During the month of August, we saw the positions appear to harden for and against labor law reform as proposed in the Employee Free Choice Act (“EFCA”). The month ended with President Obama’s Labor Day speech on September 7, 2009, to a picnic of the AFL-CIO in Cincinnati, Ohio. During the speech, he stated that he supports EFCA “to level the playing field so it's easier for employees who want a union to form a union. Because when labor is strong, America is strong. When we all stand together, we all rise together.”

However, there appears to be trouble in the Senate. The August 31st edition of McKnights’ Long-Term Care News reported that Democratic Senate Majority Leader Harry Reid told a meeting of the Las Vegas Chamber of Commerce that the Senate would not soon take up debate on EFCA. This report was followed by a September 3rd article in the publication, Think Progress, which stated that Republican Senate Minority Leader Mitch McConnell told a meeting of Commerce Lexington that no Republican would support EFCA.

With the health care debate continuing, it is unclear whether EFCA is “off the table” for now or the subject of intensive back-room negotiations. The implications of labor law reform as set forth in EFCA stir passionate debate. Under EFCA, employees could obtain automatic representation if 50% + 1 of the employees in a unit of employees sign union authorization cards. No secret ballot election would be necessary. In addition, the law would implement a system of arbitration, if the union and company could not agree to a first contract, and impose fines for violations of unfair labor practices in certain circumstances.

The passionate debate was seen during a spirited discussion and question-and-answer session at the American Bar Association’s Annual Meeting in Chicago, Illinois. Nancy Schiffer, Associate General Counsel of the AFL-CIO, spoke in favor of EFCA and presented a “shifts” in labor relations since the 1930’s when the NLRA became law.

She stated that EFCA’s paper in which she cited what she described as the “failure of the NLRA [National Labor Relations Act] to keep pace with the[ ] seismic goal is to “restore America’s middle class and create an economy with shared prosperity.” Her solution is to streamline the process of employees obtaining both representation by unions and contracts setting forth the terms and conditions of employment. In our view, she took a “no compromise” position, stating that management representatives need to change their opposition to any type of labor law reform.

Representing management was Marshall B. Babson, who was a Member of the National Labor Relations Board from 1985 to 1988 during President Ronald Reagan’s presidency. In his paper, he expressed his concern that EFCA will “upset the delicate balance” in the NLRA, a statute forged out of the compromises made in Congress during the 1930’s. He questioned why labor would want to alter the “collaborative and cooperative relationships” the NLRA seeks to create between labor and management.

Also appearing was Thomas A. Kochan of the Massachusetts Institute of Technology. He is in favor of a “renewed, modern collective bargaining system.” He addressed the management community’s fear of arbitration provided in EFCA, setting forth what he called “design features for arbitration” which, he argued would not result in the problems raised by management groups.

With the health care debate raging, EFCA is probably taking a backseat. But, we see employers reacting in anticipation of its passage. At least one employer in the Chicago area sent a letter to its non-union employees about unions. As to one employee, it backfired, causing anger toward her employer. Therefore, employers need to carefully formulate their communications to employees and judge when to communicate as well as the content. Employers need to realize that, without angering its employees, it can – and should – take all necessary steps to create an “issue-free workplace,” train supervisors and draft and implement those policies necessary to protect the employers’ goals.