You might start hearing about the Employee Free Choice Act. This legislation is somewhat complex and depending on who is telling the story, there will probably be some spin to it. The EFCA is legislation to basically determine the process and rules for employees and employers in determining whether to become organized (Union) or possibly even change jurisdictions. Under current law, workers choose through an election process with secret ballots or a more public majority sign up, known as a “card check.” However, the National Labor Relations Board will only certify the selection by the employees if the process was through a secret ballot election or if the employer agreed to the public card check procedure.


On March 10, new language was introduced to congress altering the EFCA policy. If the EFCA language passes, the secret ballot option moves from the employer option to an employee option and presumably will favor union organizers. In addition, the penalties for employers who violate NLRB laws regarding organizing efforts by the employees would be much stricter and set arbitration and mediation procedures. Unions see this as a fair tool to allow them to organize workers, and protect workers’ rights to speak freely without reprisals from companies. Non-union employers see this as a threat to free enterprise business and allowing unions to bully, threaten and intimidate employees.

I believe both sides have fair arguments and can make strong examples of where companies and unions have each bullied people for personal gain. This editorial is not meant to sway you one way or the other-readers must make the decision that is best for them, their families and businesses. In an attempt to be as unbiased as possible, here are both points of view and a statement from U.S. representatives that have strong opinions on the issue.


Proponents of the legislation assert that the change is necessary to protect workers’ rights to join unions. Under current law, employers are not required to honor their workers’ signed authorization forms as designations “ … and may insist that the workers use a secret-ballot election conducted by the NLRB to establish their union” even if 100 percent of the employees provide the NLRB with signed authorizations designating the union as their bargaining agent.

Representative George Miller (D-California) makes a case for EFCA:

“The current process for forming unions is badly broken and so skewed in favor of those who oppose unions, that workers must literally risk their jobs in order to form a union. Although it is illegal, one-quarter of employers facing an organizing drive have been found to fire at least one worker who supports a union. In fact, employees who are active union supporters have a one-in-five chance of being fired for legal union activities. Sadly, many employers resort to spying, threats, intimidation, harassment and other illegal activity in their campaigns to oppose unions. The penalty for illegal activity, including firing workers for engaging in protected activity, is so weak that it does little to deter lawbreakers.

“Even when employers don’t break the law, the process itself stacks the deck against union supporters. The employer has all the power; they control the information workers can receive, can force workers to attend anti-union meetings during work hours, can require workers to meet with supervisors who deliver anti-union messages, and can even imply that the business will close if the union wins. Union supporters’ access to employees, on the other hand, is heavily restricted.”


Critics contend that additional use of card check elections will lead to overt coercion on the part of union organizers. Opponents of the EFCA also point out that the measure would not protect employee privacy.

Representative John Kline, (R-Minnesota) explaining his opposition to the EFCA:

“It is beyond me how one can possibly claim that a system whereby everyone-your employer, your union organizer, and your co-workers-knows exactly how you vote on the issue of unionization gives an employee ‘free choice.’ ... It seems pretty clear to me that the only way to ensure that a worker is ‘free to choose’ is to ensure that there’s a private ballot, so that no one knows how you voted. I cannot fathom how we were about to sit there today and debate a proposal to take away a worker’s democratic right to vote in a secret-ballot election and call it ‘Employee Free Choice’.”

Regardless of union vs. non union, the EFCA could have an impact on you, your firm or even your customers. This editorial was a simplified general overview of EFCA and does not delve into the complexities and nuances of the labor law. For example, there are also significant changes with regard to how a collective bargaining agreement is reached when an election is over the 50 percent mark and this is not covered in the media. If you find yourself being affected by the Employee Free Choice Act, I strongly suggest contacting a lawyer experienced in labor law for educated guidance. W&C