Pay to Play Law Blog : EFCA Lawyer & Attorney : McKenna Long & Aldridge Law Firm : Employee Free Choice Act : EFCA Report Law Blog

With card-check apparently out of reach this year, some advocates of labor reform have suggested that the National Labor Relations Act be amended to provide for expanded union access to employees. These suggestions have come recently from Sen. Arlen Specter (R-PA), Rep. Joe Sestak (D-PA), and by retailers Whole Foods, Costco, and Starbucks. 

It is hard to imagine that the employer community as a whole would consider equal access any more palatable than card check. Despite the term’s ring of fairness, the proposals intrude upon an employer’s private property rights and would require the employer to assemble its employees on paid time and then step aside while a professional union organizer delivers a speech that is hostile to management.  

The contemplated reform would actually bring about a significant imbalance in access. It is true that employers have the ability to call meetings with employees to discuss issues that affect the business, including potential unionization.  (Of course, the employers must pay employees for time spent in those meetings, and unions are free to pay employees to attend meetings if they wish to do so.)  But the union has campaign advantages that employers do not. Under the current law, union organizers can and do conduct repeated visits to employees' homes and social gatherings to present the case for unionization. These visits typically take place over a period of several months before an election petition is filed. Employers are forbidden under current law from visiting employees at home to discuss unions, and none of the proposals would appear change that. An employer’s opportunity for face-to-face discussions with employees is limited to the workplace. Requiring post-petition equal workplace access after months of pre-petition union campaigning in living rooms and kitchen tables simply gives organizers another opportunity to drown out opposing voices. 

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While Senate Majority Leader Harry Reid (D-NV) continues publicly to refuse to concede on the card check provisions of the Employee Free Choice Act, there seems to be very little chance of card check being enacted this year. In addition to losing the support of Sen. Arlen Specter this week, Sen. Diane Feinstein (D-CA) announced yesterday that she was withdrawing her long-standing support for EFCA and would seek legislation that is “less divisive.” 

 John Stanton of Roll Call reports that Sen. Tom Harkin (D-IA) has begun “preliminary discussions with a handful of moderate Republicans to try to come up with a new plan for reforming the nation’s labor laws.”  Additionally, Mr. Stanton notes that:

Democratic aides said that should a compromise be reached, it will likely end up somewhere between the card check bill as it’s currently written and an alternative union organizing proposal floated by Starbucks Corp., Costco Wholesale Corp. and Whole Foods Market Inc. That plan would retain the use of secret ballots when workers decide to unionize and would not include binding arbitration provisions. It would, however, include a number of other provisions, including allowing unions access to employees during off-work hours and requiring a fixed date for elections.

During the intense debate over EFCA that has raged now for more than two years, most management and labor union groups have publicly resisted calls for middle ground on labor law reform. The 2008 elections may have caused labor to feel that no compromise was necessary. After the events of this week, labor’s supporters in Congress seem to be trying to let the movement down easily. Sen. Harkin was also quoted in today’s Los Angeles Times as saying: "We knew all along that this bill would be amended. It seems clear now we'll have to look at some changes to get to the floor."

We have previously outlined many of the changes being considered on this blog and in our White Paper “The Employee Free Choice Act in the 111^th Congress.”

Whether Labor will be willing to discuss anything but total victory is yet to be seen. 

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The 2007 cloture remarks and the law review policy essay referenced by Senator Specter in these remarks are available in our library here.  The Appendix of suggested alternatives is featured in a prior post here.

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Regarding Senator Arlen Specter's (R-PA) surprising announcement earlier that he will oppose cloture and passage of the Employee Free Choice Act, the Huffington Post's Sam Stein reports:

Labor officials are incredibly distraught and, in some cases incredulous, noting the Specter co-sponsored the bill in 2003 and voted for cloture just last year. But while it is a setback for the legislation's chances, Democrats are not conceding defeat. According to the Huffington Post's Ryan Grim, Senate Majority Leader Harry Reid declared after Specter's speech that "He's not the only Republican who has indicated a willingness to consider something being done... He's not the only suspect."

In The Atlantic, Marc Aimbinder writes that Specter's announcement did not close the door on EFCA for good:

By 2010, regardless of whether Specter is re-elected, Democrats will (probably) have another shot at card check, and here Specter is indicating a political compromise: give me the cover for two years, and I'll give you the 60th vote in 2010. Of course, if the economy IS in recovery by then, the urgency to pass pro-labor legislation might be less acute.

SEIU President Andy Stern released a statement initially suggesting Sen. Specter is a hypocrite, but ultimately striking a more conciliatory tone:

It's simple: If you support democracy, you should support the right to debate legislation that could improve the lives of millions of working Americans, pump $49 billion into the economy at a time when we desperately need it, and that's supported by the vast majority of the public.

We look forward to working with Sen. Specter and the rest of the Congress to find ways to give workers the free choice to join a union free from intimidation and harassment.

As of this evening, the AFL-CIO had not yet posted it on its media webpage, but both its blog and TPMDC featured portions of a statement by President John Sweeney:

Today’s announcement by Sen. Specter—a sponsor of the original Employee Free Choice Act who voted for cloture in 2007—is frankly a disappointment and a rebuke to working people, to his own constituents in Pennsylvania and working families around the country.

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Earlier in the week, a coalition of retailers announced a "statement of principles" suggesting alternative ideas about possibilities for labor law reform.  Earlier this year, we noted in a white paper that numerous alternative elements were likely to enter the discourse on EFCA at some point in the future.  Along with his statement on the Senate floor today, Senator Arlen Specter (R-PA) attached an appendix of "Some Suggested Revisions to the National Labor Relations Act."  The Senator's suggestions included:

Establishing a timetable:

(a) Require that an election must be held within 10 days of a filing of a joint petition from the employer and the union

(b) In the absence of a joint petition, require the NLRB to resolve issues on the bargaining unit and eligibility to vote within 14 days from the filing of the petition and the election 7 days thereafter. The Board may extend the time for the election to 14 additional days if the Board sets forth specifics on factual or legal issues of exceptional complexity justifying the extension.

(c) Challenges to the voting would have to be filed within 5 days with the Board having 15 days to resolve any disputes with an additional 10 days if they find issues of exceptional complexity.

Adding unfair labor practices:

an employer or union official visits to an employee at his/her home without prior consent for any purpose related to a representation campaign;

an employer holds employees in a “captive audience” speech unless the union has equal time under identical circumstances;

an employer or union engages in campaign related activities aimed at employees within 24 hours prior to an election.

Authorizing the NLRB to impose treble back pay without reduction for mitigation when an employee is unlawfully fired

Authorizing civil penalties up to $20,000 per violation on an NLRB finding of willful and repeated violations of employees’ statutory rights by an employer or union during an election campaign

Require the parties to begin negotiations within 21 days after a union is certified. If there is no agreement after 120 days from the first meeting, either party may call for mediation by the Federal Mediation and Conciliation Service

On a finding that a party is not negotiating in good faith, an order may be issued establishing a schedule for negotiation and imposing costs and attorney fees.

Broaden the provisions for injunctive relief with reasonable attorneys’ fees on a finding that either party is not acting in good faith

Require a dissent by a member of the Board to be completed 45 days after the majority opinion is filed;

Establish a certiorari-type process where the Board would exercise discretion on reviewing challenges from decisions by an administrative law judge or regional director.

If the Board does not grant review or fails to issue a decision within 180 days after receiving the record, the decision of the administrative judge or regional director would be final.

Authorizing the award of reasonable attorneys’ fees on a finding of harassment, causing unnecessary delay or bad faith

Modify the NLRA to give the court broader discretion to impose a Gissel order on a finding that the environment has deteriorated to the extent that a fair election is not possible.

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The conclusion of Senator Specter's statement on the Senate floor today:

The emphasis on bipartisanship is, I think, misplaced. There is no special virtue in having some Republicans and some Democrats take similar positions. The desired value, really, is independent thought and an objective judgment. It obviously can’t be that all Democrats come to one conclusion and all Republicans come to the opposite conclusion by expressing their individual objective judgments. Senators’ sentiments expressed in the cloakroom frequently differ dramatically from their votes in the well of the Senate. The nation would be better served, in my opinion, with public policy determined by independent, objective legislators’ judgments.

The problems of the recession make this a particularly bad time to enact Employees Free Choice legislation. Employers understandably complain that adding a burden would result in further job losses. If efforts are unsuccessful to give Labor sufficient bargaining power through amendments to the NLRA, then I would be willing to reconsider Employees’ Free Choice legislation when the economy returns to normalcy.

I am announcing my decision now because I have consulted with a very large number of interested parties on both sides and I have made up my mind. Knowing that I will not support cloture on this bill, Senators may choose to move on and amend the NLRA as I have suggested or otherwise. This announcement should end the rumor mill that I have made some deal for my political advantage. I have not traded my vote in the past and I would not do so now.

Read the entire statement at the Senator's website.

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More coverage across the internet regarding Senator Specter's floor statement today that he will oppose cloture on EFCA:

• "Specter to oppose cloture on card check" -- The Hill
• "Specter says he will oppose labor bill" -- Politico
• "Specter: I'll Vote No on Employee Free Choice Act" -- TPMDC
• "Specter Won't Back Card-Check" -- Wall Street Journal online
• "Specter comes out against 'Card Check'" -- Mcall.com's Pennsylvania Avenue blog
• "Card Check: NAM President Engler Reacts to Specter Statement" -- ShopFloor.org
• "Breaking News: Sen. Specter Will Vote Against Cloture and Final Passage of EFCA" -- Americans for Tax Reform
• "Breaking News: Arlen Specter acts like a conservative for once" -- Michelle Malkin

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National Journal's CongressDaily today reports:

Sen. Arlen Specter, R-Pa., will vote against a cloture motion to limit debate on the Employee Free Choice Act, business groups said today. Keith Smith, who directs labor policy at the National Association of Manufacturers, said his group expects Specter to announce his decision in a floor speech early this afternoon. The U.S. Chamber of Commerce said it also was expecting the announcement. Specter's office did not immediately respond to requests for comment. Specter's opposition could doom the legislation because to pass the bill organized labor needs 60 votes to overcome a Republican filibuster. That means keeping every single Democratic vote, securing a win for Democratic candidate Al Franken in the ongoing Minnesota Senate race and keeping Specter, who voted for cloture when the Senate considered the bill in 2007, on board.

We have long speculated that Senator Specter (R-PA) wished to drive an alternative discussion on labor law reform.  Recent developments -- the Maine GOP Senators' agreement with Specter on the stimulus, the formation of Senator Evan Bayh's (D-IA) "Practicality Caucus," and the announcement of the Committee for a Level Playing Field -- certainly suggest opportunities by perceived moderates to change the debate. 

We will post more information about Senator Specter's statement as it becomes available.

(Hat tip: ShopFloor.org)

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The Senate Republican Committee held a hearing yesterday to voice opposition to the Employee Free Choice Act (H.R. 1409, S. 560).  Talk Radio News Service today carries the following quotes from participating Senators:

• Senator Orrin Hatch (R-Utah):  “It represents a sea-change in labor-management relations that has developed since the 1930s…. EFCA would effectively deny workers a secret ballot vote on the question of union representation, and there is no choice for workers to make in the matter.”
• Senator Bob Bennett (R-Utah):  "When you have a secret ballot election, unions have won 68% of them, which means that by 2 to 1 circumstance, employees get what they want if they want a union.” 
• Senator Jim Risch (R-Idaho): “We have in place in America laws that have governed union organization and collective bargaining for many years. We have a fair system and we have a level playing field…. What we have in front of us is a bill that is unfair. It is a bill that unlevels the playing field, and it is a bill that overreaches. We don’t need this in America today.”

Shopfloor.org has linked to the statement of former U.S. Department of Labor Solicitor Eugene Scalia who questioned the constitutionality of the legislation.  After expressing concerns about the card-check provisions, Scalia criticized the mandatory interest arbitration provisions:

To appreciate some of the problems that could result from rules for a business being written by someone who does not know the business well, consider the problems in the text of the EFCA mandatory arbitration provision itself. This provision would be the most important change in labor law in 60 years or more, yet its vagueness would sow confusion and litigation. Who will the arbitrators be? How will they be selected, and by whom? How would the arbitrators go about deciding the contract terms, and what knowledge of the company and industry would they bring to the task? If the arbitrator writes a terrible, one-sided contract—as has happened in other jurisdictions with “interest” arbitration—what opportunity would there be to get it reviewed by a court, and what legal standard would the court apply?

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ShopFloor.org reports that the U.S. Senate Republican Policy Committee will hold a hearing on Monday afternoon to discuss EFCA (or ENCA, as they would have it):

Senate Republicans to Hold Hearing on Employee NO Choice Act

WASHINGTON - The Senate Republican Conference and the Republican Policy Committee will hold a hearing on the card check bill, the Employee NO Choice Act, on Monday, March 23, to discuss the dangers this legislation poses to small businesses. Senator Orrin Hatch will chair the hearing. With businesses across the country struggling financially, the last thing Congress needs to do is saddle the businesses that create jobs for Americans with higher costs and more regulation as a result of this misguided legislation. The hearing is open to the media.

WHO: Republican Policy Committee Chairman John Ensign, R-Nev.
Conference Vice Chairman John Thune, R-S.D.

