When Congress passed the Wagner Act
of 1935 - to be known later as the National Labor Relations Act
("NLRA") - it could have directed the federal government to
maintain a neutral posture toward unions and workers' efforts to
form unions. Instead, Congress made clear its belief that a free
and robust workforce, organized through unions, was a necessity for
a healthy economy, stating: "It is declared to be the policy of the
United States to eliminate the causes of certain substantial
obstructions to the free flow of commerce … by
Despite Congress's intent to empower
workers, court decisions have elevated employers' property rights
in their business premises and operations over workers' rights to
organize. Thus, the principle that property rights are sacrosanct
has trumped Congress's intent. Employers have found ways around the
NLRA's protections for organizing and bargaining, with the result
that organized labor has been in decline for several decades.
Introduced as a means to
reinvigorate the labor movement, the Employee Free Choice Act
("EFCA")2 currently before Congress aims to address the
most prominent systemic problems that have undercut employees'
rights to act collectively through unions under the NLRA. This
article summarizes why each of the three major components of the
EFCA will help to at least level the labor relations playing field
and restore some fairness to the process of workers forming and
negotiating through unions.
encouraging the practice and procedure of collective bargaining
and by protecting the exercise by workers of full freedom of
association, self-organization and designation of representatives …
for the purpose of negotiating the terms and conditions of their
employment … ." 29 U.S.C.A. § 151 (1998) (emphasis added). That
language did not change when the Taft-Hartley Act passed in 1947,
and has never changed since.
Majority Signup or "Card
Much of the attention
that the Act has received has focused on its majority signup or
"card check" provisions. Those provisions would allow a union to be
certified as the exclusive bargaining agent for a group or "unit"
of employees based upon a showing of support - typically via signed
authorization cards - of 50% of the employees in the unit. This
system is certainly not new, having been explicitly upheld by the
U.S. Supreme Court as a valid expression of worker choice, most
When one considers the
backdrop against which union certifications currently take place,
the significance of the Act's majority signup provisions becomes
evident. Employers understand that they benefit from resisting and
delaying an election. As an empirical matter, the passage of time
works against a union, as employers subject their workforce to a
parade of horribles should they select union representation, and
employees grow increasingly uncomfortable with the uncertainty and
contention surrounding the election process.
Opponents of the Act
self-servingly contend that its passage will erode the democratic
system of Board-sanctioned secret ballot elections. That contention
is seriously flawed. First, a growing body of scholarship suggests
that secret ballot elections under the Board's regime bear few of
the hallmarks of democratic process, largely due to aggressive,
often illegal employer anti-union tactics.
Second, under EFCA,
employees retain their ability to choose between majority signup
and a Board-sanctioned elections: employees not wishing to proceed
via majority signup can simply decline to sign an authorization
card. If a union receives less than the majority of signatures
required for recognition, it then must petition the Board for an
Third, at least under
current Board law, an employer could still force an election even
after a union's showing of majority support, so long as a 30%
minority of employees dissents from the majority.
NLRB v. Gissel Packing Co., 395 U.S. 575 (1969).
The NLRA, for its part, is silent as to the method by which a union
may be certified. Section 9(a) of the NLRA merely refers to
"[r]epresentatives designated or selected for the purposes of
collective bargaining by the majority of the employees … ."
See also United Mine Workers v. Arkansas Flooring Co., 351 U.S. 62,
72 n.8 (1956) ("Board election is not the only method by which an
employer may satisfy himself as to the union's majority status").
See James J. Brudney, Neutrality Agreements and Card Check
Recognition: Prospects for Changing Paradigms, 90 Iowa L. Rev. 819,
868 n.244 (2004). One oft-cited study suggests that a union's
chances for success in an election drop by .29% for each day of
delay in an election campaign. Paul C. Weiler, Promises to
Keep: Securing Workers' Rights to Self Organization Under the NLRA,
96 Harv. L. Rev. 1769, 1777 (1983) (citing Roomkin &
Juris, Unions in the Traditional Sectors: the Mid-Life Passage
of the Labor Movement, 31 IRRA Proceedings 212, 217-18 (1978)). The
Act seeks to correct for that advantage by reinforcing majority
signup as an alternative certification method.E.g., Kate
Bronfenbrenner, No Holds Barred: The Intensification of
Employer Opposition to Organizing, Econ. Policy Inst. Briefing No.
