EFCA and Secret Ballot Elections for Union Recognition

Chris Lowe

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. ยงยง 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 says 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):


(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. Any cases of a fraudulent pro-union false majority obtained by unscrupulous means would be rapidly reversed.

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 a 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 the anti-union campaigners 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.

Addendum: On reflection, it seems likely to me that under EFCA many unions would still choose to pursue certification by election, because to the added security it provides for newly organized workers compared to card check, especially in light of Section 3 of EFCA, which gives union workers a remedy against the frequent current employer illegal tactic of refusing to bargain a first contract in good faith, and then promoting a decertification election after a year. A key feature of card-check is that it would provide a disincentive to employer harassment and intimidation if organizing workers decided to pursue an election, and a fall-back if they faced such employer actions.

  • Maureen (unverified)

    Why are the unions afraid of the secret ballot?

    If they want to unionize, then they should be able to unionize. I am all for unionization, as I am from a pro-union family. Both my parents worked as union members.

    But the unions should adere to the basic rules of democracy, which include a secret ballot.

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    Another fantastic post on this topic, Chris.

    Well done.

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    Maureen, The question is why employers are afraid to let workers have a free and fair vote at present. This reform has been proposed and has gained the support it has gained because of widespread employer abuse of the present system.

  • Miles (unverified)

    I really appreciate this post, Chris, and will consolidate my concerns and criticisms here. In order to avoid unnecessary rehashing, let me state a few things here that I think we all agree on:

    1. The right for workers to organize is a fundamental human right.
    2. That right should be protected under federal and state law, and infringements on that right (from labor or management or outside interests) should be aggressively pursued and prosecuted.
    3. History shows that management has engaged in abusive and corrupt practices to a far, far greater extent than labor.

    Assuming we have agreement on those three, let me state my correlated concerns:

    1. Workers have a right to argue against unionization. They may not have the right to be union free if a majority of their colleagues support the union, but they should be free to express their views without intimidation.

    2. Federal and state law should be neutral in its protection of workers. It should not tilt towards employers or unions, even if one side has behaved egregiously. Such behavior should be dealt with through enforcement, not through the law itself.

    3. Historical injustice by one group does not justify future injustice by another.

    The problem I have with EFCA is that it: 1) makes it more difficult for a worker to oppose unionization because she has to do so publicly; 2) creates a legal environment that presumes employer malfeasance and union benevolence; and 3) justifies such an environment by citing historical abuses by employers. It's this last point, which has been repeated here by Carla, Kari, and now Chris, that I find particularly galling since it's based on either the naive idea that unions won't engage in bad behavior, or the corrupt idea that it's okay for unions to coerce employees, since it's for their own good.

    Any cases of a fraudulent pro-union false majority obtained by unscrupulous means would be rapidly reversed.

    That's optimistic. If organizers put pressure on workers to sign union cards and get certification, it's not an easy process to collect new cards from 30% of workers asking for an election. And that process would be subject to the same intimidation as the original organizing effort. Why not just settle the matter up front with an election?

    EFCA is not a prescription for pro-union intimidation of anti-union workers.

    It's also not a proscription against union intimidation, and that's what I find troubling.

    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.

    Okay, but are you suggesting that there is no way to fix that process short of trashing it? Do we really not have any creative minds on our side who can figure out a way to preserve and strengthen the election process?

    Those who argue in favor of EFCA should at least acknowledge that they are taking away the ability of some workers to weigh in on unionization. Even if a worker who opposes the union loses the vote, the process of having had a say -- and seeing the certified results -- is an important one that shouldn't be sacrificed. The difference between a 55% vote in support versus an 85% vote is substantial and important -- and completely hidden by card-check.

  • Miles (unverified)

    There is a correlated political argument that troubles me, and it's that the Democratic leadership seems to have capitulated to labor's demands without any objective review. We always slam the right for passing laws at the behest of their donors -- big business, for example. Yet here, Democrats passed a pro-union law that was clearly payback for the hundreds of thousands in political donations from labor.

