EFCA, The Economy, Obama and Labor?

By Steve Early

Thirty years ago, unions came closer to strengthening the Wagner Act than at any other time since Congress enacted labor’s “Magna Carta” in 1935. During Jimmy Carter’s first and only term, they had the benefit of big Watergate-related Congressional victories by the Democrats in 1974–and, four years later, 61 Democrats in the Senate. Yet, when a bill was introduced that would have speeded up National Labor Relations Board (NLRB) elections, helped fired organizers, and penalized union-busting employers, labor law reform got filibustered to death in the Senate, after tepid White House lobbying on its behalf.  Three decades after that political set-back-and partly because of it–American unions now represent only 12.1 percent of the total workforce. In the National Labor Relations Act-covered private sector, union density is down to 7.5%.

Thanks to the popular backlash against our current discredited Republican administration, Congress once again changed for the better, in 2006, raising new hopes for labor law reform. This year, union members have been urged to elect even bigger Democratic majorities in the House and Senate, plus a new president, so legislation called the Employee Free Choice Act (EFCA) can be enacted in 2009Since many in labor believe that amending the NLRA is more critical to union survival today than 30 years ago, it’s worth examining the current campaign for EFCA. ⁽¹⁾ Have the lessons of past defeats been well applied in labor’s renewed bid to strengthen the right to organize? Can the AFL-CIO and Change To Win (CTW) win on this issue when organized labor’s size and political clout has been so much diminished since the late 1970s?  Even if enacted, will EFCA enable unions to overcome widespread employer resistance to collective bargaining in the U.S.?

As a dress rehearsal for their push for labor law reform next year, unions forced a House vote on EFCA in March, 2007, even though their Democratic allies lacked a filibuster-proof “super-majority” in the Senate and President Bush would have vetoed the bill anyway. At hearings, rallies, and press conferences around the country, union officials and fired workers explained how EFCA would make a difference in union organizing and first contract bargaining. Management would be compelled to recognize new bargaining units based on a showing that a majority of workers (in an appropriate unit) had signed union authorization cards. Employers would no longer be able to insist on NLRB elections, taking advantage of the accompanying delays and opportunities for legal (and illegal) anti-union campaigning. Workers fired for organizing would be eligible for “treble damages”–three times their lost pay–rather than just “back pay” minus “interim earnings.” Other employer unfair labor practices-now “punished” with a mere notice posting-could result in a $20,000 fine (if found to be willful or repeated violations of the Act). Finally, EFCA would create a Canadian-style process of first contract mediation and arbitration. Unresolved first contract negotiations could, at union request, become the subject of binding arbitration leading to imposed contract terms. This would make it harder for employers to use bad faith bargaining as their second line of defense against unionization-as many do after losing a contested representation election.

EFCA opponents launched a well-coordinated drive against the bill in 2007–in a dry run of the even bigger management counter-campaign anticipated next year. In op-eds, paid ads, anti-EFCA mailings, speeches, and websites, industry lobbyists defended the sanctity of secret-ballot NLRB representation votes, depicting labor’s “card check” alternative as deeply flawed, undemocratic, and even “un-American.” The result was a 241 to 185 House vote in favor. Three months later, 51 members of the Senate moved to bring it to a vote on the floor-far fewer than the 60 necessary to stop a Republican filibuster. Meanwhile, on the presidential campaign trail, every Democratic candidate endorsed the bill, although only John Edwards ever talked about EFCA much in front of non-labor audiences.  When he was pursuing the “labor vote” in Ohio’s Democratic primary, the eventual nominee, Barack Obama told a blue-collar crowd in Lorain:

“If a majority of workers want a union, they should get a union. It’s that simple. We need to stand up to the business lobby and pass the Employee Free Choice Act. That’s why I’ve been fighting for it in the Senate and that’s why I’ll make it the law of the land when I’m president of the United States.” ⁽²⁾

Obama’s primary rival, Hillary Clinton, also pledged her support for EFCA, although in a private meeting with top AFL-CIO officials in early 2007, she suggested (somewhat gratuitously in light of her own “high negatives”) that labor’s public image might be an impediment to its passage. As a candidate, Clinton carried the taint of her husband’s dismal record on labor law reform. During his first term, fourteen years after Carter’s attempted overhaul of the Wagner Act, Bill Clinton put labor’s top legislative priority on the back burner by creating a presidential study commission.  The “Commission on the Future of Worker-Management Relations” spent 1993-4 collecting testimony and trying to document links between “employee representation” and “economic competitiveness.”  Unfortunately for labor, this two-year period was the only time when the Democrats had a majority in both the House and Senate–and, thus, the ability to enact pro-worker legislation. Dunlop Commission proposals, some of which weren’t even helpful to unions, ended up being dead on arrival due to mid-term election victories in 1994 that gave Republicans control over Congress for the rest of Clinton’s presidency.