Senator Orrin Hatch, R-Utah
Senator Robert Bennett, R-Utah
Senator Jim Risch, R-Idaho

WITNESSES:

• Eugene Scalia will give a broad overview of this issue focusing on the secret ballot and binding arbitration provisions.

• Frank Cannon, a construction employee based in Virginia, will address how this bill would affect him and his coworkers.

• Augustine Martinez, president of the U.S. Hispanic Chamber of Commerce, will address how this legislation will affect small and medium-sized businesses throughout the country.

• Kathy Gornick, owner of a small manufacturing business in Kentucky, will focus on the unique effects the bill will have on the technology industry.

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As reported earlier, three major retail outfits -- Starbucks, Costco and Whole Foods -- have formed a coalition, dubbed the "Committee for Level Playing Field," designed to explore an alternative path to labor law reform.  On a conference call earlier today, the group announced its "Principles of Reform," to wit:

(1) Secret Ballot. Guarantee the right of management and unions to require a secret ballot under all circumstances.

(2) Certification and Decertification Treated Equally. Permit management to initiate a decertification campaign through a secret ballot election just as employees and unions are presently able to initiate certification and decertification campaigns.

(3) Date Certain for Elections. Guarantee a fixed time period for the secret-ballot election--i.e., do not permit delays of an established day for a secret ballot to certify or decertify a union.

(4) Equal Access to Employees for Campaign Purposes. Level playing field for unions and management to access employees during non-working hours during the campaign period, e.g., permitting each to make presentations to employees at a neutral location concerning the issue of whether to form a union.

(5) Expedited Enforcement and Stricter Penalties. Expedited enforcement for serious and pervasive violations of law by labor and management and stricter penalties for serious and pervasive violations (e.g., unlawful discharges), including the penalty of mandatory injunctions when appropriate.

(6) Preserve Private Collective Bargaining. No mandatory arbitration that dictates contract terms, but stricter penalties and expedited enforcement for violations of good faith bargaining rules, including an expedited timetable to begin bargaining after union certification.

Both sides of the EFCA debate have reacted in expected fashion.  Rep. George Miller (D-CA) summarily dismissed the effort:

"This proposal is unacceptable. It was written by CEOs for CEOs. It is not a serious attempt at labor law reform because it fails to fundamentally address key problems that currently prevent workers from being able to join together and bargain for a better life...”

AFL-CIO Director of Government Affairs Bill Samuel indicated an unwillingness to take seriously any efforts by management to generate dialogue regarding labor law reform:

"[A] proposal coming from corporations, some of whom have their own history of violating workers' rights, is simply not an alternative that lives up to giving workers back the freedom to form unions."

Similarly, on the other side of the coin, a spokesperson for the Coalition for a Democratic Workplace said:

"EFCA is clearly on life support so to put out an alternative seems premature and naive." 

There should be no mistake: EFCA is simply bad law and bad policy.  Still, some in Washington are clearly beginning to seek "third ways" to build consensus -- and to find compromise capable of breaking a filibuster.  It would seem prudent for employers not to dismiss this group's statement of principles out of hand, but rather to use it to begin a more thoughful discourse on the issue of potential labor law reform.  (Our white paper, published earlier this year, identified many elements likely to be raised in connection with alternatives to EFCA -- some of which indeed appear in the "Committee's" statement.) 

More commentary:

• "EFCA backers not interested in corporate alternative" -- The Hill
• Politico's Ben Smith's blog -- "Committee for a Level Playing Field"
• "Executives Detail Labor Bill Compromise" -- Washington Post
• "Card Check: No Compromise" -- ShopFloor.org

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Today's AP reports that Starbucks, Whole Foods and Costco have announced that they intend to submit alternatives to EFCA for widespread consideration.  The report (via the Minneapolis Star-Tribune) states:

...[T]he companies on Saturday announced an ad hoc committee aimed at pushing through alternatives. Their proposals will seek to maintain management's right to demand a secret ballot election and would leave out binding arbitration.

The three retailers want to toughen penalties for companies that retaliate against workers before union elections, while at the same time stiffen penalties for union violations.

"We believe in and trust our employees, which is neither anti-union nor pro-status quo," said James Sinegal of Costco. He said the group's proposals "will ensure a fair opportunity for workers to make an informed choice, with a secret ballot, whether they want a union or whether they wish to retain non-union status."

Lest anyone presume that these employers are casually throwing these ideas out there, the report continues, noting that "longtime Democratic operative," lawyer Lanny Davis has been retained by the retailers to help promote their efforts, and: 

Davis said he had discussed the three major retailers' broad principles with the staffs of almost two dozen Democratic and Republican senators. He said most were "positive about our third-way approach."

"I'm proud to call myself a pro-labor liberal Democrat who believes that reforms are needed to provide a level playing field for both labor and management, but not at the expense of a guaranteed option for a secret ballot by both workers and management and certainly not at the expense of preserving the historic process of private, voluntary collective bargaining," Davis said.

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On Wednesday morning's "Morning Joe" program, Senator Evan Bayh (D-Ind.) announced that he will head a group of centrist Democrats that will act together on fiscal legislation in the Senate.  Informally labelling the group the "Practicality Caucus," Sen. Bayh said that roughly 12-15 Democrat and Independent senators have begun to meet and discuss a number of issues.  The group includes many Democrat Senators often mentioned as less enthusiastic about EFCA:  Sen. Blanche Lincoln (D-AR), Sen. Ben Nelson (D-NE), Sen. Mary Landrieu (D-LA), and others.

We have long speculated that Sen. Arlen Specter (R-PA) may be in a position to push an alternative labor law reform agenda.  He was joined with the Republican Senators from Maine, Sens. Olympia Snowe and Susan Collins in working across the aisle on the economic stimulus bill. 

Employers should watch the evolution of Sen. Bayh's bloc carefully as it could provide the base for a working group to drive modifications or alternatives to EFCA.

Here is the MSNBC clip of Bayh's announcement:

More commentary:

• "GIving O A Bayh" -- Kirsten Powers in the New York Post
• "Bayh announces 'working group' of centrist Senate Dems" -- The Hill's Blog Briefing Room
• "Bayh launches group for moderate Dems" -- The Back Story blog
• "Bayh Organizes Moderate Democrats" -- NY Times' The Caucus blog

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CBS News has released the results of a comprehensive poll of 1142 random participants, taken over last weekend. On the issue of EFCA, the results: 

Congress is considering legislation, commonly referred to as "card check," that could make it easier for workers to form labor unions.  The legislation would allow people to form a union by publicly signing a card, without a secret ballot vote. 38% favor allowing people to form a union by publicly signing a card without a secret ballot, but more - 45% - are opposed.

