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last updated on December 16, 2009

EMPLOYEE FREE CHOICE ACT

THE ISSUE

The creation of an unfair system for labor bosses to organize unions under the threat of federal arbitration and without the use of secret ballots.

IT IS IMPORTANT BECAUSE

The principle purpose of the Employee Free Choice Act, H.R. 1409 and S. 560 – known in the business community as the “card check” bill – is to make it significantly easier for unions to organize.

Under current law, if union organizers collect signatures from at least 30 percent of the employees in a bargaining unit, they can petition the National Labor Relations Board to hold a secret-ballot election to determine whether to certify the union. After both the union and the employer are given the opportunity to present its case, the employees cast their votes under federal supervision. If the union gets more than 50 percent of the votes, they are certified and the employer must begin collective bargaining.

Under the EFCA, instead of a federally supervised secret-ballot election, the union would be formed and certified the moment it collected a majority of signed authorization cards. No election is required, and there are no guidelines or specifications for how signatures can be collected.

Labor organizers support EFCA because it allows them to bypass the secret-ballot election, giving them an unfair advantage in the organization process. Workers can be asked repeatedly to sign the authorization cards at any time. When the union organizers reach 51 percent of votes in support of the organization of a union, the union would automatically be certified.

Additionally, under the EFCA union organizers have no obligation to inform the employer or employees that it is launching an organization drive. An employer might not discover that a union drive is underway until ordered by the federal government to begin collective bargaining. Employees who might oppose the organization of a union could be kept in the dark and would thus lose the opportunity to have a say in the matter.

Section Three of the EFCA stipulates a time limit for the collective bargaining process. An employer would be required to start collective bargaining within 10 days of a union certification. The parties then have 90 days to reach an agreement or the matter is referred to the National Mediation and Conciliation Service, which has 30 days to strike a deal. If no compromise can be reached, either side is permitted to refer the matter to a federal arbitration panel that has the authority to hand down a binding two-year contract.

This provision of the EFCA forces complicated negotiations into a compressed timeframe and adds the threat of federal arbitration. The legislation does not specify who will sit on the arbitration panel or what appeals rights, if any, will be established. Proponents of the bill argue that the threat of federal arbitration will lead to productive bargaining; although, if a union feels it is losing its edge in the contract talks, it would have every incentive to stonewall and wait for an arbitration panel to hand down a contract. Although both parties may not like the contract, a union would prefer a bad contract to no contract while a business might get saddled with an agreement that is completely incompatible with its cost structure and business model.

A final provision of the EFCA increases the financial penalties on employers for any violations of the National Labor Relations Act throughout the collective bargaining process.

LEGISLATIVE HISTORY

The EFCA was introduced in the 108PthP and 109PthP Congresses, but never made it out of committee. However, on March 1, 2007, the House of Representatives passed H.R. 800, the Employee Free Choice Act of 2007, by a vote of 241-185. On March 2, 2007, the bill was placed on the Senate Legislative Calendar. On June 19, 2007, Majority Leader Harry Reid filed a cloture motion to proceed to the legislation, but that motion was defeated on June 26 by a vote of 51-48.

On March 10, 2009, Rep. George Miller, D-Calif., introduced the House version of the EFCA, H.R. 1409, with 233 cosponsors essentially guaranteeing passage. However, Speaker Pelosi has indicated that she will not move the bill until the Senate takes action on similar legislation.

The Senate version of the bill, S.R. 560 was introduced by Sen. Ted Kennedy, D-Mass., and had 40 cosponsors.

However, on March 24, Sen. Arlen Specter, D-Penn., announced that he would not support the EFCA nor would he vote for cloture joining with the 40 Republicans and ensuring the success of a filibuster.

Sen. Specter has publicly stated that he would be interested in compromise legislation and it is rumored that he is working with several other Democrats on a new proposal. However, the ‘compromise’ is being crafted only by those who already support EFCA and it will have to satisfy several moderate Democrats who have expressed serious concerns. The new proposal is expected at some point during the 111th Congress as this remains organized labor’s top legislative priority.

NAMIC POSITION

Because the EFCA gives unions an unfair organizational advantage, NAMIC strongly opposes this legislation in all forms.

In response to the drive to pass this legislation, NAMIC has joined the Coalition for a Democratic Workplace (CDW). The CDW was formed by the U.S. Chamber of Commerce with the express purpose of preventing the passage of card check legislation.

CONTACT INFORMATION

For more information please contact Jon Bergner at (202) 628-1558 or jbergner@namic.org.