Executive Summary: How the Employee Free Choice Act Takes Away Workers' Rights

Report Jobs and Labor

Executive Summary: How the Employee Free Choice Act Takes Away Workers' Rights

April 23, 2007 3 min read Download Report

Authors: Paul Kersey and James Sherk

Revised and updated March 4, 2009

Organized Labor has made the Employee Free Choice Act (EFCA) its top legislative priority. The act would replace the current system of secret-ballot organizing elections with card checks, in which workers publicly sign union cards to organize and join a union. It would also impose binding arbitration for the initial bargaining agreement after organization and increase the penalties for unfair Labor practices committed by employers-but not unions-during organizing drives. Each of these provisions would harm American workers.

Stifling Free Choice. Under the EFCA, once organizers collect signed cards from a majority of a company's employees, all of the company's workers would be forced to join the union without a vote. This strips workers of both their fundamental right to vote and their privacy. Both the union and the employer would know exactly which workers want to join the union, leaving workers vulnerable to threats and intimidation.

Even when organizers obey the law, card check allows union organizers to push workers to commit to joining a union immediately after hearing their one-sided sales pitch without either a chance to hear the arguments from the other side or time for reflection. When workers decline to sign the union card on the spot, union organizers return again and again to pressure these holdouts to change their minds. Privately, unions acknowledge that union cards signed under these circumstances do not accurately reflect workers' desire to join a union.

Contrary to union rhetoric, organizing elections are fair and do protect the rights of workers. If anything they favor union organizers, which is why unions win 60 percent of organizing elections. Government data show that employers rarely fire union supporters-in just 2.7 percent of election campaigns-and most alleged violations are investigated and processed in a few months. Today's election procedures balance the rights of employers and unions and ensure that unions have access to workers when they are not on company time.

Workers themselves disagree with the union activists who claim to speak for them. A large majority of union members agree that secret-ballot elections are fair and should not be replaced with card check. Most other Americans also agree. Congress should not change a system that most workers support.

Reducing Accountability. The EFCA's second component would force employers and newly organized unions into binding arbitration if they were unable to settle on a collective bargaining agreement within 90 days from the start of bargaining. This provision would force private firms into a risky process that works poorly in the public sector. In states like Michigan that use binding arbitration, it takes an average of 15 months for arbitrators to make a ruling.

Binding arbitration places control of wages and employment conditions in the hands of unaccountable government officials. Arbitrators have little knowledge of the competitive realities that firms face and no expertise in crafting the business contracts on which workers and employers rely. An arbitrator's ruling would be final, and the arbitrator would not have to live with the consequences of the ruling. Workers could not appeal a decision that gave them too little pay or one that would bankrupt the firm. Government-imposed contracts would also stifle corporate competitiveness and innovation.

Ignoring Union Abuses. The EFCA's final section would increase penalties on employers, but not unions, that engage in unfair Labor practices during organizing drives. Labor activists argue that unions almost never abuse workers during organizing drives, so there is no need to increase penalties for union abuses. But they misrepresent the facts to reach this conclusion. In fact, unions have been charged with making threats, violence, coercion, and intimidation thousands of times since 2000.

These new penalties would apply not just to cases of illegal firings but to many actions that the government prohibits but appear innocuous, such as asking workers what they would like to see changed at their workplace. Employers without experience with organizing campaigns will be at risk of committing multiple unintentional violations and racking up steep fines. This will have a chilling impact on employer speech, intimidating them into staying silent during an organizing campaign. Consequently, employees will be deprived of the information they need to make an informed choice about union representation.

James Sherk is the Bradley Fellow in Labor Policy in the Center for Data Analysis at The Heritage Foundation, and Paul Kersey is Senior Labor Policy Analyst at the Mackinac Center for Public Policy in Midland, Michigan.


Paul Kersey

Former Visiting Fellow

James Sherk
James Sherk

Research Fellow, Labor Economics