What is the Employee Free Choice Act?

The Employee Free Choice Act (EFCA) of 2009 (S. 560/H.R. 1409) will make it easier for unions to organize, especially small business, by making the most dramatic changes to U.S. labor laws in over 60 years. The legislation will require the National Labor Relations Board (NLRB) to recognize a union as the employees’ representative once a majority of employees in a business sign cards in support of unionization, hence the legislations’ informal name ‘card check.’
 
Currently, if 30 percent of employees at a business sign cards authorizing union representation, the cards are submitted to the National Labor Relations Board (NLRB) for a secret ballot election. If more than 50 percent of employees certify their desire for representation, a union can, in theory, agree with the employer to let the union come in to represent the employees. However, under current law, the employer does not have to agree, and can require a secret ballot vote overseen by the NLRB. In these elections, employees are given both sides of the issue and can vote as they choose, without fear that the union will know how they voted.
 
The time-honored American tradition and democratic right of voting in private will be undermined by EFCA. The legislation would strip an employer’s right to request a secret ballot election. Instead, employees could be coerced, pressured or misled into signing cards requesting union representation without the proper education of the pros and cons of being unionized. The current secret ballot election process, long overseen by the NLRB, allows employees to cast their vote confidentially, without fear of peer pressure or coercion from unions or employers.
 
Furthermore, once cards are signed and sent to the NLRB for certification, perhaps without any employer knowledge of the campaign progress, a 90 day deadline is set for a binding first contract. If no agreement is reached, either party may refer the dispute to the Federal Mediation and Conciliation Service (FMCS) for mediation. If the dispute is unresolved after an additional 30 days, the dispute will be referred to a federally appointed arbitrator to dictate the terms of a first collective bargaining “agreement.”
 
In effect, a government arbitrator will set pay wages, employee hours, disciplinary action, benefits, subcontracting flexibility, and involvement in multiemployer pension plans without knowledge of the nuances or goals of the business. Such changes to current labor laws could have a devastating impact on a small business where the government arbitrator does not know the nature of the business, and perhaps might not have managed a company before in his or her life.
 
Finally, the legislation includes a provision increasing penalties for violations of the National Labor Relations Act (NLRA) by employers, not by unions. Given the current economic recession, lawmakers should be focusing on job creation and productivity, not initiatives that will stifle the engine of economic growth in the U.S. – small business.