Employee Free Choice Act
Encyclopedia
The Employee Free Choice Act was a legislative bill
that was introduced into both chambers of the U.S. Congress on March 10, 2009. The bill's purpose was to,
The bill would have, firstly, allowed a union to be certified as the official union to bargain with an employer if union officials collect signatures of a majority of workers. The bill would have removed the present right of the employer to demand an additional, separate ballot where over half of employees have already given their signature supporting the union. Secondly, the bill would have required employers and unions to enter binding arbitration to produce a collective agreement at latest 120 days after a union is recognized. Thirdly, the bill would have increased penalties on employers who discriminate against workers for union involvement.
in three significant ways. That is,
with an employer if a majority of employees sign cards
stating their wish that the union represents them.
Currently, the NLRA section 9(c) anticipates that after at least 30% of employees state their wish for union representation, a separate secret ballot
will be held to confirm that the majority of employees want union representation. This only happens when there is "a question of employee representation", or in other words, the result is contested (for instance, because the employer objects). Undisputed petitions, when all employees and the employer agree, require no further election. However, in practice, the results of the card check usually are not presented to the employer until 50 or 60% of bargaining-unit employees have signed the cards. Moreover, even if every employee has signed cards indicating their preference to be represented by the union, an employer may demand a secret ballot, and refuse to bargain until one is held. The effect of section 2 would have been that if a majority of employees at a workplace have already put their names on cards, there would have been no further requirement to confirm the union can represent them through an additional ballot. It would have meant that an employer could not demand a further secret ballot after a majority of employees had already put their names on cards supporting union representation. The text reads as follows,
Section 2(a) went on to allow the National Labor Relations Board
to draw up more detailed regulations for oversight of the majority recognition procedure.
The process of union decertification would not change under the Employee Free Choice Act, so an employer can voluntarily reject a union when a majority of employees sign decertification cards or otherwise demonstrate that they no longer want to be represented by a union, or when 30 percent of employees sign a petition to hold a secret ballot election and a majority of participants in the election vote to decertify the union.
within ten days. If the employer and union are unable to reach agreement within 90 days, either side may take the dispute to the Federal Mediation and Conciliation Service, which has provided mediation free of charge since 1947. If the FMCS is unable to bring the parties to agreement after providing mediation services for 30 days the dispute will be referred to arbitration. The results of the arbitration shall be binding on the parties for two years. The union and employer may agree to extend any deadlines or time limits.
A study by John-Paul Ferguson and Thomas Kochan at the MIT Sloan School of Management
found that only 56% of unions that win an election ever negotiate their first contract. The AFL-CIO
says in a pro-EFCA paper, citing data by Ferguson and Kochan, that this is because "newly formed unions lose their presumption of majority status after one year without reaching a contract. The AFL-CIO asserts that this gives employers the incentive to delay the bargaining process for a year and force the demoralized workers to vote again, often resulting in the union's decertification." They claim that "the Employee Free Choice Act eliminates the incentive for employers to bargain in bad faith" and it "will dramatically reduce the delay, frustration and animosity associated with the current company-dominated system."
seek injunction
s against employers who discriminate against employees who attempt to organize a union. Specifically, the bill allows for an injunction whenever an allegation is proven that an employer threatened to or did discharge or discriminate against an employee who sought representation by a union. An injunction would also have been available if the employer "engaged in any other unfair labor practice" that would have restrained the rights under NLRA section 7.
Currently, such federal court injunctions are required only for violations by unions. No such remedy exists for unlawful acts committed by employers in violation of workers' rights.
Section 4(b) of the Bill would have increased penalties for employers violating the law. The amount an employer is required to pay when an employee is illegally discharged or discriminated against during an organizing campaign or first contract drive would have become two times back pay as liquidated damages, in addition to the back pay owed, for a total of three times back pay
.
Currently, damages are limited to back pay, less any wages earned by an employee if they are hired by another employer. There would have been no provision for compensatory or punitive damages.
Finally, the bill would have provided 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 such violations.
session, the House Committee on Education and Labor voted 26-19 to report the bill to the full House. Republican
members of the committee voted unanimously against reporting the bill, citing numerous amendments proposed by Republican committee members that were rejected by the Democratic majority on the committee.
On March 1, 2007, the House of Representatives
passed the bill, 241 to 185. On March 30, 2007, Senator Ted Kennedy
(D-MA
), Chairman of the Senate Committee on Health, Employment, Labor, and Pensions
, introduced the Senate version of the Employee Free Choice Act.
On June 26, 2007, the Senate
voted 51 to 48 on a motion
to invoke cloture
on the motion to proceed to consider the bill
, 9 votes short of the 60 needed to invoke cloture and prevent an anticipated Republican filibuster. As a result, the bill failed to pass during the 110th United States Congress
. In the 111th United States Congress
, as of July 9, 2009, the Senate version of the EFCA, S.560, had 40 cosponsors in addition to its sponsor (Edward M. Kennedy, D, MA).
by Sen. Kennedy
(Democrat of Massachusetts
) and Rep. George Miller
(Democrat of California
). Kennedy described the bill as "a critical step toward putting our economy back on track," while Miller also put the bill in the context of the 2008 economic crisis, declaring, "If we want a fair and sustainable recovery from this economic crisis, we must give workers the ability to stand up for themselves and once again share in the prosperity they help to create."
