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The Employee Free Choice Act:Will It Become Law?



card check legislation would eliminate requirements for secret ballot elections during union organizing drives



By Peter Mayberry and Jessica Franken



Published September 22, 2009
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Throughout the past spring and summer, it seems that virtually every conversation we have had with business associates eventually turned to the upcoming presidential election. People routinely asked us how the various candidates stand on certain issues and which has the best chance of winning in November.

And while many of our business associates openly characterize themselves as being either "conservative" or "liberal" in their politics, the one issue that they seem to be most interested in is the Employee Free Choice Act (EFCA), commonly referred to as the "card check" legislation.

During the current Congressional session, this bill was introduced by Democrats in the U.S. House of Representatives and Senate in 2007 after having failed to make significant progress during the two previous sessions of Congress. Among other things, it would alter U.S. labor law by eliminating requirements for secret ballot elections during union organizing drives and stiffen certain penalties against employers who suppress union activities. The bill would also expedite first contract negotiations.

Considering the broad interest this bill has generated among our nonwovens industry colleagues—despite the fact that we are not an especially labor-intensive industry—this article will outline the EFCA in greater detail and provide some insights into its potential future once the 111th Congress convenes next year.

Employee Free Choice Act

As noted, the EFCA has surfaced on Capitol Hill during three consecutive sessions of Congress. We are currently in the 110th session, which will end sometime later this year, and any legislation that is still pending when a Congressional session expires must be reintroduced during the next session no matter how far along it has gotten in the legislative process. During the 108th and 109th sessions of Congress, the EFCA never made it to the House or Senate floor for debate because the Republican leadership that controlled both chambers at the time opposed the measure.

When the 110th Congress convened in 2007 after Democratic majorities were elected to both the House and Senate, the EFCA was re-introduced by its two principal sponsors: Rep. George Miller (D-CA) and Sen. Ted Kennedy (D-MA). The bill was passed by a vote of 241 to 185 in the House of Representatives on March 1, 2007 but failed in the Senate due to a Republican filibuster.

According to the bill's language, EFCA would amend the National Labor Relations Act to "establish an efficient system to enable employees to form, join or assist labor organizations" by streamlining the process unions must follow to gain certification as the exclusive representative for negotiating on behalf of employees.

Currently, the U.S. National Labor Relations Board (NLRB) will certify a union when more than 50% of employees sign petition cards requesting union representation (the so-called "card check" process). If more than 30% of employees—but less than a majority—sign the cards, an employer does not need to recognize the card check petition and can require a secret-ballot election overseen by the NLRB.

Existing law allows employers to campaign against the union during the run-up to these secret ballot elections but—according to EFCA supporters—employers frequently use this time to threaten and intimidate workers into voting against the union. Provisions contained in the EFCA, therefore, remove an employers' ability to demand secret ballot elections when a majority of employees have signed union cards and there is no evidence of illegal coercion.

The bill also expedites the process for negotiating the first collective bargaining contract, which typically can last anywhere from 60 days to a year on average. Under the EFCA, however, the two sides must begin negotiations within 10 days of the card check certification. If labor and management are unable to agree on terms for a first collective bargaining contract within 90 days, either party can request federal mediation. If federal mediators are unable to bring the parties to agreement after 30 days, the dispute is referred to arbitration, the results of which are binding for two years.

The EFCA would also stiffen penalties for certain unfair labor practices, setting 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. It also increases the amount paid to employees who have been discharged or discriminated against during an organizing campaign or first-contract drive to "three times back pay."

Potential Implications

Supporters of EFCA claim that the bill would fend off illegal union busting tactics. Opponents of the bill–including the National Association of Manufacturers (NAM) and U.S. Chamber of Commerce–argue that the mandatory card check system is undemocratic and will lead to illegal coercion by union organizers.

One area of agreement on both sides, however, is that, if passed, the effects of the EFCA would be broad and sweeping, with many experts predicting that passage of the bill could trigger the largest unionization drive since the National Labor Relations Act of 1935. To illustrate this, experts point to the state of Illinois which passed a mandatory card check law in 2003 and witnessed a dramatic increase in union density. Similary they point to Canada which has mandatory card check laws in place in several provinces, and about 32% of workers belong to a union (compared to the U.S. where about 12% of workers are union members).

Considering the potential stakes, therefore, both sides have stepped up their advocacy efforts. Organized labor, for instance, has launched an aggressive grassroots political mobilization effort, targeting some $200 million to back candidates that support EFCA in key election contests. Business interests are rallying behind the Coalition for a Democratic Workplace (CDW) to promote grassroots opposition efforts and are pouring millions of dollars into multi-media advertising and educational efforts intended to protect secret ballot elections.

Despite all of the activity surrounding the legislation, the chances of EFCA becoming law is still questionable. Democrats face an uphill battle in gaining the seats needed to overcome a filibuster in the Senate, and it is still uncertain how the outcome of the Presidental elections will impact the EFCA's future.

Indeed, even though Sen. McCain has voted against the bill in the past and Sen. Obama has been an ardent supporter, the EFCA enjoys broad support among Democrats in Congress and at least one Republican—Sen. Arlen Specter (R-PA)—has voted in favor of the legislation the last time around. So no matter who wins the White House this year, opponents of the bill fear there may be enough pressure to cause more moderate Republicans to flip to the other side and produce a veto-proof majority that will pass EFCA into law.

Readers interested in this issue can learn more about the views of those who oppose the EFAC by visiting www.nam.org/efca, while those who seek information from organizations that support the bill can learn more at www.aflcio.org/joinaunion/voiceatwork/efca. To view the legislation itself, visit www.thomas.loc.gov and enter "H.R. 800" into the search engine for the 110th Congress.

Peter Mayberry's column appears monthly in Nonwovens Industry.