Employee Free Choice Act

Current status
In the 110th Congress the Employee Free Choice Act was filed as H.R.800. 

Bill summary
The bill would amend the National Labor Relations Act to require the following


 * Certification on the basis of majority sign-up: Would provide for certification of a union as the bargaining representative of a unit of employees if the National Labor Relations Board (NLRB) finds that a majority of those employees have signed authorization cards designating the union as its bargaining representative. In addition, it would require the board to develop authorization language and procedures for establishing the validity of signed authorizations. At the time the bill was introduced, a group of workers hoping to unionize were required to sign authorization cards indicating that fact. Once 30% of potential members signed the cards, the National Labor Relations Board (NLRB) would then schedule a supervised election in which members would vote on whether or not to unionize. Even in cases where large majorities of potential members expressed a desire to unionize, the election process could still be ordered.  A company had the legal ability to allow its workers to have union representation (without going through the NLRB) if a majority of potential members supported unionization. The Employee Free Choice Act would make this recognition mandatory, taking away a company's ability to force a majority of potential members to go through the NLRB election process.


 * First-contract mediation and arbitration: Would declare that if an employer and a union are engaged in bargaining for their first contract and are unable to reach an agreement within 90 days, either party may refer the dispute to the Federal Mediation and Conciliation Service (FMCS) for mediation. If the FMCS was then unable to bring the parties to agreement after 30 days of mediation, the dispute would be referred to arbitration, and the results of the arbitration would be binding on the parties for two years. These time limits could be extended, however, if both parties agreed to do so.


 * Stronger penalties for violations while employees are attempting to form a union or attain a first contract: Violations of the National Labor Relations Act would now face the following punishments. :
 * 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.
 * An increase in the amount an employer is required to pay when an employee is discharged or discriminated against during an organizing campaign or first-contract drive to “three times back pay."

Bill passed by the House in March 2007


Rep. George Miller (D-Calif.) introduced the Employee Free Choice Act in the House at the beginning of the 110th Congress on February 5, 2007, near the. By the end of February, it had collected 233 cosponsors, and been placed on the House calendar. Miller previously introduced the bill in both the 108th and 109th Congresses, but it never received a floor vote.

In early February 2007, Vice-President Dick Cheney, at a breakfast meeting of the National Association of Manufacturers (NAM) in Washington, D.C., said President Bush would veto the bill if it reached his desk.

On March 1, the House passed the bill, 241-185, in a largely party-line vote. Following the vote, House Majority Leader Steny Hoyer (D-Md.) said, "It's simply about establishing fairness in the workplace." Minority Leader John Boehner (R-Ohio), who opposed the bill, said the real purpose of the measure was "taking care of union bosses."



The only two Democrats who opposed the bill were Dan Boren (D-Okla.) and Gene Taylor (D-Miss.), while 13 Republicans supported it: Don Young (R-Alaska), James Walsh (R-N.Y.), Christopher Smith (R-N.J.), Christopher Shays (R-Conn.), Jim Saxton (R-N.J.), John McHugh (R-N.Y.), Tim Murphy (R-Penn.), Thad McCotter (R-Mich.), Frank LoBiondo (R-N.J.), Peter King (R-N.Y.), Steven LaTourette (R-Ohio), Vito Fossella (R-N.Y.), and Mike Ferguson (R-N.J.).

