In his opening remarks at the Feburary 8, 2007 Hearing on the Employee Free Choice Act, Rep. Robert Andrews  (D-NJ), chairman of the House Subcommittee on Health, Employment, Labor, and Pensions, stated:

Most employers are not bad actors; however, I do believe the current structure of the representation process perpetuates the ability of a few employers to coerce employees without consequence.

Setting aside for the moment the questionable wisdom of enacting sweeping changes to long-established labor policy as a result of the actions of “a few” “bad actors,” Rep. Andrews’ assertions of the absence of consequences for those bad actors is not at all accurate. In addition to the traditional remedies provided for in the statue, there are a number of rather serious consequences that a recalcitrant employer can face. Specifically:

• Where an employer’s unlawful actions have undermined the union's majority and made a fair election an unlikely possibility, the Board has the authority to order the employer to recognize and bargain with the union even where there has been no secret ballot election or where the union has lost an election. This authority was upheld in the U.S. Supreme Court’s 1969 decision in NLRB v. Gissel Packing Co.
• Section 10(j) of the National Labor Relations Act gives the National Labor Relations Board the authority to seek petition any U.S. district court for “such temporary relief or restraining order as it deems just and proper.” This can include the immediate reinstatement of a discharged union supporter while unfair labor practice proceedings are pending.
• Where a party refuses to comply with a Circuit Court’s order enforcing an NLRB decision, the NLRB’s Contempt Litigation and Compliance Branch can seek civil penalties, criminal sanctions, and extraordinary injunctive relief. (See NLRB v. Local 3, International Brotherhood of Electrical Workers)

The September 21, 2006 case of Evergreen America Corp. illustrates the application of the first of these measures. In that case, the Board found that the Union possessed signed cards from 62 of 115 bargaining unit employees, yet lost the election by a vote of 61 to 52. Even though there were no allegations that the employer had discharged union supporters, the Board held that it had engaged in unlawful activity that undermined the employees’ free choice. For example:

• Approximately 27 employees received threats of job loss and plant closure;
• 13 employees were unlawfully instructed not to attend union meetings, not to read the Union’s literature and to throw the material away;
• 9 employees were unlawfully interrogated
• 7 employees were subjected to the impression that their union activities were under surveillance. 
• On 23 occasions, managers made express or implied promises to remedy solicited grievances;
• The company granted unprecedented and excessive across-the-board wage increases to bargaining unit employees;
• Managers manipulated the promotion process in order to promote more unit employees than in past years; and
• The company made other workplace changes designed to undermine union support, including liberalizing the attendance policy, expanding its casual dress policy, improving its sick leave policy, lowering the age for early retirement eligibility, and and awarding employees $400 Christmas gift certificates.

Far from being “without consequence,” the Board ordered the employer to recognize the union on the basis of the card majority, noting:

[S]imply requiring the Respondent to refrain from unlawful conduct will neither eradicate the lingering effect of the violations it committed nor deter their recurrence.  Rather, we find that the employees’ representational desires, expressed through authorization cards, would be better protected by a bargaining order than by traditional or special remedies that the Respondent asserts were not considered by the judge.  Accordingly, because we conclude that it is unlikely that a fair rerun election can be held because of the lasting effects of the Respondent’s violations, we affirm the judge’s finding that a Gissel bargaining order is appropriate.

Does not the current system of requiring a secret ballot election unless it is shown that an employer's unlawful conduct renders free choice unlikely seem preferable to simply assuming that all such elections are tainted?