In a move aimed at making it easier for employees to unionize and to achieve an initial collective bargaining agreement, Representative George Miller (D-CA), Chairman of the House Labor and Education Committee, has introduced the Employee Free Choice Act in the 110th Congress. The bill, H.R. 800, is virtually identical to an earlier version of the legislation that died in committee in the previous Congress.

The Proposed Employee Free Choice Act

If it becomes law, the Act would require the National Labor Relations Board to certify a union as the exclusive representative of employees without an election where “a majority of the employees in a unit appropriate for bargaining has signed valid authorizations.” In addition, the Act would require parties who cannot agree upon the terms of a first collective bargaining contract within 120 days to submit the issues to an arbitration board, which would be empowered to settle the dispute. Finally, the Act would provide for liquidated damages of two times back pay for certain unfair labor practices.

In his remarks accompanying the bill’s introduction, Representative Miller stated:

The current process for forming unions is badly broken and so skewed in favor of those who oppose unions, that workers must literally risk their jobs in order to form a union. Although it is illegal, one quarter of employers facing an organizing drive have been found to fire at least one worker who supports a union. In fact, employees who are active union supporters have a one-in-five chance of being fired for legal union activities. Sadly, many employers resort to spying, threats, intimidation, harassment and other illegal activity in their campaigns to oppose unions. The penalty for illegal activity, including firing workers for engaging in protected activity, is so weak that it does little to deter law breakers.

Even when employers don't break the law, the process itself stacks the deck against union supporters. The employer has all the power; they control the information workers can receive, can force workers to attend anti-union meetings during work hours, can force workers to meet with supervisors who deliver anti-union messages, and can even imply that the business will close if the union wins. Union supporters' access to employees, on the other hand, is heavily restricted.

The Employee Free Choice Act would add some fairness to the system . . . .

H.R. 800 has 231 co-sponsors, up from the 215 that co-sponsored the measure during the last Congress. This virtually ensures that the bill will receive more than the 218 votes it will need to pass the House of Representatives. Seven Republicans joined the 224 Democrats as co-sponsors. The bill has been referred to the House Committee on Education and Labor, where it will likely be marked up and reported by Committee vote to the full House of Representatives for further consideration and final passage. During the Committee mark up of the legislation, Committee Members will likely offer amendments to the legislation to address any concerns they might have with the bill. While there is no scheduled date for the mark up, a hearing on H.R. 800 has been scheduled for February 8, 2007, in the Subcommittee on Health, Employment, Labor and Pensions.

A companion bill is expected to be introduced in the Senate soon, but Senate rules and likely opposition to the measure by various Senators make passage by that body much less likely.

Practical Implications

If enacted, the Employee Free Choice Act would make it dramatically easier for unions to organize employees. Under current law, obtaining signed union authorization cards from employees is typically only the first step in the union-organizing process, and employers have an opportunity to educate employees about the realities of union representation between the time authorization cards are signed and the time employees vote on union representation in a secret-ballot election. Under the Employer Free Choice Act, unions could be certified to represent employees in an appropriate bargaining unit based solely on signed authorization cards from a majority of employees in the unit, without having to prevail in a secret-ballot election. Thus, employers who are unaware of card-signing activity could be completely blindsided by unionization with no opportunity to mount their own campaigns to counter a union’s promises and misrepresentations. Training supervisors in advance to recognize and respond properly to union-organizing efforts would be critical, as would taking a proactive approach to educating the work force about the significance of signing a union authorization card.