Regarded as organized labor’s top legislative priority for 2009, the Employee Free Choice Act is expected to make its way back through Congress this year. And if passed, President Obama has pledged to sign the bill into law, paving the way for:
- Increased unionization of businesses without employee secret ballots,
thereby stripping workers of their “free choice”
- Government-imposed “fast-track” union contracts
- Punitive damages and penalties for companies, but not unions
Some have referred to the legislation as "a two-headed monster that's bad for business and bad for employees." The issue has many businesses concerned as they try to learn what the EFCA is about and what it could mean for their bottom line.
McAfee & Taft co-presented a special national webcast featuring an expert panel of labor lawyers, labor relations specialists and public relations professionals discussing how this proposed legislation will impact business and employees. Click here to view that webcast.
Frequently Asked Questions
QUESTION: Proponents of the Employee Free Choice Act (EFCA) are
saying that it will not take away secret ballot elections. Is that true?
ANSWER: Technically that is true, but as a practical matter, it will take away secret ballot elections.
Here's why: Under current law, in order for a union to get the National Labor Relations Board (NLRB) to conduct an election it must get a 30% showing of interest among employees it is trying to organize – anything less than that, and the NLRB will not set up an election. This showing of interest is normally done by having employees sign "authorization cards." By signing a card, the employee essentially is expressing his/her interest in having a union. Unions have found that unless they actually get a majority of the workers to sign these authorization cards, they stand little chance of winning the election. In fact, studies have shown that unless unions have 75% of the employees signed up before asking for an election, they have less than a 50/50 chance of winning.
Unions are businesses. They typically won't waste their time trying to get an election if they cannot get a majority of employees to sign authorization cards. If the EFCA passes, the 30% rule will stay in place, but will really be irrelevant because it will never be used. Once a union gets a simple majority of employees (50% + 1) to sign the cards, it will petition the NLRB for certification as the employees’ bargaining agent. In that instance, the law provides that the NLRB will NOT schedule an election since the issue of representation has been resolved though the cards. If unions cannot get a least a majority signed up at the get-go, they will move on to another target. They will not petition for an election they know they cannot win.
QUESTION: What's wrong with that procedure? Wouldn't it
make the process quicker and fairer for all concerned?
ANSWER: Quicker, yes; fairer, no.
Unions know that they have an easier time getting employees signed up before employers have a chance to state their side. Often authorization card campaigns are conducted secretly – promises are made to employees without fear of anyone pointing out that the promises are hollow; unions coerce employees to sign authorization cards without fear that anyone will be setting the record straight; peer pressure is applied, etc. Bottom line: unions have their maximum support during the organizing effort when they have gotten the cards they need for an election; after all, no one has been telling the employees "the rest of the story." If the EFCA passes, "the rest of the story" will not be told because once a union gets a majority of cards signed the game will be over, and it will be declared the winner before the employer even gets a chance to suit up.
Unions want EFCA because it will do away with not only pesky votes, but also pesky attempts by employers to respond to union propaganda and pressure. That hardly seems a fair way to decide whether or not a union is good for a group of employees. Indeed, the United States Supreme Court noted in a 1969 case that deciding representation issues on the basis of authorization cards is "inherently unreliable."
Interestingly, more than two-thirds of UNIONIZED employees are not in favor of taking away secret ballot elections.
QUESTION: OK, I get the secret ballot part.
What else should I know about EFCA?
ANSWER: Well, for starters, the EFCA has a little-discussed provision that would require that first contracts be settled by a panel of federal arbitrators if the parties are unable to reach agreement within 120 days. There is no provision for an appeal. If one (or both) of the parties does not like the contract the arbitrators decide, they would be stuck with it for two years. The statute provides no limits on the arbitrators’ authority, nor does it require that they have any particular knowledge of the employer’s industry.
If the EFCA is enacted, employers and unions would be compelled by law to have a third party decide such critical issues as what employees will be paid, how staffing decisions will be made, etc. Even if the arbitrator’s decision makes no actual business sense and would put the company at a competitive disadvantage – thereby risking the economic success of the business and all its employees – that would be too bad. Both parties would be stuck with it for two years before a new contract could be implemented.
QUESTION: Where does the proposed bill now stand in Congress?
ANSWER: The bills originally submitted for consideration in both the House of Representatives and the Senate have stalled as both sides have remained far apart. Business groups oppose any proposals that "would take away the right of workers to have a secret ballot and the right to vote on contracts withouth interference from government bureaucrats," according to Katie Packer, executive director of the Workforce Fairness Institute.
As of July 17, 2009, a group of senators have offered a compromise that abandons the key "card-check" provision of the bill, which would require employers to recognize a union when a majority of workers signed cards saying they wanted a union. The move was made to try to secure a filibuster-proof 60 votes, according to a The New York Times article. Several moderate Democrats expressed opposition to "card check," making the passage of the original bill difficult.
In addition to dropping the "card-check" provision, the revised bill would require shorter unionization campaigns and faster elections.
McAfee & Taft labor attorney Peter Van Dyke said that even under the proposed compromise, the Employer Free Choice Act is still bad for business.
"Terribly objectional parts remain, including the binding arbitration provision, which would force a contract on both parties if an agreement is not reached in an unreasonably short time," Van Dyke said. "This provision is the antithesis of collective bargaining."
QUESTION: When is a vote likely on the EFCA?
ANSWER: With the healthcare reform debate currently taking center stage in Congress, the EFCA is not likely to come up for further discussion or a vote until 2010. Labor leaders, however, will most assuredly press for the bill to be moved to the front burner as quickly as possible once the healthcare issue has been resolved. Timing is important, as the Democrats’ control of 60 seats in the Senate could erode following the November 2010 elections. In an interview in November 2009, Andy Stern, president of the Service Employees International Union (SEIU), said that 2010 would pose a critical test for the Democrats and whether they could work together to capitalize on their 60-vote majority in the Senate and pass the EFCA.
How To Contact Your Representative
or Senator in the U.S. Congress: