EFCA and Secret Ballot Elections for Union Recognition  

The Employee Free Choice Act of 2007 (EFCA) [click through on option 3, H.R.800.EH] as passed in 2007 by the House of Representatives, but not passed in the Senate, amends the National Labor Relations Act (pdf download here), now incorporated into the U.S. Code as 29 U.S.C. §§ 151-169.

In general, EFCA purports to do three things: to streamline union certification (section 2); to facilitate initial collective bargaining agreements (section 3); and to strengthen enforcement [i.e. of provisions against employer unfair labor practices during organizing drives] (section 4).
 

It is section 2 that bears on the issue of secret ballot representation elections. That issue has been the object of a political campaign against Senate candidates who support EFCA, including Jeff Merkley here in Oregon. The campaign that the candidates' support would deprive workers of the right to a a secret ballot in representation elections, because EFCA provides for certification by a majority of valid signatures, in a proposed bargaining unit, on a public petition for collective bargaining representation ("card-check"). The propaganda for this campaign further alleges that the public nature of such petitions would lead to intimidation by "union thugs" to benefit "union bosses," and by implication, to "forced" union representation imposed by a minority through a false appearance of majority support.

The issue of loss of secret ballot elections has also been a matter of concern among BlueOregon commenters and others who are not anti-union in principle and indeed may be generally pro-union. The purpose of this column is both to refute the claims of the anti-union, anti-Democratic campaign and to address the honest concerns raised by BlueOregon commenters.

Section 2 of EFCA amends Section 9(c) of the National Labor Relations Act (a.k.a. 29 U.S.C. 159(c)) and makes small conforming amendments to related passages elsewhere in the NLRA. Currently Section 9(c) consists of five sections governing when the National Labor Relations Board (NLRB) shall conduct hearings as to whether "a question of representation affecting commerce" exists between an employer and its employees. Inter alia it provides, in subsection 1B, that

If the Board finds upon the record of such hearing that such a question of representation exists, it shall direct an election by secret ballot and shall certify the results thereof.

It further provides, however, in subsection 3, that no election shall be held if "a valid election" shall have been held in the previous 12 months.

EFCA would add two new subsections to Section 9(c):

SEC. 2. STREAMLINING UNION CERTIFICATION.

(a) In General- Section 9(c) of the National Labor Relations Act (29 U.S.C. 159(c)) is amended by adding at the end the following:

`(6) Notwithstanding any other provision of this section, whenever a petition shall have been filed by an employee or group of employees or any individual or labor organization acting in their behalf alleging that a majority of employees in a unit appropriate for the purposes of collective bargaining wish to be represented by an individual or labor organization for such purposes, the Board shall investigate the petition. If the Board finds that a majority of the employees in a unit appropriate for bargaining has signed valid authorizations designating the individual or labor organization specified in the petition as their bargaining representative and that no other individual or labor organization is currently certified or recognized as the exclusive representative of any of the employees in the unit, the Board shall not direct an election but shall certify the individual or labor organization as the representative described in subsection (a).

`(7) The Board shall develop guidelines and procedures for the designation by employees of a bargaining representative in the manner described in paragraph (6). Such guidelines and procedures shall include--

`(A) model collective bargaining authorization language that may be used for purposes of making the designations described in paragraph (6); and

`(B) procedures to be used by the Board to establish the validity of signed authorizations designating bargaining representatives.'.

[Emphasis added]  

The fact that the Board is to certify a representative without an election is important for two reasons. The obvious reason is that this fact is the cause for the allegations and concerns.

The less apparent reason is that this method of certifying representation is not a "valid election" for other purposes of the NLRA.

Which brings us to Section 9(e), covering decertification elections:

(e) [Secret ballot; limitation of elections] (1) Upon the filing with the Board, by 30 per centum or more of the employees in a bargaining unit covered by an agreement between their employer and labor organization made pursuant to section 8(a)(3) [section 158(a)(3) of this title], of a petition alleging they desire that such authorization be rescinded, the Board shall take a secret ballot of the employees in such unit and certify the results thereof to such labor organization and to the employer.

(2) No election shall be conducted pursuant to this subsection in any bargaining unit or any subdivision within which, in the preceding twelve- month period, a valid election shall have been held.

"An agreement between their employer and labor organization made pursuant to section 8(a)(3)" means a closed shop agreement, making membership of a certified collective bargaining labor organization a condition of employment by the employer party to the agreement.

Section 8(3)(a) otherwise makes it an unfair labor practice for an employer

by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization

but the closed shop exception becomes void if a majority of employees vote in a secret ballot election under Section 9(e) to rescind the authority of the labor organization to make a collective bargaining agreement as their representative with the employer.

Now, for elections held under Section 9(c), if a majority of workers vote for representation, a decertification election under Section 9(e) may not be held sooner than twelve months after the original election. But for new Section 9(c) petition-based certifications EFCA, no such time restriction would apply, because no "valid election" would have been held. A 30% minority of workers could force a secret ballot decertification election as soon as they gathered their signatures.

This feature of the NLRA after EFCA, if it were passed, makes remote the scenario speculatively proposed by anti-EFCA anti-Democratic candidate campaigners: that card-check certification will be achieved in some instances (the campaign propaganda implies usually) through false majorities created by coercion of workers who would otherwise vote "no" on a secret ballot, coercion conducted by a minority of pro-union workers upon others to sign a certification petition against their true will.

In fact EFCA's relation to Section 9(e) would provide a strong incentive for workers organizing a union through card-check certification to make sure they have not just majority support, but solid support by a substantial majority, because certification with signatures of a small and ambivalent or uncommitted majority could be challenged quickly by a determined minority, creating a situation in which either legitimate persuasion could succeed, or common and widespread employer anti-union intimidation tactics during organizing drives could be brought to bear.

EFCA is not a prescription for pro-union intimidation of anti-union workers. It is a prescription against current business attitudes that make almost standard practice out of aggressive and often illegal anti-union tactics, including firings, other retaliation, coercive mandatory captive audience meetings and other forms of intimidation, to deny workers their right to organize themselves in a union. That right is human right, under the Universal Declaration of Human Rights and other international law, and a U.S. legal right, under Section 7 of the NLRA. Yet employers violate it routinely, treating the penalties incurred by unfair labor practices as a cost of doing business, and current law and regulation permit that to occur.

While the organized anti-EFCA campaigners claim to oppose intimidation of workers, they represent employer interests that practice such intimidation as a matter of course, as well as professional anti-unionists who make their livelihood out of legal advice and consulting with employers on how to keep their workforce "union-free" by using such intimidation. If the organized opponents truly cared about preventing intimidation of workers, they would propose alternative reforms to address the manifest and widely documented problem of employer law-flouting and intimidation. But they actually don't care at all about preventing coercive intimidation. They care about preserving the current legal regime that lets them or their clients get away with it.

The call and extensive support for EFCA reflect one form of fightback against the widespread failure of protections in the current secret ballot representation elections system and against undemocratic anti-union employer practices. Honest disagreers with EFCA ought at least to recognize that the secret ballot in itself has not been enough to prevent such abuses and is corrupted by its context under the current system.

Politically in Oregon, Jeff Merkley should be proud to have such people as enemies. As for the rest of us who want him to have the courage of those convictions, we need to help him beat back the dishonest forces mounting a scurrilous lying campaign against him, and sustain him to victory over their ally Gordon Smith.