The Employee Free Choice Act is the name for several legislative bills on US labor law (, , , , , , , , .) which have been proposed and sometimes introduced into one or both chambers of the U.S. Congress.
The bill's purpose, as taken from the 2009 version, was to:
The act would have, first, allowed a union to be certified as the official union to bargain with an employer if union officials collect signatures of a majority of workers. The bill would have removed the present right of the employer to demand an additional, separate ballot when more than half of employees have already given their signature supporting the union.See generally, Second, the bill would have required employers and unions to enter binding arbitration to produce a collective agreement at least 120 days after a union is recognized. Third, the bill would have increased penalties on employers who discriminate against workers for union involvement.
Outline The Employee Free Choice Act would have amended the National Labor Relations Act in three significant ways. That is: section 2 would have eliminated the need for an additional ballot to require an employer recognize a union, if a majority of workers have already signed cards expressing their wish to have a union section 3 would have required that an employer begins negotiating with a union with a view to reaching a collective agreement within 90 days, and if not, the two sides will be referred to compulsory mediation, and if mediation fails, binding arbitration section 4 increases the penalties on employers who subject workers to detriment for being involved in a union.
Section 2, Streamlining union certification Section 2(a) of the bill would have allowed the recognition of a union for the purpose of exclusive collective bargaining with an employer if a majority of employees sign cards stating their wish that the union represents them.
Currently, the NLRA section 9(c) anticipates that after at least 30% of employees state their wish for union representation, a separate secret ballot will be held to confirm that the majority of employees want union representation.See generally, "Neutrality agreements: How Unions Organize new hotels without an employee ballot" Entrepreneur Magazine, 2001 U.S. House of Representatives Committee on Education and Labor. This only happens when there is "a question of employee representation", or in other words, the result is contested (for instance, because the employer objects). Undisputed petitions, when all employees and the employer agree, require no further election.National Labor Relations Act, Section 9(c) Hearings on questions affecting commerce; p. 14) However, in practice, the results of the card check usually are not presented to the employer until 50 or 60% of bargaining-unit employees have signed the cards. Moreover, even if every employee has signed cards indicating their preference to be represented by the union, an employer may demand a secret ballot, and refuse to bargain until one is held. The effect of section 2 would have been that if a majority of employees at a workplace have already put their names on cards, there would have been no further requirement to confirm the union can represent them through an additional ballot. It would have meant that an employer could not demand a further secret ballot after a majority of employees had already put their names on cards supporting union representation. The text reads as follows:
Section 2(a) went on to allow the National Labor Relations Board to draw up more detailed regulations for oversight of the majority recognition procedure.
The process of union decertification would not change under the Employee Free Choice Act, so an employer can voluntarily reject a union when a majority of employees sign decertification cards or otherwise demonstrate that they no longer want to be represented by a union, or when 30 percent of employees sign a petition to hold a secret ballot election and a majority of participants in the election vote to decertify the union.How To Decertify Your Union
Section 3, Facilitating initial collective bargaining agreements Section 3 of the Bill provided that following a union being certified, the union could require the employer to begin negotiations for a collective agreement within ten days. If the employer and union are unable to reach agreement within 90 days, either side may take the dispute to the Federal Mediation and Conciliation Service, which has provided mediation free of charge since 1947. If the FMCS is unable to bring the parties to agreement after providing mediation services for 30 days the dispute will be referred to arbitration. The results of the arbitration shall be binding on the parties for two years. The union and employer may agree to extend any deadlines or time limits.
A study by John-Paul Ferguson and Thomas Kochan at the MIT Sloan School of Management found that only 56% of unions that win an election ever negotiate their first contract.Sequential Failures in Workers' Right to Organize The AFL–CIO says in a pro-EFCA paper, citing data by Ferguson and Kochan, that this is because "newly formed unions lose their presumption of majority status after one year without reaching a contract. The AFL–CIO asserts that this gives employers the incentive to delay the bargaining process for a year and force the demoralized workers to vote again, often resulting in the union's decertification."Why We Need First-Contract Arbitration They claim that "the Employee Free Choice Act eliminates the incentive for employers to bargain in bad faith" and it "will dramatically reduce the delay, frustration and animosity associated with the current company-dominated system."
Section 4, Strengthening enforcement Section 4(a) of the Bill would have made the National Labor Relations Board seek injunctions against employers who discriminate against employees who attempt to organize a union. Specifically, the bill allows for an injunction whenever an allegation is proven that an employer threatened to or did discharge or discriminate against an employee who sought representation by a union. An injunction would also have been available if the employer "engaged in any other unfair labor practice" that would have restrained the rights under NLRA section 7.
