The Employee Free Choice Act: Congress, Where Do We Go from Here?

By Twomey, David P. | Labor Law Journal, Summer 2009 | Go to article overview

The Employee Free Choice Act: Congress, Where Do We Go from Here?


Twomey, David P., Labor Law Journal


I. Introduction

With the filing of the Employee Free Choice Act of 2009 (EFCA) on March 10, 2009,1 Congress has addressed a significant policy debate regarding the appropriateness of allowing unions to be certified by the National Labor Relations Board (NLRB) as the representative of employees in an appropriate bargaining unit if a majority of employees sign valid union authorization cards.2 Under the proposed legislation, unions would also continue to have the right to petition the NLRB for Board-conducted secret ballot elections, after a showing that at least thirty percent of the employees had signed authorization cards.3 Critics of the legislation allowing Board certification based on a "card-check" majority believe that it is contrary to democratic principles,4 while proponents believe it remedies employer abuses inherent in the current Board electoral model of determining representation status.5

EFCA also provides that when the parties are unable to reach a final contract within 90 days of bargaining, the dispute may be referred to the Federal Mediation and Conciliation Service (FMCS.) If no agreement is reached within the next thirty days, the matter shall be referred to binding arbitration.6 The arbitration segment of the legislation is intended to cure the current situation where approximately one-third of all newly certified unions fail to obtain a first collective bargaining agreement.7

Finally, the proposed legislation provides for triple net back pay for employees unlawfully discharged by an employer while involved in union activities forming a union or negotiating a first contract.8 EFCA also provides for additional civil penalties and injunctive relief against unlawful employer actions.9

Part II of this paper presents an overview of the current law regarding the determination of employees' choices on representation status issues. Part III discusses certain deficiencies in the current law regarding protection of employee rights to join unions and to engage in collective bargaining. Part IV of the paper analyzes EFCA proposals and makes recommendations concerning the legislation from the perspective of correcting the deficiencies identified in Part III of the paper. Part V concludes with a recommendation that Congress make the necessary compromises to correct the longstanding deficiencies in the current law and not squander the present political capital and momentum that can bring about limited, but appropriate changes, to the National Labor Relations Act (NLRA).

II. Current Law Regarding Determining Employee Choices on Representation Issues

Section 9(a) of the NLRA provides for union recognition and bargaining rights when questions regarding the majority representation status for an appropriate bargaining unit are resolved in favor of a union.10 The fundamental mandate of the NRLA is found in Section 9(a), which provides:

Representatives designated or selected for the purposes of collective bargaining by the majority of the employees in a unit appropriate for such purposes, shall be the exclusive representatives of all the employees to such unit for the purpose of collective bargaining in respect to rates of pay, wages, hours of employment or other conditions of employment.11

A. Certification Procedures - Board Elections

The Board election procedures are initiated by the filing of a "representation petition" with the appropriate regional office of the NLRB. This petition may be filed by any individual or labor organization acting on behalf of a substantial number of employees.12 This petition by rule must be supported by a showing that at least 30 percent of the employees involved either want the union to be their bargaining representative, or wish to have an NLRB election to make such a determination.13 This so-called "showing of interest" to the Board may be demonstrated either by signed authorization cards, or a signed petition. Employees in a bargaining unit are limited to one valid election in a 12-month period. …

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