Introduction
The Employee Free Choice Act (EFCA) is a piece of legislation designed to make it easier for employees to unionize and engage in collective bargaining. Introduced in the United States Congress in 2007, the EFCA has been a controversial topic ever since. The bill’s primary objective is to eliminate the requirement for employees to vote in a secret ballot election to determine whether they want to be represented by a union. Instead, it proposes a card check system, where employees sign authorization cards to signify their desire for union representation. This article provides an in-depth analysis of the Employee Free Choice Act text, its history, and the potential implications of the bill.
Background
In 1935, the National Labor Relations Act (NLRA) became law, guaranteeing employees the right to join or not join a union, engage in collective bargaining, and take part in strikes. Under the NLRA, employees can choose to hold a secret ballot election to determine whether they want to join a union. If a majority of employees vote in favor of unionization, the union can represent all employees in collective bargaining negotiations. However, the secret ballot election process has been subject to criticism, with labor unions claiming that employers can create a hostile environment and intimidate employees, resulting in an unfair voting process.
The EFCA seeks to replace the secret ballot election process with a card check system. If a majority of employees sign authorization cards in support of union representation, the union can be certified without holding a secret ballot election. The card check system is intended to be more straightforward and less subject to employer interference, giving employees the freedom to choose whether to join a union.
Employee Free Choice Act Text
The Employee Free Choice Act text consists of three primary provisions: the card check system, first contract mediation and arbitration, and stronger penalties for labor law violations.
Card check system
The card check system provision eliminates the requirement for a secret ballot election to determine union representation. Instead, if a majority of employees sign authorization cards in support of union representation, the National Labor Relations Board (NLRB) will certify the union as the employees’ collective bargaining representative. This provision is designed to make unionization a quicker and more straightforward process for employees.
First contract mediation and arbitration
The first contract mediation and arbitration provision seek to address a common challenge that many newly unionized employees face: negotiating their first contract. This provision requires employers to begin contract negotiations within 10 days of the union being certified. If the parties cannot reach an agreement within 120 days, either party can request mediation by the Federal Mediation and Conciliation Service. If mediation fails after 30 days, the dispute will be submitted to binding arbitration. This provision is intended to ensure that both parties enter into negotiations in good faith and reach an agreement promptly.
Stronger penalties for labor law violations
The stronger penalties for labor law violations provision seeks to deter employers from engaging in unfair labor practices that violate employees’ rights to organize, bargain collectively, and engage in strikes. The provision increases the penalties that employers can face for violating labor laws, including fines and legal damages.
History of the Employee Free Choice Act
The EFCA was first introduced in 2007 and passed in the U.S. House of Representatives but failed to pass the Senate due to filibusters and strong opposition from business groups. The bill was reintroduced in 2009, but again failed to pass the Senate. In 2011, the EFCA was reintroduced in a modified version, which included a voluntary hybrid system that included both the traditional secret ballot election and the card check system. However, this version failed to pass both the House and Senate.
Since then, the EFCA has not progressed to a vote. However, the debate around the bill’s merits and potential implications for employers and employees continues.
Pros and Cons of the Employee Free Choice Act
Proponents of the EFCA argue that it is necessary to address the imbalances in the current labor laws, which make it challenging for employees to unionize and bargain collectively. Supporters claim that the current system allows employers to engage in anti-union practices and intimidate employees. The card check system is seen as a fairer, more accessible process that makes it easier for employees to choose union representation.
Opponents of the EFCA, including business groups, argue that the proposed changes would be detrimental to employers, the economy, and employees’ freedoms. Critics of the card check system suggest that it is vulnerable to coercion and makes it easier for unions to pressure employees to sign authorization cards. Moreover, critics argue that the mandatory first contract arbitration provision would be detrimental to employers and could result in higher labor costs.
Future of the Employee Free Choice Act
The EFCA remains a highly debated topic, with no indication that it will be passed anytime soon. However, the current administration has expressed a willingness to implement policies that support unions and workers’ rights. President Joe Biden has previously stated his support for the EFCA and has promised to promote pro-union policies. The current administration’s stance on labor laws could lead to renewed debates on the EFCA and progress towards its ultimate passage.
Conclusion
The Employee Free Choice Act text is designed to streamline the unionization process, making it easier for employees to collectively bargain and negotiate with their employers. Its provisions eliminate the secret ballot election, require first contract mediation and arbitration, and increase penalties for labor law violations. While the EFCA has been met with strong opposition, it remains a highly debated topic, with potential implications for both employees and employers. The future of the EFCA remains uncertain, but government officials continue to express their support for pro-union policies, making it possible to revisit the bill in the future.
Text of the Employee Free Choice Act 2010
H.R.1409 — Employee Free Choice Act of 2009 (Introduced in House – IH)
HR 1409 IH
111th CONGRESS
1st Session
H. R. 1409
To amend the National Labor Relations Act to establish an efficient system to enable employees to form, join, or assist labor organizations, to provide for mandatory injunctions for unfair labor practices during organizing efforts, and for other purposes.
IN THE HOUSE OF REPRESENTATIVES
March 10, 2009
Mr. GEORGE MILLER of California (for himself, Mr. SCOTT of Georgia, Mr. BRADY of Pennsylvania, Mr. DOYLE, Mr. KILDEE, Mrs. CAPPS, Mr. WALZ, Ms. LEE of California, Ms. SCHAKOWSKY, Mrs. NAPOLITANO, Ms. LINDA T. SANCHEZ of California, Ms. DELAURO, Mr. KENNEDY, Mr. DOGGETT, Mr. FILNER, Mr. PATRICK J. MURPHY of Pennsylvania, Mr. GRIJALVA, Ms. MCCOLLUM, Ms. WOOLSEY, Mr. LYNCH, Mr. GUTIERREZ, Mr. YARMUTH, Ms. SUTTON, Mr. MARKEY of Massachusetts, Mr. HARE, Mr. LEVIN, Mr. SARBANES, Mr. BRALEY of Iowa, Ms. HIRONO, Mr. TIERNEY, Mr. MCGOVERN, Ms. EDWARDS of Maryland, Mr. ABERCROMBIE, Mr. JOHNSON of Georgia, Mr. HOLT, Mrs. MALONEY, Mr. NADLER of New York, Mr. CAPUANO, Mr. HIGGINS, Mr. BLUMENAUER, Mr. SMITH of Washington, Mr. ELLISON, Mr. MCDERMOTT, Ms. RICHARDSON, Mr. MCNERNEY, Mr. SCHIFF, Mrs. LOWEY, Mr. OLVER, Ms. ZOE LOFGREN of California, Mr. ACKERMAN, Mr. ENGEL, Mr. LEWIS of Georgia, Mr. WILSON of Ohio, Mr. KUCINICH, Mr. WELCH, Mr. AL GREEN of Texas, Mr. HINOJOSA, Mrs. MCCARTHY of New York, Mr. PAYNE, Mr. DAVIS of Illinois, Ms. CLARKE, Mr. ISRAEL, Mr. CUMMINGS, Mr. COSTELLO, Mr. LANGEVIN, Mr. FARR, Ms. PINGREE of Maine, Ms. CORRINE BROWN of Florida, Mr. BERMAN, Mr. PETERS, Mr. ANDREWS, Ms. SHEA-PORTER, Mr. CARNAHAN, Mr. WU, Mrs. DAVIS of California, Mr. SCOTT of Virginia, Ms. CASTOR of Florida, Mr. SERRANO, Mrs. HALVORSON, Mr. MURPHY of Connecticut, Mr. SHERMAN, Mr. MOORE of Kansas, Mr. CONYERS, Mr. WEINER, Ms. TSONGAS, Mr. BISHOP of New York, Mr. KIND, Mr. PETERSON, Mr. LIPINSKI, Mr. MAFFEI, Mr. DEFAZIO, Mr. WEXLER, Ms. ESHOO, Mr. DINGELL, Mr. MCMAHON, Mr. SCHRADER, Mr. STUPAK, Mr. GENE GREEN of Texas, Mr. LOEBSACK, Mr. CARDOZA, Mr. HALL of New York, Ms. SLAUGHTER, Mr. RAHALL, Mr. FRANK of Massachusetts, Ms. MATSUI, Mr. RUPPERSBERGER, Mr. CLEAVER, Mr. HINCHEY, Mr. ROTHMAN of New Jersey, Mr. GRAYSON, Ms. BALDWIN, Mr. JACKSON of Illinois, Ms. BEAN, Mr. NEAL of Massachusetts, Mrs. TAUSCHER, Mr. WAXMAN, Ms. KILPATRICK of Michigan, Mr. HASTINGS of Florida, Ms. KAPTUR, Ms. EDDIE BERNICE JOHNSON of Texas, Mr. CARSON of Indiana, Mr. ADLER of New Jersey, Mr. MEEK of Florida, Ms. KILROY, Mr. RYAN of Ohio, Mr. MASSA, Mr. FOSTER, Mr. TOWNS, Mr. ORTIZ, Ms. ROYBAL-ALLARD, Ms. VELAZQUEZ, Mr. RUSH, Mr. HODES, Mr. CLYBURN, Mr. BOSWELL, Mr. MOLLOHAN, Mr. MICHAUD, Mr. KISSELL, Mr. PASCRELL, Mr. MELANCON, Mr. BECERRA, Mr. DELAHUNT, Ms. WASSERMAN SCHULTZ, Mr. INSLEE, Mr. PALLONE, Mr. BOCCIERI, Mr. MCHUGH, Mr. DRIEHAUS, Mr. HONDA, Mr. CLAY, Mr. OBERSTAR, Mr. TONKO, Ms. WATERS, Mr. SCHAUER, Mr. VISCLOSKY, Mr. MILLER of North Carolina, Mr. RANGEL, Mr. SPACE, Mr. LUJAN, Mr. CROWLEY, Ms. MOORE of Wisconsin, Mr. STARK, Ms. JACKSON-LEE of Texas, Ms. SCHWARTZ, Mr. BACA, Mr. PASTOR of Arizona, Mr. FATTAH, Mr. HOYER, Mr. LARSON of Connecticut, Ms. WATSON, Ms. LORETTA SANCHEZ of California, Mr. PRICE of North Carolina, Mr. SIRES, Mr. SMITH of New Jersey, Mr. LARSEN of Washington, Ms. FUDGE, Mr. MEEKS of New York, Ms. NORTON, Mr. THOMPSON of Mississippi, Mr. BAIRD, Ms. KOSMAS, Mr. DICKS, Mr. BISHOP of Georgia, Mr. HEINRICH, Mr. COURTNEY, Mr. TEAGUE, Mr. MURTHA, Ms. HARMAN, Mr. VAN HOLLEN, Mr. LOBIONDO, Mr. REYES, Mr. HIMES, Mr. OBEY, Mr. BOUCHER, Mr. KANJORSKI, Mr. HOLDEN, Mr. SALAZAR, Mr. ARCURI, Mrs. DAHLKEMPER, Mr. SKELTON, Mr. ALTMIRE, Mr. CONNOLLY of Virginia, Mr. GONZALEZ, Mr. RODRIGUEZ, Mr. MORAN of Virginia, Mr. KAGEN, Ms. MARKEY of Colorado, Ms. DEGETTE, Mr. PIERLUISI, Ms. HERSETH SANDLIN, Ms. SPEIER, Mr. THOMPSON of California, Mr. DONNELLY of Indiana, Mr. WATT, Mr. SABLAN, Mr. SESTAK, Ms. BERKLEY, Mr. DAVIS of Alabama, Mr. FALEOMAVAEGA, Mr. POLIS of Colorado, Mr. PERLMUTTER, Mr. COSTA, and Ms. TITUS) introduced the following bill; which was referred to the Committee on Education and Labor
A BILL
To amend the National Labor Relations Act to establish an efficient system to enable employees to form, join, or assist labor organizations, to provide for mandatory injunctions for unfair labor practices during organizing efforts, and for other purposes.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the `Employee Free Choice Act of 2009′.
SEC. 2. STREAMLINING UNION CERTIFICATION.
(a) In General- Section 9(c) of the National Labor Relations Act (29 U.S.C. 159(c)) is amended by adding at the end the following:
`(6) Notwithstanding any other provision of this section, whenever a petition shall have been filed by an employee or group of employees or any individual or labor organization acting in their behalf alleging that a majority of employees in a unit appropriate for the purposes of collective bargaining wish to be represented by an individual or labor organization for such purposes, the Board shall investigate the petition. If the Board finds that a majority of the employees in a unit appropriate for bargaining has signed valid authorizations designating the individual or labor organization specified in the petition as their bargaining representative and that no other individual or labor organization is currently certified or recognized as the exclusive representative of any of the employees in the unit, the Board shall not direct an election but shall certify the individual or labor organization as the representative described in subsection (a).
`(7) The Board shall develop guidelines and procedures for the designation by employees of a bargaining representative in the manner described in paragraph (6). Such guidelines and procedures shall include–
`(A) model collective bargaining authorization language that may be used for purposes of making the designations described in paragraph (6); and
`(B) procedures to be used by the Board to establish the validity of signed authorizations designating bargaining representatives.’.
(b) Conforming Amendments-
(1) NATIONAL LABOR RELATIONS BOARD- Section 3(b) of the National Labor Relations Act (29 U.S.C. 153(b)) is amended, in the second sentence–
(A) by striking `and to’ and inserting `to’; and
(B) by striking `and certify the results thereof,’ and inserting `, and to issue certifications as provided for in that section,’.
(2) UNFAIR LABOR PRACTICES- Section 8(b) of the National Labor Relations Act (29 U.S.C. 158(b)) is amended–
(A) in paragraph (7)(B) by striking `, or’ and inserting `or a petition has been filed under section 9(c)(6), or’; and
(B) in paragraph (7)(C) by striking `when such a petition has been filed’ and inserting `when such a petition other than a petition under section 9(c)(6) has been filed’.