Currently, such federal court injunctions are required only for violations by unions. No such remedy exists for unlawful acts committed by employers in violation of workers' rights.
Section 4(b) of the Bill would have increased penalties for employers violating the law. 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 would have become two times back pay as liquidated damages, in addition to the back pay owed, for a total of three times back pay.
Currently, damages are limited to back pay, less any wages earned by an employee if they are hired by another employer. There would have been no provision for compensatory or punitive damages.
Finally, the bill would have provided 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. Currently there are no civil fines for such violations.
Jurisdictional standards The Employee Free Choice Act would not have altered the existing jurisdictional standards of the National Labor Relations Board. The jurisdiction of the NLRB remains at the level set in 1959, $500,000 gross revenues for a retail business.NLRB Jurisdiction The NLRB also requires a union to consist of a minimum of two employees who have no supervisory authority, exempting many small businesses from the increased penalties of the Employee Free Choice Act.
Legislative history 108th Congress The Employee Free Choice Act was first introduced during the 108th Congress. On November 21, 2003, Representative George Miller (D-CA), then Ranking Member of the House Committee on Education and the Workforce, introduced . A companion bill, , was introduced the same day in the Senate by Senator Edward M. Kennedy (D-MA), joined at introduction by 22 Democratic co-sponsors. S. 1925 was referred to the "United States Senate Committee on Health, Education, Labor, and Pensions|Senate Committee on Health, Education, Labor, and Pensions." Neither bill received further action during the 108th Congress.
109th Congress On April 19, 2005, the Employee Free Choice Act was re-introduced in the 109th Congress. Representative George Miller (D-CA) introduced , with Representative Peter King (R-NY) serving as a lead Republican co-sponsor; the bill ultimately garnered 214 co-sponsors from both parties. The Senate companion bill, , was introduced the same day by Senator Edward M. Kennedy (D-MA), joined by Senator Arlen Specter (R-PA) as a lead Republican co-sponsor. was referred to the Committee on Education and the Workforce and the Subcommittee on Employer-Employee Relations; neither the full Committee nor the Subcommittee took any action on the bill. Democratic members of the Committee did, however, conduct field forums on the legislation.
110th Congress On February 14, 2007, in a full Committee markup session, the House Committee on Education and Labor voted 26-19 to report the bill to the full House. Republican members of the committee voted unanimously against reporting the bill, citing numerous amendments proposed by Republican committee members that were rejected by the Democratic majority on the committee.
On March 1, 2007, the House of Representatives passed the bill, 241 to 185. On March 30, 2007, Senator Ted Kennedy (D-MA), Chairman of the Senate Committee on Health, Employment, Labor, and Pensions, introduced the Senate version of the Employee Free Choice Act.
On June 26, 2007, the Senate voted 51 to 48 on a motion to invoke cloture on the motion to proceed to consider the bill, 9 votes short of the 60 needed to invoke cloture and prevent an anticipated Republican filibuster.Senate Roll Call Vote"The Employee Free Choice Act: Questions and Answers", by Ross Eisenbrey and David Kusnet, Economic Policy Institute, 01-29-09 As a result, the bill failed to pass during the 110th United States Congress. In the 111th United States Congress, as of July 9, 2009, the Senate version of the EFCA, S.560, had 40 cosponsors in addition to its sponsor (Edward M. Kennedy, D, MA).
111th Congress On March 10, 2009, the bill was introduced in the 111th Congress by Sen. Kennedy (Democrat of Massachusetts) and Rep. George Miller (Democrat of California). Kennedy described the bill as "a critical step toward putting our economy back on track," while Miller also put the bill in the context of the 2008 financial crisis, declaring, "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."
Although only 41 senators were Republicans, Senators Ben Nelson (Democrat of Nebraska) and Arlen Specter (Democrat and former Republican of Pennsylvania) announced that they did not support the bill in March 2009. In addition, Blanche Lincoln (Democratic senator for Arkansas) and Tom Carper (Democratic senator for Delaware) both stated in April that they would not vote for EFCA in its current form.
Dianne Feinstein (Democratic senator for California) has also announced that she would prefer to seek alternative legislation. Sen. Claire McCaskill indicated in a meeting with the Missouri Chamber of Commerce that it is unlikely that EFCA would pass in its current incarnation.Sen Claire McCaskill meets with Chamber of Commerce accessed 1 June 2009
On July 7, 2009, Sen. Al Franken (D-MN) chose the bill as the first piece of legislation that he would co-sponsor, joining 40 other Democratic senators.Franken Co-Sponsoring EFCA - Hotline On Call: