The Employee Free Choice Act
Jon O. Shimabukuro
Legislative Attorney
January 12, 2011
Congressional Research Service
7-5700
www.crs.gov
RS21887
CRS Report for Congress
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repared for Members and Committees of Congress
The Employee Free Choice Act
Summary
This report discusses legislative attempts to amend the National Labor Relations Act (“NLRA”)
to allow for union certification without an election, based on signed employee authorizations. The
Employee Free Choice Act (“EFCA”), introduced in the 111th Congress as H.R. 1409 and S. 560,
would have allowed union certification based on signed authorizations, provided a process for the
bargaining of an initial agreement, and prescribed new penalties for certain unfair labor practices.
This report reviews the current process for selecting a bargaining representative under the NLRA,
and discusses the role of the Federal Mediation and Conciliation Service in resolving bargaining
disputes under that act. The EFCA has been introduced in the past four Congresses. During the
110th Congress, the measure was passed by a vote of 241-185 in the House. In the Senate,
proponents of the EFCA fell nine votes short of the 60 votes needed to limit debate and proceed
to final consideration of the measure. The EFCA is widely expected to be reintroduced in the
112th Congress.
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The Employee Free Choice Act
Contents
Union Certification Without Election .......................................................................................... 1
Role of the Federal Mediation and Conciliation Service .............................................................. 3
Penalties Under the NLRA.......................................................................................................... 4
Small Businesses and the EFCA.................................................................................................. 5
Past Legislative Alternatives ....................................................................................................... 6
Contacts
Author Contact Information ........................................................................................................ 7
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The Employee Free Choice Act
egislation that would allow a union to become the exclusive bargaining representative of a
unit of employees without an election has been introduced in the past four Congresses.1
L The Employee Free Choice Act (“EFCA” or “the act”), introduced in the 111th Congress as
H.R. 1409 and S. 560, would have amended the National Labor Relations Act (“NLRA”) to allow
union certification based on signed employee authorizations, provided a process for the
bargaining of an initial agreement, and prescribed new penalties for certain unfair labor practices.
Labor officials indicated that the EFCA was “the most important work we’ll be doing, because
it’s a key to succeeding on everything else.”2
This report reviews the current process for selecting a bargaining representative under the NLRA,
and examines how the EFCA would have altered that process. In addition, this report discusses
the other changes proposed by the act. Some of these changes had been previously suggested in
other past measures. For example, legislation that would have established a process for the
bargaining of an initial agreement was first introduced in the 105th Congress.3
Union Certification Without Election
The EFCA would have amended the NLRA to allow an individual or labor organization to be
certified as the exclusive representative of a bargaining unit without an election. The act would
have required the National Labor Relations Board (“the Board”) to conduct an investigation
whenever a petition was filed by “an employee or group of employees or any individual or labor
organization acting in their behalf,” that alleged that a majority of employees in a bargaining unit
wished to be represented by an individual or labor organization for the purpose of collective
bargaining. If the Board found that a majority of employees in the unit signed authorizations
designating the individual or labor organization as their bargaining representative, it would certify
such individual or labor organization as the representative.
Currently, a labor organization usually becomes the exclusive representative for a bargaining unit
following an election. Under existing law, the Board conducts an investigation following the
filing of a petition that alleges that a substantial number of employees wish to be represented for
collective bargaining and that the employer declines to recognize their representative as the
exclusive representative for the bargaining unit.4 To constitute a “substantial number of
employees,” at least 30 percent of the employees must indicate support for representation.5 A
representation hearing will be conducted if the parties cannot voluntarily resolve the details of an
election.6 Based on the record of such a hearing, the Board will direct an election by secret ballot
and certify the results.7
1 H.R. 1409, 111th Cong. (2009); S. 560, 111th Cong. (2009); H.R. 800, 110th Cong. (2007); S. 1041, 110th Cong.
(2007); H.R. 1696, 109th Cong. (2005); S. 842, 109th Cong. (2005); H.R. 3619, 108th Cong. (2003); S. 1925, 108th
Cong. (2003).
2 See Dale Russakoff, “Labor to Push Agenda in Congress It Helped Elect,” Wash. Post, December 8, 2006, at A13.
3 See S. 2389, 105th Cong. (1998).
4 29 U.S.C. § 159(c)(1).
5 See 29 C.F.R. § 101.18(a).
6 29 U.S.C. § 159(c)(4).
7 But see 29 U.S.C. § 159(c)(3) (“No election shall be directed in any bargaining unit or any subdivision within which
in the preceding twelve-month period, a valid election shall have been held.”). In addition, an election will be denied
for a bargaining unit where such unit is already covered by a valid collective bargaining agreement. The so-called
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The Employee Free Choice Act
Although a labor organization that has obtained signed authorizations from a majority of
employees in a bargaining unit may request to be recognized voluntarily by an employer as the
exclusive representative of employees in the unit, few employers engage in such voluntary
recognition.8 In NLRB v. Gissel Packing Co., the U.S. Supreme Court confirmed that signed
authorization cards from a majority of employees could give rise to bargaining obligations under
section 8(a)(5) of the NLRA.9 Section 8(a)(5) indicates that it shall be an unfair labor practice for
an employer to refuse to bargain collectively with the representatives of his employees subject to
the provisions of section 9(a) of the NLRA.10 Section 9(a) provides that representatives
“designated or selected for the purposes of collective bargaining by a majority of the employees”
in an appropriate bargaining unit “shall be the exclusive representatives of all the employees in
such unit for the purposes of collective bargaining.”11 Because section 9(a) refers to exclusive
representatives “designated or selected” by a majority of employees without specifying how the
representatives must be chosen, it was understood that the showing of majority support through
signed authorization cards could give rise to a duty to bargain.
The Gissel Court also noted, however, that an employer is not obligated to accept the
authorization cards as proof of majority status, and could insist on an election.12 Moreover, the
Court maintained that an employer is not required to justify his insistence on an election by
making his own investigation of employee sentiment or by providing affirmative reasons for
doubting the majority status.13 In a subsequent case, Linden Lumber v. NLRB, the Court further
concluded that a union with authorization cards purporting to represent a majority of the
employees, which is denied recognition by the employer, has the burden of invoking the Board’s
election procedure.14
Labor organizations contend that employers decline voluntary recognition based on authorization
cards because they want to discourage support for representation in the period before an election
is held.15 During this period, it is believed that employers often hire anti-union consultants,
terminate pro-union employees, and conduct captive-audience meetings where employees are
exposed to the employer’s views against representation.16 Proponents of the EFCA maintained
that certification based on a majority of signed authorizations would eliminate this misconduct.
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“contract bar” to an election operates when there is a written bargaining agreement that has been properly signed by the
parties, is binding on the parties, and is of a definite duration.
8 See Stephen I. Schlossberg and Judith A. Scott, Organizing and the Law 173 (1991).
9 395 U.S. 575 (1969).
10 29 U.S.C. § 158(a)(5).
11 29 U.S.C. § 159(a).
12 Gissel, 395 U.S. at 609.
13 Id.
14 419 U.S. 301 (1974).
15 See Steven Greenhouse, “Unions, Bruised in Direct Battles With Companies, Try a Roundabout Tactic,” N.Y. Times,
March 10, 1997, at B7.
16 See Witnesses at House Hearing Discuss Merits of Elections Versus Card-Check Recognition, Daily Lab. Rep.
(BNA), April 23, 2004, at A-7.
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In FY2008, the median time to proceed to an election from the filing of a representation petition
was 38 days.17 According to the Board, in FY2008, 95.1% of all initial representation elections
were conducted within 56 days of the filing of a petition.18
Those who have opposed the certification process proposed by the EFCA expressed concern for a
union’s possible use of coercive and intimidating tactics to obtain signatures.19 They have also
feared the increased possibility of forged signatures on authorization cards.20 Consistent with
those concerns, another measure would have made it an unfair labor practice for an employer to
recognize or bargain with a labor organization that was not selected through an election. The
Secret Ballot Protection Act, introduced in the 111th Congress as H.R. 1176 and S. 478, stated the
following in its findings: “[T]he right of employees to choose by secret ballot is the only method
that ensures a choice free of coercion, intimidation, irregularity, or illegality.”21
Role of the Federal Mediation and Conciliation
Service
In addition to providing for union certification without an election, the EFCA would have
amended the NLRA to allow for the involvement of the Federal Mediation and Conciliation
Service (“FMCS”) during the negotiation of an initial agreement following certification or
recognition of a labor organization.22 If, after 90 days of bargaining or such additional period as
the parties agreed upon, the parties failed to reach an agreement, the act would have permitted
either party to notify the FMCS and request mediation. If, after 30 days from the date mediation
was requested or such additional period agreed upon by the parties, the FMCS was unable to
bring the parties to agreement, the FMCS would have referred the dispute to an arbitration board
that would render a binding decision.
