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Pros & Cons of the Employee Free Choice Act


Pros & Cons of the Employee Free Choice Act

Photo: Alex Wong/Getty Images

The Employee Free Choice Act ("EFCA") is labor-union backed legislation that proposes to amend the National Labor Relations Act "to establish an easier system to enable employees to form, join, or assist labor organizations" and "to provide for mandatory injunctions for unfair labor practices during organizing efforts."

In summary, the Employee Free Choice Act of 2009, also known as "card check" legislation, would cause three major pro-labor changes to the National Labor Relations Act:

  • 1. If more than 50% of employees sign blank card from an existing labor union requesting representation by that union, then the National Labor Relations Board ("NLRB") will certify it as the exclusive representative of employees for collective bargaining with managment.

    Previously, if more than 30% of employees signed the cards, the employer may decide to hold a secret ballot election regarding unionizaton.

  • 2. Under EFCA, within ten days after certification as the exclusive labor union, that union may demand that management begin negotiating a new collective bargaining agreement.

    If the union and management can't reach terms within 90 days on the first agreement, either side may request federal mediation, which could lead to binding arbitration.

    Previously, no such time clock requirement was in effect.

  • 3. Under EFCA, if an employer was found by the NLRB to have unlawfully fired pro-union employees, the employer would be liable for three times back pay for those employees. Also, the NLRB could impose a $20,000 penalty for each willful violation by the employer of the prevailing statutes.

    These penalties are a substantial increase in levies that the NLRM may assess on employers.

Latest Developments

The Employee Free Choice Act of 2007 was passed by a strongly favorable House vote of 241 to 185. The Senate passed it by a 51 - 48 vote, nine votes short of the required 60 votes to enforce cloture. Thus, EFCA of 2007 was dead for the 110th Congress.

The Employee Free Choice Act of 2009 was introduced in both houses of the 111th Congress on March 10, 2009: as H.R.1409 in the House, and S.560 in the Senate.

In 2007, Sen. Barack Obama voted in favor of EFCA. President Obama reportedly backs the Employee Free Choice Act of 2009.

Democratic leadership in both the Senate and House support the Employee Free Choice Act of 2009, although some resistance to it has been voiced by the House's fiscally conservative Blue Dog Democrats. (See Meet the Blue Dog Democrats: United on Pro-Business Issues.)

Congressional Republican leadership is adamantly opposed to EFCA legislation, especially the "card check" provision which they claim strips away employees' rights to a secret ballot election.

In fact, Republicans on the House Education and Labor Committee voted unanimously against allowing the bill to be put to a full House vote.


All major U.S. labor unions support the Employee Free Choice Act of 2009, as they believe that workers' rights have steadily and radically eroded since Congress created the National Labor Relations Board in 1935.

Rep. George Miller, Chair of the House Education & Labor Committee commented on March 10, 2009: "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...

"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 law breakers.

"Even when employers don't break the law, the process itself stacks the deck against union supporters. The employer has all the power... "

Fiercely Opposed by U.S. Chamber of Commerce

The U.S. Chamber of Commerce and all major corporations with large, hourly labor forces oppose EFCA legislation.

Writes the U.S. Chamber of Commerce, "This bill would undermine long standing principles of workplace democracy and fairness and result in employees having less ability to determine if they wish to be represented by a union...

"While EFCA is being promoted by organized labor as labor law reform to level the playing field, it does not represent 'reform' in any sense of the word.

"Rather, the legislation will radically restructure 60 years of carefully crafted labor law balances that have served both unions and employers well for many decades."

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