Debate Continues on Employee Free Choice Act

Bob Dunlevey

Bob Dunlevey is an attorney with Dunlevey, Mahan & Furry (www.dmfdayton.com) in Dayton, Ohio. He is well recognized for his counseling and defense of businesses having employment-related issues, including federal and state court litigation and OSHA proceedings, wage-hour compliance, collective bargaining, wrongful discharge defense, and regulatory compliance. He can reached at rtd@dmfdayton.com.

July 1, 2009

Congress continues to debate the Employee Free Choice Act (EFCA), legislation that would amend the National Labor Relations Act by changing the way employees form, join, or assist labor organizations. Proponents consider EFCA the most important legislation for organized labor in the 111th Congress.

Sometimes called “card check,” the proposed law would permit a union to organize workers without first holding the secret ballot election required today. Instead, if a majority of employees signed cards authorizing union representation, EFCA would compel employers to recognize and negotiate with the union bargaining representative.

For approximately 75 years, the union organizing process required labor organizations to obtain signed authorization cards from at least 30 percent of employees in a bargaining unit before the National Labor Relations Board (NLRB) would conduct a secret ballot election. In that election, a majority of the employees would have to vote in favor of unionizing for the NLRB to certify the union as the exclusive representative of the employees for purposes of collective bargaining.

Under EFCA, labor organizations could still hold secret ballot elections, or they could take advantage of a new method of voting: Authorization cards would be circulated among employees, and if a majority signed the cards, the NLRB would install the union.

Not only does EFCA change the voting process, it also changes what happens if the union is installed by the NLRB. Currently, following installation of the union, labor and management are left to negotiate the collective bargaining agreement, with the economic strengths and weaknesses of the respective parties dictating the outcome. If the parties cannot reach an agreement, the employees are free to strike to exert pressure on the employer to agree to the union’s demands, and the employer is free to lock out the employees and hire replacement workers.

Under EFCA, labor and management would be given 90 days to reach an agreement encompassing all relevant wage rates, benefits, hours of work, and conditions of employment. If agreement could not be reached within 90 days, the parties would be compelled to use the Federal Mediation and Conciliation Service (FMCS) for 30 days to facilitate a settlement. (Currently, FMCS offers its services to parties in a labor dispute only if requested.) If mediation does not result in the parties reaching a settlement within 30 days, an arbitrator would unilaterally determine the terms and conditions of the first bargaining agreement. The agreement would be imposed for a 2-year term, after which the parties would be free to negotiate again.

The debate over EFCA encompasses several issues:

  • Proponents of EFCA claim that the current process—which lasts about 6 weeks from the time the union files for election until the secret ballot vote—gives management time to pressure union proponents into changing their votes. Opponents of EFCA counter that under the proposed legislation, undue pressure could be exerted on employees to sign their authorization cards publicly, making the process an inherently unreliable expression of the employees’ wishes.
  • Proponents of EFCA say the new process ensures that employees will have their wishes carried out by having a bargaining agreement in place within a relatively short time frame. Opponents say that having a third-party arbitrator impose wages, benefits, and working conditions will result in neither party getting what they want and that the process threatens the free enterprise system.
  • Proponents say EFCA is an important tool to level the playing field for workers by restricting management’s ability to discourage unionizing. Opponents say EFCA would make American employees less competitive in the global marketplace, especially given the perilous economy.

EFCA is one of approximately 10 pieces of proposed legislation that could significantly change current labor laws. For example, the Re-Empowerment of Skilled and Professional Employees and Construction Trade Workers Act would change the definition of “supervisor” under the National Labor Relations Act. Supervisors are excluded from voting and being in bargaining units. This legislation would result in fewer employees being classified as supervisors and thus being excluded from the bargaining process.

President Obama has stated that he is in favor of EFCA, while also acknowledging that the bill does not have enough votes to pass the U.S. Senate as written. Obama predicted that the Senate would have to modify some of the proposed provisions to get the 60 votes needed. These changes may include eliminating the mandatory arbitration provision, or elongating the period the parties negotiate on their own before imposed arbitration. In addition, penalties for unions that coerce employees into signing authorization cards may be increased.