SEC. 3. FACILITATING INITIAL COLLECTIVE BARGAINING AGREEMENTS.
Section 8 of the National Labor Relations Act (29 U.S.C. 158) is amended by adding at the end the following:
`(h) Whenever collective bargaining is for the purpose of establishing an initial agreement following certification or recognition, the provisions of subsection (d) shall be modified as follows:
`(1) Not later than 10 days after receiving a written request for collective bargaining from an individual or labor organization that has been newly organized or certified as a representative as defined in section
9(a), or within such further period as the parties agree upon, the parties shall meet and commence to bargain collectively and shall make every reasonable effort to conclude and sign a collective bargaining agreement.
`(2) If after the expiration of the 90-day period beginning on the date on which bargaining is commenced, or such additional period as the parties may agree upon, the parties have failed to reach an agreement, either party may notify the Federal Mediation and Conciliation Service of the existence of a dispute and request mediation. Whenever such a request is received, it shall be the duty of the Service promptly to put itself in communication with the parties and to use its best efforts, by mediation and conciliation, to bring them to agreement.
`(3) If after the expiration of the 30-day period beginning on the date on which the request for mediation is made under paragraph (2), or such additional period as the parties may agree upon, the Service is not able to bring the parties to agreement by conciliation, the Service shall refer the dispute to an arbitration board established in accordance with such regulations as may be prescribed by the Service. The arbitration panel shall render a decision settling the dispute and such decision shall be binding upon the parties for a period of 2 years, unless amended during such period by written consent of the parties.’.
SEC. 4. STRENGTHENING ENFORCEMENT.
(a) Injunctions Against Unfair Labor Practices During Organizing Drives-
(1) IN GENERAL- Section 10(l) of the National Labor Relations Act (29 U.S.C. 160(l)) is amended–
(A) in the second sentence, by striking `If, after such’ and inserting the following:
`(2) If, after such’; and
(B) by striking the first sentence and inserting the following:
`(1) Whenever it is charged–
`(A) that any employer–
`(i) discharged or otherwise discriminated against an employee in violation of subsection (a)(3) of section 8;
`(ii) threatened to discharge or to otherwise discriminate against an employee in violation of subsection (a)(1) of section 8; or
`(iii) engaged in any other unfair labor practice within the meaning of subsection (a)(1) that significantly interferes with, restrains, or coerces employees in the exercise of the rights guaranteed in section 7;
while employees of that employer were seeking representation by a labor organization or during the period after a labor organization was recognized as a representative defined in section 9(a) until the first collective bargaining contract is entered into between the employer and the representative; or
`(B) that any person has engaged in an unfair labor practice within the meaning of subparagraph (A), (B), or (C) of section 8(b)(4), section 8(e), or section 8(b)(7);
the preliminary investigation of such charge shall be made forthwith and given priority over all other cases except cases of like character in the office where it is filed or to which it is referred.’.
(2) CONFORMING AMENDMENT- Section 10(m) of the National Labor Relations Act (29 U.S.C. 160(m)) is amended by inserting `under circumstances not subject to section 10(l)’ after `section 8′.
(b) Remedies for Violations-
(1) BACKPAY- Section 10(c) of the National Labor Relations Act (29 U.S.C. 160(c)) is amended by striking `And provided further,’ and inserting `Provided further, That if the Board finds that an employer has discriminated against an employee in violation of subsection (a)(3) of section 8 while employees of the employer were seeking representation by a labor organization, or during the period after a labor organization was recognized as a representative defined in subsection (a) of section 9 until the first collective bargaining contract was entered into between the employer and the representative, the Board in such order shall award the employee back pay and, in addition, 2 times that amount as liquidated damages: Provided further,’.
(2) CIVIL PENALTIES- Section 12 of the National Labor Relations Act (29 U.S.C. 162) is amended–
(A) by striking `Any’ and inserting `(a) Any’; and
(B) by adding at the end the following:
`(b) Any employer who willfully or repeatedly commits any unfair labor practice within the meaning of subsections (a)(1) or (a)(3) of section 8 while employees of the employer are seeking representation by a labor organization or during the period after a labor organization has been recognized as a representative defined in subsection (a) of section 9 until the first collective bargaining contract is entered into between the employer and the representative shall, in addition to any make-whole remedy ordered, be subject to a civil penalty of not to exceed $20,000 for each violation. In determining the amount of any penalty under this section, the Board shall consider the gravity of the unfair labor practice and the impact of the unfair labor practice on the charging party, on other persons seeking to exercise rights guaranteed by this Act, or on the public interest.’.