235 (2009) (empirical data from Board certifications and election
campaigns between 1999 and 2003 demonstrates that employers'
"threats, interrogation, surveillance, and harassment ha[ve]
ensured that there is no such thing as a democratic 'secret ballot'
in the NLRB certification election process"). Indeed, proponents of
unions work under a severe disadvantage even when the employer hews
to the law in its anti-union campaign. Unlike democratic elections,
Board elections afford the employer dramatically unequal access to
voters and campaign media via perfectly legal "captive audience"
meetings on company time, and use of the employer's email and other
communications systems, where the union must rely on off-site
contact with workers who choose to attend meetings in their free
time, and are denied use of the employer's communications system.
See Gordon Lafer, American Rights at Work, Free and Fair?
How Labor Law Fails U.S. Democratic Election Standards
(2005).Dana Corporation, 351 N.L.R.B. No. 28 (Sept. 29, 2007),
a contentious 3-to-2 decision, the Board threw out a decades-old
rule by which a union obtaining certification by means of majority
signup was presumed, for one year, to continue to have the support
of a majority of the employees in the bargaining unit. Under
pre-Dana Corp. precedent, during that year, legal challenges
to the union's majority status were barred. The Dana Corp.
Board, however, held that no election bar will be imposed after a
card-check recognition unless (1) employees receive 45 days' notice
of their right to file or support a decertification, and (2) no
valid petitions are filed within those 45 days. Dana Corp. at
1. A decertification petition with the support of only 30% of
employees would force an election, and that 30% could include
employee signatures obtained before as well as after the employer's
recognition of the union. Id. Although Dana Corp. has been
condemned as an unnecessary, overreaching change to a longstanding
rule by a pro-employer board,3 it will remain a check on
majority signup systems even if EFCA passes, at least until
reversed by a subsequent Board or by legislation.
Currently, once the union is
certified, the employer has little incentive to conclude - or even
begin - negotiations for a first collective beginning agreement.
The NLRA provides no penalty for delay. Although a union may bring
a charge of unfair labor practice concerning the employer's bad
faith failure to bargain, the Board's resolution of the charge
often takes years and, even if successful, results only in an order
requiring the employer to bargain. Moreover, even during
negotiations the employer often continues its anti-union campaign
to erode workers' support for the fledgling union.
The Act would reshape the
current model for first-contract bargaining by requiring parties to
submit to binding arbitration if no contract is reached after
ninety days of unsuccessful negotiations and thirty days of
mediation. An arbitration board convened under Federal Mediation
and Conciliation Service rules would hear the matter, and issue a
decision binding the parties for two years. Similar systems operate
in Canada. See, e.g., Roy Adams, The Employee Free Choice Act: A
Reality Check, Labor & Employment Relations Assn., Proceedings
of the 58th Annual Meeting (2006).
Notably, EFCA "mandates"
arbitration only insofar as the parties do not successfully
negotiate on their own within the Act's time limits - all of which
are malleable. The clock does not start running, in any event,
until the union specifically requests action on the employer's
part, and even then, each time period may be extended by mutual
See, e.g., Ronald Meisburg, Nat'l Labor Relations
Bd., Additional Remedies in First Contract Bargaining Cases,
Memorandum GC 07-08 (May 29, 2007) ("[h]igh impact violations
during first contract bargaining" may result in "seriously damaged
collective-bargaining relationship that is less likely to achieve
the good-faith bargaining necessary to reach a first contract"). As
a result, many newly certified unions never secure a first
contract. See generally John-Paul Ferguson, The Eyes of
the Needles: A Sequential Model of Union Organizing Drives,
1999-2004, 62 Indus. & Lab. Rel. Rev. 3 (2008).