Under existing law, the FMCS may provide mediation and conciliation services upon its own
motion or upon the request of one or more of the parties to the dispute whenever “in its judgment
such dispute threatens to cause a substantial interruption of commerce.”23 Where state or other
conciliation services are available to the parties, the FMCS is directed to “avoid attempting to
mediate disputes which would have only a minor effect on interstate commerce.”24 Existing law
does not distinguish between initial agreements and other agreements negotiated by the parties.
Moreover, the NLRA does not provide for the use of binding arbitration to resolve disputes.
17 Memorandum from Ronald Meisburg, General Counsel, National Labor Relations Board, to All Employees of the
Office of General Counsel, National Labor Relations Board (Oct. 29, 2008), available at http://www.nlrb.gov/
shared_files/GC%20Memo/2009/GC%2009-03%20Summary%20of%20Operations%20FY%2008.pdf.
18 Id.
19 Witnesses at House Hearing Discuss Merits of Elections Versus Card-Check Recognition, supra note 16.
20 Id.
21 H.R. 1176, 111th Cong. § 2(2) (2009); S. 478, 111th Cong. § 2(2) (2009).
22 H.R. 1409, 111th Cong. § 3 (2009); S. 560, 111th Cong. § 3 (2009).
23 29 U.S.C. § 173(b).
24 Id.
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Proponents of the EFCA have argued that legislation is needed to promote the prompt negotiation
of initial collective bargaining agreements.25 In 32 percent of all cases, the employer and the
union reportedly fail to reach agreement within the first two years following an election.26 Some
have observed, however, that the availability of binding arbitration under the EFCA discouraged
support for the legislation from the business community. Under the act, employers would have
been faced with the possibility of having to accept what could have been viewed as unfavorable
terms and conditions by the arbitration board. Under existing law, the employer does not have to
accept such terms and conditions. The employer may decline unfavorable proposals with the hope
that the union may change its position to avert a strike. If binding arbitration was required, the
employer would lose that bargaining leverage.
Penalties Under the NLRA
The EFCA would have amended the NLRA to impose new penalties for specified existing unfair
labor practices. For example, if the Board found that an employer discriminated against an
employee with respect to his hiring, tenure, or any term or condition of employment to encourage
or discourage membership in a labor organization either while employees of the employer were
seeking representation by a labor organization or during the period after a labor organization was
recognized as a unit’s exclusive representative, but before the first collective bargaining
agreement was executed, the Board would have been permitted to award employee back pay and
2 times that amount as liquidated damages.27
The EFCA would have also imposed a civil penalty for certain willful and repeated unfair labor
practices. Any employer who willfully and repeatedly
(a) interferes with, restrains, or coerces an employee in the exercise of his right to organize,
or
(b) discriminates against an employee with respect to his hiring, tenure, or any term or
condition of employment to encourage or discourage membership in a labor organization
either while employees of the employer were seeking representation by a labor organization or
during the period after a labor organization had been recognized as a unit’s exclusive
representative, but before the first collective bargaining agreement has been executed, would have
been subject to a civil penalty not to exceed $20,000 for each violation. The exact amount of the
penalty would have been determined by the Board based on the gravity of the unfair labor
practice and its impact on the charging party, on others seeking to exercise rights guaranteed by
the NLRA, or on the public interest.28
Under existing law, the Board may order any person committing an unfair labor practice to cease
and desist from such misconduct.29 The Board may also take such affirmative action, including
reinstatement with back pay, as will effectuate the policies of the NLRA.30 Section 12 of the
25 Witnesses at House Hearing Discuss Merits of Elections Versus Card-Check Recognition, supra note 16.
26 Id.
27 H.R. 1409, 111th Cong. § 4(b) (2009); S. 560, 111th Cong. § 4(b) (2009).
28 Id.
29 29 U.S.C. 160(c).
30 Id.
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NLRA provides that any person who willfully resists, prevents, impedes, or interferes with any
member of the Board or any of its agents or agencies in the performance of their duties under the
act shall be punished by a fine of not more than $5,000 or by imprisonment for not more than one
year, or both.31 However, no specific penalty currently exists for the kind of willful and repeated
misconduct described in the EFCA.