The U.S. Chamber of Commerce, which opposed passage, selected the vote for their 2007 House scorecard, where they gave it the following description: "Despite strong opposition by the Chamber, the House passed 241-185, H.R. 800, the Employee Free Choice Act. This legislation would have upended the democratic process by which employees determine whether they wish to be represented by a particular union. The National Labor Relations Act (NRLA), enacted more than 70 years ago, established a secret ballot system that protected the interests of unions, employers, and employees and ensured that the process was free from coercion and intimidation. If enacted, H.R. 800 would have amended NRLA to give unions the right to achieve recognition through a card check process, thus permitting labor unions to avoid secret ballot elections. Although this legislation was ultimately defeated in the Senate, it is a major priority for unions and will undoubtedly come up again in future sessions of Congress. The Chamber will continue to fight this legislation to make certain employees maintain their rights to the time-honored secret ballot process and are free from intimidation and coercion by the unions." Americans for Democratic Action, which supported passage, selected the vote for their 2007 House scorecard, where they gave it the following description: "Passage of a bill that would allow pro-union employees to bypass NLRB elections and require an employer to bargain with a union if a majority of eligible employees sign a petition in support of the union. It would establish timetables for mediation and arbitration when an employer and union are unable to agree on their first contract. If an employee is illegally fired or discriminated against during an organizational or first contract drive, the employers would be required to pay three times the amount of back pay due the employee." The Drum Major Institute, which supported passage, selected the vote for its 2007 House scorecard, where it gave the following description: "Unions were instrumental in creating the American middle class as we know it, and today they continue to empower millions of Americans to bargain for wages and benefits that are capable of sustaining a middle-class standard of living. Union jobs are significantly more likely to offer dignified wages; sick, family, and vacation leave policies; health care; and retirement plans. In areas where unions represent a high proportion of workers in a particular industry, they can even help to raise industry standards across-the-board, improving wages and job quality even for workers who don’t belong. Yet the system meant to protect the rights of employees to join unions no longer functions. Sluggish and weak enforcement of labor rights permits employers to routinely break the law, harassing and intimidating employees who try to organize. Illegal bribes, threats, and even the firing of union organizers are commonplace. Employees who dare to stand up for their right to join a union can face years of unemployment when they are illegally fired, while employers face virtually no penalty for denying their employees’ basic legal rights. By strengthening penalties and replacing the easily abused mechanism of National Labor Relations Board (NLRB) elections with a streamlined employee sign-up procedure, the Employee Free Choice Act would restore Americans’ ability to choose union representation. In every workplace where a majority of employees want union representation, they could join easily, and begin to bargain for the pay and benefits that would enable them to enter the middle class."

Amendments Defeated
On March 1, the House defeated an amendment that would have provided that unions could only be certified through secret ballot elections overseen by the National Labor Relations Board by a vote of 256-173.



Senate consideration
On March 2, the bill was placed on the Senate calendar.

On March 3, 2007, Sen. Barack Obama (D-Ill.) predicted that the Senate would pass the bill, although he acknowledged that President Bush would likely veto it. Senate Minority Leader Mitch McConnell (R-Ky.), however, said he would attempt to block the measure in the Senate.

On June 20, 2007, an expected vote on the bill was delayed due to disagreement over comprehensive energy legislation. The anticipated vote would be expected to fail due to united Republican opposition, but Senate Majority Leader Harry Reid (D-nev.) had promised union leaders to attempt a vote.

On June 26, 2007, the bill stalled in the Senate after failing to reach the 60 votes needed to cut off debate. The tally, which was 51-48, was strongly divided along party lines. Every Senate Democrat and two independents stood behind labor, and among the Republicans, only Sen. Arlen Specter (R-Pa.) broke ranks.



Rep. George Miller (D-Calif.), chairman of the House Education and Labor Committee, commented on the block, "Republican senators have shown once again that they do not understand the very real economic concerns of America's middle-class families. They continue to vote for the special interests and against American workers."

The United States Chamber of Commerce also opposed the cloture vote and included it in their 2007 Senate scorecard, where they gave it the following description: "The Chamber strongly opposed a procedural motion in the Senate, which failed 51-48, to proceed with consideration of H.R. 800, the Employee Free Choice Act. This legislation would have upended the democratic process by which employees determine whether they wish to be represented by a particular union. The National Labor Relations Act (NRLA), enacted more than 70 years ago, established a secret ballot system that protected the interests of unions, employers, and employees and ensured that the process was free from coercion and intimidation. If enacted, H.R. 800 would have amended NRLA to give unions the right to achieve recognition through a card check process, thus permitting labor unions to avoid secret ballot elections. Although this legislation was ultimately defeated, it is a major priority for unions and will undoubtedly come up again in future sessions of Congress. The Chamber will continue to fight this legislation to make certain employees maintain their rights to the time-honored secret ballot process and are free from intimidation and coercion by the unions."

The Drum Major Institute, which supported cloture, selected the vote for its 2007 Senate scorecard, where it gave the following description: "Unions were instrumental in creating the American middle class as we know it, and today they continue to empower millions of Americans to bargain for wages and benefits that are capable of sustaining a middle-class standard of living. Union jobs are significantly more likely to offer dignified wages; sick, family, and vacation leave policies; health care; and retirement plans. In areas where unions represent a high proportion of workers in a particular industry, they can even help to raise industry standards across-the-board, improving wages and job quality even for workers who don’t belong. Yet the system meant to protect the rights of employees to join unions no longer functions. Sluggish and weak enforcement of labor rights permits employers to routinely break the law, harassing and intimidating employees who try to organize. Illegal bribes, threats, and even the firing of union organizers are commonplace. Employees who dare to stand up for their right to join a union can face years of unemployment when they are illegally fired, while employers face virtually no penalty for denying their employees’ basic legal rights. By strengthening penalties and replacing the easily abused mechanism of National Labor Relations Board (NLRB) elections with a streamlined employee sign-up procedure, the Employee Free Choice Act would restore Americans’ ability to choose union representation. In every workplace where a majority of employees want union representation, they could join easily, and begin to bargain for the pay and benefits that would enable them to enter the middle class." On its 2007 Senate scorecard, National Journal rated a no vote in roll call vote 227 as "C-3" (Conservative-3). Votes were rated either conservative or liberal and weighted 1 to 3. The scorecard gave the following description: "Limit debate on a measure to permit labor union organizers to bypass secret-ballot requirements if a majority of eligible workers sign a union card. June 26. (51-48; 60 votes required to invoke cloture)"

Protection from management threats
As stated above, at the time the bill was introduced, a group of workers hoping to unionize were required to sign authorization cards indicating that fact (unless a company voluntarily allowed its workers to unionize). Once 30% of potential members signed the cards, the National Labor Relations Board (NLRB) would then schedule a supervised election in which members would vote on whether or not to unionize. Even in cases where large majorities of potential members expressed a desire to unionize, the election process could still be ordered.

Supporters of the Employee Free Choice Act argued that during the weeks (or months) it took to set up the election, management often conducted efforts to dissuade workers from organizing. Many workers reported being threatened with replacement if they ever (as part of a union) chose to strike. Others claimed that employers “predicted” future workplace closures, which under current law was legal so long as they did not “threaten” it. In some cases, employers were even reported to have fired worker activists in an attempt to deter future unionization efforts, knowing it would take years for reinstatement orders to take effect.

State of workers declining; steps to ensure unionization necessary
During hearings on the bill in the 110th Congress, Nancy Schiffer, associate general counsel of the AFL-CIO, argued the bill was necessary because of the dimishining status of working-class citizens in the U.S. She stated : "'Why does this matter? Economic inequality is the hallmark of our time. Wages have stagnated. Only 38 percent of Americans say their families are getting ahead. Less than a quarter say they expect the next generation’s standard of living will be better than today. Six million fewer Americans have health insurance today than in 1995. Meanwhile, corporations are reaping unprecedented profits. Corporate CEOs earned 262 times as much as the average workers in 2005 – up from 35 times more in 1978. Collective bargaining is the best opportunity that working men and women have to achieve individual opportunity, restore economic fairness and rebuild America’s middle class. Union workers earn 30% more than non-union workers. For women and workers of color, the union wage advantage is even higher: 31% for women, 36% for African-Americans and 46% for Latinos. Collective bargaining helps to narrow race and gender wage gaps. The union advantage extends to health care coverage and retirement benefits. Union workers are 63% more likely to have medical and health insurance through their jobs. Union workers are nearly four times as likely to have a guaranteed pension, and 77% more likely to have jobs that provide short-term disability benefits. Workers in low-wage occupations such as childcare workers, cooks, housekeeping cleaners and cashiers, have been able to raise their earnings above the poverty line through collective bargaining. Collective bargaining provides an opportunity for workers to bargain for a better future.'"

Public support
In support of the bill, the AFL-CIO also noted a poll showing that more than three-quarters of Americans (77%) support strong laws giving employees the freedom to make their own choice about whether to have a union in their workplace without interference from management.

The Employee Free Choice Act enjoyed wide support of labor organizations, and many others. Supporters included:

Arguments against the bill
Some opponents have argued that the authorization cards which potential members would sign to express their desire to unionize are not in the interest of workers. They cite the fact that they would not be confidential, whereas the existing law allowed the vote (to hold an election) to be confidential. These opponents say the openness of the cards subject workers to peer pressure, harassment, coercion, and misrepresentation.

Rep. John Kline (R-Minn.), an opponent of the bill, stated "It is beyond me how one can possibly claim that a system whereby everyone – your employer, your union organizer, and your co-workers – knows exactly how you vote on the issue of unionization gives an employee 'free choice . . . . It seems pretty clear to me that the only way to ensure that a worker is 'free to choose' is to ensure that there's a private ballot, so that no one knows how you voted. I cannot fathom how we were about to sit there today and debate a proposal to take away a worker's democratic right to vote in a secret-ballot election and call it 'Employee Free Choice.'"

