What is the Employee Free Choice Act?

The Employee Free Choice Act of 2009, first introduced into the United States Congress as House of Representatives Bill 1409 and Senate Bill 560 by Democratic Representative George Miller of California and Democratic Senator Tom Harkin of Iowa, is an amendment to the National Labor Relations Act (NLRA) and is designed to make changes to the labor relations process, especially to the procedures used to introduce labor unions into a workplace. Regulations related to the collective bargaining process and penalties for unfair labor practices also are addressed. Support for the Employee Free Choice Act is strong within the Democratic Party and labor unions, but many Republicans and those in the business community oppose it. Despite its popularity among the Democratic majority, the Employee Free Choice Act had not passed Congress and had not been written into law by early 2010.

Under provisions in the NLRA prior to these amendments, employees seeking union representation have to undergo a so-called card check process, in which a union would provides blank cards for interested employees to sign. Once a minimum of 30 percent of the workforce has signed the cards, the workers can vote for or against the union by secret ballot. The Employee Free Choice Act proposes that card check signatures by a majority of the workforce should be sufficient to demonstrate the workers’ desire for a bargaining representative, meaning that no secret ballot would be necessary to introduce a labor union into a workplace.

Initial bargaining in particular is also revised under the Employee Free Choice Act. Under the amendment, if the employers and labor representatives are unable to come to an agreement for a first contract after 90 days, either party may seek the intervention of the Federal Mediation and Conciliation Service (FMCS). If, after 30 days, FMCS mediation still cannot get the parties to agree on a contract, the dispute goes into arbitration, and the results of that decision would be binding for two years.

Stiffer penalties for violations of the NLRA also are included in the Employee Free Choice Act. The amendment directs the U.S. National Labor Relations Board to seek a court injunction when there is sufficient reason to believe that an employer has unfairly discriminated against an employee, has unfairly fired an employee, has threatened an employee with dismissal or discrimination or has interfered with its employees’ right to organize. In cases where an employer’s unfair labor practice can be proven, financial penalties to the employers are increased under the amendment, including treble back pay to the affected workers and civil fines of as much as $20,000 US Dollars per violation.