Employee Free Choice Act Introduced in Congress
The Employee Free Choice Act (EFCA) was introduced in the House and Senate on Tuesday, March 10, a measure that, according to its sponsors, “would help enable workers to bargain for better wages, benefits, and working conditions by restoring their rights to form unions.” The bill was sponsored by Rep. George Miller (D-CA), the House Education and Labor Committee Chair, and Senator Tom Harkin (D-IA), a member of the Senate Health, Education, Labor and Pensions (HELP) Committee.
Since 1935, workers have been allowed to form a union either through majority sign-up or through a formal election conducted by the National Labor Relations Board. According to Miller, who released a statement announcing the bill, the bipartisan measure simply gives workers the choice of which option they will use to form a union. That is, employers would lose the right to request that a Board election be held.
EFCA has three key provisions:
Card-check. EFCA would give workers the choice of whether to form a union through majority sign-up or through the National Labor Relations Board election process. Both processes already exist under current law, but employers currently hold the power to veto the decision of workers to form a union through majority sign-up. EFCA would allow the NLRB to certify a union if a majority of employees in a workplace sign authorization cards designating the union as its bargaining representative. The NLRB would develop model authorization language and procedures for establishing the validity of signed authorizations.
“Under current law, employers often require workers who want to collectively bargain to go through one-sided, time-consuming elections as a condition of being certified as bargaining representatives. Such elections become the focal point of employer efforts to frustrate the right of workers to organize. Coercion and pressure on workers are reduced in the majority sign-up process.”
“While the NLRB election process uses slanted rules that dramatically favor employers, studies have found that the majority sign-up process reduces pressure and coercion in the workplace,” Miller said.
Remedies. EFCA would increase penalties against employers that illegally fire or discriminate against workers for their union activity during an organizing or first contract drive. The bill makes the following new provisions applicable to NLRA violations committed by employers against employees during any period while employees are attempting to organize a union or negotiate a first contract with the employer:
- Treble back pay. Increases the amount an employer is required to pay when an employee is illegally discharged or discriminated against during an organizing campaign or first contract drive to three times back pay.
- Civil penalties. Provides 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. Under current law, remedies are limited to back pay (minus any additional interim wages the employee did or should have earned), reinstatement, and notice to employees that the employer will not engage in violations of the NLRA. Many employers conclude that, even if caught, it is financially advantageous to violate the law and pay the penalties rather than to comply, supporters of the measure assert.
- Mandatory applications for injunctions. Under EFCA, just as the NLRB is required to seek a federal court injunction against a union whenever there is reasonable cause to believe that the union has violated the law, the NLRB must also 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. The bill also authorizes the courts to grant temporary restraining orders or other appropriate injunctive relief.
First-contract arbitration. Under EFCA, if an employer and union are 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. Time limits may be extended by mutual agreement of the parties.
Under current law, employers have a duty to bargain in good faith, but are under no obligation to reach agreement. As a result, a recent study found that 34 percent of union election victories had not resulted in a first contract after two or three years of bargaining. If the union wins recognition, anti-union employers often simply carry their union-busting campaign into contract negotiations, the bill sponsors contend.
A recovery measure? “Just as the National Labor Relations Act, the 40 hour week and the minimum wage helped to pull us out of the Great Depression and into a period of unprecedented prosperity, so too will the Employee Free Choice Act help reinvigorate our economy,” Harkin said. “Today is one of those defining moments in history as we introduce legislation that puts power back into the hands of the people who are truly the backbone of this economy.”
“Americans’ wages have been stagnating or falling for the past decade. For far too long, we have seen corporate CEOs take care of themselves and shareholders at the expense of workers,” said Miller. “If we want a fair and sustainable recovery from this economic crisis, we must give workers the ability to stand up for themselves and once again share in the prosperity they help to create.”
Republican response. Rep. Howard P. “Buck” McKeon (R-CA), the top Republican on the U.S. House Education and Labor Committee, on March 10 denounced the bill as a “job killer,” citing research that suggests the bill would put an estimated 600,000 American jobs at risk in just the first year after its enactment. “It would wreak havoc on an already reeling economy,” McKeon fears.
“The Democrats’ proposed legislation makes it clear that a union would be certified as soon as organizers secure a simple majority of signed authorization cards, giving workers no recourse to demand a secret ballot election on whether they actually wish to join the union. The card check process is notoriously unreliable, Republicans have pointed out, opening workers up to intimidation and coercion, and the threat of retribution based on whether or not they choose to publicly sign a card.
“The American economy is in real trouble. Americans are losing their jobs and their homes. The notion that Congress would take up an anti-worker, special interest payback like this one —particularly at a time like this, with the economic challenges we face —is unconscionable,” said McKeon.
Mixed reaction. “Today is a banner day for working Americans, a milestone on the road to rebuilding our nation’s middle class —and it couldn’t come at a more crucial time,” said AFL-CIO president John Sweeney, praising the bill’s introduction in Congress.
“The introduction of this bill so early is a strong message that Congress is ready to move forward to help working families build an economy that works for everyone. It is common-sense legislation that makes good on a simple promise: If a majority of employees in a workplace want a union, they should be able to have a union and bargain for a better life. Passing the Employee Free Choice Act will allow workers to form a union if a majority indicates in writing that they want one, taking away the right of corporations to demand a ballot election they can readily manipulate. Workers can also choose a ballot election if they prefer, but it will be their choice —not their company’s.”
In contrast, National Association of Manufacturers (NAM) president and CEO John Engler issued a strong statement against the legislation. “At a time when our economy is struggling to create and retain jobs, I am concerned that Congress would introduce the anti-democratic Employee Free Choice Act,” said. “If passed, EFCA would destroy jobs and place an even heavier burden on large and small companies.”
“EFCA is a dramatic departure from long established labor law. It deprives employees of the privacy of the secret ballot, which has always been an integral part of the democratic process. It would also change the traditional role of federal arbitrators from interpreting contracts to dictating the terms and conditions of contracts,” Engler added. “This is a divisive issue at a critical time when the country needs to come together for economic recovery and job creation.”
The Society for Human Resources Management (SHRM), in a legislative alert to its members, expressed particular concerns that EFCA would restrict an employer’s communications to employees about the workplace issues involved in the union organizing drive and create new fines against employers for an expanded list of unfair labor practices.
“SHRM supports the basic rights of all employees to decide freely whether or not to join a union. However, we strongly believe that a federally supervised, private-ballot election is the best way for employees to make this decision,” the HR association noted. “In addition, SHRM believes the mandatory binding arbitration called for under EFCA could impose unwanted employment conditions on both employees and employers. So in sum, employees could simultaneously lose their rights to vote on union representation and to approve workplace contracts.”
The prognosis? “The Employee Free Choice Act is an affront to basic democratic rights, and it must be defeated,” McKeon said. “The sooner we dispense with this misguided legislation, the sooner we can get back to solving the real problems facing American families.”
However, Sen. Edward M. Kennedy (D-MA), chairman of the Senate HELP Committee, called the legislation “a critical step toward putting our economy back on track. I hope that we can act quickly to send it to the President’s desk."
Both President Barack Obama and Vice President Joe Biden, in separate speeches before union leaders last week, indicated they see EFCA as a priority and urged Congress to pass it.
“We are confident the Employee Free Choice Act is going to become the law of the land,” Sweeney added.
Reprinted with permission. © CCH
(Submitted March 12, 2009)
<p>Employee Free Choice Act Introduced in Congress  The Employee Free Choice Act (EFCA) was introduced in the House and Senate on Tuesday, March 10, a measure that, according to its sponsors, “would help enable workers to bargain for better wages,</p>