Although only 41 senators were Republicans, Senators Ben Nelson
(Democrat of Nebraska
) and Arlen Specter
(Democrat of Pennsylvania
) announced that they did not support the bill in March 2009.
In addition, Blanche Lincoln
(Democratic senator for Arkansas
) and Thomas Carper (Democratic senator for Delaware
) both stated in April that they would not vote for EFCA in its current form.
Dianne Feinstein
(Democratic senator for California) has also announced that she would prefer to seek alternative legislation. Sen. Claire McCaskill
indicated in a meeting with the Missouri Chamber of Commerce
that it is unlikely that EFCA would pass in its current incarnation.
On July 7, 2009, Sen. Al Franken
(D-MN
) chose the bill as the first piece of legislation that he would co-sponsor, joining 40 other Democratic senators.
On July 16, 2009, reports were made that Senate advocates proposed dropping the provisions removing the employer's right to demand an extra ballot.
On July 17, 2009, the New York Times reported that in an effort to secure a filibuster-proof majority in the Senate, a group of key Democratic senators are planning to change the proposed legislation to remove the "card check" provision of the EFCA, which would have allowed unions to be certified solely by majority sign-up.
Proponents of the legislation assert that the change is necessary to protect workers' rights to join unions. Under current law, employers are not required to take as determinative their workers' signed authorization forms designating a union as their representative "and may insist that the workers use a secret-ballot election conducted by the National Labor Relations Board (NLRB) to establish their union "even if 100% of the employees provide the NLRB with signed authorizations designating the union as their bargaining agent." The EFCA would allow workers to have their union certified as their bargaining agent by the NLRB if a majority of them have signed valid authorizations." EFCA proponents state that under current law the union ballots are "secret in name only" by citing experts such as University of Oregon
professor Gordon Lafer, who in testimony before the U.S. Congress stated:
A U.S. House Committee on Education & Labor report asserted that the overall purpose of the Employee Free Choice Act is "allowing employees to make their own decision about whether they want to bargain together — to advocate for fairer wages, benefits and working conditions — without the threat or fear of harassment and retribution and fear of losing their livelihood."
The committee's Democrats quoted the conclusion of the nonpartisan international human rights organization Human Rights Watch
:
In his remarks accompanying the bill’s introduction, Representative George Miller
(D-CA), chairman of the House Committee on Education and Labor, stated:
President Barack Obama
supports the bill. An original co-sponsor of the Employee Free Choice Act, Obama urged his Senate colleagues to pass the bill during a 2007 motion to proceed:
"I will make it the law of the land when I'm President of the United States," he told a labor federation meeting in April 2008. The AFL-CIO
states that, in practice, the company-controlled election process actually makes the process less democratic:
Jeff Madrick
, the editor of Challenge: The Magazine of Economic Affairs and a former columnist for Business Week and The New York Times
, wrote that "good blue-collar jobs are disappearing rapidly as manufacturing industries decline; but many new white-collar jobs pay poorly, provide minimal health care and pension benefits, and offer little job security. There is now no privileged segment of earners in the nation except the upper 10 percent or so."
He added that "some 50 million non-unionized American workers, according to surveys, now say that they definitely or probably would join one if given the option. One of the reasons this does not happen, according to Madrick, is the failure of the federal government to protect workers trying to organize into unions. "The fines levied by the NLRB have long been meager," he notes. "Meantime, management actions against unions are supported by the nation's courts." Madrick concludes that "much can...be done" by "seriously enforcing the labor laws and imposing harsher penalties for violating them. The Employee Free Choice Act introduced by [then-] Senator Obama, among others, will be a good test."
To find out how effective the current NLRB system actually is — in other words, how well it reflects workers' wishes to organize into unions and bargain contracts with management — MIT Sloan School of Management
professor Thomas A. Kochan and MIT Ph.D. student John Paul Ferguson used federal data to track the progress of more than 22,000 union organizing drives between 1999 and 2005. They found that "only one in five cases that filed an [NLRB] election petition ultimately reached a first contract [between workers and management]," which they reported in a Boston Globe article. "This is despite all the cases already having shown substantial and likely majority support for representation."
They criticized the current system by asking, "How can anyone who thinks elections are a bulwark of democracy support a system in which a third of those interested in an election never get to hold one? Why would anyone put faith in a process that offers them a 1-in-5 chance of success?" Kochan and Ferguson thus called for passage of the Employee Free Choice Act along with other reforms.
on the part of union organizers. Opponents of the Employee Free Choice Act also claim that the measure would not protect employee privacy. Representative John Kline
, R-Minn., has stated:
The bill's opponents also oppose the mandatory arbitration of disputes involving the terms of a first contract, asserting that such a procedure could constitute an improper intrusion of government into private business affairs and harmful for competitiveness and innovation. Opponents have also suggested that the arbitration mandate could lead to management resorting to offensive lockouts as a means to pressure unions and employees into accepting company proposals before the deadline for arbitration.
Opponents also point to a 2001 letter to Mexican government officials, signed by 11 Democrats who subsequently voted in favor of HR 800, encouraging the "use of secret ballots in all union recognition elections" that take place in Mexico. The letter further states, "we feel that the secret ballot is absolutely necessary in order to ensure that workers are not intimidated into voting for a union they might not otherwise choose," seeming to contradict the spirit of the legislation passed by the House. Congressman George Miller
was the lead signatory of the 2001 letter and the sponsor of H.R.800. However, Miller and the other signatories to the 2001 letter now contend that their demand for a secret ballot election was limited to situations where "workers seek to replace one union with another union," although the letter makes no mention of this case and instead states "all union recognition elections."
