House and Senate Republicans Introduce the Secret Ballot Protection Act of 2009

On Wednesday, February 25, 2009, a group of over 100 House Republicans led by Congressman Jonathan Kline of Minnesota and 16 Senate Republicans led by Senator Jim DeMint of South Carolina introduced the "Secret Ballot Protection Act of 2009" (SBPA) – essentially the obverse of portions of the Employee Free Choice Act (EFCA) likely to be proposed by Congressional Democrats.

The bill would amend Section 8(a)(2) of the National Labor Relations Act (NLRA) to guarantee that workers have the right to vote in a secret ballot election to determine whether they want labor union representation. It also would create a new unfair labor practice (i.e., a new Section 8(b)(8) of the NLRA) prohibiting a union from causing or attempting to cause an employer to bargain with a labor organization which had not been selected via a secret ballot election conducted by the National Labor Relations Board (NLRB). Earlier versions of the SBPA have been introduced by Republicans in prior Congresses, but have not been put to a formal vote. While the prospects for the SBPA may not appear encouraging in light of even larger Democratic majorities in both houses of Congress, the introduction of the bill will help frame the anticipated battle over EFCA.

Under existing labor law, an employer can recognize a union as the bargaining representative for a group of its employees if the union presents the employer with signed authorization cards from a majority of the employees in the proposed unit. Alternatively, an employer can insist upon a secret ballot election administered by the NLRB to ascertain the employees’ representational desires. The SBPA would prevent even voluntary employer recognition of a union based upon a method other than an NLRB-conducted secret ballot election.

The "card-check" process has been criticized by numerous management advocates because it does not adequately protect workers’ rights to choose freely. Under the card-check process, workers may sign authorization cards in the face of union or peer pressure. Secret ballot elections, in contrast, allow workers to preserve their anonymity, thereby reducing the possibility of coercion. Thus, many employees who "publicly" sign a union authorization card vote against union representation in the privacy of the NLRB’s voting booth.

Seyfarth Shaw will continue to monitor the legislative process regarding EFCA and the SBPA and will provide updates regarding significant developments.

For more information, please contact the Seyfarth attorney with whom you work, or any Labor and Employment attorney on our website (www.seyfarth.com/laborandemployment).