Bryan --- just happened upon your blog and found some of the comments here interesting (as opposed to the histrionics of Miss Laura at DailyKos).  As you seem genuinely interested in reasonable commentary on the EFCA proposition, I will share some thoughts and perspectives on this matter in the interests of hopefully promoting better understanding and enlightened debate.

First; my credentials for these opinions are borne out of more than 30 years in the practice of labor relations, with the first 25 of those years within the organized labor movement and the past 5+ years as a labor relations consultant (the common euphemism for 'union-buster' in Miss Laura's world). I have organized hundreds of workers into the union movement and have had extensive experience with the National Labor Relations Board (NLRB), the Federal Mediation and Conciliation Service(FMCS), and both labor contract negotiation and arbitration procedures.

I find the spin and hype on this proposed legislation to be both amusing and troubling on the basis that both sides to the debate are being disingenuous in their arguments. They seem to be preying on the exaggerated  fears of workers and the general lack of understanding of current labor laws and how the collective bargaining process works. I use the term 'exaggerated', not in the sense that purposeful employer violations of labor law don't occur, but rather that these intentional violators are the exception more so than the rule. Relatively few employers in this country are disciples of the Walmart philosophy.

The reply by Anonymous that EFCA preserves the secret ballot is a good example of what I am saying. You wouldn't think that it's a difficult proposition to determine if EFCA does or doesn't eliminate the secret ballot, but countless competing commentaries in various blogs and news outlets evidence the lack of consensus on what should be a  simple question. Why? Because both sides are right .... EFCA does and doesn't eliminate the secret ballot.

How can this be, you ask?  Let's look at the languge of EFCA to this point:

"Notwithstanding any other provision of this section, whenever a petition shall have been filed by an employee or group of employees or any individual or labor organization acting in their behalf alleging that a majority of employees  in a unit appropriate for the purposes of collective bargaining wish to be represented by an individual or labor organization for such purposes, the Board shall investigate the petition. 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 ..........................., the Board shall not direct an election but shall certify the individual or labor organization as the representative described in subsection (a)".

As is generally known by now, current law requires a minimum 30% showing of interest to validate a petition for representation and authorize an election to be held. EFCA doesn't change this, and thus the secret ballot election is in essence preserved. Where EFCA alters the equation is in its mandate that if such a petition is accompanied by a minimum 50%+1 showing of interest, then the designated labor organization is automatically certified, and thus the secret ballot election is eliminated. In a nutshell ........ a secret ballot election would still be held for showings of interest less than 50%+1, but showings of interest equal or exceeding that threshhold would result in automatic certification without an election.

I have read some commentary which suggests that a secret ballot election could still occur by choice of the employees regardless of the showing of interest threshhold accompanying a petition, but this is disingenuous from two respects. First; labor organizations generally file the vast preponderance of representation petitions on behalf of affected employees, and thus they (and not the employee group) are legally considered the petitioner and control all matters related to said petition.No labor organization that has achieved a 50%+1 initial showing of interest is going to jeopardize its EFCA automatic certification by permitting a campaign and election that could change the equation. Second; the operative language of EFCA itself does not suggest that a choice exists. It clearly states that if the Board finds that a majority has signed valid authorizations, then it shall not direct an election and will issue automatic certification.

To this particular facet of EFCA, the inherent problem is that it transfers the potential of transgressions routinely alleged against employers to labor organizations. It diminishes if not outright eliminates the opportunity for objective dialogue on the subject of unionization, and basically stifles management or any dissenting employee perspectives from being heard or considered. Hell .... the labor organizer and/or employee advocates don't even have to communicate with all of the workers. They can cherry pick known supporters and completely ignore suspected adversaries. Simplistically speaking ----- if the labor organization is attempting to organize a group of 50 workers, and it succeeds in getting the first 26 it solicits to sign its cards or petition, then it's a done deal and it doesn't need to communicate with the remaining 24 employees.

Equally disconcerting is that there would be no practical way of monitoring union solicitations of these signatures to ensure that there was no coercion, intimidation or fraud being exercised to influence a signatory's 'free choice' declaration. By virtue of my past labor service I can assure you categorically that unions do not enlist altar boys to do their organizing. If I were organizing under the proposed EFCA standard, I can tell you exactly how I would go about it.

Assuming the same 50 person workforce, I would enlist an employee committee of 5 or so staunch advocates and develop a workforce listing segregated into 3 groups: assured supporters, absolute adversaries, and suspected fence-riders. Again for simplicity purposes, let's say each of these groups contains 15 people.The assured supporters would be the first approached and the absolute adversaries obviously would be avoided. All solicitations would occur away from the worksite to minimize potential employer knowledge of the organizing activity. Assuming success with the assured suporters group and combined with the original 5 advocates, I now have 20 signatures and am only 6 away from the magic 26 I need (50%+1). Accompanied by 2 or 3 of the largest and meanest (by workforce reputation) of the supporter group, I will now blitzkrieg the fence-rider group with home visits over the weekend (Friday night through Sunday as necessary) and solicit their signatures. I use the weekend because I anticipate that the fence-rider group will produce the pigeon that alerts the employer, but the earliest the employer can react will be the workweek start on Monday.

