employees in a unit appropriate for bargaining has signed valid authorizations designating the individual or labor organization specified in the petition as their bargaining representative and that no other individual or labor organization is currently certified or recognized as the exclusive representative of any of the employees in the unit, the Board shall not direct an election but shall certify the individual or labor organization as the representative described in subsection (a).

First Contract Mediation and Arbitration

The bill provides that if an employer and a union are engaged in bargaining for their first contract and are unable to reach agreement within 90 days, either party may refer the dispute to the Federal Mediation and Conciliation Service (FMCS) for mediation. If the FMCS is unable to bring the parties to agreement after 30 days of mediation the dispute will be referred to arbitration and the results of the arbitration shall be binding on the parties for two years. The union and employer may extend any deadlines or time limits. The Federal Mediation and Conciliation Service was created in 1947 and provides most mediation services in support of collective bargaining free of charge.

Civil penalties and increased back pay for certain unfair labor practices

The bill would require the NLRB to seek a federal court injunction against an employer whenever there is reasonable cause to believe that the employer has discharged or discriminated against employees, threatened to discharge or discriminate against employees, or engaged in conduct that significantly interferes with employee rights during an organizing or first contract drive. It also authorizes the courts to grant temporary restraining orders or other appropriate injunctive relief. Currently, such federal court injunctions are required only for violations by unions. No such remedy exists for unlawful acts committed by employers in violation of workers’ rights.

The bill also calls for increases in the amount an employer is required to pay when an employee is illegally discharged or discriminated against during an organizing campaign or first contract drive to two times back pay as liquidated damages, in addition to the back pay owed, for a total of three times the back pay. Current damages are limited to back pay, less any wages earned by an employee if they are hired by another employer. Presently, there is no provision for compensatory or punitive damages, and the bill does not change that.

Finally, the bill would provide for civil fines of up to $20,000 per violation against employers found to have willfully or repeatedly violated employees’ rights during an organizing campaign or first contract drive. Currently there are no civil fines for violations.

Jurisdictional Standards

The Employee Free Choice Act does not alter the existing jurisdictional standards of the National Labor Relations Board. The jurisdiction of the NLRB remains at the level set in 1959, $500,000 gross volume for a retail business.[15] The NLRB also requires a union to consist of a minimum of two employees who have no supervisory authority, exempting many small businesses from the increased penalties of the Employee Free Choice Act.

Proponents’ views

Proponents of the legislation assert that the change is necessary to protect workers’ rights to join unions. Under current law, employers are not required to honor their workers signed authorization forms as designations “and may insist that the workers use a so-called secret-ballot election conducted by the National Labor Relations Board (NLRB) to establish their union even if 100% of the employees provide the NLRB with signed authorizations designating the union as their bargaining agent. The EFCA would allow workers to have their union certified as their bargaining agent by the NLRB if a majority of them have signed valid authorizations.”[16] EFCA proponents state that under current law the union ballots are “secret in name only” by citing experts such as University of Oregon Professor Gordon Lafer who in testimony before the U.S. Congress stated:

In the American democratic tradition the principle of the secret ballot is not simply the fact that you go into a voting booth and pull a curtain and nobody sees what you do. It is your right to keep your political opinion private to yourself before, during and after the act of voting; that you can’t be lured or coerced into a conversation that is designed to make you reveal your political preferences. In the NLRB, while the vote does take place in a booth where nobody sees what you’re doing, management is allowed to engage in a series of behaviors in the lead up to the vote that force the vast majority of workers to reveal how they’re going to vote long before they ever step into the booth.[17]

In his remarks accompanying the bill’s introduction, Representative George Miller (D-CA), chairman of the House Committee on Education and Labor, stated:

The current process for forming unions is badly broken and so skewed in favor of those who oppose unions, that workers must literally risk their jobs in order to form a union. Although it is illegal, one quarter of employers facing an organizing drive have been found to fire at least one worker who supports a union. In fact, employees who are active union supporters have a one-in-five chance of being fired for legal union activities. Sadly, many employers resort to spying, threats, intimidation, harassment and other illegal activity in their campaigns to oppose unions. The penalty for illegal activity, including firing workers for engaging in protected activity, is so weak that it does little to deter law breakers.