As a follow-up question, respondents were asked: “Do you think labor unions have too much influence, too little influence, or about the right amount of influence on American life and politics today?”  The responses:

47% said “too much”

18% said “too little”

24% said “the right amount”

One can only hope that the moderates in Congress have seen these poll results.

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After reading this letter in the Washington Post, Carter Wood at ShopFloor.org was compelled to post a piece about EFCA's mandatory interest arbitration provision.  Section 3 of EFCA provides that if the parties are unable to agree upon contract terms within 150 days of bargaining, government-appointed arbitrators can impose a contract upon them for up to two years.  From "Card Check: Binding Arbitration, The Worker's Enemy":

Why would a company’s employees want to surrender their ability to bargain collectively with their employer? Let’s say organizers for Amalgamated Workers Y successfully sign up 51 percent of Company Z’s employees, and the union and company are working in good faith to reach a first contract but it’s just taking a long time. Tough luck. After 120 days, the employees have an arbitrator’s decision imposed on them, terms that last for two years.

Workers get no vote on a contract. Where’s the “employee free choice?”

Or, assume union negotiators interested in the union’s priorities — not the interests of the employees — drag talks out as a matter of strategy. The federal arbitrator imposes terms requiring higher salaries and benefits, which the company cannot afford EXCEPT by laying off 20 percent of its workforce. The way unions work, younger, more recent hires would get the shaft.

“Sure, I signed up for a union because the organizers told me I’d get a big raise and more health care. All I got was fired.”

Where’s the “employee free choice?”

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The Point of Law blog had an excellent EFCA Round-Up of its own yesterday. 

The Harrisburg (PA) Patriot-News criticizes EFCA, noting the "Proposed legislation fails to offer secret ballot for all workers":

In the end, however, the choice about the workplace needs to be the result of nothing less than a secret ballot by the workers involved.

It also should come after employees are able to gather all the information necessary to make an informed decision. This legislation does neither and should not be passed.

Wharton professor Herb Denenberg has a lengthy broadside against EFCA in the Philadelphia Bulletin.  "Socialism Comes to America, and You Better Believe It" begins:

Coming to a country near you: Labor contracts dictated by federal arbitrators who know little about the businesses they will be regulating by their decisions, and the advent of near universal unionization. The country near you is your country — yes, the United States of America.

Columnist John Brummett takes on card check in The Arkansas News, and astutely concludes:

What’s wrong with insisting that there’ll always be a contemplation period during which both sides can be presented, after which nobody knows how you vote?

Pressure gets exerted during these campaigns, yes. It’s not always pretty. But at least the opportunity exists now for the pressure to come from both sides rather than unilaterally and stealthily.

If there is rampant abuse by employers of workers during the election period, as labor alleges, then we need a tougher regulatory and prosecutorial climate under this Democratic president rather than an end run on elections with secret ballots.

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On the House floor Friday, Minority Whip Eric Cantor (R-VA) and Majority Leader Steny Hoyer (D-MD) engaged in a brief dialogue regarding the Employee Free Choice Act.  In response to Rep. Cantor's inquiry regarding the majority's efforts to bring the bill to the floor, Rep. Hoyer responded: 

Now, having said that, we passed this bill. We passed it pretty handily. We passed it in the last Congress, and it’s our expectation that the Senate is going to be dealing with this legislation. They have not yet considered it; and it is my belief that we want to see whether they can pass it. We believe they can. We are going to be interested in what action they take.

So, it would seem that the current strategy is indeed to let the Senate try to pass something first, after which the House would likely be in position to approve it. 

On the issue of EFCA's impact on the secret ballot election, Rep. Hoyer claimed:

We don’t believe this kills the right of the employees to have a free election at all.  Period.

 

We believe in fact the employee has that choice. The employee has the absolute right to respond, ‘‘No, I don’t want to sign your card. Let’s have an election. And I will sign it for that purpose, and that purpose only, to give you the 30 percent you need to get the election.’’

 

I think I’m right on 30 percent....

Unfortunately, that's not at all what the bill says -- that an employee can specify for what purpose his or her card might be submitted to the National Labor Relations Board.  All it says is:

If the Board finds that a majority of the employees in a unit appropriate for bargaining has signed valid authorizations designating the individual or labor organization specified in the petition as their bargaining representative and that no other individual or labor organization is currently certified or recognized as the exclusive representative of any of the employees in the unit, the Board shall not direct an election but shall certify the individual or labor organization as the representative...

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On NJ.com's NJ Voices blog, reader Anthony Zagarino, an HR professional, posts his reasoned, dispassionate opposition to Senator Robert Menendez's (D-NJ) support of EFCA.  Zagarino concludes:

My suggestion is that the Congress engage Human Resources professionals to study legislation of this ilk before they are voted upon. Why are you not seeking the advice of experts? By that I mean professionals like me who have to manage the laws you pass and have to live with their consequences. We know first hand what it takes to implement a law in the workplace and whether it will be harmful or beneficial to both employers and employees. But our representatives continue to make uneducated decisions on the lives of millions.

Today's Washington Post features a piece by Alec MacGillis which provides a concise current state of the debate, opining that the rhetoric of both sides has become more extreme.  Midway through the piece comes this note:

Price V. Fishback, an economics historian at the University of Arizona, said both sides overstate their case. The growth of unions did lead to wage gains both in union and non-union companies, he said. But to attribute mid-century prosperity to unions is going too far -- for one thing, union density began to go into decline in the early 1950s, after the passage of the anti-union Taft-Hartley Act.

Columnist Patrick McIlheran today questions why unions need the flawed card-check system in order to rejuvenate their ranks:

That's a pity in that unions presumably do offer some real benefit to those who belong, as I, grudgingly, do. If so, you'd think they could make their case without betraying democracy.

But the fact is that even if their law is triumphant and unions again have the whip hand, it won't usher us back to the golden 1950s, when the benefits were rich and the jobs permanent. As Brink Lindsey pointed out in an insightful new paper for the Cato Institute, what's changed since that era of "nostalgianomics" hasn't been labor law but, instead, an end to the old New Deal's pervasive cartelization of the American economy.

Jonathan Cutler, author of the book "Labor's Time: Shorter Hours, the UAW, and the Struggle for American Unionism," writes in today's Hartford Courant that discarding the NLRB's "contract bar" doctrine should be a stronger priority than EFCA:

But that strong labor movement depends on real employee free choice. In the last instance, union revitalization does not await the end of the secret ballot in union elections but the end of the contract-bar doctrine and the freedom to replace ineffectual unions with nimble, hungry challengers.