The "Minority Views" section of the U.S. House Committee on Education & Labor report on the bill asserts: "H.R. 800, the deceptively-named ‘‘Employee Free Choice Act,’’ would strip [the right to a secret ballot] from every American worker. Moreover, the bill makes changes to federal labor law’s scheme of penalties and remedies that are one-sided, unnecessary, and unprecedented. Finally, H.R. 800, for the first time in labor law’s history, imposes a one-size-fits-all scheme of mandatory, binding interest arbitration with respect to initial contracts, on bargaining parties, again stripping American workers of the right to vote on the terms and conditions of their employment." The minority (Republican) views of the committee also quoted multiple federal and Supreme Court decisions:
In 2007, 28 Republican Senators supported an opposition bill, the Secret Ballot Protection Act, which would eliminate the use of the card check
procedure. In 1947 a similar proposal to eliminate the use of cards was rejected in conference in the House of Representatives.
Former Democratic presidential nominee George McGovern
has released political advertisements in opposition to the bill, saying: "It's hard to believe that any politician would agree to a law denying millions of employees the right to a private vote.... Quite simply, this proposed law cannot be justified." McGovern first broke with Democratic Party orthodoxy on the EFCA by opposing the proposed bill in an August 2008 editorial in the Wall Street Journal:
University of Chicago
legal professor Richard Epstein also wrote a Wall Street Journal editorial opposing the act, saying that it is unconstitutional due to restrictions on free speech.
The U.S. Chamber of Commerce's Randel Johnson declared that the “coming fight in Congress over the issue” is a “firestorm bordering on Armageddon.” Other business interests have offered similarly strong characterizations of the proposed bill. Sheldon Adelson
, a Las Vegas casino owner and real-estate developer, stated: “Radical Islam and Employee Free Choice are the ‘two fundamental threats to society." Mark McKinnon
, a spokesman for the Workforce Fairness Institute, said businesses were "hearing about it, and are ready to riot in the street about it." Forbes Magazine national editor Mike Ozanian said: "The Employee Free Choice Act should be called the anti-free choice, pro-slavery bill."
Business reaction
During an October 17, 2008 conference call, Home Depot co-founder Bernie Marcus spoke against the EFCA, calling it "the demise of a civilization". He went on to say: "If a retailer has not gotten involved with this, if he has not spent money on this election, if he has not sent money to Norm Coleman
and these other guys," then those retailers "should be shot; should be thrown out of their goddamn jobs."
In January 2009, FedEx
exercised an option to buy fifteen Boeing
777F planes and had an option to buy fifteen more. The contract between the two companies allows FedEx to cancel the second order if Congress passes the EFCA. In April 2009, the Associated Builders and Contractors sent a letter to every member of Congress on behalf of 3,000 construction firms opposing the bill in any form.
.
song, "Up the Union".
Bill (proposed law)
A bill is a proposed law under consideration by a legislature. A bill does not become law until it is passed by the legislature and, in most cases, approved by the executive. Once a bill has been enacted into law, it is called an act or a statute....
that was introduced into both chambers of the U.S. Congress on March 10, 2009. The bill's purpose was to,
The bill would have, firstly, allowed a union to be certified as the official union to bargain with an employer if union officials collect signatures of a majority of workers. The bill would have removed the present right of the employer to demand an additional, separate ballot where over half of employees have already given their signature supporting the union. Secondly, the bill would have required employers and unions to enter binding arbitration to produce a collective agreement at latest 120 days after a union is recognized. Thirdly, the bill would have increased penalties on employers who discriminate against workers for union involvement.
Outline
The Employee Free Choice Act would have amended the National Labor Relations ActNational Labor Relations Act
The National Labor Relations Act or Wagner Act , is a 1935 United States federal law that limits the means with which employers may react to workers in the private sector who create labor unions , engage in collective bargaining, and take part in strikes and other forms of concerted activity in...
in three significant ways. That is,
- section 2 would have eliminated the need for an additional ballot to require an employer recognize a union, if a majority of workers have already signed cards expressing their wish to have a union
- section 3 would have required that an employer begins negotiating with a union with a view to reaching a collective agreementCollective agreementA collective agreement or collective bargaining agreement is an agreement between employers and employees which regulates the terms and conditions of employees in their workplace, their duties and the duties of the employer...
within 90 days, and if not, the two sides will be referred to compulsory mediation, and if mediation fails, binding arbitration - section 4 increases the penalties on employers who subject workers to detriment for being involved in a union
Section 2, Streamlining union certification
Section 2(a) of the bill would have allowed the recognition of a union for the purpose of exclusive collective bargainingCollective bargaining
Collective bargaining is a process of negotiations between employers and the representatives of a unit of employees aimed at reaching agreements that regulate working conditions...
with an employer if a majority of employees sign cards
Card check
Card check is a method for American employees to organize into a labor union in which a majority of employees in a bargaining unit sign authorization forms, or "cards," stating they wish to be represented by the union...
stating their wish that the union represents them.
