Senator Jim DeMint (R-South Carolina) today introduced the Secret Ballot Protection Act (SBPA), a bill intended to "guarantee the right of every American worker to have a secret ballot election on whether to unionize."  While the full text is not yet available, versions of this bill introduced in earlier sessions of Congress would have made it unlawful for an employer to recognize or bargain with a union unless a majority of employees had voted for union representation in an NLRB-conducted secret ballot election.  The bill has been introduced repeatedly in previous Congresses during legislative battles over the Employee Free Choice Act.  Seventeen Republican cosponsors have joined DeMint to introduce the bill.

In an introductory press release, Sen. DeMint referenced EFCA directly:

“Last Congress, union bosses and their Democrat allies tried their best to deny workers their basic American right to a guaranteed secret ballot election….  Secret ballot voting is a basic American value that we must protect. This bill ensures every American worker gets to cast a secret ballot vote without pressure and fear of retribution from union organizers and coworkers looking over their shoulder. No American should be forced to join or pay dues to a union just to have the opportunity to work and provide for their family.”

The Senator’s release also makes express reference to the recent letter sent by the Acting General Counsel of the NLRB to four states – South Carolina, Arizona, South Dakota and Utah — regarding their state constitutional amendments making secret ballot elections mandatory:

The threatening letter was written by acting NLRB general counsel, Lafe Solomon, who has not been confirmed by the Senate. Today, the states responded to the board in a letter stating: “These state laws protect long existing federal rights and we will vigorously defend any legal attack upon them. That the NLRB would use its resources to sue our States for constitutionally guaranteeing the right to vote by a secret ballot is extraordinary, and we urge you to reconsider your decision.”

In a Washington Post piece earlier this month, I predicted that passage of either the Employee Free Choice Act or the Secret Ballot Protection Act would be nearly impossible in this Congress.  It isn’t hard to see why.  While the SBPA would likely sail through the House, finding the thirteen Democratic Senators to break party ranks to pass a cloture motion on this will be difficult.   To be sure there were Democrats who opposed EFCA, but few of them staked a vocal, public position — and some of them are no longer serving.  

Still, this bill may be an important contribution to a debate certain to continue, if not by legislation, certainly via the Board’s administrative processes and the Courts — namely, to what extent are alternative means of union recognition lawful, tolerated, inferior, encouraged or prohibited?