The Employee Free Choice Act (EFCA), also known as Card Check legislation, is being promoted by organized labor as labor law reform to level the playing field and allow employees to more easily form unions.  However, the legislation will radically restructure 60 years of carefully crafted labor law balances that have served both unions and employers well for many decades. 

Card Check consists of three main provisions, each of which is unacceptable to business:

1)     Elimination of the Secret Ballot:  This legislation mandates that a union be recognized if a majority of employees in a designated bargaining unit sign authorization cards. If this provision is enacted, the current system where a federally supervised election process with secret ballots determines whether employees will have a union in their workplace would be effectively eliminated. The secret ballot ensures that neither the employer nor the union knows how someone votes.  In contrast to the secret ballot, the card check process would expose employees to a “free for all” environment where any tactic for getting a signature could be used. It has been well established through court cases, precedent under the National Labor Relations Act, and testimony on Capitol Hill of former union organizers that the card check process of obtaining signatures is routinely characterized by harassment, intimidation, and coercion, including employees being threatened in their homes and other locations away from the workplace.

2)     Government imposed arbitration:  The second provision would result in contracts being written by federal arbitrators instead of the process of collective bargaining and negotiating. Currently, after a union has been recognized, the parties bargain to a first contract where there are protections to make sure both sides negotiate in good faith. Under EFCA, if a first contract is not agreed to within 120 days (which is an extremely short time period for these negotiations) the matter would have to be submitted to binding interest arbitration and a contract developed by a panel with likely no understanding of the business, or the competitive forces it faces, would be imposed on the company for two years. This contract would cover precise details of how that business would operate for the duration of the contract such as the wages, benefits, ability to use employees most productively, and how many employees would be used for specific tasks.  This process would virtually always result in a contract that is beyond what the employer is prepared to accept and provides a strong incentive for the union to undermine the collective bargaining process to ensure that the process lasts long enough to end in binding arbitration.

3)     Unreasonable and one-sided penalty expansion:  Finally, the Employee Free Choice Act imposes dramatic new penalties on employers for violations of the National Labor Relations Act, but not a single new penalty on unions or labor organizers. Under one provision of the new penalty structure, employers would be vulnerable to an injunction reinstating a dismissed employee if that employee, or the union seeking to represent him or her, merely alleges that the dismissal was because of union activity. Such a low threshold makes a mockery of traditional labor law due process.

The EFCA is an unprecedented attempt by organize labor to change the rules regarding union organization.  Because union membership now consists of only 7.5 percent of the private sector workforce, organized labor needs the EFCA to gain an unfair advantage in union organizing.  Unfortunately, the EFCA upends decades of settled labor law at the expense of both employees and employers.