Will the Employee Free Choice Act undermine free choice?

Last year we reported on the Employee Free Choice Act (EFCA), the proposed pro-union legislation that would abolish secret ballot elections in favor of union card checks by employees. Although the bill failed in the Senate, it remains a priority agenda item for Senator Obama and the Democrats who overwhelmingly supported it.

How the NLRA Works Now

Currently, an employer may voluntarily recognize a union (pre-election recognition), or a union may file a representative petition with the NLRB. A union will typically demand recognition as the exclusive bargaining representative when it has a sufficient majority of support, as determined by signed authorization cards or a “card check.” The employer does not currently have to recognize the union without an election, which may be sought by the union, the employer, or the employees. If there is a showing (by card check or petition) that at least 30% of an appropriate bargaining unit wish to be represented by a union or by another group, the NLRB will hold a secret ballot election. If a majority of employees choose to be represented, the NLRB will certify that representative to bargain collectively with the employer on behalf of the employees in the unit. Once the employer and the union agree on a contract, the employees get to vote on it.

How the EFCA Would Work

Under the proposed EFCA, secret ballot elections are eliminated. Instead, if a majority of employees sign union authorization cards, the workforce becomes unionized without an election. Although the process is not secret, it is possible for the union to obtain the required majority before all of the employees and the employer are even aware that a union campaign is afoot. This risk is far greater for small employers: consider an employer with a workforce of 20 employees -- a union could get authorization cards from 11 employees over a weekend and, unbeknownst to the employer and the remaining staff, they will be unionized come Monday morning.

Once the union is certified, the parties must begin bargaining within 10 days. If they cannot reach agreement on a contract within 90 days, or through mediation in the 30 days after that, an arbitrator decides what terms will govern the parties’ employment relationship for the first two years. Employees have no say in this process.

The EFCA imposes substantial additional penalties on employers for unfair labor practices, including triple back pay awards for employees and fines of up to $20,000 per violation. The Act imposes no additional penalties on unions that commit unfair labor practices.

How the Elimination of Secret Ballots Plays Out in Practice

In 2007, Oregon enacted its own version of the EFCA applicable to public employees. See ORS 243.682(2). Under that law, the employees or the union could file a petition for certification without an election if a majority of employees sign authorization cards. However, as originally enacted, the statute and regulations provided employees with two important safeguards not present under the EFCA. First, employees could rescind their authorization after signing a card (this provision has since been eliminated from the regulations, but a petition has been filed to restore it). In addition, if 30% of the employees petitioned the Employee Relations Board (the Oregon equivalent of the NLRB), the Board would hold a secret ballot election. In theory, these safeguards should eliminate some of the shortcomings of the EFCA but, in practice, it is not clear that they do. The safeguards present in the Oregon law fail to address the primary drawback of such “free choice” legislation, which is the lack of secrecy.

In some organizing efforts under the Oregon law, it was reported that employees who did not want to be represented by the union felt coerced into signing cards. Employees described verbal confrontations with the union during visits to employees’ homes and workplaces. Employees who petitioned for an election have also reported hostile and retaliatory treatment from union representatives and pro-union co-workers, who were aware of the petitioners’ identities because the process was not secret.

The EFCA is Likely to Become Law

The EFCA would effect the most significant change in labor law since the NLRA was enacted in the 1940s. If elected president, Senator Obama has said he will sign the EFCA as soon as it lands on his desk. Both employers and employees should educate themselves on the significant shift in power to the unions that passage of the EFCA would effect.

You can access our original article and the text of the EFCA here.

For some additional information and links to information on the EFCA, go to any union website. For another point of view, including links to some amusing TV ads, go here and here.