Return of the Employee Free Choice Act

Labor law has dramatically changed under the Obama administration via the pro-union National Labor Relations Board. Many longstanding Board precedents have been tossed aside in favor of policies that inappropriately advantage union organizing.

Sen. Bernie Sanders (I-Vt.) wants to further tilt the playing field in favor of unions with the recent introduction of the Orwellian-named “Workplace Democracy Act.” 

The Workplace Democracy Act (WDA) is as poorly named as any labor bill in recent memory—save the Employee Free Choice Act (EFCA). A pillar of the WDA and EFCA is the policy known as card check, which replaces the current standard of conducting secret-ballot elections to determine union representation.

Here is how the WDA reforms the National Labor Relations Act (NLRA):

  • Institutes card check. Currently, a union must secure a showing of interest from employees, or 30 percent of employees must show support for a union. Then a secret-ballot election is conducted where a union must win 50 percent plus one of the workers that vote in the election to become the representative of the bargaining unit. The WDA would scrap that system and replace it exclusively with card check elections. Under card check, a union would simply have to collect a signed authorization cards from a majority of employees to become the certified labor representative. Without an election, workers are deprived of time to hear the pros and cons about unionization, privacy to reflect on whether they want to authorize union representation, and leaves workers open to union intimidation tactics.
  • Binding arbitration for first contracts. The National Labor Relations Act requires both employers and labor unions to bargain in “good faith.” However, it does not force either side to come to terms or make any concessions. The WDA would do away with any concept of freedom to contract by forcing binding arbitration on employers and unions if a contract has not been ratified after 120 days of negotiations.

A labor bill that protects workers and provides them greater freedom is the recently introduced Employee Rights Act. It guarantees workers a secret-ballot election when choosing whether or not to unionize. This would cut down union intimidation and deceptive tactics that are common in card check campaigns. Take, for instance, the story of Marlene Felter. In her testimony to the U.S. House Education and Workforce Committee, she laments that “From July to November 2011, my co-workers reported that SEIU operatives were calling them on their cell phones, coming to their homes, stalking them, harassing them, and even offering to buy them meals at restaurants to convince them to sign union cards.”

Labor unions are also known for making outrageous demands in contract negotiations. One of the contributing factors to Hostess going bankrupt was the union-negotiated work rules and benefits. For instance, the union contract required the company to deliver Twinkies and Wonder Bread—the company makes both—on separate trucks. Further, the workers who loaded the trucks could only load one product or the other. The last thing we need is a government agency forcing companies accept these inefficient union-negotiated work rules.

NLRA reform is past overdue, but Sen. Sanders’s bill is not the way forward. Any reform to national labor law should promote worker choice and freedom to contract, not the special interests of labor unions.

See the labor and employment chapter of the Competitive Enterprise Institute’s “Free to Prosper” agenda for Congress to see our suggested labor law reforms.