Currently, the NLRA section 9(c) anticipates that after at least 30% of employees state their wish for union representation, a separate secret ballot
Secret ballot
The secret ballot is a voting method in which a voter's choices in an election or a referendum are anonymous. The key aim is to ensure the voter records a sincere choice by forestalling attempts to influence the voter by intimidation or bribery. The system is one means of achieving the goal of...
will be held to confirm that the majority of employees want union representation. This only happens when there is "a question of employee representation", or in other words, the result is contested (for instance, because the employer objects). Undisputed petitions, when all employees and the employer agree, require no further election. However, in practice, the results of the card check usually are not presented to the employer until 50 or 60% of bargaining-unit employees have signed the cards. Moreover, even if every employee has signed cards indicating their preference to be represented by the union, an employer may demand a secret ballot, and refuse to bargain until one is held. The effect of section 2 would have been that if a majority of employees at a workplace have already put their names on cards, there would have been no further requirement to confirm the union can represent them through an additional ballot. It would have meant that an employer could not demand a further secret ballot after a majority of employees had already put their names on cards supporting union representation. The text reads as follows,
Section 2(a) went on to allow the National Labor Relations Board
National Labor Relations Board
The National Labor Relations Board is an independent agency of the United States government charged with conducting elections for labor union representation and with investigating and remedying unfair labor practices. Unfair labor practices may involve union-related situations or instances of...
to draw up more detailed regulations for oversight of the majority recognition procedure.
The process of union decertification would not change under the Employee Free Choice Act, so an employer can voluntarily reject a union when a majority of employees sign decertification cards or otherwise demonstrate that they no longer want to be represented by a union, or when 30 percent of employees sign a petition to hold a secret ballot election and a majority of participants in the election vote to decertify the union.
Section 3, Facilitating initial collective bargaining agreements
Section 3 of the Bill provided that following a union being certified, the union could require the employer to begin negotiations for a collective agreementCollective agreement
A collective agreement or collective bargaining agreement is an agreement between employers and employees which regulates the terms and conditions of employees in their workplace, their duties and the duties of the employer...
within ten days. If the employer and union are unable to reach agreement within 90 days, either side may take the dispute to the Federal Mediation and Conciliation Service, which has provided mediation free of charge since 1947. If the FMCS is unable to bring the parties to agreement after providing mediation services for 30 days the dispute will be referred to arbitration. The results of the arbitration shall be binding on the parties for two years. The union and employer may agree to extend any deadlines or time limits.
A study by John-Paul Ferguson and Thomas Kochan at the MIT Sloan School of Management
MIT Sloan School of Management
The MIT Sloan School of Management is the business school of the Massachusetts Institute of Technology, in Cambridge, Massachusetts....
found that only 56% of unions that win an election ever negotiate their first contract. The AFL-CIO
AFL-CIO
The American Federation of Labor and Congress of Industrial Organizations, commonly AFL–CIO, is a national trade union center, the largest federation of unions in the United States, made up of 56 national and international unions, together representing more than 11 million workers...
says in a pro-EFCA paper, citing data by Ferguson and Kochan, that this is because "newly formed unions lose their presumption of majority status after one year without reaching a contract. The AFL-CIO asserts that this gives employers the incentive to delay the bargaining process for a year and force the demoralized workers to vote again, often resulting in the union's decertification." They claim that "the Employee Free Choice Act eliminates the incentive for employers to bargain in bad faith" and it "will dramatically reduce the delay, frustration and animosity associated with the current company-dominated system."
Section 4, Strengthening enforcement
Section 4(a) of the Bill would have made the National Labor Relations BoardNational Labor Relations Board
The National Labor Relations Board is an independent agency of the United States government charged with conducting elections for labor union representation and with investigating and remedying unfair labor practices. Unfair labor practices may involve union-related situations or instances of...
seek injunction
Injunction
An injunction is an equitable remedy in the form of a court order that requires a party to do or refrain from doing certain acts. A party that fails to comply with an injunction faces criminal or civil penalties and may have to pay damages or accept sanctions...
s against employers who discriminate against employees who attempt to organize a union. Specifically, the bill allows for an injunction whenever an allegation is proven that an employer threatened to or did discharge or discriminate against an employee who sought representation by a union. An injunction would also have been available if the employer "engaged in any other unfair labor practice" that would have restrained the rights under NLRA section 7.
Currently, such federal court injunctions are required only for violations by unions. No such remedy exists for unlawful acts committed by employers in violation of workers' rights.
Section 4(b) of the Bill would have increased penalties for employers violating the law. The amount an employer is required to pay when an employee is illegally discharged or discriminated against during an organizing campaign or first contract drive would have become two times back pay as liquidated damages, in addition to the back pay owed, for a total of three times back pay
Treble damages
Treble damages, in law, is a term that indicates that a statute permits a court to triple the amount of the actual/compensatory damages to be awarded to a prevailing plaintiff, generally in order to punish the losing party for willful conduct. Treble damages are a multiple of, and not an addition...
.
Currently, damages are limited to back pay, less any wages earned by an employee if they are hired by another employer. There would have been no provision for compensatory or punitive damages.
Finally, the bill would have provided 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 such violations.
Jurisdictional standards
The Employee Free Choice Act would not have altered the existing jurisdictional standards of the National Labor Relations Board. The jurisdiction of the NLRB remains at the level set in 1959, $500,000 gross revenues for a retail business. The NLRB also requires a union to consist of a minimum of two employees who have no supervisory authority, exempting many small businesses from the increased penalties of the Employee Free Choice Act.110th Congress
On February 14, 2007, in a full Committee markupMarkup (legislation)
For the business term see Markup Markup refers to the process by which a U.S. congressional committee or state legislative session debates, amends, and rewrites proposed legislation....
session, the House Committee on Education and Labor voted 26-19 to report the bill to the full House. Republican
Republican Party (United States)
The Republican Party is one of the two major contemporary political parties in the United States, along with the Democratic Party. Founded by anti-slavery expansion activists in 1854, it is often called the GOP . The party's platform generally reflects American conservatism in the U.S...
members of the committee voted unanimously against reporting the bill, citing numerous amendments proposed by Republican committee members that were rejected by the Democratic majority on the committee.
