Employee Free Choice Act

The Employee Free Choice Act (EFCA) is proposed 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." [USBill|110|H.R.|800] 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. Under the EFCA, employees would no longer have the opportunity to vote for a union by secret ballot when a majority of employees sign union cards and the NLRB does not find illegal coercion. [USBill|110|H.R.|800] 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. [USBill|110|H.R.|800] 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. [USBill|110|H.R.|800] Where government arbitration determines terms of the agreement, employees would lose their current right to ratify the terms of the agreement. [USBill|110|H.R.|800] Finally, the Act would provide for liquidated damages of three times back pay if employers were found to have unlawfully terminated pro-union employees. [USBill|110|H.R.|800] 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. [USBill|110|H.R.|800] [ [http://www.jacksonlewis.com/legalupdates/article.cfm?aid=1434 James J. LaRocca and Martin F. Payson, "Employee Free Choice Act Tops Presidential Hopeful's Agenda", Jackson Lewis LLP, July 8, 2008.] ]

The "Employee Free Choice Act" goes further with the intent to eradicate non-unionized labor by repealing states rights to declare themselves "Right to Work" states, as established under the Taft-Hartley Act. Right to Work states establish that membership in an organized labor union can not be compulsory for employment. As such, the vast majority of new manufacturing centers (and jobs) have been established in Right to Work states such as Georgia, Florida, Alabama, South Carolina, Tennessee, Mississippi, and the balance of the 22 Right to Work states in the US.

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.

Certification on the Basis of Signed Authorizations

The most widely-publicized change to the National Labor Relations Act are changes to the finality of organizing a union by majority card check signatures. Currently an employer can voluntarily recognize a union when a majority of employees sign authorization cards, or the employer can demand a secret ballot election. Under the EFCA, a secret ballot election would only be held if more than 30%, but less than a majority of employees sign union authorization cards. A secret ballot election might be required if illegal coercion invalidates the results of a majority card check election. Publicity of changes to card check recognition has been mainly from opponents to the EFCA. 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:

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.

Opponents' Views

Critics contend that additional use of card check elections will lead to illegal coercion on the part of union organizers. [cite web |url=http://www.nam.org/s_nam/doc1.asp?CID=37&DID=238231 |title=Proposed Legislation Stripping Secret Ballot Elections Limits Choice & Democracy |accessdate=2007-02-16 |date=2007-02-06 |publisher=National Association of Manufacturers] Opponents of the EFCA also assert that the measure would not protect employee privacy. Representative John Kline (R-MN) has stated:

The bill's detractors 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 [cite web |url=http://www.examiner.com/a-587766~Bryan_O_Keefe__Labor_bill_empowers_government_to_set_wages__benefits_for_private_workers.html |title=Labor bill empowers government to set wages, benefits for private workers |work=Bryan OKeefe |publisher=The Examiner|accessdate=2007-03-07|date=2007-02-08] and harmful for competitiveness and innovation. [cite web |url=http://www.heritage.org/Research/Labor/wm1384.cfm |title=Binding Arbitration for Unions Endangers Competitiveness and Innovation|work=Paul Kersey and James Sherk|publisher=The Heritage Foundation|date=2007-03-05|accessdate=2007-03-07] Opponents of the bill 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. [cite web |url=http://www.ajc.com/search/content/opinion/stories/2007/03/01/0302edunion.html |title=Labor move could backfire on workers
work=Richard Hankins |publisher=The Atlanta Journal-Constitution |date=2007-03-02|accessdate=2007-03-07]

Opponents also point to a 2001 letter to Mexican government officials, signed by 11 Democrats who subsequently voted in favor of H.R.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." [cite web |url=http://edlabor.house.gov/micro/efca_myth.shtml |title=Employee Free Choice Act: Myth vs. Fact |accessdate=2007-04-04 |work=House Committee on Education and Labor website]

Michael J. Lotito, Martin F. Payson and James J. LaRocca, attorneys with the law firm of Jackson Lewis LLP -- a leading law firm on the Employee Free Choice Act -- referenced 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. [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.]

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. [cite web |url=http://www.politico.com/news/stories/0207/2758.html |title=Cheney Says Bush Will Veto Pro-Union Bill |accessdate=2007-02-14 |last=Patch |first=Jeff |date=2007-02-14 |work=The Politico] 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." [cite web |url=http://www.whitehouse.gov/omb/legislative/sap/110-1/hr800sap-r.pdf |title=Executive Office of the President, Office of Management and Budget Statement of Administrative Policy on H.R. 800 |accessdate=2007-03-07 ]

The 2008 Presidential candidate for the Republicans, Senator John McCain (R. AZ) opposes the EFCA saying: cquote|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. [cite news | first= | last= | coauthors= | title=EMPLOYEE FREE CHOICE ACT OF 2007--MOTION TO PROCEED | date=2007-06-26 | publisher=GPO | url =http://frwebgate4.access.gpo.gov/cgi-bin/waisgate.cgi?WAISdocID=2256749134+0+0+0&WAISaction=retrieve | work =Congressional Record | pages = | accessdate = 2008-04-26 | language = ]

