FEB. 6, 2009:NWLP
2/3/09
10:12 AM
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Myths About the Employee Free Choice Act
Despite the need for reform, critics of EFCA continue to mis-
inform the public about the bill and hide the serious shortcomings
of current labor law. In an attempt to set the record straight, fol-
lowing are myths and realities of the Employee Free Choice Act.
MYTH: EFCA will prevent the use of secret-ballot elec-
tions.
gage in these unfair labor practices. In addition to ordering an em-
ployer to stop the practices, the legislation would require employ-
ers to pay employees who are fired as a result of union organizing
activity, during an organizing campaign or first contract drive, tre-
ble damages (i.e. back-pay, plus liquidated damages two times
that amount). The bill would also impose civil fines of up to
$20,000 per violation against employers who willfully or repeat-
edly violate workers’ rights in forming a union.
REALITY: EFCA does not strip workers of their right to
choose a secret-ballot election to decide
whether to select — or not to select — a
union representative. EFCA simply gives
workers the additional option of selecting a
union representative by majority sign-up.
Under the National Labor Relations Act
(NLRA), there are three ways for workers to
form a union:
1) By secret-ballot: The National Labor
Relations Board (NLRB) will conduct a se-
cret-ballot election to select a bargaining rep-
resentative if at least 30 percent of workers
have signed a petition or authorization cards
in favor of a union. If a majority of workers
voting select a particular union, the NLRB
will certify that union as the employees’ bar-
gaining representative. EFCA does not
change this process.
MYTH: EFCA would require “public” union
card signings.
REALITY: EFCA would preserve current confi-
dentiality requirements, which require the NLRB to
keep authorization cards and the identity of signers
confidential to protect workers from employer retalia-
tion.
MYTH: EFCA will “silence” employers.
2) By voluntary card-check recognition:
An employer can voluntarily decide to recog-
nize a union representative if a majority of
employees have signed authorization cards in
favor of the union. EFCA does not change
this process.
3) By NLRB-ordered recognition: As a
last resort, the NLRB can order an employer who has engaged in
unfair labor practices (that make a fair election unlikely) to recog-
nize a labor union if a majority of employees have signed authori-
zation cards in favor of the union. EFCA does not change this
process.
EFCA would simply add a fourth choice for workers seeking
to form a union. The legislation would require the NLRB to cer-
tify a union representative if a majority — more than half — of
workers sign authorization cards in favor of the union.
The majority sign-up, or “card-check,” option would stream-
line the union selection process for workplaces that have a major-
ity of workers who want to join a union. This is the same majority
that would be voting in a secret-ballot election. Moreover, the ma-
jority sign-up process already exists, but only if the employer
chooses to recognize it. EFCA would extend the right to select a
union representative via the majority-sign up process to workers
themselves.
MYTH: Secret-ballot elections are the fairest way to se-
lect union representation.
REALITY: Secret-ballot elections in the union context can
leave employees vulnerable to virtually un-checked employer in-
timidation and coercion.
Under current law, once workers have petitioned the NLRB to
hold a secret-ballot election, there is no set timetable for holding
that election. Employers who are determined to prevent the for-
mation of a union often use this period to threaten, discriminate
against, demote, dock the pay of, and even fire pro-union employ-
ees. Studies have shown that one-quarter of private-sector union
organization drives result in employee firings, and one out of
every five workers who openly advocate for a union is fired. Un-
fortunately, current law includes weak remedies that fail to deter
employers from engaging in these practices. At best, the NLRA
will order the employer to stop its wrong-doing and reinstate an
improperly fired employee and force the employer to pay back-
pay, that is, unless the employee has found a job in the interim.
EFCA would toughen the penalties against employers who en-
PAGE 8
ers joined AFL-CIO unions through majority sign-up, while ap-
proximately 73,000 workers used the NLRB election process.
(AFL-CIO, “Over 70 Years of Experience with Majority Sign-
up.”)
