The
current issue of the Harvard Journal on Legislation features a piece by Senator
Arlen Specter (R-PA) and law clerk Eric S. Nguyen (Harvard Law ’09) entitled
“Representation Without Intimidation: Securing Workers’ Right To Choose Under
The National Labor Relations Act.”  Senator
Specter, who spoke compellingly during the cloture effort earlier this year on
the Employee Free Choice Act (EFCA), makes a sober, thoughtful case in the
essay for a less political, constructive approach to labor law reform.

Senator Specter criticizes both political parties for
placing “overreaching rhetoric” above substance in the debate over EFCA, while
at the same time agreeing that American labor law is in need of reform.  Specter calls for development of legislation
that addresses “three problems that hinder the ability of employees to
choose…”:

1. remedies that fail to deter
   abuses by both unions and employers; 


2. administrative procedures that
   cause delays; and


3. an ineffectual NLRB.

The essay
concludes with an invitation to conduct comprehensive interviews and
congressional hearings, and sets forth a number of detailed questions that he
believes should be addressed in any serious reform effort.  In so doing, the Senator reflects many
sentiments we have expressed here numerous times before in our coverage of the
EFCA debate:

We do believe, however, that both sides should tone down
the rhetoric and have an honest discussion about what it best for our country’s
labor-management relations.

And:

If labor's reform efforts were focused on providing
appropriate funding to the National Labor Relations Board to allow it address
truly rogue employers it might find true bipartisan support and might actually
accomplish something meaningful.  Instead, labor is unfortunately
attempting to paint all employers as bad in a transparent effort to tilt the
playing field in its own favor.  As we've said all along, the NLRB has the
power to punish those few employers who refuse to abide by the law -- it just
doesn't have the funding to seek extraordinary remedies very often.  There
is no need to throw the right of every employee  to a secret ballot out
with the bathwater.

Or:

[James Small, Acting Regional Director for Region 21’s] comments raise the
question of why Congress has not called on Mr. Small or any of the dozens of
non-political labor experts at the NLRB to draw from their experiences with the
current system.

We will likely see what course the political winds dictate when the 111^th
Congress takes its seats early next year.  In the meantime, all labor practitioners and anyone serious about considering labor law reform should read the Senator's extremely thoughtful essay in its entirety.