In addition to other problems with the Employee Free Choice Act (EFCA) (H.R. 1409, S. 560), this controversial labor bill is also inconsistent with international law, so claims a letter sent to congressional leaders by the United States Council for International Business (USCIB) and the United States Chamber of Commerce (“U.S. Chamber”).  According to the letter, EFCA’s modification of the National Labor Relations Act (NLRA) to institute a card check union representation recognition process that potentially displaces the secret ballot election and forces parties to engage in mandatory binding arbitration in the event an initial collective bargaining agreement is not reached within a set period of time “contradict[s] principles of international labor law, as they have been defined by the International Labor Organization (ILO).”

Specifically, the U.S. Chamber and the USCIB assert that these provisions “are inconsistent with the principles of freedom of association and effective recognition of the right to collective bargaining as set forth in the 1998 ILO Declaration on Fundamental Principles and Rights at Work (1998 Declaration).” According to the letter, the United States is bound by the 1998 Declaration and its principles are cited in U.S. legislation and international trade agreements. International law favors secret ballot elections “because the risk of reprisal is significantly diminished where workers can express their sentiments in the secrecy of the voting booth . . . even if the reprisal comes from those who might support the union rather than those who oppose it or the employer.”

Additionally, the letter argues that EFCA’s proposal to impose compulsory arbitration is disfavored by the ILO, as doing so interferes with the collective bargaining process by creating a disincentive to voluntarily reach an agreement. If a party becomes dissatisfied with the negotiations, the letter claims, a party can unilaterally disengage from the process and allow the arbitrator to set the contract’s terms. 

As authority for its position, the letter cites an international law journal article by Stefan Jan Marculewicz, Elimination of the Secret Ballot Union Election and Compulsory Arbitration Under the Employee Free Choice Act – A Violation of Fundamental Principals of International Labor Law, which concludes that:

. . . international scrutiny of Sections 2 and 3 of EFCA may well result in a recommendation that the United States modify its laws to make them conform to established international labor law principles. The United States has been a strong proponent of such principles at home and in its own dealings with other nations. Accordingly, the United States Congress should take care to avoid changes to the NLRA that so clearly contradict fundamental principles of international labor law.

Whether this letter will convince lawmakers to abandon EFCA or at least modify its terms remains to be seen. This letter was sent the day after a Rasmussen Reports poll indicated that Sixty-one percent (61%) of Americans say it is fair to require a vote by secret ballot if workers want to form a union.