Small Businesses and the EFCA
In 1959, Congress amended the NLRA to provide relief for small employers and their employees
who occupied a so-called “no man’s land” in labor-management relations. The Board, confronted
with a rising backlog of cases, maintained a practice of declining jurisdiction in industries with
revenue less than a certain dollar volume of business. This practice effectively excluded a
significant number of smaller enterprises from coverage under the NLRA.32 At the same time, in a
series of cases, the Court concluded that parties denied coverage under the NLRA could not have
their disputes settled by a state labor agency or in state court.33 The House, in considering
changes to the NLRA, noted, “Since, therefore, the excluded parties have neither Federal nor
State remedies available to them, they are said to be in the ‘no man’s land.’”34
Congress responded to concerns over the “no man’s land” for small employers and their
employees by amending section 14 of the NLRA to add a new subsection (c). Section 14(c) states
the following:
(1) The Board, in its discretion, may, by rule of decision or by published rules adopted
pursuant to the Administrative Procedure Act, decline to assert jurisdiction over any labor
dispute involving any class or category of employers, where, in the opinion of the Board, the
effect of such labor dispute on commerce is not sufficiently substantial to warrant the
exercise of its jurisdiction: Provided, That the Board shall not decline to assert jurisdiction
over any labor dispute over which it would assert jurisdiction under the standards prevailing
upon August 1, 1959.
(2) Nothing in this Act shall be deemed to prevent or bar any agency or the courts of any
State or Territory (including the Commonwealth of Puerto Rico, Guam, and the Virgin
Islands), from assuming and asserting jurisdiction over labor disputes over which the Board
declines, pursuant to paragraph (1) of this subsection, to assert jurisdiction.35
By enacting section 14(c)(1), Congress appeared to endorse the Board’s practice of declining
jurisdiction over smaller employers.36 At the same time, however, Congress prevented the Board
from refusing to assert jurisdiction over employers that met the jurisdictional standards in effect
on August 1, 1959. These standards were established for 10 types of enterprises and, in general,
continue to apply.37 If the Board declines jurisdiction over a labor dispute in accordance with one
31 29 U.S.C. § 162.
32 See S. Rep. No. 187, at 25 (1959), reprinted in 1959 U.S.C.C.A.N. 2318, 2341.
33 See Guss v. Utah Labor Relations Board, 353 U.S. 1 (1957); Amalgamated Meat Cutters, et al. v. Fairlawn Meats,
Inc., 353 U.S. 20 (1957); San Diego Building Trades Council v. Garmon, 353 U.S. 26 (1957).
34 S. Rep. No. 187, supra note 32, at 25.
35 29 U.S.C. § 164(c)(1).
36 The Developing Labor Law 2223 (John E. Higgins, Jr., et al. eds., 2006).
37 See Leedom v. Fitch Sanitarium, Inc., 294 F.2d 251, 255-56 (D.C. Cir. 1961) (identifying jurisdictional standards in
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of the standards, section 14(c)(2) authorizes a state or territorial agency or court to assert
jurisdiction.
The jurisdictional standards that arguably have the broadest application are those for retail and
non-retail enterprises. Pursuant to its standards for retail enterprises, the Board will assert
jurisdiction if such an enterprise has an annual gross volume of business of at least $500,000 and
has some business, greater than de minimis, across state lines. Under its standards for non-retail
enterprises, the Board will assert jurisdiction if such an enterprise has a direct or indirect inflow
or outflow of goods or services across state lines of at least $50,000.38
The EFCA would not have amended section 14(c) of the NLRA and did not specifically address
the treatment of small employers. Opponents of the EFCA argued that the impact of the measure
on small businesses could be significant given the financial thresholds in the jurisdictional
standards for retail and non-retail enterprises.39 Some maintained that the thresholds are so low
that many businesses that are likely perceived as “small businesses” would have become subject
to the EFCA.40 Others argued, however, that the vast majority of small businesses are too small to
have to worry about unionizing.41
Past Legislative Alternatives
While the EFCA received significant attention for the changes it would have made to the NLRA,
some observed that other past measures proposed similar, but arguably less dramatic,
amendments to the labor statute. Some of these measures, for example, would have required an
expedited election, but not automatic certification, if a specified percentage of employees signed
authorization cards. Other measures would have permitted automatic certification only if 75% of
employees in an appropriate bargaining unit signed authorization cards.
