Senate Democrats

Myth vs. Reality: The Reality is the Employee Free Choice Act Helps American Workers and their Families

In November 2006, Americans elected Democrats to take the country in a new direction, in part because we pledged to seek better jobs and better pay for working Americans.   Six months into the 110th Congress, Democrats are delivering on that promise.  In May, after a ten year battle, Congress gave lower-income workers a long overdue raise by increasing the federal minimum wage to $7.25/hour, benefiting millions of workers and their families.  Though a major victory for the American people, there is much more work to be done. 

As more and more working Americans struggle to make ends meet, the ability to form a union is key to the economic stability, health, and well-being of American families.  Union workers’ median weekly earnings are 30 percent higher than those of non-union workers, union workers are 63 percent more likely to have employer-sponsored health insurance, and union workers are 77 percent more likely to have short-term disability benefits.  According to a recent poll, nearly 60 percent of Americans would join a union if they could.  (AFL-CIO, “The Union Difference: Union Advantage by the Numbers.”)

Loopholes in our current labor laws have left millions of workers vulnerable to aggressive anti-union campaigns, in which unscrupulous employers intimidate, harass, and even fire workers who try to form unions.  Even when they succeed in forming a union — often despite intense pressure from their employers — nearly one-third of newly-organized workers are unable to enter into a collective bargaining agreement.  The widespread failure to attain a first contract is due in large part to the lack of effective penalties for employers that fail to bargain in good faith. 

The Employee Free Choice Act (EFCA), sponsored by Senate and House Democrats, would level the playing field and restore workers’ freedom to form unions and collectively bargain by: 1) strengthening penalties for companies that coerce, intimidate, or retaliate against employees during an organizing campaign or during negotiations for a first contract; 2) establishing a timeline for negotiating a first contract that gets employers to the table, and gives the parties the option of mediation and binding arbitration when employers and workers cannot agree on a first contract; and 3) giving employees the choice of selecting a union via majority sign-up over an election. 

Despite the need for reform, critics of EFCA continue to misinform the public about the bill and hide the serious shortcomings of current labor law.  Democrats are committed to setting the record straight and passing this important legislation on behalf of American workers and their families. 

MYTH:  EFCA will prevent the use of secret-ballot elections.

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 two ways for workers to choose a union:

1) By secret-ballot:  The National Labor Relations Board (NLRB) will conduct a secret-ballot election to select a bargaining representative if at least 30 percent of workers show an interest in having an election.  Typically, this is done by signed petitions or cards.  If a majority of workers voting select a particular union, the NLRB will certify that union as the employees’ bargaining representative. 

2) By voluntary card-check recognition:  An employer can voluntarily decide to recognize a union representative if a majority of employees have signed cards authorizing the union to be their bargaining representative.  The employer, however, can choose to reject that showing of majority support, and force the employees to undergo an election campaign that provides the employer an opportunity to run an anti-union campaign for 6 to 8 weeks.   

EFCA would place the choice of using an election or majority sign-up process in the hands of the workers, rather than their employers.  EFCA would make it mandatory for the NLRB to certify a union based on a valid majority sign-up.  It would also require the NLRB to issue rules for majority sign-up and procedures for assuring the validity of the signed authorization cards.  The majority sign-up, or “card-check,” option would streamline the union selection process for workplaces that have a majority of workers who want a union. 

MYTH:  Secret-ballot elections are the fairest way to select a union representative.

REALITY: Secret-ballot elections in the union context can leave employees vulnerable to virtually un-checked employer intimidation and coercion.  

Under current law, once workers have petitioned the NLRB to hold a secret-ballot election, the NLRB typically sets the election day 6 to 8 weeks in the future.  Employers who are determined to prevent the formation of a union often use this period to threaten, discriminate against, demote, dock the pay of, and even fire pro-union employees, or otherwise retaliate against them.  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 during a union drive is fired.  Unfortunately, current law includes weak remedies for these abuses that fail to deter employers from engaging in these practices.  At best, the NLRB 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 engage in these unfair labor practices.  In addition to ordering an employer to stop the practices, the legislation would require employers to pay employees who are fired as a result of union organizing activity, during an organizing campaign or first contract drive, treble 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 repeatedly violate workers’ rights during a union campaign or during negotiations for a first contract. 

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 secret-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 employees, while allowing employers free access to workers every day. 

Unlike other elections, where candidates are allowed equal access to voters during the campaign, current labor laws allow employers 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 attach anti-union literature to paychecks, or to sit them down for one-on-one meetings with their supervisor.  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 participated in a majority sign-up process. 

EFCA would give workers the option to choose a simpler, fairer, and more peaceful 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 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 obtaining authorization cards is already established and used via the voluntary card check recognition process.  Indeed, more workers form unions via card check than via secret-ballot elections.  In 2004, approximately 375,000 workers joined AFL-CIO unions through majority sign-up, while approximately 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 invalid and cannot be counted towards majority sign-up.  Moreover, in more than 70 years, there have been very few instances 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. 

Myth:  EFCA would require “public” union card signings.

REALITY:  EFCA would preserve current confidentiality requirements, which require the NLRB to keep authorization cards and the identity of signers confidential to protect workers from employer retaliation. 

Myth:  EFCA will “silence” employers.

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 strengthens penalties for employers who engage in unfair labor practices.  None of an employer’s current free speech rights will be changed.

Myth:  EFCA’s mediation and arbitration provisions 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 and actively bargain for an agreement.

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 employees from getting 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 a minimum of 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 Conciliation 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. 

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