    Public officials have a duty to balance the interests of partisans on both sides. In this case, instead of taking the union-proposed bill and making it better, they just passed it through. That was an abrogation of duty, and one that I think is going to come back to bite us.

  • MCR (unverified)

    I'll just make a few remarks on a very complicated subject.

    1) Generally, with the current system of "secret-ballot" elections, both the union and the company know where almost every employee is coming down on election day. It's really not all that secret.

    2) I'm biased, but I think that labor has done more for the Democratic Party than the Party has done for labor.

    3) If Wal-Mart is so strongly against EFCA, it must be a good thing...

  • Dev (unverified)

    Anyone who has ever witnessed a secret-ballot "election" knows that they are a complete sham. The company has all the power. Bosses can organize mandatory captive audience meetings to denounce the union. Or supervisors pull workers into meetings for some one-on-one intimidation. They can fire outspoken union supporters secure in the knowledge that if they ever have to pay a judgement for this illegal behavior it will be an insignificant amount. Or they can simply pressure an employee into quitting.

    I was involved in one such "election" at a meat packing plant. In particular I remember the story told to me by woman who was a union supporter. She told me how the bosses reassigned her to work in the freezer room. She spent several hours each day in subzero temperatures cataloging each hanging piece of frozen meat. At the end of each day she would hand her work to the supervisor who would tear it up right in front of her and throw it in the garbage.

    Meanwhile, union organizers are barred from even setting foot on company property. They have to try to contact workers one at a time at home. And when they do all they can offer in the face of the companies threats is the small reassurance that if they all stick together for a little longer things will get better.

    Is the EFCA perfect? I doubt it. But its a huge step forward from the system we have now, which is indefensible. Under our current system, if an employer really wants to keep unions out, they can. All our laws that talk about "the right to join a union" become as worthless as the paper they are printed on. No fundamental civil liberty should be that cheap.

    The people who consider themselves members of Oregon's progressive community should be able to answer the question: which side are you on? Are we going to stand with working people and advocate for a simple system of card check elections, a system already used in Canada and a number of other countries? Or are we going to stand with corporate interests and their sham elections?

  • Ms Mel Harmon (unverified)

    I was raised in a union household (IBEW), from which my father retired after 50 years. I currently work for a union (OEA) and I am also currently IN a union (ASO or Associate Staff Organization). I spoke with my father on the phone about this and we agreed on one point in particular that others have mentioned here but I'll add our voice:

    There is, in reality, no such thing as secret ballot elections. Everyone knows how everyone else votes. Union elections are talked about....amongst members and possible members, organizers and employers. The best way to avoid the harassment and intimidation by employers is to have the option of having the 50% +1 rule. For those who have never tried to unionize or be in a union, let me tell you that the tactics used can be downright nasty, and in some cases threatening to your career, life and family. Even in so-called white-collar or professional unions, there is harassment and coercement by management quite frequently when unions try to organize.

    Count two union members (past and present) who are for card-check as an option.

    By the way, you should see what ASO's bargaining is like...a union bargaining with a union---it gets very strange at times.

  • JimL (unverified)

    I have a seemingly unrelated question. Who is behind the spate of anti-union ads that ran on Portland TV stations last spring?

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    The issues are completely related. There have been a couple of columns on this here recently. One by Carla Axtman on the big picture is here.
    Another by me about part of the story of the people behind the ads is here.

    The short version is that the ads were put up by the Center for Union Facts (so-called), an outfit run by p.r. flack and lobbyist Richard Berman, whose business is promoting outrageously slanted versions of public issues in order to shift the terms of debate. CUF is a 501(c)3 educational and charitable non-profit. Those ads were part of their "educational" efforts.