On March 1, 2007, the House of Representatives
United States House of Representatives
The United States House of Representatives is one of the two Houses of the United States Congress, the bicameral legislature which also includes the Senate.The composition and powers of the House are established in Article One of the Constitution...
passed the bill, 241 to 185. On March 30, 2007, Senator Ted Kennedy
Ted Kennedy
Edward Moore "Ted" Kennedy was a United States Senator from Massachusetts and a member of the Democratic Party. Serving almost 47 years, he was the second most senior member of the Senate when he died and is the fourth-longest-serving senator in United States history...
(D-MA
Massachusetts
The Commonwealth of Massachusetts is a state in the New England region of the northeastern United States of America. It is bordered by Rhode Island and Connecticut to the south, New York to the west, and Vermont and New Hampshire to the north; at its east lies the Atlantic Ocean. As of the 2010...
), Chairman of the Senate Committee on Health, Employment, Labor, and Pensions
United States Senate Committee on Health, Education, Labor, and Pensions
The United States Senate Committee on Health, Education, Labor, and Pensions generally considers matters relating to health, education, labor, and pensions...
, introduced the Senate version of the Employee Free Choice Act.
On June 26, 2007, the Senate
United States Senate
The United States Senate is the upper house of the bicameral legislature of the United States, and together with the United States House of Representatives comprises the United States Congress. The composition and powers of the Senate are established in Article One of the U.S. Constitution. Each...
voted 51 to 48 on a motion
Motion (parliamentary procedure)
In parliamentary procedure, a motion is a formal proposal by a member of a deliberative assembly that the assembly take certain action. In a parliament, this is also called a parliamentary motion and includes legislative motions, budgetary motions, supplementary budgetary motions, and petitionary...
to invoke cloture
Cloture
In parliamentary procedure, cloture is a motion or process aimed at bringing debate to a quick end. It is also called closure or, informally, a guillotine. The cloture procedure originated in the French National Assembly, from which the name is taken. Clôture is French for "ending" or "conclusion"...
on the motion to proceed to consider the bill
Bill (proposed law)
A bill is a proposed law under consideration by a legislature. A bill does not become law until it is passed by the legislature and, in most cases, approved by the executive. Once a bill has been enacted into law, it is called an act or a statute....
, 9 votes short of the 60 needed to invoke cloture and prevent an anticipated Republican filibuster. As a result, the bill failed to pass during the 110th United States Congress
110th United States Congress
The One Hundred Tenth United States Congress was the meeting of the legislative branch of the United States federal government, between January 3, 2007, and January 3, 2009, during the last two years of the second term of President George W. Bush. It was composed of the Senate and the House of...
. In the 111th United States Congress
111th United States Congress
The One Hundred Eleventh United States Congress was the meeting of the legislative branch of the United States federal government from January 3, 2009 until January 3, 2011. It began during the last two weeks of the George W. Bush administration, with the remainder spanning the first two years of...
, as of July 9, 2009, the Senate version of the EFCA, S.560, had 40 cosponsors in addition to its sponsor (Edward M. Kennedy, D, MA).
111th Congress
On March 10, 2009, the bill was introduced in the 111th Congress111th United States Congress
The One Hundred Eleventh United States Congress was the meeting of the legislative branch of the United States federal government from January 3, 2009 until January 3, 2011. It began during the last two weeks of the George W. Bush administration, with the remainder spanning the first two years of...
by Sen. Kennedy
Ted Kennedy
Edward Moore "Ted" Kennedy was a United States Senator from Massachusetts and a member of the Democratic Party. Serving almost 47 years, he was the second most senior member of the Senate when he died and is the fourth-longest-serving senator in United States history...
(Democrat of Massachusetts
Massachusetts
The Commonwealth of Massachusetts is a state in the New England region of the northeastern United States of America. It is bordered by Rhode Island and Connecticut to the south, New York to the west, and Vermont and New Hampshire to the north; at its east lies the Atlantic Ocean. As of the 2010...
) and Rep. George Miller
George Miller
- Arts :*George Miller , Australian film and television screenwriter, film director, and producer*George T. Miller , Australian film and television director and producer*George Bures Miller , Canadian artist...
(Democrat of California
California
California is a state located on the West Coast of the United States. It is by far the most populous U.S. state, and the third-largest by land area...
). Kennedy described the bill as "a critical step toward putting our economy back on track," while Miller also put the bill in the context of the 2008 economic crisis, declaring, "If we want a fair and sustainable recovery from this economic crisis, we must give workers the ability to stand up for themselves and once again share in the prosperity they help to create."
Although only 41 senators were Republicans, Senators Ben Nelson
Ben Nelson
Earl Benjamin "Ben" Nelson is the senior U.S. Senator from Nebraska. He is a member of the Democratic Party and was elected to the U.S. Senate in 2000....
(Democrat of Nebraska
Nebraska
Nebraska is a state on the Great Plains of the Midwestern United States. The state's capital is Lincoln and its largest city is Omaha, on the Missouri River....