Even when employers don’t break the law, the process itself stacks the deck against union supporters. The employer has all the power; they control the information workers can receive, can force workers to attend anti-union meetings during work hours, can force workers to meet with supervisors who deliver anti-union messages, and can even imply that the business will close if the union wins. Union supporters’ access to employees, on the other hand, is heavily restricted.

The Employee Free Choice Act would add some fairness to the system…[18]

President Barack Obama supports the bill. An original co-sponsor of the Employee Free Choice Act, Obama urged his Senate colleagues to pass the bill during a 2007 motion to proceed:

I support this bill because in order to restore a sense of shared prosperity and security, we need to help working Americans exercise their right to organize under a fair and free process and bargain for their fair share of the wealth our country creates.

The current process for organizing a workplace denies too many workers the ability to do so. The Employee Free Choice Act offers to make binding an alternative process under which a majority of employees can sign up to join a union. Currently, employers can choose to accept–but are not bound by law to accept–the signed decision of a majority of workers. That choice should be left up to workers and workers alone.[19]

“I will make it the law of the land when I’m President of the United States”, he told a labor federation meeting in April, 2008. While Obama didn’t talk about this issue much before general audiences, it was his main promise when he spoke to unions.[20]

The AFL-CIO notes that, in practice, company-controlled secret ballots actually make the process less democratic:

People call the current National Labor Relations Board (NLRB) election system a secret ballot election—but in fact it’s not like any democratic election held anywhere else in our society. It’s really a management-controlled election process because corporations have all the power. They control the information workers can receive and routinely poison the process by intimidating, harassing, coercing and even firing people who try to organize unions. No employee has free choice after being browbeaten by a supervisor to oppose the union or being told they may lose their job and livelihood if workers vote for the union.”[21]

Jeff Madrick, the editor of the economics journal Challenge and a former columnist for Business Week and the New York Times, wrote that “good blue-collar jobs are disappearing rapidly as manufacturing industries decline; but many new white-collar jobs pay poorly, provide minimal health care and pension benefits, and offer little job security. There is now no privileged segment of earners in the nation except the upper 10 percent or so.”

He added that “some 50 million non-unionized American workers, according to surveys, now say that they definitely or probably would join one if given the option. One of the reasons this does not happen, according to Madrick, is the failure of the federal government to protect workers trying to organize into unions. “The fines levied by the NLRB have long been meager,” he notes. “Meantime, management actions against unions are supported by the nation’s courts.” Madrick concludes that “much can…be done” by “seriously enforcing the labor laws and imposing harsher penalties for violating them. The Employee Free Choice Act introduced by [then-] Senator Obama, among others, will be a good test.”[22]

To find out how effective the current NLRB system actually is — in other words, how well it reflects workers’ wishes to organize into unions and bargain contracts with management — MIT Sloan School of Management professor Thomas A. Kochan and MIT Ph.D. student John Paul Ferguson used federal data to track the progress of more than 22,000 union organizing drives between 1999 and 2005. They found that “only one in five cases that filed an [NLRB] election petition ultimately reached a first contract [between workers and management],” which they reported in a Boston Globe article.[23] “This is despite all the cases already having shown substantial and likely majority support for representation.”

They criticized the current system by asking, “How can anyone who thinks elections are a bulwark of democracy support a system in which a third of those interested in an election never get to hold one? Why would anyone put faith in a process that offers them a 1-in-5 chance of success?” Kochan and Ferguson thus called for passage of the Employee Free Choice Act along with other reforms.[24]

Opponents’ views

Critics contend that additional use of card check elections will lead to overt coercion on the part of union organizers.[25] Opponents of the Employee Free Choice Act also point out that the measure would not protect employee privacy. Representative John Kline, R-Minn., has stated:

It is beyond me how one can possibly claim that a system whereby everyone – your employer, your union organizer, and your co-workers – knows exactly how you vote on the issue of unionization gives an employee ‘free choice’ … It seems pretty clear to me that the only way to ensure that a worker is ‘free to choose’ is to ensure that there’s a private ballot, so that no one knows how you voted. I cannot fathom how we were about to sit there today and debate a proposal to take away a worker’s democratic right to vote in a secret-ballot election and call it ‘Employee Free Choice.’[26]