    CUF is associated with another more recent outfit called the Employee Freedom Action Committee (EFAC), which is a main force in the campaign Carla describes that is targetting a number of pro-union U.S. Senate candidates this year. It is a 501(c)4, meaning it can advocate concerning legislation, in this case the Employee Free Choice Act. They are hanging what essentially is electoral campaigning on "advocating against EFCA."

    CUF and EFAC operate out of the same office suite, of Berman & Co., and share a communications director and other resources. They pay a large proportion of their "non-profit" revenues to Berman & Co., a for profit business, for "management services."

  • JimL (unverified)

    Thanks for the very complete response. I'm glad I asked, because this relates to another topic in which I'm professionally interested--the misuse of 501(c)(3) tax exempt status by political and religious groups.

  • Phil Best (unverified)

    This is the worst piece of legislation to be presented in the last 40 years and will be an absolute disaster for businesses and America if it becomes law. This will be nothing short of a license to extort from businesses and destroy industries. In the end, there will be more unemployment and less choices for consumers.

    As someone who deals with unions and union campaigns, this is the way it really works today:

    1). The union gets people "plants" hired into a business and supplements their pay to start having those people badmouth the company and spread the word (secretly) that the union will get them all kinds of better employment conditions (wages, benefits). They don't mention any of the negative aspects such as dues, penalties, strikes, etc.

    2). They start with the most unsatisfied people - the ones that do not really enjoy the job and dislike the company then try to sway the more neutral people.

    3). As cards get signed, the union themselves start to get involved and lie to the next batch of employees and state things such as, "You are one of the only ones that have not signed a card and that is hurting the other people in the company and holding up the process" They also state things such as, "The signing of this card does not really mean anything other than a token that you might be interested in a union" which at this point is true but under EFCA it would NOT be true (but would still get stated by the union). At this point, the union will be become more forceful toward employees and harass them into signing cards. They will say things such as, "We know where you live". Unions are desperate and are competitive within their ranks and file to out do each other to make a showing. They will get as aggressive as they need to be to get a card signed. The union is a business like the employer and their revenue is the employees dues.

    4). If the union gets it's necessary 30% plus of the cards they will file for a secret ballot election. So far, management has no had any chance to explain the benefits of staying non union or the negatives of the union - which by the way - it should have a right to do before any final decision or action is taken to have a union in the workplace. (The union receives a list of all the employees in the bargaining unit with their home addresses so that the union can contact them.)

    5). Both sides now get to campaign for 42 days until the secret ballot election is held. When someone states that this isn't really a secret ballot, that is ludicris. Like any other secret ballot election that gets conducted in this country, nobody will know how you want to vote if you don't tell them.

    6). If the company brings in a professional to help with the campaign than it should be able to.The laws here are very complex and companies are equipped to, well, run their companies and not union campaigns. The union, during a campaign, will be watching the company very closely as it has its "planted" people that will be reporting back on any unfair labor practices (ULP) that the company may commit. The company is under much higher standards to conduct itself properly as it can not Threaten, Interrogate, Promise or Spy. Any wrongdoing will result in charges filed at the Labor Board by the union and the election can be suspended. The employer, if found guilty of the charges, would have to post a notice (at a main area of its workplace) of its wrongdoing for 60 days and rerun the election. Finally, if the employer it found to have committed enough charges, then the union could be ordered to be automatically in and the employer would then receive a bargaining order. On the other hand, the union can lie, cheat, and steal during a campaign. They can pay employees off in exchange for votes, destroy company property, and disrupt the business. In addition, during the campaign, the union will always attempt to trick the company into committing these unfair labor practices by having their "plants" call in sick, cause unrest at the job, call in late, not do their assigned jobs and ask for changes in working conditions in sometimes less open ways all in the interest of having charges brought against the company to tie up the company at the Labor Board and have these (most often bogus)charges in case the union looses the election. By wearing down the company with litigation, perhaps the company will agree to not challenge the union. As before, the union can say that, "If you vote YES, we WILL PROMISE to get you more". The union will show employees signed contracts from other places that show "more". This tactic is a lie because the company must agree at the bargaining table to give all contractual benefits. Remember that the company is not allowed to promise better benefits if the employees vote "NO" or it is an unfair labor charge. Sounds crazy but this is the current law.