Having learned from that fiasco, labor law reformers now hope that their preparatory activity in 2007 and continued agitation during the 2008 race will force a vote on EFCA early in Obama’s administration. House Speaker Nancy Pelosi and Democratic Majority Leader George Miller have committed to pushing the White House forward on the issue without any Clinton-style commissions, delay, or political “triangulation.” But not all of their colleagues, old or new, will necessarily be as reliable as the House leadership. In a recent message to members of the United Electrical Workers, the union’s political director Chris Townsend warned  “against political phonies who want us to think they are in support of EFCA but who will get cold feet when big business lobbyists (and campaign contributors) lean on them hard when the bill comes before Congress again.”⁽³⁾ The 2007 House and Senate roll-calls were an important stepping stone to labor law reform-but, in terms of outcome, these were votes that “didn’t count.” Everyone knew that EFCA wasn’t about to become law then, which made it possible for labor’s more lukewarm “friends” to take a “pro-union” stand of no actual consequence.

In addition to their campaigning for Obama, private sector unions have spent much of 2008 shoring up the shakier Senate Democrats and trying to insure that any Democratic candidates who join them in January are already committed to EFCA. (In labor’s best-case election scenario, Democrats will gain nine additional Senate seats on Nov. 4 and, at long last, the ability to overcome a Republican filibuster.) Members of the Communications Workers of America (CWA) and other unions have been deployed around the country to educate politicians about the experience of workers already covered by EFCA-type procedures for “card check” recognition. In Arkansas, for example, AT&T wireless customer service reps visited U.S. Senator Blanche Lincoln, a past EFCA fence-sitter, to recount how management had used threats, intimidation, and harassment to thwart past union activity. When ownership of their call center in Little Rock changed, workers were able to unionize, without interference, under a negotiated agreement that obligated management to remain neutral and authorized the American Arbitration Association (AAA) to certify CWA based on its “card majority.”

Among the 20,000 or more AT&T workers who have won bargaining rights in similar fashion since 2004 is a group of 600 located in Dover, New Hampshire. Their CWA organizing committee had a meeting with former N.H. governor Jean Shaheen, who pledged to become an EFCA during her 2008 race against a GOP incumbent, Senator John Sununu. The Dover workers explained to Shaheen how CWA Local 1298 was became their bargaining representative after a AAA card count in October, 2007. (This win was the biggest private sector organizing victory in the “Live Free or Die” state in three decades.) However, negotiations on a first contract with AT&T were delayed for several months due to the new notice posting and waiting period requirement imposed by the NLRB in its Dana/Metaldyne case decisions. ⁽⁴⁾ In those rulings, Bush appointees to the Board tried to undermine privately negotiated recognition agreements by giving anti-union workers 45-days, after certification via card check, to petition for a decertification vote. Thus if 30 percent of the workers in a new unit sign up, they can bring in the NLRB to hold an election-even after a majority of the workforce has just authorized a union to represent them! At AT&T in Dover, an effective in-plant campaign thwarted any minority bid for a decertification vote; but a year later, several hundred workers have been laid off and the survivors still have no first contract, illustrating the difficulty of getting one even at a firm regarded as “union-friendly). (In Dover, AT&T is not serving telecom customers but rather acting as a passport processing contractor for the U.S. State Department, which has complicated the bargaining by threatening to take the work elsewhere.)

By placing a new obstacle in the path of card check recognition and, potentially, forcing more organizing back into the arena of  NLRB elections,  Dana gave unions most involved in “non-Board organizing” an additional incentive to win passage of EFCA.  Even if NLRA reform fails again in Congress, the Dana decision could be reversed eventually, without amending the law, through Democratic control of the White House. But any broader overturning of anti-worker rulings by the “Bush Board” requires the presidential appointment of more labor-friendly NLRB appointees and several years of case-by-case adjudication and/or agency rule-making. In addition, as Nation writer Max Fraser notes, “Democratic labor board majorities have had little positive effect on organizing” in recent decades. “Private-sector union membership dropped steadily and by more than half between 1977 and 2000, while the two parties spent equal time in the White House. The Reagan years were particularly dismal, but labor didn’t exactly thrive under the Carter and Clinton boards either.” ⁽⁵⁾