EFCA's provisions for
increased enforcement - perhaps least contentious because even
management advocates recognize the relative toothlessness of the
NLRA's enforcement mechanisms - may also be the one most likely to
have immediate effects on unions and union campaigns.
Currently, an employee fired
in violation of the NLRA is entitled to no more than simple
backpay, less interim earnings, which might total a few thousand
dollars or less for a given employee. Consequently, an employer can
fire its most activist employees as long as it can afford to pay
the relatively small back pay awards that might result.4
In effect, employers can buy - cheaply - the power to violate the
EFCA's expanded enforcement
provisions contemplate three basic changes, all of which apply only
to violations during an organizing campaign or during
first-contract negotiations. First, EFCA would allow for awards of
triple back pay, bringing the NLRA more in line with other statutes
within the corpus of federal labor and employment law. Second, the
Act would deter repeated violations by imposing civil penalties of
up to $20,000 per willful or repeat violation. Third, the Act
Some commentators cavil that
these provisions are "one-sided," i.e., they only increase
penalties applicable to employers, not those applicable to unions.
But this is easily answered: employers, not unions, have routinely
used their greater resources to undermine the bargaining
relationship and manipulate the Board's adjudication system.
Furthermore, the Board is
A better observation would
be that EFCA's increased remedies and civil penalties do not go far
enough, in that they fail to address the Board's pervasive
administrative problems, which will continue to impede enforcement
of labor rights. Those problems, however, would be better fixed by
executive attention to the agency itself.
See 153 Cong. Rec. S4175 (daily ed. Mar. 29, 2007)
(statement of Sen. Kennedy) (current penalties for NLRA violations
"are so minor that employers treat them as just another cost of
doing business"). This very limited remedy compares unfavorably to
the punitive and/or multiple damages available under other federal
statutes affecting the workplace, such as Title VII of the Civil
Rights Act of 1964 and the Fair Labor Standards Act. Worse, the
NLRA currently contains no provision to deter "repeat offenders,"
i.e., employers who systematically fire or otherwise retaliate
against employees for supporting a union. Although the Board
possesses injunction powers under § 10(j) of the NLRA, as a
practical reality, those powers have rarely been invoked. See
Arthur Rosenfeld, Nat'l Labor Relations Bd., End-of-Term Report
on Utilization of Section 10(j) Injunction Proceedings, June 1,
2001 through December 31, 2005, Memorandum GC 06-02 (2006) (only
seventy § 10(j) injunctions approved between 2001 and
2006).require the Board to seek injunctive relief where there
is "reasonable cause" to believe that the employer has
discriminated against workers for exercising NLRA-protected
rights.already required to seek injunctions against unions for
certain kinds of strikes and boycotts involving third-party
businesses; EFCA's injunction requirements would merely create a
category of employer behavior subject to the same treatment, once
again leveling the playing field.
The Employee Free Choice
Act is represents a significant step toward much-needed reform in
an area of law where, increasingly, workers must measure "victory"
merely in terms of preserving the status quo. It restores some
balance in American labor relations, though in the view of labor's
advocates, it does not go far enough. Given the realities of power
politics in Washington, it remains to be seen whether it will pass
as drafted or will be seriously watered down in the legislative
1. The authors
acknowledge the assistance of Vincent Roger and Vail Breed in
preparing this article.
2. H.R. 1409, 111th
Cong. (2009); S. 560, 111th Cong. (2009).
3. For example, even if
the "card check" system has its flaws, procedures exist to
safeguard employee rights and curb any union misconduct. A union
that coerces employees into signing cards, for example, violates §
8(b)(1)(A) of the NLRA.
4. Indeed, because back-pay damages are subject to
mitigation, and because most non-union workers earn low level
wages, the net damages awarded to the individual worker often are
substantially smaller than the wages the employer would have paid
if the worker had not been fired in the first
See Dana Corp. at 16. Likewise, a union that
accepts recognition without actually having majority support
violates the Act, and the Board can order an employer to cease and
desist from bargaining with a minority union.