While the critics of EFCA claim that, under the legislation,
unions may intimidate workers, under current law, employers,
employees, and unions are barred from engaging in unfair labor
practices. Improperly obtained authorization cards are already in-
valid and cannot be counted towards majority sign-up. Moreover,
in more than 70 years, there have been very few in-
stances of fraud or misrepresentation in obtaining card
signatures. Nevertheless, to ensure the integrity of the
card check process, EFCA would require that the
NLRB develop guidelines for selecting a bargaining
representative via majority-sign up, including model
language for authorization cards and procedures to
verify the validity of authorization cards.
REALITY: Nothing in EFCA alters the rights of
employers to speak out against a labor union.
Under the legislation, employers would still be free
to campaign against a union, as long as they do not
threaten or intimidate workers. EFCA only strength-
ens penalties for employers who engage in unfair la-
bor practices.
MYTH: Secret-ballot elections are the most democratic
way to choose a union.
REALITY: Though EFCA gives workers the choice to select
a secret-ballot election or the majority sign-up process, these se-
cret-ballot elections are nothing like our federal, state, or local
candidate elections. The NLRB’s election process, for example,
stifles free speech and democratic debate by restricting the ability
of unions and pro-union workers to communicate with employ-
ees, while allowing employers free access to workers every day.
Unlike other elections, where candidates are allowed equal ac-
cess to voters during the campaign, current labor laws allow em-
ployers to bar unions from the workplace and refuse access to
employee contact information until just days before the election.
While strict limits apply to when and where pro-union employees
can campaign to form a union, employers can require workers to
attend anti-union meetings during work hours, one-on-one or in a
group. Employers may also direct supervisors, who control pay
and promotion, to deliver anti-union messages to workers and at-
tach anti-union literature to paychecks. A recent survey found that
employees who have gone through the NLRB election process
are twice as likely to report employer coercion as those who par-
ticipated in a majority sign-up process.
EFCA would give workers the option to choose a different,
simpler, and fairer method of union selection — majority sign-up,
which reflects a key tenet of Democracy — majority rule.
MYTH: Majority sign-up is untested and will increase
intimidation and harassment of workers by labor unions.
REALITY: Majority sign-up has been well-tested for over 70
years. Further, under EFCA, worker intimidation and/or coercion
by any party, including unions, will remain strictly prohibited.
Majority sign-up is nothing new. Workers have been forming
unions through majority sign-up since 1935. The method for ob-
taining authorization cards is already established and used via the
voluntary card check recognition and the secret-ballot election
processes. Indeed, more workers form unions via card check than
via secret-ballot elections. In 2004, approximately 375,000 work-
NORTHWEST LABOR PRESS
MYTH: EFCA’s mediation/arbitration guidelines will
force unwanted contracts on employers and employees.
REALITY: EFCA does not force unwanted first contracts on
parties acting in good faith; the legislation, however, would give
parties an incentive to come to the bargaining table.
Under current law governing the first contract process, there is
no effective penalty for refusing to bargain with newly certified
union representatives. As a result, employers may “stonewall” the
first contract and effectively block the benefits of a labor union. A
recent study found that 34 percent of union election certifications
do not result in a contract for workers.
To get parties to the table, EFCA provides a starting schedule
and a framework for negotiations. The parties have 90 days to
bargain on their own and may extend negotiations for as long as
they need to. If the negotiations are unsuccessful, either party can
seek help from a mediator with the Federal Mediation and Con-
ciliation Service (FMCS), which enjoys an 86 percent success
rate. If after 30 days mediation fails to result in a first contract,
FMCS can refer the dispute to an arbitration panel, but the parties
can still extend the period by mutual agreement or agree to return
to the bargaining table. Only if the parties agree to arbitration and
arbitration fails to result in a first contract will the arbitration
panel impose contract terms on the issues the parties have not yet
decided. Even then, the contract is only binding for two years and
can be amended by written consent of the parties.
Did You Know?
34%
of workers lack a collective bargaining agreement one
year after voting for union representation, due to weak
labor law enabling employers to avoid bargaining with
employees.
FEBRUARY 6, 2009