Employee Free Choice Act
Brandt Domas
Director of PDCA Online
Attention all business owners with employees, this article is for you. Actually, the outcome of legislation before the 111th Congress could have major impact on all business across America, including yours and could have impact on most consumers too. I’m writing about what has been titled the Employee Free Choice Act or “Card Check,” as some critics nd some proponents call it. As proposed, EFCA represents the most sweeping changes to labor laws in half a century.
PDCA has a ‘Government Affairs Policy Guideline’ (Appendix D of the PDCA Policy). This policy was stablished back when PDCA had
a very active Government Affairs (GA) department complete with a staff member, formal committee and good membership involvement.
Unfortunately for PDCA, the 911 attack on our country doomed what was to be the largest and most successful GA
event in PDCA history. An annual Legislative Conference had been combined with a Board of Directors meeting to
meet in Washington D.C., in late September, 2001. For years, these Legislative Conferences gathered PDCA members
from across the country, along with members of a few other construction related associations. We would learn about
specific legislation before congress that had impact on our businesses and then ‘go to the hill’ to meet with our own
Senators and Representatives. D.C. was shut down for nearly a month after 911 and the conference had to be
canceled. Regrettably, the PDCA Government Affairs program was never the same after 911 and is currently inactive.
Article 6 of the GA Policy Guideline states:
“It shall be the policy of PDCA to remain neutral on federal legislative and regulatory issues where union contractor
members and merit shop contractor members will have opposing views. PDCA will not become involved in these
debates, or express a position. PDCA is directed to gather pertinent information and inform the membership of these
issues.”
So there you go. PDCA is mandated to inform the membership of these issues, but cannot take sides.
In writing this article I have gathered pertinent information to present both sides of the issue. I cannot make a specific
recommendation for or against the legislation. I can and will make a recommendation that you learn more through
additional web based resources and others, make a decision, and let your elected officials know what your thoughts
are.
The Employee Free Choice Act of 2009 (EFCA), first introduced in 2003 in the 108th Congress, is a measure to amend the
National Labor Relations Act. As introduced March 10, 2009 in both the House (H.R. 1409) and Senate (S. 560) by
Democrats, the bill would change the rules governing the formation of unions, the way first contracts between unions
and employers are negotiated, and how employees' rights are enforced.
Under the bill, workers would be able to decide whether to hold a secret ballot vote on union formation after a
majority of employees have signed union authorization cards, or to have the union certified based on the cards alone.
Under the current rules, employers have the power to make that decision. The bill also designates a time line for first
contracts to be drawn up between unions and employees and stipulates that if no deal is reached within 120 days, an
arbitration panel will render a decision that will be binding for two years. Finally, it would increase the fines employers
must pay if found guilty of violating their employees' right to unionize.
This bill is organized labor's number one legislative priority, and it is vigorously opposed by the business lobby.
Democratic leaders are expected to bring it to a vote in the Senate sometime this summer.
The Senate title states: 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.
What the Proponents Say
The AFL-CIO website states: The Employee Free Choice Act would enable working people to bargain for better
benefits, wages and working conditions by restoring workers’ freedom to choose for themselves whether to join a
union. It would:
- Remove current obstacles to employees who want collective bargaining.
- Guarantee that workers who can choose collective bargaining are able to achieve a contract.
- Allow employees to form unions by signing cards authorizing union representation.
Too few workers are able to form unions and bargain because comp nies routinely block their efforts—and our
current legal system is too broken and dominated by corporations to help them. A worker in an organizing campaign
has a one in five chance of being fired for union activity.
The Finishing Contractors Association website states: The Employee Free Choice Act would allow employees to form a
union by gaining a simple majority of those who have signed authorization cards. It would eliminate the secret ballot.
The proposed legislation would provide stronger penalties for violations of employee rights when workers seek to
form a union and provide mediation and arbitration for first-contract disputes.
What the Opponents Say
The AGC of America website states: EFCA would take away a worker's right to a federally supervised private ballot
election when deciding whether or not to select union representation. AGC supports the status quo, which allows
both card-check recognition and secret-ballot elections to establish union representation and remains the most fair
and reliable way to determine the desire of employees to be represented by a union.
EFCA imposes unrealistically short deadlines for labor-management negotiations over a first contract before
mandating third-party interference. It allows a third party to dictate wages, hours, and terms and conditions of
employment.
