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The greatest controversy surrounding the so-called Employee Free Choice Act (EFCA, H.R. 1409, S. 560)—introduced on March 10, 2009, by Rep. George Miller (D-Calif.) and Sen. Tom Harkin (D-IA)—centers on its first provision, known as “card check,” which would empower unions—and unions alone—to determine the method by which to organize workers at a given company. The Act’s card check provision would effectively eliminate the secret ballot in union certification elections.
It would do so by requiring the National Labor Relations Board (NLRB) to recognize a union as the exclusive bargaining agent for all employees at a company once the union has collected signatures from a majority of the employees. Employees are asked to sign the cards out in the open, exposing them to high-pressure tactics—without time to reflect on their decision or make a private judgment.
Union leaders see the Employee Free Choice Act as an opportunity to stem decades of private sector membership decline. Thus, organized labor has made EFCA its top legislative priority. To see it enacted, unions gave heavily to Democrats during the 2008 election and now expect the politicians they have supported to support the union agenda. President Obama, his Secretary of Labor, and most congressional Democrats have supported EFCA.
However, many card check advocates have conveyed selective support for secret ballots in other contexts, including labor union matters other than organizing, both today in the past. Indeed, many of the nation’s top unions have secret ballot provisions in their constitutions and bylaws governing internal elections, and unions have insisted on secret ballot elections when their own employees have tried to organize. Moreover, EFCA sponsor Rep. George Miller (D- Calif.) and other supporters of the bill in Congress have even urged foreign government officials to use the secret ballot in union certification elections. Secretary of Labor Hilda Solis has fought for the secret ballot in the Congressional Hispanic Caucus, and sponsored legislation in California protecting the secret ballot for workers deciding their employers’ overtime policies.
The Act itself is inconsistent. EFCA would leave in place many provisions of the National Labor Relations Act (NLRA) and Labor-Management Relations and Disclosure Act (LMRDA) that require the secret ballot in union elections other than certification, including decertification of a union and the election of local officers.