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.