    7). In balance, the union has more than a fair chance to campaign and even lie and pay off people to get votes.

    Under the EFCA, unlike the theorists that try to pretend to know what it takes to run a business and the ones that try to paint the unions in this altruistic light, the union will sneak up on the company and just get in. IT IS ANYTHING BUT FREE CHOICE. In addition, the bill states that the employer and union submit to arbitration if they can not agree on a contract. Unions, in real life, take forever to even issue a first proposal for a contract and now this provision is a greater incentive to not issue anything other than a ridiculous proposal hoping that the arbitrator splits the difference. The arbitrator, by the way, will be a person that was probably yelled at by his wife that morning and knows absolutely nothing about negotiations in general and the business that the contract relates to let alone complex issues such as pensions, health care and what it takes to actually run a business without going out of business. Furthermore I believe it is unconstitutional to take away the "right to contract" and this part of the provision will get challenged.

    The unions will see the path to now extort from the employer in exchange for the union to allow the employer not to go out of business. This will happen behind the scenes as follows: 1). The contract will be so onerous such that no legitimate employer could operate competitively in the marketplace, 2). The union will visit the employer and receive payoffs in exchange for the union "overlookimg" certain of the contract provisions depending on the day, the amount the union is getting paid, and the way the employer is addressing the union official. 3). In the end, when the employer is out of business, the union will make a speech or hand out a flyer blaming the employer for mismanaging his company and the union will move on to another company and start this easy process all over again.

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    1) Your comments illustrate the kinds of lies, distortions and misinformation used in captive audience meetings.

    2) The ridiculousness of the whole is summed up in your conclusion (also stated throughout) that unions want to put employers out of business. Why on earth would they want to do that? It makes no sense.

  • Ron Morgan (unverified)

    "As someone who deals with unions and union campaigns, this is the way it really works today:"

    I recently finished a stint woking for a transnational corporation, familiar to all, which is proudly anti-labor. When I was hired I attended a mandatory "training", which amounted to a curriculum module from the Center for Union Facts about how bad unions are. Eventually I was promoted to a department head position, which they called "non-salaried management" (I know, an oxymoron, but hey, I needed the health coverage). I received the same anti-labor pitch as when I was hired, with a new wrinkle, since I was now a supervisor I was supposed to spy on my fellow workers (euphemistically referred to as "associates") and if they uttered certain buzz words, like "grievance", "seniority" or "arbitration" I was supposed to rat them out. An anonymous tip line was promoted in case I was too squeamish to do the dirty deed face to face with a higher-up. All this putting ones hand over ones heart and pledging allegiance to the sanctity of the secret ballot ignores one salient fact: you hand over the rights granted to you in the Bill of Rights as soon as you put on an orange, blue or choose-your-color apron. You have no free speech, you can be fired for comparing your rate of pay with another worker (this is allegedly "confidential", between you and the company), you can be fired for saying words like "organize". You can be sanctioned for "fraternizing" with your fellow workers off site (selectively enforced, of course, but effective if instead of having a few beers you're comparing paychecks or talking about safety issues). The training put me in mind of the old East German Stasi, with its intricate web of snitches and spies... It seemed the antithesis of democratic. And now they want to hide behind the flag and pout about democracy.

    Intimidation? People are intimidated into handing over their fundamental rights in exchange for a paycheck. Don't like it, you're fired. That's intimidation.

    <h2>The anti-EFCA propagandists treat workers as if they're weak-willed dupes just waiting to be snookered. I think that's more revealing than they'd like to admit, since it shows that's the way they themselves perceive working people.</h2>

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