Today, the U.S. House of Representatives voted 241-185 to pass H.R. 800, the misnamed “Employee Free Choice Act (EFCA) of 2007.”  With its passage by the House, organized labor’s efforts to overhaul the Nation’s labor laws cleared its first legislative hurdle.  The bill now goes to the U.S. Senate that will take up either the House-passed bill or a companion bill to be introduced by Senate Health, Education, Labor and Pensions Committee Chairman Edward Kennedy (D-MA).
H.R. 800: “Fast Track” Bill with No Amendments Allowed
The passage of H.R. 800 by an overwhelming House vote was put on a “fast track” as a “top priority” by the new House leadership.  It came less than a month after the bill was introduced by Education and Labor Committee Chairman George Miller on February 5. The Subcommittee on Health, Employment, Labor and Pensions hastily scheduled a hearing on the EFCA for Thursday, February 8. At the bill’s only hearing, the business community was allowed just two witnesses – an expert witness and an employee witness – to highlight the problems with the bill. This pales in comparison to the six union witnesses who testified in support of the bill – three expert witnesses and three alleged “employee victims” of employer misconduct.  This “stacked deck” hearing painted a distorted picture of the workplace.
In another flash of speed, the full Committee on Education and Labor met on Wednesday, February 14, to consider H.R. 800 (which at that time had 234 co-sponsors). The Committee passed the bill by a vote of 26 to 19.  In doing so, the Committee rejected a number of amendments on straight party-line votes, including one which would have applied the same “card check” procedure for union decertification elections. The decertification process is where employees challenge a union’s majority status by petitioning the National Labor Relations Board (NLRB) to supervise an election to vote out a union.  In other words, unions hypocritically insist that “card check” should be the method for determining initial union representation (“easy in”), yet oppose that method for ending union representation (“easy out”).  Unions steadfastly insist that decertification elections should only be by an NLRB-supervised secret ballot election to protect employees from coercion and intimidation.
In its final burst of speed, the new House Leadership restricted debate on the EFCA by limiting the number of amendments on the House Floor to just three.  The end result is that the House passed the EFCA by the wide margin of 241 to 185.   
Bill Would Revolutionize Labor Law

H.R. 800 is designed to increase union membership, which currently stands at 7.4 percent of the private sector workforce, through a union-controlled “card check” certification procedure in lieu of the traditional NLRB-supervised, private, secret ballot election.  The EFCA would radically alter business practices and upset the balance in labor-management and employer-employee relations by amending the National Labor Relations Act (NLRA) in three ways:

  • Mandate that the NLRB certify a union as the exclusive collective bargaining representative of employees where the union demonstrates that a majority of the employees have signed union authorization cards (“card check”) – without a secret ballot election among employees.
  • Require arbitration of initial union contracts.  Specifically, contract terms must be submitted to the Federal Mediation and Conciliation Service (FMCS) if the union and the employer cannot reach an agreement on an initial collective bargaining contract after 90 days.  If FMCS is unable to mediate an agreement between the parties, then it must refer the initial contract dispute to an arbitration panel with the authority to issue a decision that is binding on the employer and union for a two-year period.
  • Impose new anti-employer penalties.  These include prioritizing NLRB investigations of unfair labor practice charges alleged to have been committed by an employer during an organizing campaign, and possibly pursuing injunctive remedial action in federal court.  The proposal also provides for liquidated damages in the amount of two times any back pay found due and owing, and subjects an employer to a civil penalty not to exceed $20,000 per violation of the NLRA.

Organized Labor’s Objectives

Unions’ major objective has less to do with the form of voting (“secret ballot” versus “card check”) than with limiting an employer’s ability to communicate with employees about union representation and their right to make an informed choice.  As stated by union witness-after-witness at the Subcommittee hearing and the prohibitively expensive, full-page union ads in newspapers across the country, unions want greater “access” to employees at work and want to silence the employer’s voice in union organizing campaigns.  The “card check” process authorized by H.R. 800 will enable unions to control the timing of an organizing campaign and to present a majority of signed cards to the NLRB before the employer has an opportunity to respond.  Unions could achieve this same objective through a secret ballot vote if they are able to limit the time to only a week or less (i.e., “quickie elections”) between filing an election petition with the NLRB and conducting the election.  Thus, there are concerns that this is the unions’ real strategy and the union lobbyists may falsely proclaim at some future point that this is a “compromise” to preserve the secret ballot.
Next Hurdles

It is widely anticipated that the Senate may “filibuster” a motion to proceed to the bill, and thus prevent it from reaching the Senate Floor for a vote.  Senate rules require 60 votes to “invoke cloture” that shuts off debate and ends a filibuster, versus a simple majority of votes to pass the bill.  While these procedural hurdles do not deter the unions, they may seek additional votes by modifying the bill to make it more acceptable to Senators looking for a compromise to end the filibuster.
Also, the Bush Administration yesterday stated that the President would veto H.R. 800.  This Presidential veto statement, however, does not end the discussion because the bill may be modified and attached to unrelated, “must pass” priority legislation that is important to the President.  In the short run, employers should not become complacent because of the veto promise.  More significantly, the long term concern is the unions’ calculation that a veto, in their words, “tees up” the issue for the 2008 elections when they hope to elect a President that will sign the bill.
Additional Information

For additional information, contact any Ogletree Deakins attorney with whom you work, Harold Coxson or Alfred Robinson in the firm’s Washington, D.C. office (202.887.0855) or the Client Services Department at 866.287.2576 or via e-mail at

Note: This article was published in the March 1, 2007 issue of the National eAuthority.

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