Employee Free Choice Act
The Employee Free Choice Act (EFCA) is legislation in the United States which aims 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."Under current labor law, the U.S. National Labor Relations Board will certify a union as the exclusive representative of employees if it is elected by either a majority signature drive, the card check process, or by secret ballot NLRB election, which is held if more than 30% of employees in a bargaining unit sign statements asking for representation by a union. If enacted, this bill would require the NLRB to certify a bargaining representative without directing an election if a majority of the bargaining unit employees signed cards, the card check process.
Pursuant to the bill, a union can demand that an employer begin bargaining within ten days of certification of the union as the exclusive bargaining representative for an appropriate unit of employees via the card check.
In addition, if the union and employer cannot agree upon the terms of a first collective bargaining contract within ninety days, either party can request federal mediation, which could lead to binding arbitration if an agreement still cannot be reached after thirty days of mediation.Where government arbitration determines terms of the agreement, employees would lose their current right to ratify the terms of the agreement. Finally, the Act would provide for liquidated damages of three times back pay if employers were found to have unlawfully terminated pro-union employees.The EFCA also would impose a $20,000 penalty upon employers for each employer violation of the proposed legislation if the NLRB and/or a court deems the violation willful or repetitive.
On March 1, 2007, the House of Representatives passed the act by a vote of 241 to 185. The Senate on June 26, 2007 voted 51 to 48 on a motion to invoke cloture on the motion to proceed to consider the bill. The bill failed to pass during the 110th United States Congress because of the 60 votes required to enforce cloture, which may be possible to obtain in the 111th United States Congress.
National Labor Relations Act, Section 7: RIGHTS OF EMPLOYEES
Sec. 7. § 157. Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section 8(a)(3) section 158(a)(3) of this title.
National Labor Relations Act, Section 9: REPRESENTATIVES AND ELECTIONS
(e) Secret ballot; limitation of elections (1) Upon the filing with the Board, by 30 per centum or more of the employees in a bargaining unit covered by an agreement between their employer and labor organization made pursuant to section 8(a)(3) section 158(a)(3) of this title, of a petition alleging they desire that such authorization be rescinded, the Board shall take a secret ballot of the employees in such unit and certify the results thereof to such labor organization and to the employer.
Certification on the basis of signed authorizations
The National Labor Relations Act (NLRA) allows government resolution of labor-management disputes affecting commerce. Section 9(c) of the NLRA provides for a secret ballot election if there is "a question of employee representation" of an individual or labor organization seeking collective bargaining with an employer. If the recognizing of the individual or labor organization is not disputed, then the NLRB does not interfere. Both an employer or a substantial number of employees can dispute the recognition of an individual or labor organization and require a secret ballot election.
The most widely publicized change to the National Labor Relations Act is a change to employer disputes over recognition of an individual or labor organization claiming to represent employees. Currently an employer can demand a secret ballot election even if a majority of employees has signed cards authorizing a representative to bargain on their behalf, also known as a card check election. Under the EFCA, an employer can only dispute the legitimacy of an employee representative if less than a majority of employees have signed authorization cards, or if illegal coercion is alleged.
The process of union decertification does not change under the EFCA, with a secret ballot election held when thirty percent of employees request decertification of a union, or an employer can voluntarily accept the results when a majority of employees sign decertification cards.
The amended text proposed in lines 8 through 24 reads:
“ Notwithstanding any other provision of this section, whenever a petition shall have been filed by an employee or group of employees or any individual or labor organization acting in their behalf alleging that a majority of employees in a unit appropriate for the purposes of collective bargaining wish to be represented by an individual or labor organization for such purposes, the Board shall investigate the petition. If the Board finds that a majority of the employees in a unit appropriate for bargaining has signed valid authorizations designating the individual or labor organization specified in the petition as their bargaining representative and that no other individual or labor organization is currently certified or recognized as the exclusive representative of any of the employees in the unit, the Board shall not direct an election but shall certify the individual or labor organization as the representative described in subsection (a). ”
First Contract Mediation and Arbitration
The bill provides that if an employer and a union are engaged in 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. The Federal Mediation and Conciliation Service was created in 1947 and provides most mediation services in support of collective bargaining free of charge.
Civil penalties and increased back pay for certain unfair labor practices
The bill would require the NLRB to 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. It also authorizes the courts to grant temporary restraining orders or other appropriate injunctive relief.
The bill also calls for increases 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 two times back pay as liquidated damages, in addition to the back pay owed, for a total of three times the back pay. Current damages are limited to back pay, lest any wages earned by an employee if they are hired by another employer.
Finally, the bill would provide 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 violations.
Small business exemptions
The Employee Free Choice Act does not alter the existing small business exemption of the National Labor Relations Board. The jurisdiction of the NLRB remains at the level set in 1959, $500,000 gross volume for a retail business, which, if inflation-adjusted, would be about $3.3 million in 2008.[6] The NLRB also requires a union to consist of a minimum of three employees who have no supervisory authority, exempting many small businesses from the increased penalties of the EFCA.
Our Priorities
For the 111th Congress
Pass the Employee Free Choice Act.
Implement a meaningful economic recovery package that rebuilds our economy and creates millions of new jobs, including "green jobs."
Provide affordable and quality health care for all.
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The Employee Free Choice Act is nothing new it only reestablishes the Joy Silk Doctrine of 1949
History
In 1949, the NLRB's Joy Silk Doctrine established that "an employer could lawfully refuse to bargain with a union claiming representative status through possession of authorization cards only if he had a 'good faith doubt' as to the union's majority status.This policy was changed in 1966 with the ruling in Aaron Brothers, where "the Board made it clear that it had shifted the burden to the General Counsel to show bad faith and that an employer 'will not be held to have violated his bargaining obligation... simply because he refuses to rely upon cards. 'If passed, the proposed Employee Free Choice Act would return the NLRB policy to the Joy Silk Doctrine and allow employer challenges to card check elections only when illegal coercion or fraud is charged.
In 1969, Chief Justice Earl Warren delivered the majority opinion for the U.S. Supreme Court that upheld the use of card check. Warren stated, "Almost from the inception of the Act, then, it was recognized that a union did not have to be certified as the winner of a Board election to invoke a bargaining obligation; it could establish majority status by other means... by showing convincing support, for instance, by a union-called strike or strike vote, or, as here, by possession of cards signed by a majority of the employees authorizing the union to represent them for collective bargaining purposes." The Supreme Court has consistently ruled in favor of card check, and Warren cited prior affirmations in NLRB v. Bradford Dyeing Assn., (1940); Franks Bros. Co. v. NLRB,[(1944); United Mine Workers v. Arkansas Flooring Co., (1956).
Know The Real Facts about the Employee Free Choice Act