Opponents have also criticized the bill because it allows workers to make their decision to unionize before employers have the opportunity to tell them why it is not in their best interest.

Heritage Foundation's argument against the EFCA
In an article highlighting the flaws of the Employee Free Choice Act, writers from the Heritage Foundation explained their opposition to the bill.

"The Employee Free Choice Act would strip American workers of their right to a private-ballot vote, require companies to submit to binding arbitration, and increase penalties for unfair labor practices committed by employers but not by unions. Each of these provisions would be bad for American workers."

"Congress should instead protect the privacy of American workers and guarantee their right to vote in an election before joining a union. Congress should also guarantee every worker the opportunity to hear arguments from both sides and time to reflect before voting."

More specifically, they argued that the Act would:

Hinder worker voting rights: Rather than holding a secret-ballot election, the EFCA would institute a card check system, creating a union if a majority of workers submitted cards requesting that one be created. These cards would not protect the identity of submitters, making it clear who was in favor and who was against the creation of a union. Supporters of the EFCA, Heritage Foundation writers argued, offered misleading information when saying that secret-ballot elections would still occur, as union organizers would choose the way such elections would be organized.

Leave workers vulnerable to intimidation: By removing the secret-ballot system, unions and employers would be aware of which employees wanted to create a union and which ones didn't. This would pave the way for intimidation efforts from both the unions and employers.

Give unions an unfair advantage in negotiations with employers: Because the card signing drives are put together by union organizers, employees would be given a one-sided pitch, and put into a high-pressure signing situation. The Heritage Foundation quoted one former union organizer saying, "'We rarely showed workers what an actual union contract looked like because we knew that it wouldn't necessarily reflect what a worker would want to see. We were trained to avoid topics such as dues increases, strike histories, etc. and to constantly move the worker back to what the organizer identified as his or her 'issues' during the first part of the house call.'" Force flawed binding arbitration: The EFCA would require that a binding arbitration be required in the event that union and employer negotiations reached an impasse. Independent arbitrators, writers from the Heritage Foundation argued, could be a very useful tool for resolving disputes, however, binding arbitration leaves unions and employers at the unpredictable whims of an arbitration panel, "leaving management and workers to deal with the consequences."

Organizations opposed to the bill

 * National Right to Work Committee
 * Center for Union Facts
 * U.S. Chamber of Commerce
 * National Alliance for Worker and Employer Rights

108th Congress
On November 21, 2003, Rep. George Miller (D-Calif.) introduced the bill in the House, where it collected 209 cosponsors. It was referred to the Subcommittee on Employer-Employee Relations, and never received a vote on the floor. Also on November 21, Sen. Ted Kennedy (D-Mass.) introduced the bill in the Senate, where it was referred to the Senate Committee on Health, Education, Labor, and Pensions and ultimately collected 37 cosponsors. Like the House version, it never received a vote on the floor.

109th Congress
On April 19, 2005, Rep. George Miller (D-Calif.) introduced the bill in the House. It was referred to the Subcommittee on Employer-Employee Relations and ultimately received 214 cosponsors. It was not, however, called to the floor for a vote. Also on April 19, Sen. Ted Kennedy (D-Mass.) introduced the bill in the Senate. It was referred to the Senate Committee on Health, Education, Labor, and Pensions and ultimately received 44 cosponsors. Like the House version, it never received a floor vote.

Related campaigns

 * AFL-CIO campaign to pass the Employee Free Choice Act, (fact sheets and "spread the word" features).

Resources

 * Thomas page on Senate consideration of H.R.800 (110th Congress)
 * Thomas page on S.842 (109th Congress)
 * Thomas page on H.R. 1696 (109th Congress)
 * Thomas page on S.1925 (108th Congress)
 * Thomas page on H.R.3619 (109th Congress)
 * AFL-CIO: What is the Employee Free Choice Act
 * AFL-CIO: Petition for citizens to sign asking Senate to approve the bill
 * AFL-CIO: Worker stories indicating a need for the Employee Free Choice Act
 * AFL-CIO: Why the system of union-forming is broken
 * AFL-CIO: Employee Free Choice Act Q &amp; A
 * LABOR UNION RESOURCES
 * Employee Free Choice Act NOW!

External articles

 * "Senate Moving Forward On Employee Free Choice Act," Democratic Caucus's Senate Journal, June 19, 2007.