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In today's Barron's Online, Jim McTague has published an excellent piece critical of EFCA and in support of the secret ballot, generally.  In "Card Check Makes for Strange Bedfellows," McTague writes:

Obama's stance on the Employee Free Choice Act, introduced in Congress last week and likely to be retooled many times before coming to a vote, is outrageously backward for a man who says he's a progressive change agent. With the stroke of a pen, our president would reverse one of the great, unsung civil-rights movements in the history of Western democracies, a battle that set liberal reformers against corrupt, vested interests who controlled the general electorate through bribery and intimidation, and consequently accrued outsized political and financial power. The secret ballot (the anonymous ballot used today in the elections of modern democracies) finally broke the corrupt grip of these despicable men. They no longer knew with certainty if the voter whom they'd either blackmailed or bribed had cast his ballot as promised. Paying for votes immediately became a mug's game.

Even Chairman Mao in the 1960s recognized secret balloting's benefits for parliamentary elections. In the 1980s, the Chinese began using secret balloting in local elections, in part to stem bribery.

Secret balloting in the U.S. was inspired by 19th-century progressive reformers in England and Australia, who saw that open balloting left voters vulnerable to intimidation by political machines and landed aristocrats. Before the so-called Australian ballot became pre-eminent here, many voters in presidential elections either cast their votes orally, with a poll worker recording it on a ballot, or had poll workers help them check off candidates' names.

Open-ballot advocates claimed this helped the illiterate participate in elections. But they lost that argument: In 1892, the secret ballot was adopted by most U.S. states. In that year, Democrat Grover Cleveland defeated Republican Benjamin Harrison in the first U.S. presidential election conducted largely by secret ballot.

His conclusion is one we've argued before: after pointing out that EFCA's proponents argue that employer coercion and intimidation during organizing drives is already against the law, but the law is rarely enforced, McTague asks simply:

SO WHY NOT JUST ENFORCE CURRENT law instead of giving the union movement the opportunity to engage in the same sort of coercive behavior it condemns?

It's an excellent question that no one supporting card-check has chosen to answer.

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On behalf of Senator Edward Kennedy (D-MA), Senator Tom Harkin (D-IA) introduced S. 560 on Tuesday simultaneously with the filing of the House version of the bill (H.R. 1409).  As noted here earlier, EFCA's proponents have had a tougher time lining up co-sponsors in Congress than in 2007.

In the 110th Congress, S. 1041 had 47 co-sponsors.  The Democrats have picked up seven seats in the Senate this year (to date, before Al Franken's election is resolved), yet the bill was introduced with just 40 co-sponsors this time around. 

The Democratic Senators who remain in the Senate, who sponsored EFCA in 2007, but have declined to become original sponsors of the bill in 2009 are:

• Sen. Max Baucus (D-MT)
• Sen. Evan Bayh (D-IN)
• Sen. Jeff Bingaman (D-NM)
• Sen. Kent Conrad (D-ND)
• Sen. Byron Dorgan (D-ND)
• Sen. Dianne Feinstein (D-CA)
• Sen. Herb Kohl (D-WI)
• Sen. Mary Landrieu (D-LA)
• Sen. Claire McCaskill (D-MO)
• Sen. Jon Tester (D-MT)

It should be interesting, as the debate unfolds, to hear these Senators explain what has changed their minds about sponsorship in the last two years.

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Although the AFL-CIO and supporters in Congress have repeatedly expressed confidence that they will have the votes to pass the Employee Free Choice Act, the AP reports:

Democratic leaders hinted Tuesday that compromise may be needed to get wavering lawmakers on board for a bill to make union organizing easier.

The Democrats insisted they are not losing support, but acknowledged that some changes might be needed.

The comments came as the Employee Free Choice Act was formally introduced in the House and Senate, intensifying the already heated debate between business groups that oppose the measure and labor groups that consider it their top priority.

Iowa Sen. Tom Harkin, a lead sponsor of the bill, said his colleagues are talking about "certain modifications," but no agreement has been reached.

With the threat of the filibuster firmly in place, EFCA proponents will likely need to consider significant modifications during the legislative process.  In the past, we have noted that key swing vote Senator Arlen Specter's (R-PA) Policy Essay in the Harvard Journal of Legislation identifies several potential elements of alternative approaches to labor law reform.  The MLA White Paper on EFCA also contains an overview of many of these and other similar elements.

Yesterday, Workplace Prof' Blog's Professor Jeffrey Hirsch also linked to an alternative labor law reform bill introduced by Rep. Joe Sestak (D-PA) -- the National Labor Relations Modernization Act (H.R. 1355).  This law would:

1. provide for mandatory arbitration following a 120-day mediation period, if after an initial 120 days of bargaining failed to result in an agreement;
2. increase penalties against employers (similarly to EFCA's proposed changes); and
3. require an employer to provide equal access to the employees to union organizers once an election is ordered.

Hirsch questions whether this proposal might also provide the basis for some legislative compromise.

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You'll need to get through a little bit of political grandstanding, but one particular moment in today's Senate HELP Committee hearing provides an unfortunate picture of what we might expect from some elements in the debate -- and perhaps beyond.  At 43:25, EFCA opponent Sen. Lamar Alexander (R-TN) was in the midst of an opening statement critical of the legislation when Chairman Sen. Tom Harkin (D-IA) had to admonish the EFCA supporters gathered in the gallery:

I don't want to permit any hissing or booing or foot-stomping or throwing of things like that.

For those concerned about how card check exposes employees to harassment and coercion, it is certainly a fair question to ask if this is how EFCA supporters act in as dignified setting as there may be in American politics, on their biggest day, how will they act when trying to collect those cards from workers in parking lots, pool halls and living rooms all across the country?

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ShopFloor.org expertly exposes the latest disingenuous pro-EFCA talking point -- i.e., that EFCA does not eliminate secret ballots, it merely "gives employees the choice" of whether to use card-check or an election:

Here’s the other reason why the union line about “choice” is a dishonest talking point: In the real world, it’s very, very rare that a  company’s employees decide how to handle an organizing campaign.

Union organizers run the show. And they don’t care what’s in the employees’ interest. They care about the union, union power and union dues.

Highlighted in the ShopFloor piece is the testimony of employee Larry Getts, who testified about his card-check experience at today's Senate H.E.L.P. Committee hearing.  As to whether or not he and his co-workers controlled the choice about organizing strategy, Mr. Getts explained:

Looking back on how that first meeting was handled, I believe the UAW official viewed the meeting as a simple formality -- as if the matter had already been decided between the UAW and Dana Corporation, and the my views and the views of my coworkers were almost irrelevant.

The New York Times notes "Fierce Lobbying Greets Bill to Help Workers Unionize":

The lobbying is focusing on eight or so Senate Democrats and Senator Specter, whose votes are seen as up for grabs. The Democrats include Mark Pryor and Blanche Lincoln, both of Arkansas, Ben Nelson of Nebraska, Mary L. Landrieu of Louisiana and Mark Warner of Virginia.

