Though the intensely-debated Employee Free Choice Act (H.R. 800/S. 1041) received majority support from the United States Senate on June 26, the bill fell nine votes short of invoking cloture. The bill, therefore, will not proceed to final consideration by the Senate.
As President Bush had promised to veto the bill, its future was never in doubt. However, the number of Senate votes for the bill was surprising. Proponents of the Employee Free Choice Act (EFCA) have made strong assurances that the bill will be revived and the fight will continue, and in recognition that similar legislation will be introduced, opponents have promised vigilance and a hard-fought battle.
EFCA would grant unions representational rights for employees based solely on authorization cards signed by a majority of an employer's employees. Under current law, employers have the right to verify unions representational claims either through a check of authorization cards or, at their option, have a secret ballot election conducted under the auspices of the National Labor Relations Board (NLRB) to verify employees' desires for union representation. The employer's right to opt for a secret ballot election would be eliminated by EFCA. Additionally, EFCA would require collective bargaining to take place immediately and require ultimate agreement by the employer to a collective bargaining agreement. At various points in time, in the absence of an agreement, mediators would enter the process to assist the parties in reaching agreement. In the event agreement was still not reached, third party arbitrators would determine the outcome on all remaining open issues such as wages, benefits and other terms and conditions of employment. Additionally, penalties would be substantially increased for employers who commit unfair labor practices during organizing campaigns and/or engage in unlawful conduct during the bargaining process for a first agreement.
Both proponents and opponents of EFCA have claimed victory and both sides claim to be protecting the freedoms of American workers. Democrats, Labor and some Republicans claim that half of America's 140 million workers would want to be represented by unions. However, they also claim that these employees are fearful of employer unfair labor practices during organizing campaigns, including termination, discrimination, threats and coercion. Proponents further assert that the NLRB's election process has been "broken" by employer manipulation, resulting in years-long delays in unions gaining representational rights. Claiming to protect the rights of employees, proponents argue that the prospect of severe penalties on employers is necessary.
EFCA's opponents have asserted that the right of an employee to cast a secret ballot in an election is a fundamental democratic right ingrained in America's culture. They argue that EFCA, rather than providing employees with free choice, is really an unfair and artificial method for organized labor to boost its steadily declining membership at the expense of employee rights and employers' rights to free speech. Opponents also point out that the NLRB's processes have worked the same as they have for decades, including those years when union strength reached its apex. Opponents further argue that labor's hyperbole is merely used to camouflage the fact that union organizers and pro-union employees would engage in pressure tactics, threats, coercion and intimidation to have other employees sign cards. They are highly critical of EFCA provisions that would empower third party arbitrators to impose contracts on employers as to wages, hours, benefits and other terms and conditions of employment as well as penalties increased for employers but not correspondingly increased for unions. They argue that such compelled "interest arbitration" is totally at odds with current and longstanding labor law principles holding that no employer or union can be forced to agree to a proposal of the other side as long as that party is bargaining in good faith. Further, opponents point to U.S. Supreme Court precedent holding that the government cannot impose terms and conditions on employers subject to the jurisdiction of the National Labor Relations Act.
One thing is certain: the battle over EFCA will continue. Proponents point to the June 26 vote by a majority of the Senate as a clear indication that momentum is on their side. They vow to continue pushing for this legislation and look to the 2008 elections as the opportunity to elect people to Congress, and perhaps a President, who will ensure that this legislation is enacted. Opponents in Congress, the U.S. Chamber of Commerce, the National Federation of Independent Business, the National Retail Federation, the National Association of Manufacturers and other national employer associations recognize that though the bill may be dead for now, the fight is far from over. They see special interest money continuing to pour in to influence Congress to pass the legislation. Opponents vow vigilance and equally staunch opposition to any revived version of EFCA.