The bill’s opponents also oppose the mandatory arbitration of disputes involving the terms of a first contract, asserting that such a procedure could constitute an improper intrusion of government into private business affairs[27] and harmful for competitiveness and innovation.[28] Opponents have also suggested that the arbitration mandate could lead to management resorting to offensive lockouts as a means to pressure unions and employees into accepting company proposals before the deadline for arbitration.[29]

Michael J. Lotito, Martin F. Payson and James J. LaRocca, attorneys with the law firm of Jackson Lewis LLP – a management-side law firm – referred to the letter from Rep. Miller and his colleagues and the bill in an article published by Employment Law 360. In the article, the authors claim that the Employee Free Choice Act effectively eliminates the secret-ballot union certification election for workers.[30]

In 2007, 28 Republican Senators supported an opposition bill, the Secret Ballot Protection Act[31], which would eliminate the use of the card check procedure. In 1947, during the beginning of the Red Scare, a similar proposal to eliminate the use of cards was rejected in conference in the House of Representatives.[32][33]

During a October 17, 2008 conference call, Home Depot co-founder Bernie Marcus spoke against HR 800, calling it “the demise of a civilization”.[34] He went on to say “If a retailer has not gotten involved with this, if he has not spent money on this election, if he has not sent money to Norm Coleman and these other guys,” then those retailers “should be shot; should be thrown out of their goddamn jobs.”

Former Democratic presidential nominee George McGovern has released political advertisements in opposition to the bill, saying “It’s hard to believe that any politician would agree to a law denying millions of employees the right to a private vote. … Quite simply, this proposed law cannot be justified.”[35]

Congressional action

On February 14, 2007, in a full Committee markup session, the House Committee on Education and Labor voted 26-19[36] to report the bill to the full House. Republican members of the committee voted unanimously against reporting the bill, citing numerous amendments proposed by Republican committee members that were rejected by the Democratic majority on the committee.[37]

On March 1, 2007, the House of Representatives passed the bill, 241 to 185.

On March 30, 2007, Senator Ted Kennedy (D-MA), Chairman of the Senate Committee on Health, Employment, Labor, and Pensions, introduced the Senate version of the Employee Free Choice Act (S. 1041).

The Senate on June 26, 2007 voted 51 to 48 on a Motion to Invoke Cloture on the Motion to Proceed to Consider H.R. 800 (the House version).[38] Because 60 votes were needed to invoke cloture, the bill did not pass during the 110th Congress.

On March 10, 2009, two versions of the bill were introduced in the 111th Congress, again by Sen. Kennedy and Rep. Miller. Kennedy described the bill as “a critical step toward putting our economy back on track,” while Miller also put the bill in the context of the 2008 economic crisis, declaring, “If we want a fair and sustainable recovery from this economic crisis, we must give workers the ability to stand up for themselves and once again share in the prosperity they help to create.”[39]

EFCA is now considered unlikely to pass in the 111th Congress due to the opposition of Senate Republicans. When Sen. Arlen Specter (R-PA) announced that he did not support the bill in March 2009, EFCA supporters only had 59 votes in favor of the bill in the Senate – one short of the number needed to invoke cloture.[40]

FedEx and Boeing

In January 2009, FedEx exercised an option to buy 15 B777F planes from Boeing and had an option to buy 15 more. The contract between the two companies allows FedEx to cancel the second order if Congress changes labor law to make it easier for unions to organize.[41]