Today's Financial Times reports:

Legislation to make it easier for US workers to form unions was introduced in Congress yesterday, setting up a battle between business and employees' groups and sparking a broker downgrade to Wal-Mart, the world's biggest retailer.

More Coverage:

• "Here comes card-check/EFCA: Another bi-partisan bridge to nowhere" -- L.A. Times "Top of the Ticket" blog
• "Supply Chain News: Card Check Rule Battle Starts to Really Heat Up" -- Supply Chain Digest
• "Former Whirlpool union president opposes card check legislation" -- The City Wire
• "Dem Senators Cooling on Card Check" -- The Hill
• "NRF Strongly Opposes Introduction of Anti-Worker Union 'Card Check' Legislation" -- National Retail Federation
• "Democrats open to compromise on card check" -- Associated Press

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From today’s Wall Street Journal:

Bill Gould, former chairman of the National Labor Relations Board under President Bill Clinton, suggested replacing the card-check provision with secret-ballot elections that take place within five to 10 days after a union files a petition with the NLRB, quicker than they currently do. He also said government-appointed arbitrators should be called upon only when talks have completely failed.

With automatic arbitration, he said, the side with less leverage in negotiations will have little incentive to bargain. Mr. Gould, now a professor at Stanford University Law School, said he has been contacted by the staff of several Senators, "reflecting some unease about the legislation as it's drawn now."

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The text of EFCA 2009 as introduced by Rep. George Miller (D-CA) is identical to the version of the bill which failed to pass in 2007 as H.R. 800.  The text of the bill is available here.

And here is the link to the MLA White Paper which reviews the bill's various provisions, includes a critical analysis, outlines its prospects in 2009, and identifies some potential alternative elements of labor law reform.

Update (3/10; 9:00 p.m.):  We've attached the text of the National Labor Relations Act with EFCA's proposed amendments in context, available here.

Update (3/11; 10:00 a.m.):  The bill number in the House is H.R. 1409.

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Sen. Tom Harkin (D-IA) says that he will meet shortly with Senate Majority Leader Harry Reid (D-NV) and will push for a vote on EFCA some time after the Senate's late-April Easter Recess.  Harkin bristled at the suggestion that EFCA 2009 might have less support than EFCA 2007, which died in a Senate filibuster after sailing through the House:

"I see no erosion among Democrats," said Harkin, who sponsored the Senate bill with Sen. Edward M. Kennedy (D-Mass.) "By the time we bring it up, we'll have our 60 votes."

Yet, the Senate bill apparently listed only 40 cosponsors -- six fewer than in 2007, despite that Democrats picked up eight more Senators this year.  Similarly, the House bill has 223 co-sponsors, compared with 233 co-sponsors of H.R. 800 -- notwithstanding a pick-up of 21 additional seats in Congress.  Whether or not this is "erosion" remains to be seen, but it is certainly a significant development EFCA's proponents did not think they would have to deal with following the November elections. 

More coverage:

• "Card Check: Fewer Sponsors, Same Claims" -- ShopFloor.org
• "Cracks in Democratic Unity Spell Problems for Card Check" -- Human Events Online
• "Proof Mounting that Dems Lack 60 Votes on Employee Free Choice" -- TPMDC
• "Change To Win Statement on Introduction of Employee Free Choice Act" - PR Newswire
• "Statement by AFL-CIO President John Sweeney on the Introduction of the Employee Free Choice Act in the House of Representatives and the Senate" -- AFL-CIO.org

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Following this morning's Senate Committee hearing, Senators Kennedy (D-MA) and Harkin (D-IA), and Rep. George Miller (D-CA) announced that the Employee Free Choice Act has been introduced in both chambers.  From their release:

“The current crisis has shown us the dangers of an economy that leaves working families behind. The people who work in our factories, build our roads, and care for our children are the backbone of this great nation. The Employee Free Choice Act will give these hardworking men and women a greater voice in the decisions that affect their families and their futures. It’s a critical step toward putting our economy back on track, and I hope that we can act quickly to send it to the President’s desk," said Sen. Edward M. Kennedy (D-MA), chairman of the Senate Health, Education, Labor and Pensions Committee.

“Just as the National Labor Relations Act, the 40 hour week and the minimum wage helped to pull us out of the Great Depression and into a period of unprecedented prosperity, so too will the Employee Free Choice Act help reinvigorate our economy,” said Sen. Tom Harkin (D-IA), member of the Senate Health, Education, Labor and Pensions Committee.  “Today is one of those defining moments in history as we introduce legislation that puts power back into the hands of the people who are truly the backbone of this economy.”

“Americans’ wages have been stagnating or falling for the past decade. For far too long, we have seen corporate CEOs take care of themselves and shareholders at the expense of workers,” said U.S. Rep. George Miller (D-CA), chairman of the House Education and Labor Committee. “If we want a fair and sustainable recovery from this economic crisis, we must give workers the ability to stand up for themselves and once again share in the prosperity they help to create.”

We will post the text of the bill once it becomes available.  In the meantime, here is the MLA White Paper explaining the bill in detail. 

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As noted last week, at 10:00 a.m. this morning, the Senate Committee on Health, Education, Labor and Pensions will hold a hearing entitled "Rebuilding Economic Security: Empowering Workers to Restore the Middle Class."   There are two panels of witnesses planned:

Panel I:

Dr. Paula Voos, Chair, Department of Labor Studies and Employment Relations, Rutgers University, New Brunswick, NJ

Wade Henderson, President and CEO, Leadership Conference on Civil Rights, Washington, DC

Rev. Jim Wallis, President and Executive Director, Sojourners, Washington, DC

Dr. Anne Layne-Farrar, Director, LECG Consulting, Chicago, IL

Panel II:

Deb Kelly, Worker, Anchorage, AK

Kelly Badillo, Worker, Jersey City, NJ

Larry Getts, Worker, Albion, IN

Sharon Harrison, Worker, Lebanon, VA

Sam Stein of the Huffington Post notes: "There will be four witnesses in each session: three from the pro-EFCA side and one from the anti-EFCA side."   Senator Tom Harkin (D-IA) will chair the hearing in Senator Ted Kennedy's (D-MA) absence.  (Recently Committee Ranking Member Senator Michael Enzi (R-WY) issued this statement opposing the bill.)

