The Employee Free Choice Act (EFCA) is legislation in the United States which aims to “amend the National Labor Relations Act to establish an efficient 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.” Under current labor law, the U.S. National Labor Relations Board will certify a union as the exclusive representative of employees if it is elected by either a majority signature drive, the card check process, or by secret ballot NLRB election, which is held if more than 30% of employees in a bargaining unit sign statements asking for representation by a union. If enacted, this bill would require the NLRB to certify a bargaining representative without directing an election if a majority of the bargaining unit employees signed cards, the card check process.
Pursuant to the bill, a union can demand that an employer begin bargaining with it 10 days after the union is certified as the exclusive bargaining representative for an appropriate unit of employees via the card check. In addition, if the union and employer cannot agree upon the terms of a first collective bargaining contract within 90 days, either party can request federal mediation, which could lead to binding arbitration if an agreement still cannot be reached after 30 days of mediation. Where government arbitration determines terms of the agreement, employees would lose their current right to ratify the terms of the agreement. Finally, the Act would provide for liquidated damages of three times back pay if employers were found to have unlawfully terminated pro-union employees. The EFCA also would impose a $20,000.00 penalty upon employers for each employer violation of the proposed legislation if the NLRB and/or a court deems the violation willful or repetitive.
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 is unlikely to pass during the 110th United States Congress because 60 votes were needed to invoke cloture.
Contents
- 1 Certification on the Basis of Signed Authorizations
- 2 First Contract Mediation and Arbitration
- 3 Civil Penalties and Increased Back Pay for Certain Unfair Labor Practices
- 4 Small Business Exemptions
- 5 Proponents’ views
- 6 Opponents’ Views
- 7 Congressional Action
- 8 References
- 9 See also
- 10 External links
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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, then the NLRB does not interfere. Both an employer or a substantial number of employees can dispute the recognition of an individual or labor organization and require a secret ballot election.
The most widely publicized change to the National Labor Relations Act 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 a card check election. Under the EFCA, an employer can only dispute the legitimacy of an employee representative only if less than a majority of employees have signed authorization cards, or if illegal coercion is alleged.
The process of union decertification does not change under the EFCA, with an secret ballot election held when 30% of employees request decertification of a union, or an employer can voluntarily accept the results when a majority of employees sign decertification cards.
The amended text proposed in lines 8 thru 24 reads:
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(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). |
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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 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.
The bill also calls for increases in the amount an employer is required to pay when an employee is 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, lest any wages earned by an employee if they are hired by another employer.
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.
Small Business Exemptions
The Employee Free Choice Act does not alter the existing small business exemption of the National Labor Relations Board. The jurisidiction of the NLRB remains at the level set in 1959, $500,000 gross volume for a retail business, which, if inflation-adjusted, would be about $3.3 million in 2008. The NLRB also requires a union to consist of a minimum of 3 employees that have no supervisory authority, exempting many small businesses from the increased penalties of the EFCA.
Proponents’ views
Proponents of the legislation insist that the change is necessary to protect workers’ rights to join unions. In his remarks accompanying the bill’s introduction, Representative George Miller (D-CA), chairman of the House Committee on Education and Labor, stated:
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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…. |
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President-elect Barack Obama supports the Bill. An original cosponsor of the EFCA, Senator Obama urged his colleagues to pass the bill during a 2007 motion to proceed:
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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.
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The AFL-CIO argues that, in practice, company-run secret ballots actually make the process less democratic:
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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.” |
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Opponents’ Views
Letter to Mexican government officials from the sponsor of H.R.800. Source: Office of Congressman George Miller
Critics contend that additional use of card check elections will lead to overt coercion on the part of union organizers. Opponents of the EFCA also assert that the measure would not protect employee privacy. Representative John Kline (R-Minn.) has stated:
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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.’ |
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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 and harmful for competitiveness and innovation. 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.
Opponents also point to a 2001 letter to Mexican government officials, signed by 11 Democrats who subsequently voted in favor of HR 800, encouraging the “use of secret ballots in all union recognition elections.” The letter further states, “we feel that the secret ballot is absolutely necessary in order to ensure that workers are not intimidated into voting for a union they might not otherwise choose,” seeming to contradict the spirit of the legislation passed by the House. Congressman George Miller was the lead signatory of the 2001 letter and the sponsor of H.R.800. However, Rep. Miller and the other signatories to the 2001 letter now contend that their demand for a secret ballot election was limited to situations where “workers seek to replace one union with another union,” although the letter makes no mention of this case and instead states “all union recognition elections.”
Michael J. Lotito, Martin F. Payson and James J. LaRocca, attorneys with the law firm of Jackson Lewis LLP — a leading law firm involved with the Employee Free Choice Act — referred to the letter and the bill in an article published by Employment Law 360, wherein they explain that EFCA effectively eliminates the secret-ballot union certification election for workers.
Vice President Dick Cheney told the National Association of Manufacturers on 2007-02-14 that President George W. Bush will veto the bill if it reaches his desk. The White House issued a Statement of Administrative Policy on February 28, 2007 stating: “If H.R. 800 were presented to the President, he would veto the bill. The Administration opposes any effort to circumvent supervised elections and private balloting.”