In 2007, McCain and 27 other Republican Senators supported an opposition bill, The Secret Ballot Protection Act (USBill|110|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)) [cite news | first= | last= | coauthors= | title=NLRB v. GISSEL PACKING CO., 395 U.S. 575 (1969) | date= | publisher= | url =http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?friend=nytimes&navby=volpage&court=us&vol=395&page=600#600 | work = | pages = | accessdate = 2008-05-01 | language = ]

Former Democratic presidential nominee Senator George McGovern broke with Democratic Party orthodoxy by opposing the EFCA in a August 2008 editorial in the Wall Street Journal:cquote|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. [cite web |url=http://online.wsj.com/article/SB121815502467222555.html |title=My Party Should Respect Secret Union Ballots |accessdate=2008-08-10 |date=2008-08-09 |publisher=Wall Street Journal]

An August 27, 2008 editorial in the Wall St. Journal stated, "Unable to organize workers when employees can vote in privacy, unions want to expose those votes to peer pressure, and inevitably to public intimidation... The only sector of the U.S. auto industry that is prospering is the part not organized by the United Auto Workers... The Mackinac Center for Public Policy has shown that right to work states over the past 30 years have lower unemployment, higher rates of job creation, and faster growth in GDP and per-capita personal income than states with compulsory union membership." [ [http://online.wsj.com/article/SB121979616286074815.html?mod=opinion_main_review_and_outlooks Big Labor's Comeback] , Wall St. Journal,August 27, 2008]

Congressional Action

On February 14, 2007, in a full Committee markup session, the House Committee on Education and Labor voted 26-19 [cite news |title=Unionizing bill advances; Cheney threatens veto |url=http://www.washingtonpost.com/wp-dyn/content/article/2007/02/14/AR2007021401929.html |work=Reuters |publisher=The Washington Post |date=2007-02-14 |accessdate=2007-02-19] 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. [cite web |url=http://republicans.edlabor.house.gov/PRArticle.aspx?NewsID=64 |title=In Unprecedented Assault on Democracy, House Democrats Reject GOP Move to Protect Secret Ballot Rights for American Workers |accessdate=2007-02-19 |date=2007-02-14 |work=Press on and Labor (Minority) ]

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 (USBill|110|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). [cite web |url= http://www.senate.gov/legislative/LIS/roll_call_lists/roll_call_vote_cfm.cfm?congress=110&session=1&vote=00227 |title=U.S. Senate Roll Call vote on Motion to Invoke Cloture on the Motion to Proceed to Consider H.R.800 |accessdate=2007-06-26 |date=2007-06-26 ] Because 60 votes were needed to invoke cloture, the bill is unlikely to pass during the 110th Congress.

References

See Also

*Card check
*NLRB election procedures
*The Burke Group

External Links

* [http://efca.jacksonlewis.com "EFCA"] - Jackson Lewis LLP, a leading law firm on the Employee Free Choice Act
* [http://efcaupdate.squarespace.com/display/ShowJournal?moduleId=1106597&categoryId=95851 "EFCA Updates"] - Kilpatrick Stockton LLP, which opposes the Act
* [http://www.employeefreedom.org/getTheFacts.cfm Employee Freedom - What Does EFCA Mean for Workplace Democracy?] - Employee Freedom Action Committee, which opposes the Act
* [http://www.changetowin.org/index.php?id=268 Employee Free Choice Act] - Change to Win, which supports the Act
* [http://www.aflcio.org/joinaunion/voiceatwork/efca/ Employee Free Choice Act] - AFL-CIO, which supports the Act
* [http://www.americanrightsatwork.org/employee-free-choice-act/home/ American Rights at Work - EFCA]
* [http://www.myprivateballot.com Coalition for a Democratic Workplace] - a business group comprising the Retail Industry Leaders Association, Associated Builders and Contractors, National Association of Manufacturers, and U.S. Chamber of Commerce
* [http://www.uschamber.com/issues/letters/2007/070213cardcheck.htm U.S. Chamber of Commerce, Letter Opposing HR 800 EFCA]
* [http://www.thenation.com/doc/20060206/miller "Employee Free Choice" by Rep. George Miller in "The Nation"]
* [http://www.nam.org/s_nam/doc1.asp?CID=201823&DID=238287 Vice President Cheney's Speech to NAM on 2007-02-14]
* [http://democrats.senate.gov/journal/entry.cfm?id=277768& Myth vs. Reality: The REALITY is the Employee Free Choice Act Helps American Workers and their Families] - Democratic Caucus's Senate Journal
* [http://www.nilrr.org/node/75 Card-Check" Forced- Unionism Bill Would Hurt Employers and Employees] , Nation Institute for Labor Relations Research
* [http://www.fmcs.gov/ Federal Mediation and Conciliation Service]