Then, following the hearing, Rep. George Miller (D-CA) and Sen. Harkin intend to hold a joint press conference to announce the introduction of the bill.  By most objective accounts, this will mark the beginning of a long, protracted process regarding the bill, and it may not be possible to glean much from details on "Day One."  Still, regular observers will likely be focused on three things:

1. Is the bill identical to the version that has failed in successive Congresses, most recently as H.R. 800?
2. Is there majority support evidenced by co-sponsors?  (There were 233 original House co-sponsors and 46 original Senate co-sponsors in the 110th Congress, and Democrats have since expanded their majorities in both houses.)
3. Will it be introduced in either house first, or in both simultaneously?

Stay tuned here for further updates.

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This weekend we asked:

Now that it seems we're losing more than a half a million jobs a month, one has to wonder whether EFCA's proponents could possibly be serious about re-introducing the bill this coming week.

The answer via Reuters:

A bill making it easier for U.S. workers to unionize will be introduced on Tuesday in the House of Representatives, escalating a battle between congressional Democrats and corporate America.

The bill would let employees form a union if a majority of them in a workplace sign authorization cards.

That would change the present practice in which workers usually vote in elections on unionizing, although the bill would leave elections as an option for employees to choose.

The measure will be filed in the House by California Democratic Rep. George Miller, chairman of the House labor committee, said spokeswoman Rachel Racusen.

ShopFloor.org notes the puffery of a supremely confident "unnamed Democratic official" who told Politico:

“The fact that the bill is being introduced so early in the session is an indication of it being a priority and of confidence in the vote count..."

Of course, EFCA was introduced over a month earlier in the 110th Congress, on February 5, 2007, and failed to pass.  As for the "confidence in the vote count," we've repeatedly noted the obstacle EFCA's sponsors face regarding cloture in the Senate.  Any one of a number of things could preserve a filibuster against the bill:  the ongoing dispute over the Al Franken-Norm Coleman seat in Minnesota; Sen. Arlen Specter's (R-PA) vote; the emergence of reluctant moderate Democrats like Sen. Lincoln (D-AR) or Sen. Landrieu (D-LA) among others, etc.

What may be more interesting to watch will be the "confidence in the vote count" in the House.  Last time around, in 2007, EFCA had 233 co-sponsors.  In November 2008, the Democrats picked up an additional 21 seats, for a total of 257 votes.  Will EFCA's supporters surpass the previous level of majority sponsorship this time?

Apparently, we'll see tomorrow.  

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Recently we shared economists' opinions on both sides of the EFCA question, featuring a piece about the full-page ad taken out by EPI in favor of the measure and another regarding former DOL official Mark Wilson's criticism of EPI's alarmist view of the middle class.  Finally, via Fred Barnes, we noted a study by President Obama's chief economic adviser Lawrence Summers of the relationship of union density to state unemployment during the 70's and 80's.

Now, add another voice to the column of doubters.  Dr. Anne Layne-Farrar of LECG has issued a report entitled "An Empirical Assessment of the Employee Free Choice Act:  The Economic Implications."  Her findings?  In sum:

[M]y quantitative analysis indicates that passing EFCA would likely increase the US unemployment rate and decrease US job creation substantially. The precise effect on unemployment will depend on the degree to which EFCA increases union density, but for every 3 percentage points gained in union membership through card checks and mandatory arbitration, the following year's unemployment rate is predicted to increase by 1 percentage point and job creation is predicted to fall by around 1.5 million jobs. Thus, if EFCA passed today and resulted in an increase in unionization from the current rate of about 12% to 15%, then unionized workers would increase from 15.5 to 19.6 million while unemployment a year from now would rise by 1.5 million, to 10.4 million. If EFCA were to increase the percentage of private sector union membership by between 5 and 10 percentage points, as some have suggested, my analysis indicates that unemployment would increase by 2.3 to 5.4 million in the following year and the unemployment rate would increase by 1.5 to 3.5 percentage points in the following year.  

The Heritage Foundation has issued a similar forecast, "Heritage Jobs Report: February Employment Losses Would Be Worse With Card Check."

Friday the Labor Department released numbers indicating the loss of another 651,000 jobs last month, and a current unemployment rate of 8.1%.   Back in January, President Obama spoke to the Washington Post about EFCA:

And he seemed in no hurry to have Congress bring it up. "If we're losing half a million jobs a month, then there are no jobs to unionize, so my focus first is on those key economic priority items," Mr. Obama said, declining to state whether he wanted to see the issue debated during his first year in office.

Now that it seems we're losing more than a half a million jobs a month, one has to wonder whether EFCA's proponents could possibly be serious about re-introducing the bill this coming week.

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Recent reports -- though some from less serious sources -- have suggested that EFCA's sponsors may re-introduce the bill as early as Monday, March 9th.   Then other observers -- even some supportive of the bill -- have indicated that it is not likely that the bill will be re-introduced so soon.

The Senate Committee on Health, Education, Labor & Pensions does have a hearing scheduled for Tuesday, March 10th entitled "Rebuilding Economic Security: Empowering Workers to Restore the Middle Class."   One would expect that EFCA will be a primary driving force behind that hearing.  So, it would seem sensible that the bill might be re-introduced adjacent to, or relatively near, that date.  

Still, during a forty-three (43) minute address to the AFL-CIO's Executive Council earlier today, Vice President Joe Biden made only passing reference to EFCA -- albeit to pledge the administration's support.  And yesterday, The Hill reported:

“We have not made a decision on timing for introduction of the bill,” said Aaron Albright, spokesman for the House Education and Labor Committee. Miller (D-Calif.) is chairman of the committee.

Samuel also said he was not aware of any move to introduce the bill next week.

“I am not sure where they got their information. As far as I know, there has been no decision made,” Samuel said. 

Then again, Mr. Samuel has also stated that he believes that if Al Franken (D) is ultimately seated, they have 60 Senators lined up to vote for EFCA.  That seems unlikely -- as Sen. Arlen Specter (R-PA) sounds less inclined to vote for cloture this time around, and Sens. Mark Pryor and Blanche Lincoln (D-AR) earlier today again clarified their lack of enthusiasm for EFCA.

We will update accordingly as more information about next week's hearing and legislative calendars become available.

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In yesterday's Huffington Post, Sam Stein noted that much attention has been focused on whether 59 Democratic Caucus members can find one Republican to cross the aisle on a cloture vote when EFCA is re-introduced.  Now, questions are emerging further about the possible lack of support forthcoming from fellow Democrats.  The piece quotes some anonymous, vaguely described "senior official involved in getting EFCA passed" thus:

"There are no guarantees that this thing can get past cloture," said the official. And it's not because of Republican opposition, he added. "You've got Pryor and Lincoln who might not support it. There is Baucus, Landrieu, and even Bayh. And then there is Nelson of Nebraska."