The 2008 Presidential candidate for the Republicans, Senator John McCain (R-Ariz.) opposes the EFCA saying:
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I am strongly opposed to H.R. 800, the so-called Employee Free Choice Act of 2007. Not only is the bill’s title deceptive, the enactment of such an ill-conceived legislative measure would be a gross deception to the hard-working Americans who would fall victim to it. |
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In the closing weeks of the 2008 Presidential election, Senator McCain stepped up his attacks on the Employee Free Choice Act telling CNBC,
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“It’s dangerous for America, it’s dangerous to small business. And I think it’s a threat to one of the fundamentals of democracy.” |
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In 2007, McCain and 27 other Republican Senators supported an opposition bill, The Secret Ballot Protection Act (S. 1312) which would eliminate the use of the currently optional 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 (H. R. Conf. Rep. No. 510, 80th Cong., 1st Sess., 41 (1947))
Former Democratic presidential nominee Senator George McGovern broke with Democratic Party orthodoxy by opposing the EFCA in an August 2008 editorial in the Wall Street Journal:
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To my friends supporting EFCA I say this: We cannot be a party that strips working Americans of the right to a secret-ballot election. We are the party that has always defended the rights of the working class. To fail to ensure the right to vote free of intimidation and coercion from all sides would be a betrayal of what we have always championed. |
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Congressional Action
On February 14, 2007, in a full Committee markup session, the House Committee on Education and Labor voted 26-19 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 committeeRelease |publisher=Committee on Educati.
On March 1, 2007, the House of Representatives passed the bill, 241 - 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 51-48 on a Motion to Invoke Cloture on the Motion to Proceed to Consider H.R. 800 (the House version). Because 60 votes were needed to invoke cloture, the bill is unlikely to pass during the 110th Congress.
References
- ^ H.R. 800
- ^ H.R. 800
- ^ H.R. 800
- ^ H.R. 800
- ^ H.R. 800
- ^ H.R. 800
- ^ H.R. 800
- ^ James J. LaRocca and Martin F. Payson, Employee Free Choice Act Tops Presidential Hopeful’s Agenda, Jackson Lewis LLP, July 8, 2008.
- ^ National Labor Relations Act, Sec 9(c) Hearings on questions affecting commerce; p. 14)
- ^ NLRB Jurisdiction
- ^ Rep. George Miller of California, 2007 Congressional Record, Vol. 153, Page E260, February 5, 2007
- ^ “EMPLOYEE FREE CHOICE ACT OF 2007–MOTION TO PROCEED”, Congressional Record, GPO (2007-06-26), pp. S8378-S8398. Retrieved on 26 April 2008.
- ^ http://www.aflcio.org/joinaunion/voiceatwork/efca/majoritysignup.cfm
- ^ “Tell your Member of Congress to Oppose Card Check Legislation”. National Association of Manufacturers (2007-02-06). Retrieved on 2008-11-07.
- ^ “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.
- ^ “Labor bill empowers government to set wages, benefits for private workers”. Bryan OKeefe. The Examiner (2007-02-08). Retrieved on 2007-03-07.
- ^ “Binding Arbitration for Unions Endangers Competitiveness and Innovation”. Paul Kersey and James Sherk. The Heritage Foundation (2007-03-05). Retrieved on 2007-03-07.
- ^ “Labor move could backfire on workers”. Richard Hankins. The Atlanta Journal-Constitution (2007-03-02). Retrieved on 2007-03-07.
- ^ “Employee Free Choice Act: Myth vs. Fact”. House Committee on Education and Labor website. Retrieved on 2007-04-04.
- ^ http://www.jacksonlewis.com/legalupdates/pdf/081308_The_Right_to_Vote_Under_Attack_Law360.pdf Michael J. Lotito, Martin F. Payson and James J. LaRocca, The Right to Vote Under Attack — Again, Employment Law 360, Aug. 13, 2008.
- ^ Patch, Jeff (2007-02-14). “Cheney Says Bush Will Veto Pro-Union Bill”. The Politico. Retrieved on 2007-02-14.
- ^ “Executive Office of the President, Office of Management and Budget Statement of Administrative Policy on H.R. 800″. Retrieved on 2007-03-07.
- ^ “EMPLOYEE FREE CHOICE ACT OF 2007–MOTION TO PROCEED”, Congressional Record, GPO (2007-06-26). Retrieved on 26 April 2008.
- ^ http://thinkprogress.org/2008/10/28/mccain-obama-unions/
- ^ “NLRB v. GISSEL PACKING CO., 395 U.S. 575 (1969)”. Retrieved on 1 May 2008.
- ^ “My Party Should Respect Secret Union Ballots”. Wall Street Journal (2008-08-09). Retrieved on 2008-08-10.
- ^ “Unionizing bill advances; Cheney threatens veto”, Reuters, The Washington Post (2007-02-14). Retrieved on 19 February 2007.
- ^ “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.
- ^ “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.
See also
- Card check
- NLRB election procedures
- NLRA
- Robert F. Wagner
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