The Labor Relations Representative Amendment Act, introduced by Senator Paul Simon in the
103rd and 104th Congresses, would have required the Board to direct an expedited election to be
held within 30 days after the receipt of signed authorization cards from 60% of employees in an
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effect on August 1, 1959, for the following: non-retail enterprises; office buildings; public utilities; newspapers and
communications systems; retail enterprises; hotels; transportation enterprises, links, and channels of interstate
commerce; transit systems; taxicabs; and national defense enterprises). Since 1959, the Board has established additional
jurisdictional standards for other enterprises, including apartment houses and art museums. See Nat’l Lab. Rel. Board,
An Outline of Law and Procedure in Representation Cases 1-24 (2005) (discussing jurisdictional standards).
38 See Nat’l Lab. Rel. Board, An Outline of Law and Procedure in Representation Cases 2 (2005) (“Direct outflow
refers to goods shipped or services furnished by an employer directly outside the State. Indirect outflow refers to sales
of goods or services within the State to users meeting any standard except solely an indirect inflow or indirect outflow
standard.”).
39 See Matthew Bandyk, Small Business Issues in The Ballot Box: The Employee Free Choice Act (Oct. 31, 2008),
available at http://www.usnews.com/articles/business/small-business-entrepreneurs/2008/10/31/small-business-issues-
in-the-ballot-box-the-employee-free-choice-act.html; James Sherk, EFCA Authorizes Government Control of 4 Million
Small Businesses (Mar. 12, 2009), at http://www.heritage.org/Research/Labor/wm2341.cfm.
40 See Sherk, supra note 39.
41 See Bandyk, supra note 39.
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appropriate unit.42 Under the measure, an expedited election could not be delayed for any reason
or purpose.
Similarly, the Right to Organize Act of 2001, introduced by Senator Paul D. Wellstone in the
107th Congress, contemplated an expedited election, but would have required the Board to direct
such an election to be held within 14 days after the receipt of signed authorization cards from
60% of the employees in an appropriate unit.43
The National Labor Relations Fair Elections Act, introduced by Representative Major R. Owens
in the 101st, 102nd, and 103rd Congresses, would have permitted the certification of an individual
or labor organization as the exclusive representative of a bargaining unit without an election if
75% of the employees in an appropriate unit signed authorization cards.44 If authorization cards
were signed only by a majority of employees, the measure provided for an expedited election.
Within 7 days after the filing of the representation petition and the receipt of the authorization
cards, the Board would have been required to direct an election to be held no later than 15 days
after the petition was filed.
The National Labor Relations Fair Elections Act would have also established a schedule for all
other representation elections. Under the measure, such elections would have been required to
occur no later than 45 days after the filing of a petition, unless the Board determined that the
proceeding “present[ed] issues of exceptional novelty or complexity.45 When such issues were
involved, the election could occur no later than 75 days after the filing of the petition.
Past efforts to amend the NLRA to allow for expedited elections may prove instructive if, as
widely expected, the EFCA is reintroduced in the 112th Congress. Opponents of the measure who
maintained that it undermines the sanctity of the secret ballot election may support efforts to
expedite elections under the NLRA rather than allow for the automatic certification of a union.46
Author Contact Information
Jon O. Shimabukuro
Legislative Attorney
jshimabukuro@crs.loc.gov, 7-7990
42 S. 778, 104th Cong. (1995); S. 1529, 103rd Cong. (1993).
43 S. 1102, 107th Cong. (2001). Other versions of the Right to Organize Act introduced in the 106th Congress did not
include provisions for an expedited election.
44 H.R. 689, 103rd Cong. (1993); H.R. 503, 102nd Cong. (1991); H.R. 4800, 101st Cong. (1990).
45 H.R. 689, 103rd Cong. § 3 (1993); H.R. 503, 102nd Cong. § 3 (1991); H.R. 4800, 3 101st Cong. (1990).
46 See, e.g., 153 Cong. Rec. H2046 (daily ed. Mar. 1, 2007) (statement of Rep. Diaz-Balart) (“Now, I think we should
work on expediting elections by the NLRB, and we should work to make sure elections for certification are as
expedited as they are for decertification. That is another issue that I would like to work with my colleagues on. But I
cannot support this legislation which goes to the heart of that most essential aspect of the right of human beings to
express themselves in private, which is the secret ballot.”).
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