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The Employee Free Choice Act what is "card-check" legislation?

It is anticipated that during the 111th Congress an attempt will be made to pass legislation titled the Employee Free Choice Act (EFCA) - commonly referred to as "card-check" legislation - that would have a profoundly negative impact on the produce industry. The United Fresh Produce Association (United Fresh) is strongly opposed to the goals and objectives of the EFCA and is spearheading a coordinated response against this legislation among its 1,400 member companies, its allied industry partners, and the thousands of employees they represent.


Major Provisions of the Employee Free Choice Act

Elimination of Secret Ballot Elections

The EFCA would modify the nearly 75 year-old National Labor Relations Act signed by President Franklin Roosevelt by eliminating federally overseen secret ballot elections establishing a union as collective bargaining representative. As the alternative, petitions - referred to in this case as a "card-check" - would be sought from employees without federal oversight if a majority of petitions from covered workers were received in support of a union, that union would be certified as the collective bargaining representative. (1)

Interestingly, while the legislation has a specific section entitled "Streamlining Union Certification," there is no concurrent streamlining of the process for decertifying a union.

Binding Arbitration

Once a union is certified, the process of negotiating an initial contract would be significantly changed. If the employer and union cannot come to agreement after an unusually abbreviated timeframe of 120 days (2), the matter would be referred to binding arbitration with a mandatory contract ultimately emerging and in force for a minimum of two years.

Additional Provisions

Beyond these provisions, EFCA also includes language regarding employer's actions against union organizing. There is no similar language sanctioning unions for their actions during organizational campaigns.

Legislative History on the Employee Free Choice Act

The EFCA has been introduced several times in both the House and Senate over the last several years, In 2007, the House bill (MR. 800) received 233 cosponsors, and it passed by a vote of 241-185. The Senate's version (S. 1041) received 46 cosponsors. However, a Senate cloture motion failed by a vote of 51-48-1. Had the Congress been successful in passing the EFCA, President Bush stood as a final check against this legislation by virtue of a veto.

Looking ahead, the election gains by the Democrats in the Senate give EFCA the necessary votes for cloture (60) assuming no defections from party ranks. This forecast, coupled with President Barack Obama's past support for the legislation, make for a significantly different environment for passage of EFCA in 2009.

What Would Enactment of the Employee Free Choice Act Mean for Employers?

Greater Likelihood of Successful Union Organizing

Historically, secret ballot elections under the NLRA have resulted in union victories by approximately 50 percent of the time. (3) However, for those organizing efforts utilizing the card-check system instead of a secret ballot, the union success rate jumps to 80 percent. This estimate appears reasonable, as the unions would not be pushing for a modification of the process without the significant potential for gains in union organizing.

Therefore, the available information indicates that a card-check process appears to lower the bar for union organizing. As a result of that effort, employers who have been the targets of union organizing activity in the past, but whose employees did not approve a union via majority vote, would appear to be most vulnerable to the provisions of the EFCA. (4)

Mandatory Imposition of an initial Collective Bargaining Agreement

Additionally, employers face a second significant disadvantage with the EFCA. If a union is certified as a collective bargaining agent under the less-stringent card-check system, the employer will no longer be able lo resist unreasonable demands of unions during negotiations on the initial collective bargaining agreement. Once negotiations come to an impasse, the OFCA imposes an abbreviated 120-day time frame for resolution that culminates with the binding ruling of an arbitrator. By law, this contract must remain in effect for a minimum of two years.

Clearly this binding arbitration provision is a potentially costly modification. Its inclusion in the process appears to motivate unions not to negotiate directly with the employer, since they would no longer be the final decision maker.

What Is United Fresh's Position and Course of Action on This Issue?

* United Fresh is firmly opposed to the EFCA's modifications of the current system. The following is the United Fresh Government Relations Policy State ment on the Employee Free Choice Act:

"The elimination of union employees' right to federally-overseen secret ballot elections for the purposes of union certification is a significant issue for the produce industry. The elimination of this right will erode employees' workplace security and upset the important balance between union leadership interests and those of employers. ..."

* United Fresh has joined with other sectors of the American business community in an effort to educate members of Congress, the incoming Administration and the general public about the negative consequences of passage of the EFCA. United Fresh is undertaking this effort as part of the Coalition for a Democratic Workplace ( the major business coalition opposing the provisions of the EFCA.

* United Fresh has created a grassroots letter for produce industry members to send directly to Congressional offices regarding concerns about the EFCA.

What Actions Can You Take on This Issue?

1. Write to your members of Congress (

2. Call your members of Congress directly.

Talking Points for United Fresh members when talking with members of Congress and their staff:

* Federally overseen secret ballot elections are essential to maintain the balance between employer and union leadership interests.

* Secret ballot elections are utilized to select a variety of public officials at the state, local and federal level, including the President and all members of Congress. Therefore, why wouldn't they be appropriate in the workplace?

* The 74 year-old National Labor Relations Act established the current process and has lasted through countless economic fluctuations. The current crisis should not be used as an excuse to throw out a stable, time-tested and fair process.


(1) Under the Employee Free Choice Act, once the National Labor Relations Board receives "signed valid authorizations" from a majority of affected employees in support of a bargaining representative specified in a petition, they must certify that representative. Neither the union nor the employer would have the ability to ask for an election.

(2) If the employer and bargaining representative cannot come to agreement on a collective bargaining agreement 90-days after the certification of a union, either party may ask for mediation by the Federal Mediation and Conciliation Service. Should that process be unsuccessful in encouraging an agreement, after 30-days, the FMCS shall refer the dispute to binding arbitration.

(3) It is assumed that many organizing efforts often stop short of an election if the union officials suspect that it may be unsuccessful. Therefore that winning percentage does not indicate that unions win all organizing efforts half of the time. Instead, it means they win half of the elections that are pushed to a vote.

(4) Note: The NLRA specifically exempts jobs classified directly as agriculture. Therefore, the impact upon United Fresh members would be limited to those activities where the member had an interest in a related activity such a packing, processing, distribution, etc.

RELATED ARTICLE: Some State Laws Affect Ag Workers

As noted in the United Fresh Produce article, the Employee Free Choice Actamends the National Labor Relations Act (NLRA), and agricultural laborers are exempt from that Act. Those in related jobs, such as packinghouses, processing and trucking, would be subject to the NLRA.

However, in Pennsylvania, the courts have ruled that mushroom workers are covered by the Pennsylvania Labor Relations Act (PLRA). The Employee Free Choice Act would not affect the PLRA (in other words, mushroom workers in Pennsylvania would not be allowed to organize based on a majority signing authorization cards).

Other states also have labor relations laws with provisions regarding agricultural workers. In California, agricultural workers can organize under the California Agricultural Labor Relations Act. In recent years, "card check" legislation amending their state law has passed the state legislature, but has been vetoed by the governor.


The American Mushroom Institute has joined a national coalition of agricultural associations opposed to the Employee Free Choice Act: Agriculture For A Democratic Workplace. The group is the agricultural extension of the Coalition for a Democratic Workplace,, the broad coalition leading the charge against EFCA on behalf of the general business community. A new Web site dedicated to educating visitors about the EFCA, including how the EFCA affects agriculture, and a grassroots action center are planned.

Kam Ouartes

Vice President Government Relations & Legislative Affairs
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Title Annotation:business issues; United Fresh Produce Association
Author:Ouartes, Kam
Publication:Mushroom News
Geographic Code:1USA
Date:Mar 1, 2009
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