On March 1, 2007, the House of Representatives passed what may be the most significant revision of federal labor law since Franklin D. Roosevelt's New Deal. The legislation, H.R. 800, also known as the Employee Free Choice Act (Act), passed by a vote of 241-185, and its companion bill, S. 1041, was introduced in the Senate on March 29, 2007.
The Act amends the National Labor Relations Act (NLRA), which is the primary law governing relations between unions and employers in the private sector. The NLRA, among other things, establishes the rights of workers to form or join labor organizations, bargain collectively and participate in other concerted activities relating to collective bargaining, and it prohibits certain conduct by unions and employers. The most controversial component of the Act is how it facilitates the organization of a union by workers. Rather than requiring a secret ballot before a union can be recognized, the Act provides for union representation when a simple majority of employees sign authorization cards—also called a "card check." The proposed legislation also provides for mediation and arbitration when workers and employers fail to agree on the terms of an initial collective bargaining agreement and increased penalties against employers who violate the NLRA.
Advocates of the Act contend that the NLRA has become ineffective, jeopardizing workers' freedom to unionize and negotiate with employers, and that the Act restores that freedom by leveling the playing field between employers and employees. Opponents of the Act, which include the International Franchise Association (IFA), believe that it strips workers of their right to a federally-supervised private ballot election and subjects them to possible harassment, coercion and intimidation by employers, union leaders and co-workers. Opponents also predict that, if the Act becomes law, there will be a surge of unionization throughout the United States.
Fighting the passage of the Act has become one of the primary legislative objectives of the IFA. According to the IFA, union organizers have franchised businesses in their sites as primary targets for unionization since these businesses typically exhibit strong employment growth and there is little union representation in the ranks of their employees. The IFA notes that the legislation does not define a "bargaining unit" and does not condition a worker's right to sign a union card on full-time status. Accordingly, the IFA believes that even a single unit in a franchised system could be deemed a "collective bargaining unit."
Under the present law, employees generally have two methods to secure union representation—an election supervised by the National Labor Relations Board (NLRB), the independent federal agency tasked to administer the NLRA, or a card check. Currently, the employer selects the method. The NLRB election process is triggered if 30% of employees sign a petition or cards requesting union representation or an election. If the majority of voting workers advocates union representation, the NLRB will certify the union, and the employer must recognize and bargain with the union. In contrast, under the current card check method, employees may succeed in forming a union only if a majority of all employees sign written authorization forms. (An employee who does not sign a card is presumed to oppose union representation.) If a majority of all workers sign cards requesting union representation, the employer may, but is not required to, recognize the union and begin bargaining. Alternatively, the employer may opt to resolve the employees' request for union representation through the NLRB election process.
The Act streamlines current law in several ways. Most significantly, it provides for union certification if the NLRB determines that a majority of employees in "an appropriate unit" have signed valid authorization cards designating the union as its bargaining representative. Specifically, when an employee, a group of employees or a labor organization files a petition alleging that a majority of employees desires to be represented, for collective bargaining purposes, by an individual or labor organization, the NLRB must conduct an investigation to determine whether a majority of employees have signed valid authorization cards (i.e., the signed cards were not obtained through fraud or coercion). Once the NLRB verifies and otherwise validates the cards, the NLRB must certify the employees' designated representative as their exclusive bargaining representative.
While the Act does not eradicate the NLRB election process, it does eliminate an employer's ability to require a private ballot election before recognizing a union when a majority of workers sign authorization cards requesting union recognition. Once the NLRB validates the cards, the union will be certified and recognized. The proposed legislation also requires the NLRB to create guidelines and procedures for designating a bargaining representative under a card check, including model language for authorization cards to ensure that employees will comprehend fully the ultimate purpose of the card (i.e., to gain recognition of an exclusive bargaining representative in the absence of an NLRB election). Notably, while the Act facilitates union certification, the Act does not modify the process governing the decertification or withdrawal of recognition of a union, which continues to rely upon a private ballot election.
Supporters of the Act argue that an NLRB election is far from democratic, but rather is a tool by which employers can legally quash workers' attempts to unionize. They claim that the NLRB election process gives employers a number of advantages, including often lengthy delays in obtaining certification and employers' greater access to employees and their contact information, which employers may use to campaign against unionization. The Act's opponents (including the IFA), on the other hand, assert that, by eliminating the employer's option to require a private ballot election under certain circumstances, the Act effectively gives unions the opportunity to intimidate employees into signing the authorization forms. Likewise, the Act gives employers the opportunity to coerce employees into not signing the forms. The Act's opponents argue that, in contrast, in an NLRB election, no one—neither the employer, union, nor co-workers—knows how the worker votes, thereby ensuring each worker's freedom to express his or her desire to join, or refrain from joining, a union. More information on IFA's opposition to the Act can be found at IFA's website at www.franchise.org.
It appears unlikely that the Act will become law this session since Senate Republicans are committed to defeating S. 1041 and President Bush has vowed to veto the Act if, in fact, it reaches his desk. Nevertheless, the House's passage of the Act and its introduction in the Senate, once considered unlikely by some, may signify a groundswell of support for the proposed legislation. If the Democrats retain control of the House and the Senate following the 2008 election and if a Democratic president is elected, the chances of the Act becoming law will greatly increase.