We've previously noted the lack of enthusiasm expressed by Sens. Pryor and Lincoln for the bill.  It is entirely plausible that now that it is no longer a litmus test for electoral support -- but rather an ill-conceived bill with a numerical possibility of passing into law -- many Senators and Representatives will give more serious thought to its policy flaws and practical implications.  If the "senior official" is correct in his or her concerns, it would be a welcome development indeed.

More coverage:

• "EFCA -- Strongarm Majority Leader Reid?" -- Jottings by an Employer's Lawyer
• "Card Check: In the Senate, in the House, in the Senate" -- ShopFloor.org
• "Et tu, Baucus?" -- kausfiles
• "They'd Rather Not" -- Commentary magazine

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In today's New York Times, Steven Greenhouse reports:

If an index is needed for how much closer organized labor is to President Obama than to his predecessor, it might be the number of times Mr. Sweeney, the A.F.L.-C.I.O.’s president, has visited the White House since Inauguration Day — at least once a week for receptions, bill signings and a meeting on fiscal responsibility.

Mr. Obama has delighted labor by issuing four pro-labor executive orders that reversed Bush policies. He has also appointed a union-friendly chairwoman to the National Labor Relations Board and named a labor secretary whose parents were both union members.

But those changes worry corporate America, especially as Mr. Obama has signaled he will push for legislation that would expand labor’s thinned ranks by making it far easier to unionize workers. Labor leaders expect Vice President Joseph Biden to spell out the administration’s battle plans for the bill on Thursday, when he is scheduled to speak at the A.F.L.-C.I.O.’s winter meeting in Miami Beach.

At NAM's ShopFloor.org, Carter Wood keenly observes:

...that’s good, descriptive writing by the Times’ reporter. The journalistic shorthand for the Employee Free Choice Act is frequently, “a bill that would make it easier to form a union.” But that doesn’t really tell the story. Steven Greenhouse adds explanatory motive and a strengthening “far” in his description: “legislation that would expand labor’s thinned ranks by making it far easier to unionize workers.” 

Elsewhere, the Times piece suggests EFCA may come up for a vote in "May, June or July," and asserts that union leadership is "confident" that it will come up with 60 votes to overcome a filibuster. 

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The Moderate Voice blog features a variety of authors from various points along the political spectrum, and seeks to "offer an independent voter’s irreverent comments, and serious analysis of events, issues and people in the news."  Contributor Patrick Edaburton recently expressed his concerns about the Employee "Free Choice" Act.  The post itself is fairly bare-bones and features a few of the critical ads (McGovern, "Johnny Sack") running against EFCA, but Mr. Edaburton continues the conversation with commenters in the string below his original piece. 

At Slate, Mickey Kaus continues his coverage of the Act, passing along commentary from a recent breakfast debate.  Kaus labels a "parody of liberal Washington meddling," the description by Commentary magazine's Jennifer Rubin of EFCA's mandatory interest arbitration provision:

This is far more extreme than the National Industrial Recovery Act of the New Deal, which at least allowed industries to devise their own "codes."  In the case of the EFCA, the government would be in the position to directly set wages, benefits, and work rules for any business with a union agreement.

The current Weekly Standard also contains this tidbit via Fred Barnes, countering the recent statement issued by several pro-union economists:

Unions spur unemployment, and "there is no question" about it. "High union wages that exceed the competitive market rate are likely to cause job losses in the unionized sector of the economy." That is the unvarnished conclusion of one of the country's most admired economists. From 1970 to 1985, a state with average unionization had a rate of unemployment 1.2 percentage points higher than a state with no unions. This represented "about 60 percent of the increase in normal unemployment" in that period.

Okay, a finding from several decades ago may be a bit dated. But the phenomenon of how unionization affects unemployment isn't. Nor is the economist--Lawrence Summers, formerly president of Harvard and now President Obama's chief economic adviser. In this week's Fortune, Nina Easton calls him "the mastermind" of Obama's economic policy. His influence has limits, however, for Obama is aggressively promoting unionization at the worst possible time, smack in the teeth of a deepening recession with soaring unemployment.

Finally, covering similar ground to our white paper on EFCA, the American Enterprise Institute (AEI) has issued a concise paper, "Card Check: Changing the Rules fo Collective Bargaining."  Noting the current atmosphere suggesting the potential for compromise, AEI scholar Thomas Gies notes:

The new administration might trade the card check feature of the EFCA for a “quickie election” scheme modeled on the procedures used in some Canadian provinces. While this proposal might be good politics for card check supporters, the business community and others concerned about reviving the economy should be wary. A careful look at the Canadian experience suggests that it has very little to recommend itself.

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In "It's no secret: Democracy thrives with secret ballot elections," the editorial board of the Sun-Sentinel asks Sen. Bill Nelson (D-FL) to withdraw his support of EFCA if Sections 2 and 3 remain intact:

The legislation's backers insist it's needed to counter pressure and bullying from management. But Big Labor would be better off prodding the new administration to enforce existing law and bolster agencies that were created to support employee rights.

Beyond that, the card-check bill has another major flaw. It would empower federal arbitrators to impose a two-year contract on an employer and union after just two months if the two sides are unable to come to an agreement. Either party could end up stuck with a deal they don't want.

Self-professed small business-owner Donald Klym urges readers of the Minot (ND) Daily News to "Oppose this legislation":

People may argue that this bill will not affect small businesses, just the large evil companies, but let's not be naive. This isn't a bill to help the employee. Instead, it's a way to transfer more power to unions and government while limiting the freedoms of individual Americans.

This bill is not good business nor for the workers and families who depend on jobs here. I strongly urge the people of North Dakota to stand up and oppose this legislation.

The editorial board of the Lynchburg (VA) News & Advance criticizes its Democrat representatives for hedging on EFCA, proclaiming "Congress' Chain Needs Yanking When it Comes to Card Check":

It’s not a hard choice, gentlemen: Do you support the right of an American worker to decide, in secret and in private, whether he wants to be represented by a labor union on the job? Yes or no? And no dodging the question.

Unfortunately, that’s what Sens. Webb and Warner and Rep. Perriello are doing on this matter. They’re trying to have it both ways, cuddling up to Big Labor in Washington and voicing their concerns back home.

That’s just not good enough. Make up your minds, folks.

And in "Musings,  Random & Otherwise," Boston Globe columnist Jeff Jacoby cites a double-standard in political semantics, including with regard to EFCA's title:

But what happens to such fastidiousness when it comes to terms coined by liberals? Terms like "Fairness Doctrine" - an Orwellian label for government stifling of untrammeled political speech over the airwaves. Or like "Employee Free Choice Act," a benign title for legislation that would deny employees the right to a secret ballot in workplace elections. Strange, isn't it, how the concern with terminological exactitude kicks in at the appearance of a freighted expression from the right, yet fades into the mist when the language comes from the left?

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