Lanny J. Davis, an attorney with the Washington D.C. office of the global law firm Orrick, Herrington & Sutcliffe, pointed out that, contrary to assertions made by supporters of EFCA, the card-check bill would, in fact, permit the exclusion of the secret ballot option. “It defies logic to say that once 51% of eligible voters sign the cards, the union that is entitled to automatic certification under EFCA would then ask for a secret ballot. That deprives the 49%, and perhaps some who signed the cards under pressure, the right to demand a secret ballot.”

Yes, the EFCA as drafted mandates certification if a majority of employees sign up.

It “permits the exclusion.” This does not mean that it requires the exclusion of a secret ballot, even if a majority of employees want a union. Why? (1) to exercise this option, the employees would simply not sign more than 30% of the cards to ensure that they could preserve a vote*; or, (2) the organizers could simply stop collecting cards at 30.000001%.

I understand that the arguments going back and forth are getting heated and frustrated, but you are not arguing in good faith if you say that this abolishes the secret ballot. You’re also not arguing in good faith if you say that EFCA somehow guarantees a secret ballot no matter what.

It would deny management the right to election it and it would, perhaps, perhaps not, subject employees to more coercion. For obvious political reasons it’s easier to say the former and mean the latter.

But then again, the EFCA in its current form is probably as relevant to reality as the McNary-Haugen Farm Relief Bill of 1924. Maybe less relevant if 24 Republicans and Democrats are looking at the compromise proposal. There’s also the 70/50/30 proposal which is not inelegant. (ie recognition with 70% signup, or recognition after a 50% secret ballot with 30% signing cards to initiate the election).

I’m getting pretty tired of this topic. Maybe I should listen to my own advice and STFU about this until something has presidential ink on it. Yeah. Good idea.

* Perhaps a nifty amendment would be to require people to be notified if they sign up whether or not it would in fact kill the chances of a secret ballot.

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“I don’t think anyone could have predicted” that there would be a compromise on EFCA! (Of course she was saying that without any sense of irony nine months after she read the very prediction she denied and I’m saying that this has been more or less obvious since election day, that I said so, and that all of the panicked bed wetting and exorbitant seminar fees about hypothetical legislation are, therefore, funny in an emperor has no clothes kind of way.)

Update: Just in case, I’m going to be hosting a $10,000 per head seminar in Tahiti on the implications of all of the legislation vetoed in the Coolidge administration next week. Your business NEEDS to attend. </snark>

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The argument isn’t developed much more than that and doesn’t seem particular strong to me.  I also have a hard time taking it seriously given that Epstein doesn’t even mention the speech restrictions on unions, much less the fact that unions have significantly more restrictions on their speech than do employers (see, e.g., Section 8(b)). * * *

…I’m not seeing a big problem under the Court’s current takings jurisprudence.  This sounds more like an argument for a shift in that policy.  Either way, Epstein’s piece serves as a good reminder that the card-check provision may not be the most important part of EFCA.

I guess we can start writing our Supreme Court amicus briefs on laws that have not been passed yet. Anyway, I agree with Hirsch that the First Amendment analysis is not serious, because it essentially is just a time, place, and manner restriction, and one of commercial, not political speech. As far as Epstein’s takings analysis goes, I’m not sure how the degree of difference between the NLRA as it exists now and the EFCA trigger a new realm of takings. Does it really do anything that a current court of arbitrator can’t do?

I’ve been persuaded by things I’ve read that it might be better for union organizing to simply shorten the time for the secret ballot elections and tweak the procedures. Also, there are other changes that can be made, perhaps not even in the context of union organizing, that can help to aggregate worker power. Anyway, with respect, I think Epstein’s arguments are pretty silly.

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It will be interesting indeed if they can get Specter on board.

The article headline is of course a reference to the 60 votes that it takes to break a filibuster in the Senate.

My current thought, some version of EFCA passes, but not the current one and probably not as soon as first feared.

I agree with his analysis that some version of EFCA passes. Specter faces not only a challenge from the Democrats, but he narrowly escaped a primary defeat in 2004, and his challenger is back. Remember, no Republicans actually have to vote for passage, just for cloture. That makes Specter, Snowe, and Collins—the only “moderate” Republicans left—an extremely powerful bloc.

Fox’s link to Ambinder prompts us to consider the source. Ambinder seems very much to chase phantom controversies. Trying to boil the Senate down to whip counts oversimplifies the dynamics of the place, where each senator can place anonymous holds, and floor amendments are allowed and voted on.

It’s also worth pointing out that a number of Democrats are very unlikely to actually vote for passage of the bill, even if they support “an up or down vote.” But I think for cloture, you have to look to the 2010 elections and the dynamics there.

On the legal side, or at least on the counseling side, it’s worth pointing out that the Province of Ontario has card-check recognition, and they saw no acceleration in unionization since its enactment. And until we see what, if any, bill comes out, I don’t think there’s much to do, except, you know, use shock and awe marketing and have lots of CLE seminars.

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I disagree with his analysis in the following regards:

• Spring questions whether “newly elected Senators from traditional Republican states” would support it. Who, exactly, are those? Merkley, Shaheen, Warner, Udall, and the other Udall are from blue states. If Franken wins, so is he. Assuming Begich and Martin win, those are the only two. In addition, I think there might be three or four votes from the Northeastern Republicans. In other words, I think the votes for cloture are already there. The votes to pass are certainly there.
• Liebermann’s differences with the Democratic party stem from his foreign policy views. Unless he completely changes his views, he is fairly consistent pro labor vote. He had a “lifetime right” 84% rating from the AFL-CIO as recent as a few years ago.
• Spring’s view that the economy being worse might give some senators pause on this. Whatever political stripe you come from, you have to see that this economic downturn has pushed the electorate to the left, not the right. Therefore, I don’t think the souring economy will stop this.

Accordingly, if I presume that the EFCA, in some form, will pass and that employers should be ready for it.

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