See also

  • NLRB election procedures
  • Union Organizer


  1. ^ a b c d e f H.R. 800
  2. ^ Greenhouse, Steven (2009-03-11). “Fierce Lobbying Greets Bill to Help Workers Unionize”. The New York Times. 
  3. ^ a b c d e f Beam, Christopher (2009-03-10). “Uncivil Union: Does card check kill the secret ballot or not?”. Slate. 
  4. ^ “Employee Free Choice Act: Myth vs. Fact” U.S. House of Representatives Committee on Education and Labor.
  5. ^ “Employee Free Choice Act: Myth vs. Fact” U.S. House of Representatives Committee on Education and Labor.
  7. ^ page 10
  8. ^ Joel Dillard and Jennifer Dillard, “Fetishizing the Electoral Process: The National Labor Relations Board’s Problematic Embrace of Electoral Formalism,” Seattle Journal for Social Justice, spring/summer 2008, p. 833
  9. ^ H.R. 800
  10. ^ James J. LaRocca and Martin F. Payson, Employee Free Choice Act Tops Presidential Hopeful’s Agenda, Jackson Lewis LLP, July 8, 2008.
  11. ^ “In Employee Free Choice Act, a Numbers Game for Labor”. 2007-12-22. Retrieved on 2008-12-29. 
  12. ^ National Labor Relations Act, Section 9(c) Hearings on questions affecting commerce; p. 14)
  13. ^ EFCA analysis by the Heritage Foundation
  14. ^ How To Decertify Your Union
  15. ^ NLRB Jurisdiction
  16. ^ Top union official sure of votes on card check
  17. ^ Statement of Dr. Gordon Lafer Before the United States Senate Committee on Appropriations
  18. ^ Rep. George Miller of California, 2007 Congressional Record, Vol. 153, Page E260, February 5, 2007
  19. ^ “EMPLOYEE FREE CHOICE ACT OF 2007–MOTION TO PROCEED”. Congressional Record (GPO): pp. S8378-S8398. 2007-06-26. Retrieved on 2008-04-26. 
  20. ^ “Obama Supports Union Ploy to Drop Secret Ballots”. Retrieved on 2009-01-26. 
  22. ^ Jeff Madrick, “Time for a New Deal,” New York Review of Books, Sept. 25, 2008, pp. 65-70
  23. ^ Modernizing labor law
  24. ^ Thomas A. Kochan and John Paul Ferguson, “Modernizing Labor Law,” Boston Globe, June 21, 2007
  25. ^ “Tell your Member of Congress to Oppose Card Check Legislation”. National Association of Manufacturers. 2007-02-06. Retrieved on 2008-11-07. 
  26. ^ “Former Union Organizer Details Tactics of Manipulating Workers Just to Get a Majority on the Cards”. Press Release. Committee on Education and Labor (Minority). 2007-02-08. Retrieved on 2007-02-19. 
  27. ^ “Labor bill empowers government to set wages, benefits for private workers”. Bryan OKeefe. The Examiner. 2007-02-08. Retrieved on 2007-03-07. 
  28. ^ “Binding Arbitration for Unions Endangers Competitiveness and Innovation”. Paul Kersey and James Sherk. The Heritage Foundation. 2007-03-05. Retrieved on 2007-03-07. 
  29. ^ “Labor move could backfire on workers”. Richard Hankins. The Atlanta Journal-Constitution. 2007-03-02. Retrieved on 2007-03-07. 
  30. ^ The Right to Vote Under Attack – AgainPDF, Michael J. Lotito, Martin F. Payson and James J. LaRocca, Employment Law 360, August 13, 2008.
  31. ^ (S. 1312)
  32. ^ (H. R. Conf. Rep. No. 510, 80th Cong., 1st Sess., 41 (1947))
  33. ^ “NLRB v. GISSEL PACKING CO., 395 U.S. 575 (1969)”. Retrieved on 2008-05-01. 
  34. ^ It’s Time to Give Voters the Liberalism They Want
  35. ^ McGovern vs. unions – First Read –
  36. ^ “Unionizing bill advances; Cheney threatens veto”. Reuters (The Washington Post). 2007-02-14. Retrieved on 2007-02-19. 
  37. ^ “In Unprecedented Assault on Democracy, House Democrats Reject GOP Move to Protect Secret Ballot Rights for American Workers”. Press on and Labor (Minority). 2007-02-14. Retrieved on 2007-02-19. 
  38. ^ “U.S. Senate Roll Call vote on Motion to Invoke Cloture on the Motion to Proceed to Consider H.R.800”. 2007-06-26. Retrieved on 2007-06-26. 
  39. ^ “U.S. Senate and House Introduce Employee Free Choice Act”. 2009-03-10. 
  40. ^ “Arlen Specter opposes Employee Free Choice Act”. Washington Business Journal. 2009-03-25. 
  41. ^ FedEx Threatens to Cancel Jet Orders, Wall St. Journal, March 25, 2009

External links

  • Coalition for a Democratic Workplace
  • Facts about Employee Free Choice Act from AFL-CIO
  • The Center for Union Facts
  • Employee Free Choice Act on OpenCongress
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