) and Arlen Specter
Arlen Specter
Arlen Specter is a former United States Senator from Pennsylvania. Specter is a Democrat, but was a Republican from 1965 until switching to the Democratic Party in 2009...
(Democrat of Pennsylvania
Pennsylvania
The Commonwealth of Pennsylvania is a U.S. state that is located in the Northeastern and Mid-Atlantic regions of the United States. The state borders Delaware and Maryland to the south, West Virginia to the southwest, Ohio to the west, New York and Ontario, Canada, to the north, and New Jersey to...
) announced that they did not support the bill in March 2009.
In addition, Blanche Lincoln
Blanche Lincoln
Blanche Meyers Lambert Lincoln is a former U.S. Senator from Arkansas and a member of the Democratic Party. First elected to the Senate in 1998, she was the first woman elected to the Senate from Arkansas since Hattie Caraway in 1932 and, at age 38, was the youngest woman ever elected to the...
(Democratic senator for Arkansas
Arkansas
Arkansas is a state located in the southern region of the United States. Its name is an Algonquian name of the Quapaw Indians. Arkansas shares borders with six states , and its eastern border is largely defined by the Mississippi River...
) and Thomas Carper (Democratic senator for Delaware
Delaware
Delaware is a U.S. state located on the Atlantic Coast in the Mid-Atlantic region of the United States. It is bordered to the south and west by Maryland, and to the north by Pennsylvania...
) both stated in April that they would not vote for EFCA in its current form.
Dianne Feinstein
Dianne Feinstein
Dianne Goldman Berman Feinstein is the senior U.S. Senator from California. A member of the Democratic Party, she has served in the Senate since 1992. She also served as 38th Mayor of San Francisco from 1978 to 1988....
(Democratic senator for California) has also announced that she would prefer to seek alternative legislation. Sen. Claire McCaskill
Claire McCaskill
Claire Conner McCaskill is the senior United States Senator from Missouri and a member of the Democratic Party. She defeated Republican incumbent Jim Talent in the 2006 U.S. Senate election, by a margin of 49.6% to 47.3%. She is the first woman elected to the U.S. Senate from Missouri in her own...
indicated in a meeting with the Missouri Chamber of Commerce
Chamber of commerce
A chamber of commerce is a form of business network, e.g., a local organization of businesses whose goal is to further the interests of businesses. Business owners in towns and cities form these local societies to advocate on behalf of the business community...
that it is unlikely that EFCA would pass in its current incarnation.
On July 7, 2009, Sen. Al Franken
Al Franken
Alan Stuart "Al" Franken is the junior United States Senator from Minnesota. He is a member of the Minnesota Democratic-Farmer-Labor Party, which affiliates with the national Democratic Party....
(D-MN
Minnesota
Minnesota is a U.S. state located in the Midwestern United States. The twelfth largest state of the U.S., it is the twenty-first most populous, with 5.3 million residents. Minnesota was carved out of the eastern half of the Minnesota Territory and admitted to the Union as the thirty-second state...
) chose the bill as the first piece of legislation that he would co-sponsor, joining 40 other Democratic senators.
On July 16, 2009, reports were made that Senate advocates proposed dropping the provisions removing the employer's right to demand an extra ballot.
On July 17, 2009, the New York Times reported that in an effort to secure a filibuster-proof majority in the Senate, a group of key Democratic senators are planning to change the proposed legislation to remove the "card check" provision of the EFCA, which would have allowed unions to be certified solely by majority sign-up.
Proponents' views
University of Oregon
-Colleges and schools:The University of Oregon is organized into eight schools and colleges—six professional schools and colleges, an Arts and Sciences College and an Honors College.- School of Architecture and Allied Arts :...
professor Gordon Lafer, who in testimony before the U.S. Congress stated:
A U.S. House Committee on Education & Labor report asserted that the overall purpose of the Employee Free Choice Act is "allowing employees to make their own decision about whether they want to bargain together — to advocate for fairer wages, benefits and working conditions — without the threat or fear of harassment and retribution and fear of losing their livelihood."
The committee's Democrats quoted the conclusion of the nonpartisan international human rights organization Human Rights Watch
Human Rights Watch
Human Rights Watch is an international non-governmental organization that conducts research and advocacy on human rights. Its headquarters are in New York City and it has offices in Berlin, Beirut, Brussels, Chicago, Geneva, Johannesburg, London, Los Angeles, Moscow, Paris, San Francisco, Tokyo,...
:
In his remarks accompanying the bill’s introduction, Representative George Miller
George Miller (politician)
George Miller III is the U.S. Representative for , serving since 1975. He is a member of the Democratic Party. From 2007 through 2010, Miller served as chairman of the Education and Labor Committee, formerly known as the Education and the Workforce Committee.-Early life, education, and early...
(D-CA), chairman of the House Committee on Education and Labor, stated:
President Barack Obama
Barack Obama
Barack Hussein Obama II is the 44th and current President of the United States. He is the first African American to hold the office. Obama previously served as a United States Senator from Illinois, from January 2005 until he resigned following his victory in the 2008 presidential election.Born in...
supports the bill. An original co-sponsor of the Employee Free Choice Act, Obama urged his Senate colleagues to pass the bill during a 2007 motion to proceed:
"I will make it the law of the land when I'm President of the United States," he told a labor federation meeting in April 2008. The AFL-CIO
AFL-CIO
The American Federation of Labor and Congress of Industrial Organizations, commonly AFL–CIO, is a national trade union center, the largest federation of unions in the United States, made up of 56 national and international unions, together representing more than 11 million workers...
states that, in practice, the company-controlled election process actually makes the process less democratic:
Jeff Madrick
Jeff Madrick
Jeff Madrick is a journalist, economic policy consultant and analyst. He is editor of Challenge: The Magazine of Economic Affairs, visiting professor of humanities at The Cooper Union, and director of policy research at the Schwartz Center for Economic Policy Analysis, The New School...
