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Employee Free Choice Act

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Employee Free Choice Act
Great Seal of the United States
Long titleTo 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.
Acronyms (colloquial)EFCA
Legislative history

The Employee Free Choice Act (EFCA) is proposed United States legislation 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."[1] If it becomes law, the Act would require the U.S. National Labor Relations Board to certify a union as the exclusive representative of employees without an election where "a majority of the employees in a unit appropriate for bargaining has signed valid authorizations." In addition, the Act would require parties who cannot agree upon the terms of a first collective bargaining contract within 120 days to submit the issues to an arbitration board, which would be empowered to settle the dispute. Finally, the Act would provide for liquidated damages of two times back pay for certain unfair labor practices.

On March 1, 2007, the House of Representatives passed the act by a vote of 241 - 185. The bill is likely to face stiff opposition in the Senate and a veto by President Bush. [2]

Certification on the basis of signed authorizations

The most widely-publicized change to the National Labor Relations Act is the amended text proposed in lines 8 thru 24:

(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).

In its current form, the statute allows an employer to demand a secret ballot election administered by the National Labor Relations Board when a union requests recognition based on signed authorization cards or petitions. The proposed Employee Free Choice Act would force the National Labor Relations Board to certify a union as the exclusive bargaining representative of employees based on signed authorizations obtained by union organizers.

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.

Stronger penalties 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.

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.

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:

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 . . . . [3]

Opponents' views

Critics contend union administered elections, with a lack of Federal oversight, will lead to coercion on the part of union organizers.[4] Opponents of the EFCA also assert that the measure would not protect employee privacy. Representative John Kline (R-MN) 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.'[5]

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[6] and harmful for competitiveness and innovation.[7] Opponents of the bill have also suggested that the arbitration mandate could lead to managment resorting to offensive lockouts as a means to pressure unions and employees into accepting company proposals before the deadline for arbitration.[8]

Opponents also point to a 2001 letter to Mexican government officials, signed by 11 Democrats who voted for the H.R.800, encouraging a mandate of secret ballots in union recognition elections. The letter 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. Congressman George Miller was the lead signatory of the letter and the lead sponsor of H.R.800. File:8 29 2001 letter.pdf

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.[9] 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."[10]

Congressional action

On February 14, 2007, in a full Committee markup session, the House Committee on Education and Labor voted 26-19[11] 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.[12]

On March 1, 2007, the House of Representatives passed the bill, 241 - 185. The bill is likely to face stiff opposition in the Senate and a veto by President Bush.

References

  1. ^ H.R. 800
  2. ^ "House Passes Employee Free Choice Act" via AFLCIO.org
  3. ^ Rep. George Miller of California, 2007 Congressional Record, Vol. 153, Page E260 , February 5, 2007
  4. ^ "Proposed Legislation Stripping Secret Ballot Elections Limits Choice & Democracy". National Association of Manufacturers. 2007-02-06. Retrieved 2007-02-16. {{cite web}}: Check date values in: |date= (help)
  5. ^ "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 2007-02-19. {{cite web}}: Check date values in: |date= (help)
  6. ^ "Labor bill empowers government to set wages, benefits for private workers". Bryan O’Keefe. The Examiner. 2007-02-08. Retrieved 2007-03-07. {{cite web}}: Check date values in: |date= (help)
  7. ^ "Binding Arbitration for Unions Endangers Competitiveness and Innovation". Paul Kersey and James Sherk. The Heritage Foundation. 2007-03-05. Retrieved 2007-03-07. {{cite web}}: Check date values in: |date= (help)
  8. ^ "Labor move could backfire — on workers". Richard Hankins. The Atlanta Journal-Constitution. 2007-03-02. Retrieved 2007-03-07. {{cite web}}: Check date values in: |date= (help)
  9. ^ Patch, Jeff (2007-02-14). "Cheney Says Bush Will Veto Pro-Union Bill". The Politico. Retrieved 2007-02-14. {{cite web}}: Check date values in: |date= (help)
  10. ^ "Executive Office of the President, Office of Management and Budget Statement of Administrative Policy on H.R. 800" (PDF). Retrieved 2007-03-07.
  11. ^ "Unionizing bill advances; Cheney threatens veto". Reuters. The Washington Post. 2007-02-14. Retrieved 2007-02-19. {{cite news}}: Check date values in: |date= (help)
  12. ^ "In Unprecedented Assault on Democracy, House Democrats Reject GOP Move to Protect Secret Ballot Rights for American Workers". Press Release. Committee on Education and Labor (Minority). 2007-02-14. Retrieved 2007-02-19. {{cite web}}: Check date values in: |date= (help)

See also

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