Soliciting the fence-riders will be relatively easy. I will know the hot buttons to push based on ealier assessments with the supporter group, and all the while I'm talking the fence-riders will be acutely aware of the silently staring fellow-employees who have accompanied me. It will go without saying that resistance will be advertised throughout the workforce in the coming workweek. If necessary, I will produce a healthy stack of signed authorization cards and cajole the fence-riders with the importance of joining with the already secured majority to project a united front to the employer. I won't directly show the cards under the cover of promised anonymity, so the fence-riders will never know that many of the cards are duplicates. Odds are that I will have the signatures i need with just one visit. In the pre-EFCA days that wouldn't mean much, because I would know that these were subtly coerced expressions of support easily rescinded in the privacy of a secret ballot booth. Post-EFCA, with no opportunity to revoke by election vote, these signatures are instantaneous money in the bank. Informed, free choice? You be the judge.

Your proposed expedited election in theory is good, but the necessary logisitics associated with conducting an election are not conducive to haste. Card check signatures must somehow be validated, NLRB staff must be available for assignment, ballots need to constructed and printed, voting place(s) and time(s) must be determined, etc.  Bear in mind that you're dealing with a government agency here, with all of the inherent constraints relative to staffing, budget, etc.  In my own humble opinion, I think a way to somewhat expedite the present process would be to contract out the actual hands-on vote process to an independent outside entity specifically trained and experienced in these elections and subject to serious financial and imprisonment penalties if found to be colluding with one side or the other. This would also serve to free up the limited NLRB staff for investigation and determination of labor charges, which is another of the EFCA priorities.

I probably have gotten too long-winded in this reply, and for that I apologize. Having spent the bulk of my professional life in this arena, I am strongly impassioned and opinionated on the subject. With your indulgence, however, I will end this with a brief observation on the issue of decertifications raised by Paul and Marvin.

Both are correct in their assessments that workers need the means to hold their union representatives more accountable. Believe me ...... once a union has been established it is a daunting task under current labor law to try to dislodge them. Check out this link and its archives at the bottom as an example:

http://dpnrhinelander.com/

It seems to me that if the real intent of EFCA is to promote 'free choice' for American workers, then the proposed card check scenario for establishing a union should be equally sufficient for removing one. But of course the framers of EFCA don't agree with this simple logic. An amendment to this effect in the original EFCA legislation undertaken in 2007 was summarily defeated in the House.

So how about an alternative approach, which can be called 're-certification' elections. Any time a union is certified via the EFCA card check provisions as opposed to a secret ballot election, then a re-certification election will be conducted upon request concurrent with the required 60 day notice to the FMCS that an existing labor agreement is about to expire. In order to validate such a request, there will have to have been a turnover rate in the workforce that equals or exceeds the number of deciding employees in the original EFCA group that resulted in the union's EFCA certification, or additions to the workforce group which would have increased the initially required number of authorizations submitted by the union in order to achieve the 50%+1 threshhold.

Thus, using the earlier 50 worker group example, if the union originally achieved EFCA certification by producing authorizations from 30 workers (+5 over the 50% median), and since that time through the course of the initial labor agreement there has been a turnover rate due to quits, retirements, terminations, etc. equal to or exceeding the +5 factor, then a request for a re-certification election would be deemed valid. Likewise; if the workforce complement has actually increased from the original 50 employees to 60 since initial EFCA certification, then the union can no longer claim its EFCA certified majority exists (which now would be 30+1) and a re-certification election request would be valid. Naturally an established period of continuous employment by such additions to the workforce prior to a re-certification request would have to be set to insure that an employer doesn't try to rig the system by hiring new people only at the last minute. Not difficult ..... perhaps 3 to 6 months would suffice.

What this might accomplish is forcing a prudent union to speak with more of the employees during organizing and to tone down the coercion tactics in favor of more reality based dialogue and persuasion lest it create a backlash against itself in the relatively near future. It also would potentially force a union to actually produce on its organizing campaign promises and to represent a newly acquired group effectively and responsibly. All sides would have an opportunity to get to know and work with each other ..... perhaps resulting in confirmation of worst fears or alternatively resulting in a workable partnership to the benefit of everybody. Primarily, however, it would at least provide a glimmer of hope to an otherwise captive workforce that a bad decision by a relative handful of co-workers in the past could be revisited in the privacy of a secret ballot booth.

Trust me --- there are many more significant problems with the proposed EFCA legislation than just the secret ballot issue, but those are for another time and writing if you're interested.

Let me know what you think.

The way forward is simple: tell the truth about EFCA. the bill that is currently under consideration absolutely preserves the secret ballot. the only change would be to allow workers to choose whether they want an election or majority sign-up. It's that simple. 

Alternately one compromise might be to have card check be an option when a 60% majority sign, or 2/3rds. But frankly if 50% plus one can decide it on election day, then it should be good enough for majority sign up.

Honestly though, since Tom Donohue of  the chamber of commerce has said there is no compromise on this bill, we're all just wanking to each other--business won't compromise, so it doesn't matter anyway.