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