While many suspected that the Employee Free Choice Act (“EFCA”) might become law within the first 100 days of the new Administration, that has not come to pass. Indeed, with the focus in Congress on the recession and the Administration’s push for healthcare reform, EFCA seems to have been all but forgotten. Like the disappearing canine in the old childhood song that we all remember, “Oh Where, Oh Where Has My Little Dog Gone,” EFCA seems to be lost in the Congressional agenda. 

But has it been forgotten? As we headed into Labor Day, EFCA emerged in the news. Although Senate Majority Leader Harry Reid (D-Nev.) announced last week that EFCA was unlikely to be considered until some time next year because Congress had “too many other things on [its] plate,”1 staunch supporters of the bill within organized labor beg to differ. Indeed, Andy Stern, president of the Service Employees International Union, was quoted in The New York Times as saying that he not only expected to see EFCA pass, but that it would still include “card-check” — the provision, widely attacked by Republicans and the business community — that would mandate union representation on employees without any secret ballot election in which employees could vote.2 While EFCA may be on the back burner, for now it is unlikely that labor will let it remain there for long. 

While most employers no doubt breathed a sigh of relief when it was reported earlier in the summer that card-check was unlikely to become part of any final bill,3 organized labor still continues to push for it,4 and President Obama is expected, at the AFL-CIO convention in Pittsburgh during the week of September 14, to come out strongly in support of EFCA as his next priority after health care. In light of labor’s strong support of the President and other Democrats during last year’s campaign, we expect a major push for EFCA or similar legislation as soon as the health care debate is over. 

What are the prospects for passage? Aside from disagreement within their own ranks, Senate Democrats face the practical problem that their filibuster-proof Senate majority of 60 votes has disappeared with the death of Senator Kennedy, who may not be replaced for some time. Nevertheless, at this point, we are still of the view that there will be labor law reform legislation, but more likely in 2010, than this year.5 The economy is still the central focus of concern for most Americans, and the country is still fighting two wars abroad. Yet, labor is not about to give up on its “crown jewel,” given the amount of time and money it spent on campaigning for various candidates for the current Congress.6 

As for the ultimate contents of the bill, while no one has a crystal ball, EFCA will probably end up replacing card-check with some form of “quickie” elections within 10 to 15 days following the filing of an election petition, giving employers a very limited opportunity to try to respond to a union organizing campaign that may have been going on for months.7 It also appears likely that any bill will include significantly increased penalties for employers that discriminate against union organizers or supporters, or other violations of the Act committed during an organizing campaign. As for the remaining aspect of EFCA — mandatory interest arbitration of an employer’s entire first contract with a union by a government-appointed arbitrator unless the parties can strike their own deal within four months following a union being certified — it is hard to know whether it will survive the legislative process. This provision is particularly offensive to those who have been involved in collective bargaining and understand the “give and take” needed to produce an initial collective bargaining agreement that will be respected by both parties. If labor is willing to surrender on card-check in order to get some form of EFCA passed, it seems unlikely that it will also walk away from interest arbitration.8 Senator Arlen Specter (D-Pa.) has previously suggested “baseball style” arbitration, which would force the arbitrator to resolve disputed issues by choosing the last best offer of one side or the other.9 Certainly, this type of interest arbitration would force both parties, but unions in particular, to bargain more realistically. 

In short, while the focus may have shifted to other issues, it seems fair to say, paraphrasing Mark Twain, that reports of EFCA’s death are greatly exaggerated.

1  Reid was quoted in the Las Vegas Review Journal as saying, “We have too many other things on our plate.” Indeed, although Reid spokesman Jim Manly was quoted in the Daily Labor Report (BNA) for September 2, 2009 as saying EFCA was not “dead” for this year, he did confirm that the remainder of the legislative year was likely to be taken up with healthcare, an energy bill, and banking and financial regulatory reform. 168 DLR‑A‑11 (September 2, 2009). 

2  The New York Times (July 17, 2009). The Times article reported that card-check would be dropped in an alternative version of the bill in favor of “quickie” elections — elections held 10 to 15 days after the filing of an election petition, rather than the current 42. There are, of course, conflicting reports, and representatives of labor have said “majority sign-up is still on the table.” Daily Labor Report (BNA), 144 DLR‑A‑6 (Jul. 30, 2009). Of course, an alternative bill, such as the Sestak bill (“The National Labor Relations Modernization Act”) pending in the House (HR 1355), which could involve union access to employees while at work, and control over the number of captive audience speeches an employer may give by giving the union conducting an organizing drive the same right. 

3  The New York Times, supra.

4  Reportedly, labor has been exerting intense pressure on many Senators during the August recess which is consistent with the earlier pronouncement to that effect, supra. n.2. Indeed, in an article in Politico, labor is said to be launching an all-out offensive that began September 1 with the announcement of survey results showing that “younger workers” support EFCA. J. Cummings, “Labor Mounts Autumn Offensive,” Politico (Sept. 1, 2009). 

5  A possible scenario is that while the health-care debate rages on, seemingly with labor’s approval, supporters of EFCA are quietly at work crafting an alternative that will have just enough support in the Senate to get by in the remaining days of 2009. It has been reported that supporters of EFCA are attempting to resolve the concerns of at least 12 Democratic senators who have been unwilling to support EFCA as currently drafted. Daily Labor Report (BNA), 172 DLR‑A‑7 (Sept. 9, 2009). 

6  Labor also faces a different public perception than in past years. A recent Gallup poll showed that for the first time since polling on the subject began in the 1930s, a majority of Americans disapprove of unions and believe they harm the U.S. economy. Daily Labor Report (BNA), 172 DLR‑A‑7, (Sept. 9, 2009). 

7  Although retiring AFL-CIO president John Sweeney has sent mixed signals, he was recently quoted in the Daily Labor Report (BNA) that while EFCA must contain a “fair and just process” for employees to decide whether they wish to be represented by a union, that process, according to Sweeney, “does not necessarily have to be card-check.” 170 DLR‑B‑1 (Sept. 4, 2009). 

8  The interest arbitration features of EFCA are hardly less controversial than the card-check provisions. Indeed, the U.S. Chamber of Commerce has indicated ever since EFCA was first introduced in 2007 that it found the mandatory interest arbitration requirements as unpalatable, if not more so, than the card-check provisions. Daily Labor Report, 192 DLR‑C‑1 (Oct. 4, 2007). That position remains the same. B. James, “Nixing Card-Check Could Shift, Not Quell EFCA Debate,” employment.law360.com (August 20, 2009). 

9  See Daily Labor Report (BNA), 114 DLR‑C‑1 (Jun. 16, 2009).