, the editor of Challenge: The Magazine of Economic Affairs and a former columnist for Business Week and The New York Times
The New York Times
The New York Times is an American daily newspaper founded and continuously published in New York City since 1851. The New York Times has won 106 Pulitzer Prizes, the most of any news organization...
, wrote that "good blue-collar jobs are disappearing rapidly as manufacturing industries decline; but many new white-collar jobs pay poorly, provide minimal health care and pension benefits, and offer little job security. There is now no privileged segment of earners in the nation except the upper 10 percent or so."
He added that "some 50 million non-unionized American workers, according to surveys, now say that they definitely or probably would join one if given the option. One of the reasons this does not happen, according to Madrick, is the failure of the federal government to protect workers trying to organize into unions. "The fines levied by the NLRB have long been meager," he notes. "Meantime, management actions against unions are supported by the nation's courts." Madrick concludes that "much can...be done" by "seriously enforcing the labor laws and imposing harsher penalties for violating them. The Employee Free Choice Act introduced by [then-] Senator Obama, among others, will be a good test."
To find out how effective the current NLRB system actually is — in other words, how well it reflects workers' wishes to organize into unions and bargain contracts with management — MIT Sloan School of Management
MIT Sloan School of Management
The MIT Sloan School of Management is the business school of the Massachusetts Institute of Technology, in Cambridge, Massachusetts....
professor Thomas A. Kochan and MIT Ph.D. student John Paul Ferguson used federal data to track the progress of more than 22,000 union organizing drives between 1999 and 2005. They found that "only one in five cases that filed an [NLRB] election petition ultimately reached a first contract [between workers and management]," which they reported in a Boston Globe article. "This is despite all the cases already having shown substantial and likely majority support for representation."
They criticized the current system by asking, "How can anyone who thinks elections are a bulwark of democracy support a system in which a third of those interested in an election never get to hold one? Why would anyone put faith in a process that offers them a 1-in-5 chance of success?" Kochan and Ferguson thus called for passage of the Employee Free Choice Act along with other reforms.
Opponents' views
Critics contend that additional use of card check elections will lead to overt coercionCoercion
Coercion is the practice of forcing another party to behave in an involuntary manner by use of threats or intimidation or some other form of pressure or force. In law, coercion is codified as the duress crime. Such actions are used as leverage, to force the victim to act in the desired way...
on the part of union organizers. Opponents of the Employee Free Choice Act also claim that the measure would not protect employee privacy. Representative John Kline
John Kline (politician)
John Paul Kline is the U.S. Representative for , serving since 2003. The district includes most of the southern suburbs of the Twin Cities, including Apple Valley, Inver Grove Heights, Burnsville and Eagan. He is a member of the Republican Party.-Early life, education and career:Kline was born...
, R-Minn., has stated:
The bill's opponents also oppose the mandatory arbitration of disputes involving the terms of a first contract, asserting that such a procedure could constitute an improper intrusion of government into private business affairs and harmful for competitiveness and innovation. Opponents have also suggested that the arbitration mandate could lead to management resorting to offensive lockouts as a means to pressure unions and employees into accepting company proposals before the deadline for arbitration.
George Miller (politician)
George Miller III is the U.S. Representative for , serving since 1975. He is a member of the Democratic Party. From 2007 through 2010, Miller served as chairman of the Education and Labor Committee, formerly known as the Education and the Workforce Committee.-Early life, education, and early...
was the lead signatory of the 2001 letter and the sponsor of H.R.800. However, Miller and the other signatories to the 2001 letter now contend that their demand for a secret ballot election was limited to situations where "workers seek to replace one union with another union," although the letter makes no mention of this case and instead states "all union recognition elections."
The "Minority Views" section of the U.S. House Committee on Education & Labor report on the bill asserts: "H.R. 800, the deceptively-named ‘‘Employee Free Choice Act,’’ would strip [the right to a secret ballot] from every American worker. Moreover, the bill makes changes to federal labor law’s scheme of penalties and remedies that are one-sided, unnecessary, and unprecedented. Finally, H.R. 800, for the first time in labor law’s history, imposes a one-size-fits-all scheme of mandatory, binding interest arbitration with respect to initial contracts, on bargaining parties, again stripping American workers of the right to vote on the terms and conditions of their employment." The minority (Republican) views of the committee also quoted multiple federal and Supreme Court decisions:
In 2007, 28 Republican Senators supported an opposition bill, the Secret Ballot Protection Act, which would eliminate the use of the card check
Card check
Card check is a method for American employees to organize into a labor union in which a majority of employees in a bargaining unit sign authorization forms, or "cards," stating they wish to be represented by the union...
procedure. In 1947 a similar proposal to eliminate the use of cards was rejected in conference in the House of Representatives.