The ABC website states: EFCA does three basic things that put you at a competitive disadvantage in the union
organizing arena:
- Secret ballot elections are eliminated and replaced with authorization cards.
- Your right to negotiate an initial agreement with a union is replaced with final and binding arbitration by a federal arbitrator.
- You will be subject to fines of $20,000 per incident and required to defend often baseless, unfair labor
practices filed against you by the unions with the NLRB.
The Key Changes
According to HR & Labor Relations Communication
- Employees can be approached by union organizers and sign cards without an employer’s knowledge; that
signature is a de facto vote for unionization (a major shift) because a subsequent secret ballot election is no longer required. - Collective bargaining agreements typically take one year or longer to negotiate; with this legislation, the
parties would only have 90 days - after which (presumably federal) arbitrators would step in to determine
wages and benefit that companies would be legally obligated to honor. - Employers would face triple fines for “unfair labor practices”; unions would not face any. Companies are
restricted in what they can say or do; unions are not.
The National Labor Relations Act
Per the United States Supreme Court in 1992, "the NLRA [or National Labor Relations Act] confers rights only on
employees, not on unions." In that regard, the language of the NLRA confirms that it was enacted and designed to
protect employees, not unions and not employers. In keeping with this core purpose, Section 7 of the NLRA provides
that employees have the right to engage or refrain from union activity, and Section 9(c) provides for a secret ballot
election that is conducted by the National Labor Relations Board to measure employee support of a union.
The History on Card Checks
Before 1947, the Wagner Act provided that the Board could certify unions by relying on a secret ballot election or "any
other suitable method." One commonly used "other suitable method" was "card checks," a procedure in which union
agents would obtain the signature of workers on cards authorizing the union to represent the employees. By the late
1930's, the Board started to seriously question the reliability of card checks and switched to a policy of not relying on
union authorization cards "in the interest of investing union certifications with more certainty and prestige by basing
them on free and secret elections conducted under the Board's auspices."
In 1947, Taft-Hartley amendments were passed which changed Section 9(c) and made the secret ballot election the
exclusive means by which a union may obtain Board certification to act as the collective bargaining agent for a group of
employees. Since 1947, the Board has repeatedly stated that "Board-conducted elections are the preferred way to
resolve questions regarding employees' support for the unions." The Supreme Court also has held firm to the view
that "secret ballot elections are generally the most satisfactory, indeed the preferred method of determining
employee free choice."
What The Polls Say
A Gallup poll in March find that just over half of Americans, 53% favor a new law that would make it easier for labor
unions to organize workers; 39% oppose it. Just 8% had no opinion. It was interesting to me that in that same poll,
those most closely following news about the union-organizing bill are the most opposed to the general concept of a
law making it easier for unions to organize: just 40% are in favor; 58% are opposed. The bill enjoys its highest support --
58% -- among those not following the bill at all.
Learn More and Stay Informed
Since starting my research on EFCA to write this article, the mix of the economy and politics has changed the climate
from presumed easy passage of this legislation to one of possible retooling, even possible delay to a future Congress
to deal with. President Obama has stated he would sign the legislation changing the NRLA into law. EFCA, if again not
successful in this Congress will continue to be brought back.
The internet provides a great resource for learning more about EFCA, on both side of the issue.
Proponent related websites:
AFL-CIO - http://www.aflcio.org/joinaunion/voiceatwork/efca/
FCA - http://www.finishingcontractors.org/i4a/pages/index.cfm?pageid=3674
DPC - http://democrats.senate.gov/dpc/dpc-new.cfm?doc_name=fs-110-1-106
Free Choice Act - http://freechoiceact.org/petition/
Opponent related websites:
AGC - http://www.agc.org/cs/advocacy/legislative_activity/card_check
ABC - http://www.abc.org/Government_Affairs/Issues/Card_Check.aspx
U.S. Chamber of Commerce - http://www.uschamber.com/chambers/efca_gr_toolkit.htm
WSJ OpEd - http://online.wsj.com/article/SB124165379013293871.html
Let Your Opinion Be Known
Do you support or oppose the Employee Free Choice Act? Let your elected officials know.
To find your Senators and Representative in the 111th Congress go to: www.visi.com/juan/congress/
You can call in, fax or email your support or opposition.