On March 1, the House approved the Employee Free Choice Act, which is designed to amend the National Labor Relations Act. The Employee Free Choice Act effectively eliminates employees' right to vote for or against unionization in secret ballot elections. If enacted, once a simple majority of employees sign cards authorizing a union to become their bargaining representative, the union would be certified by the National Labor Relations Board. In effect, if you are a union-free employer, this legislation creates the possibility of unionization without advance notice and opportunity to share in a dialogue with your employees prior to their decision.
Under current law, employees are afforded the ability to vote in a secret ballot election supervised by the National Labor Relations Board. Such an election is held if a petition is filed by either an employee, the union on behalf of the employees, or the employer. If the employee or union files a petition for an election, the petition must be backed by a substantial number of employees and assert that the employer refuses to recognize the union as the bargaining representative. An employer may also file a petition for an election, which is typically spurred by a union's demand to be recognized on the sole basis of authorization cards signed by a number of employees. Often, the union has signed authorization cards from 50-75% of employees by the time of its demand for recognition. Once a petition for an election is filed, the National Labor Relations Board generally orders an election to be held within forty-five days. This timeframe provides the employer with the valuable opportunity to speak with its employees and share the employer's view of unionization and what it could mean for the business and the employees. This window of opportunity and dialogue would be extinguished by the enactment of the Employee Free Choice Act.
The "Employee Free Choice Act" provides for the government to implement the terms of collective bargaining agreements, enforce them through injunctions and levy treble damage awards against employers. First, the bill provides that if a simple majority of employees sign authorization cards, the National Labor Relations Board shall certify the union as the bargaining representative and shall not order an election. The elimination of the secret ballot would dramatically change the landscape of union certification. Employees would no longer have the opportunity to say no to union representation within the anonymity provided by a secret ballot. Instead, employees would be subjected to face-to-face demands by union organizers to sign authorization cards, which would create an inherently pressured situation. In addition, non-unionized employers would face the prospect of being required to bargain with a union without any notice or opportunity to speak out against union representation. Under the Employee Free Choice Act, a union could quietly collect signed authorization cards from a simple majority of employees and become certified, before the employer becomes aware of the situation.
Second, the bill establishes a procedure for collective bargaining that imposes a labor agreement on the employer, if the employer does not come to an agreement with the union during negotiations. More specifically, if the employer and union do not reach an agreement, the bill provides for mediation. If the mediation in turn is unsuccessful in establishing a contract between the union and employer, after thirty days, the parties are sent to binding arbitration. This binding arbitration can impose a two-year contract on the employer and union. These obligations can be compelled by a federal court injunction. This provision in the Employee Free Choice Act poses a marked difference to what is provided under current law. Under current law, parties are required to negotiate in good faith until they reach an agreement. However, the requirement to bargain in good faith does not require the employer to agree with the union or concede to the union's demands. If passed, the Employee Free Choice Act would greatly restrict an employer's ability to bargain effectively. The Employee Free Choice Act limits the employer's autonomy over the collective bargaining agreement that will govern how the employer does business as relates to its employee relations. When considered in conjunction with the elimination of the secret ballot, the Employee Free Choice Act would eliminate both the employer's voice before union certification and the employer's autonomy after certification.
Third, the Employee Free Choice Act proposes steeper penalties for violations of the National Labor Relations Act. Penalties include employee backpay, liquidated damages and civil penalties up to $20,000 for each willful or repeated violation. The treble damages aspect of the remedies announced in the legislation has heretofore been reserved by Congress for extraordinarily punitive impact in such situations as racketeering under the civil RICO Act.
The Employee Free Choice Act was introduced into the House by 234 co-sponsors, which is a majority of that branch of Congress. On February 28 the White House issued a statement opposing the bill stating that "(it) would strip workers of the fundamental democratic right to a supervised private ballot election, interfere with the ability of workers and employers to bargain freely and come to agreement over working terms and conditions, and impose penalties for unfair labor practices only upon employers--and not on union organizers--who intimidate workers." On March 1, 2007, the House approved the bill by a 241-185 vote.