Former Democratic presidential nominee George McGovern
George McGovern
George Stanley McGovern is an historian, author, and former U.S. Representative, U.S. Senator, and the Democratic Party nominee in the 1972 presidential election....
has released political advertisements in opposition to the bill, saying: "It's hard to believe that any politician would agree to a law denying millions of employees the right to a private vote.... Quite simply, this proposed law cannot be justified." McGovern first broke with Democratic Party orthodoxy on the EFCA by opposing the proposed bill in an August 2008 editorial in the Wall Street Journal:
University of Chicago
University of Chicago
The University of Chicago is a private research university in Chicago, Illinois, USA. It was founded by the American Baptist Education Society with a donation from oil magnate and philanthropist John D. Rockefeller and incorporated in 1890...
legal professor Richard Epstein also wrote a Wall Street Journal editorial opposing the act, saying that it is unconstitutional due to restrictions on free speech.
The U.S. Chamber of Commerce's Randel Johnson declared that the “coming fight in Congress over the issue” is a “firestorm bordering on Armageddon.” Other business interests have offered similarly strong characterizations of the proposed bill. Sheldon Adelson
Sheldon Adelson
Sheldon Gary Adelson is an American casino magnate. Adelson is Chairman and Chief Executive Officer of the Las Vegas Sands Corp., the parent company of Venetian Macao Limited which operates The Venetian Resort Hotel Casino and the Sands Expo and Convention Center...
, a Las Vegas casino owner and real-estate developer, stated: “Radical Islam and Employee Free Choice are the ‘two fundamental threats to society." Mark McKinnon
Mark McKinnon
Mark McKinnon is a Republican political advisor in the United States, Global Vice-Chairman of Hill & Knowlton, Inc., a leading international communications consultancy, providing services to local, multinational and global clients, and the President of Maverick Media. Originally a Democrat,...
, a spokesman for the Workforce Fairness Institute, said businesses were "hearing about it, and are ready to riot in the street about it." Forbes Magazine national editor Mike Ozanian said: "The Employee Free Choice Act should be called the anti-free choice, pro-slavery bill."
Business reaction
During an October 17, 2008 conference call, Home Depot co-founder Bernie Marcus spoke against the EFCA, calling it "the demise of a civilization". He went on to say: "If a retailer has not gotten involved with this, if he has not spent money on this election, if he has not sent money to Norm Coleman
Norm Coleman
Norman Bertram Coleman, Jr. is an American attorney and politician. He was a United States senator from Minnesota from 2003 to 2009. Coleman was elected in 2002 and served in the 108th, 109th, and 110th Congresses. Before becoming a senator, he was mayor of Saint Paul, Minnesota, from 1994 to 2002...
and these other guys," then those retailers "should be shot; should be thrown out of their goddamn jobs."
In January 2009, FedEx
FedEx
FedEx Corporation , originally known as FDX Corporation, is a logistics services company, based in the United States with headquarters in Memphis, Tennessee...
exercised an option to buy fifteen Boeing
Boeing
The Boeing Company is an American multinational aerospace and defense corporation, founded in 1916 by William E. Boeing in Seattle, Washington. Boeing has expanded over the years, merging with McDonnell Douglas in 1997. Boeing Corporate headquarters has been in Chicago, Illinois since 2001...
777F planes and had an option to buy fifteen more. The contract between the two companies allows FedEx to cancel the second order if Congress passes the EFCA. In April 2009, the Associated Builders and Contractors sent a letter to every member of Congress on behalf of 3,000 construction firms opposing the bill in any form.
Response by states
In 2010, four states passed constitutional amendments guaranteeing a secret ballot on union recognition: Arizona, South Carolina, South Dakota, and Utah. This was due in part to the efforts of the organization Save Our Secret BallotSave Our Secret Ballot
The Save Our Secret Ballot, Inc. is a 501 conservative advocacy organization created to promote states to pass constitutional amendments that would ban card check legislation. Former U.S...
.
In Media
The Employee Free Choice Act is mentioned in the punk band Street DogsStreet Dogs
Street Dogs are a punk rock band originally from Boston, Massachusetts. The band's current line-up includes Mike McColgan, former lead singer of Dropkick Murphys, Johnny Rioux, Marcus Hollar, Tobe Bean III and Paul Rucker.-History:...
song, "Up the Union".
See also
- US labor law
- NLRB election proceduresNLRB election proceduresThe National Labor Relations Board, an agency within the United States government, was created in 1935 as part of the National Labor Relations Act. Among the NLRB’s chief responsibilities is the holding of elections to permit employees to vote whether they wish to be represented by a particular...
- Union organizerUnion organizerA union organizer is a specific type of trade union member or an appointed union official. A majority of unions appoint rather than elect their organizers....
- Trade Union Freedom BillTrade Union Freedom BillThe Trade Union Freedom Bill is a proposal by the United Kingdom Trades Union Congress for legislation which would give greater freedom to unions and their members to collectively bargain and take action to support their interests...
, a proposed UK law
External links
- Facts about Employee Free Choice Act from AFL-CIO
- Resources for Employers from Projections, Inc.
- Employee Free Choice Act Exposed
- Employee Free Choice Act on OpenCongress
- National Education Association's Position & Actions EFCA
- RILAction
- Unclear whether labor law update would expand employee choice, a debate on EFCA covered by the Harvard Law RecordHarvard Law RecordThe Harvard Law Record is an independent, biweekly student-edited newspaper based at Harvard Law School. Founded in 1946, it is the oldest law school newspaper in the United States.-Characteristics:...
, 4 December 2009