ALP: What is the Employee Free Choice Act and why do labor unions so strongly support it?
The so-called Employee Free Choice Act (“EFCA”) is proposed federal legislation that would dramatically favor labor unions. The EFCA would change existing law by (a) removing the requirement that a union first win a secret ballot election before being certified as an employee representative, (b) allowing the government to dictate the terms of collective bargaining agreements, and (c) greatly increasing the cost of what the government deems to be improper employee discipline.
What are the odds of such drastic changes actually passing? The odds are pretty good at the moment. The EFCA has already passed the U.S. House, and has majority support in the U.S. Senate. If elected, Sen. Obama has promised to sign the EFCA.
The EFCA is dishonestly named because it does not aid, but in fact restricts, the ability of an employee to make a “free choice” regarding unionism. Generally speaking, under current law a union cannot be certified as the bargaining representative of an employee group until it first receives a majority of favorable votes in a secret ballot election conducted by the National Labor Relations Board. The Supreme Court and the NLRB have on multiple occasions clearly stated that secret ballot elections are the best, most reliable way to determine employee sentiment regarding unionism. The EFCA essentially would do away with secret ballot elections.
Instead, under the EFCA, a union could be certified as the bargaining representative simply by “convincing” a majority of the employee group to sign authorization cards indicating union support. These cards are not secret. Under the EFCA, if the union presents cards from the majority of the group to the NLRB, then the NLRB would not conduct a secret ballot election, but would instead certify the union as the bargaining representative. This is called “card-check” certification. After such certification the employer would be required to begin bargaining with the union within 10 days regarding the wages, hours and working conditions of the employee group.
Of course the problem with this approach is that a person will sign a card or petition for any number of reasons, even if he does not actually support or understand the cause. He may feel peer-pressure. He may have been lied to. Or, he may have been threatened. Only the naïve would dispute that at least some union representatives would resort to threats to “convince” a worker to sign an authorization card. Granted, one could say that employers also may threaten employees against unions. But that only highlights the importance of having union issues decided by a secret ballot election, not the public signing of a card or petition.
Another problem with the EFCA’s proposed card-check approach is that it effectively prevents employees from hearing the whole story regarding union representation. Under current law, after a union requests an election, there is typically a 40 day period in which the union and the employer campaign to provide employees with both sides of the union issue. The resulting free flow of information causes many employees who initially supported the union to change their minds and ultimately vote – in secret – against the union. The EFCA would eliminate this campaign period and result in employees “choosing” union representation based solely on what the union has sold, er, told, them.
Another astounding part of the EFCA is that if an employer and a union are unable after 120 days of bargaining to come to an agreement on a first CBA, then a federal arbitrator must step in to “render a decision settling the dispute and such decision shall be binding upon the parties for a period of two years.” Think about that. A government appointed arbitrator dictating to a private employer what the wages, hours, benefits, vacations, work rules and other working conditions of its employees will be.
Finally, current law makes it illegal to discharge a worker for supporting a union. If the NLRB proves this happened, the worker is entitled to be made whole for the period he was off work. That is, he is put in the same financial position he would have been in assuming he had not been discharged. The EFCA would create a windfall for such an employee by awarding him not only his actual lost wages, but also two times that amount. The EFCA also creates a fine of up to $20,000 per violation for employers deemed to be “repeat offenders.” In some cases, the EFCA would also require the NLRB to seek an injunction to put a discharged employee back to work before there is even a final ruling as to whether or not he was properly discharged.
In summary, the EFCA presents the most radical change to federal labor law in over 60 years. Unfortunately, it is not change either employees or employers can believe in
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