Is Employee Free Choice dead?

June 3, 2009

Adam Turl explains how Corporate America is outmaneuvering organized labor in the battle over a law that would make it easier for workers to join unions.

THE FIGHT for the Employee Free Choice Act (EFCA) appears to be stumbling, with Corporate America increasingly confident that it will defeat the most "controversial" parts of the pro-union legislation.

If passed in its current form, EFCA would make it easier to form unions by giving workers the option of gaining representation when a simple majority of employees signs union cards, a method often called "card check." EFCA would also increase fines on employers for violating workers' right to organize and make it harder for companies to weasel out of initial union contracts by imposing binding arbitration if negotiations stall.

Now, however, a rotten compromise on EFCA--if not its outright defeat--is looking more and more likely.

Back in November, it seemed as if there was a perfect storm to win the law. Barack Obama had won the White House, the Democrats increased their majority in Congress, and there was widespread anger over the financial meltdown and government bailout of the big banks.

Marching for the Employee Free Choice Act in Jacksonville, Florida
Marching for the Employee Free Choice Act in Jacksonville, Florida (Bernard Pollack)

But just seven months later, efforts to pass EFCA have faltered.

As expected, business groups like the U.S. Chamber of Commerce have been ferocious in their opposition to EFCA. But Democrats have been at best tepid in their support for safeguarding workers' right to organize.

"They're acting like they don't understand how much power they have, and that the conservative movement is disorganized," said James Thindwa, executive director of Chicago Jobs with Justice. "EFCA is a test of how committed the Democrats are to labor."

Some are certainly failing the test. A few have turned outright against EFCA--like Sen. Ben Nelson of Nebraska and Sen. Blanche Lincoln of Arkansas, which, of course, is the home state of the notoriously anti-union Wal-Mart.

Other Democrats seem willing to let EFCA die by a thousand cuts--Obama among them. In May, the president argued for compromise on EFCA, saying "I'm supportive of it, but there aren't enough votes right now."

Democratic senators are floating ideas for possible amendments that would defang the legislation. These include:

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Raising the threshold for unionization via card check from 50-percent-plus-one to 60-percent-plus-one;

Dropping arbitration on first contracts;

Replacing arbitration with non-binding mediation;

Dropping card check in favor of "mail-in" secret ballots;

Raising fines on unions, while watering down fines on employers.

When (and if) EFCA gets out of Congressional committees, even worse amendments will be proposed by Republicans.

HOW DID this happen? Opinion polls show support for legislation that makes it easier to join unions is stronger than ever. That's surely the result of the gut-level understanding among millions of people that corporations have been getting away with murder.

But because of the timidity of Democratic politicians and their backers in the union movement, big business has been able to project its case against EFCA. The result is that an upside-down "bizarro" version of what workers actually face predominates in the mainstream discussion of the legislation.

Take, for example, Corporate America's main red herring about EFCA--that it would allow unions to intimidate workers into signing up. During the 75 years since workers have had a legal right to organize a union, there is almost zero evidence of "union intimidation." In fact, a new study by the University of Illinois shows there is evidence of the absence of union intimidation.

The real balance of forces in the workplace is very different from the picture painted by business. Since 1970s, labor laws that favor unions have gone increasingly unenforced, while backwards anti-labor laws are used with impunity. As Teamsters Local 743 President Richard Berg put it:

The laws are dramatically slanted towards management. There's really no serious punishment for breaking the law. They're able to fire union activists and delay elections for long periods of time, with virtually no punishment at all. There are millions of workers across the United States who want to be in unions, and the laws have been effective in preventing them from being able to do that."

Chris Townsend, political action director of the United Electrical workers union (UE), agrees. "We have an often unrecognized, unchecked and unprosecuted corporate crime wave in the workplace," Townsend says. "That is the primary reason [EFCA] should be passed--to protect workers from a lopsided war against them waged by their employer almost every day."

The direct result of all this has been the undermining of union power. Even before the recession, organized labor represented less than 10 percent of private-sector workers--down from a post-Second World War high of 35 percent.

An entire way of life for millions of working-class people--made possible by unions--was destroyed. As Berg recalls, "When I was a kid--my dad was a truck driver--nearly every truck on the road was union. And now, when you drive down the road, even in cities like Chicago...only a fraction of the trucks are union."

But unions didn't take the opportunity of Obama's election and the big Democratic win in 2008 to go on the offensive. As the Los Angeles Times explained:

In 2007, [EFCA] passed the House and gained more than 40 cosponsors in the Senate. Now, with even more Democrats in the Senate and Obama in the White House, the unions saw the odds in their favor. Obama's campaign stump speech last fall included strong support for the legislation.

But once he was elected, labor leaders made a fateful decision. Originally, they had planned to keep in place their extensive network of field organizers, who had just worked to elect Democratic candidates, and ask them to build pressure on lawmakers to vote for card check. Instead, they changed course. The labor groups scaled back, partly to give Obama time to get his bearings amid the deepening economic crisis.

Townsend says EFCA supporters--including Service Employees International Union President Andrew Stern--made the mistake of offering compromises at the outset:

We did a bunch of lobby visits last week, and we had many offices tell us they were hearing 100 to 1 against EFCA. If you don't have 60 [votes in the Senate], how do you make progress? Well, the only way is you start figuring out what Plan B is. What I think I'm angry about is that we have everybody from Andy Stern to [Senators] Tom Harkin to Arlen Specter (of course, Specter called himself a Republican up till last week)...negotiating against themselves...It's like a one-sided auction.

THINGS DIDN'T have to play out this way. Across the country, there are examples of workers and trade unionists doing the sorts of things that could tip the balance in labor's favor if such tactics were pursued nationwide.

For example, the United Food and Commercial Workers union seized the moment to launch an organizing campaign at Wal-Mart. The union deployed 60 organizers to 100 stores across 15 different states. Business Management Daily reported:

The organizers will be circulating union authorization cards bearing President Obama's picture and a quote from a 2007 speech, in which he said, "I don't mind standing up for workers and letting Wal-Mart know they need to pay a decent wage and let folks organize."

The cards also symbolize the union's push for passage of the Employee Free Choice Act (EFCA), which would allow workers to choose union representation by completing an authorization card rather than by secret ballot.

One can imagine the impact if more unions had undertaken similar initiatives, connecting actual organizing with the struggle for EFCA.

There have been other positive examples. In Fontana, Calif., 200 workers picketed for EFCA in front of a Wal-Mart warehouse. Another 300 people protested in Lynn, Mass.

In Peoria, Ill., hundreds of unionists and workers protested former George W. Bush advisor Karl Rove, who was speaking at an anti-EFCA event. In the brouhaha that preceded Rove's visit, the city's Chamber of Commerce was pressured into withdrawing its endorsement of the event, and even issued a statement that it had no formal position on EFCA.

Unfortunately, mobilizations like these have been too few to have the same sort of impact nationally.

Of course, EFCA is not the end of the story. Even if EFCA is watered down or defeated, there are more fights to come. As the UE's Townsend put it, "EFCA is not a magic wand or a cure-all. As fast as we pass this thing or something like it, we are going to have to go back again and face a whole front of other issues [that] will need to be fixed."

Chief among these issues is organizing--with or without EFCA--a generation of workers now living on the economy's edge.

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