That’s why EFCA backers believe unions won’t be able to build on the success of card check and neutrality agreements (negotiated by SEIU, UNITE-HERE, CWA, IBT, UAW, UFCW, and others) without changing the NLRA itself. This confidence is not shared by all academic researchers, however. As Cornell University professor Richard Hurd noted in New Labor Forum in the Spring of 2008,  “even a cursory review of the Canadian experience under provincial laws that parallel EFCA indicates that…expectations of union deliverance from organizing purgatory may prove to be overly optimistic.”⁽⁶⁾ Hurd cites the work of Canadian labor relations scholar Roy Adams, who points out that “union density and bargaining coverage are falling even in such provinces as Saskatchewan and Quebec that have card check and first-contract arbitration clauses.” Adams predicts that U.S. management-like Canadian firms-will find new ways to resist unionization, even if EFCA is enacted, and that its net impact will be minimal.⁽⁷⁾ Other EFCA skeptics point out that “a genuine rights movement relies primarily on the activity of its rank-and-file members…and not on ordinary lobbying or staff-driven campaigns…..[E]very major workers rights statute has been preceded by widespread collective action demanding and exercising workers rights.”⁽⁸⁾

Key EFCA campaign strategists are not oblivious to this protest history. While “organizing unions” can’t summon up a social movement out of thin air, they can try to build on their collective experience of strikes, lock-outs, and membership mobilization on behalf of organizing-related demands. Some recent “bargain to organize” struggles have succeeded, over time, in raising rank-and-file consciousness about the importance of winning EFCA-type card check language (plus employer neutrality) in new contracts.⁽⁹⁾ Past labor law reform efforts-such as the failed 1977-78 bid-had much less of a grassroots orientation than the current effort, relying instead on consultant-driven Capitol Hill lobbying. The Carter Administration, in turn, backed changes in the NLRA like it was just doing a favor for a nettlesome special interest group-providing a quid pro quo for past election support not much different than Congressional Democrats’ perennial introduction, years ago, of “common situs” picketing legislation. (Long viewed as a sop to the building trades, these ill-fated AFL-CIO-backed bills never succeeded in loosening restrictions on worker solidarity on construction sites.)

In key 2008 Senate races, business groups are now spending an estimated $50 million on ads depicting labor law reform as a dangerous “Big Labor” power grab, fueled by union donations to the Democrats.⁽¹⁰⁾ (No matter how much unions have shrunk, in the imagination of www.unionfacts.com and like-minded sources of disinformation, the bogeyman of “Big Labor” still stalks the land, just like it did in the late 1940s when Taft-Hartley was required to tame it!) In the January, 2008, issue of HR Magazine, former management lawyer Rick Berman,  now executive director of the Center for Union Facts in Washington, D.C.,  warned employers that if, EFCA passes, “private sector union membership could double.”  In the same article, well-known union busting consultant Stephen Cabot sounded the alarm about the proposed law’s higher penalties for management misconduct. “Currently, many employers engage in initiatives to counter union campaigns they wouldn’t dare do under EFCA,” Cabot said. “With EFCA, it will be very costly.” HR’s conclusion: “If EFCA passes, it would be the most significant pro-labor legislation in more than two decades”–employers should rightly fear that it “will open the floodgates for organizing.”⁽¹¹⁾

To broaden support for EFCA, unions are depicting it, more accurately, as essential to their institutional survival. Friends of labor have been reminded that, without NLRA reform, unions will be further weakened as a defender of working class living standards and an historic ally of progressive causes. For example, defending existing pension and medical benefits–not to mention protecting Social Security and replacing job-based health insurance with a Medicare-For-All system–will be increasingly difficult, if not impossible, without greater union density. The U.S. mortgage market meltdown and accompanying recession provides yet another compelling reason for Congressional action on EFCA, since workers’ rights could be a helpful part of any real “economic stimulus” package. As economist Dean Baker, from the Center for Economic and Policy Research, explained prior to the crisis on Wall Street:

While suppression of workers’ right to organize may appear  to have little direct relationship to the collapsing housing bubble that is the cause of this recession, on closer examination they are closely linked…If workers are able to form unions and get their share of productivity growth, it can again put the country on the path of wage-driven consumption growth, instead of growth driven by unsustainable  borrowing….Restoring a wage-driven growth path will provide workers and businesses with much more stability than the current bubble economy.”⁽¹²⁾

Yet policy arguments like Baker’s–so redolent of the Depression-era rationale  for passing the Wagner Act in the first place and so compelling again today–won’t gain any traction in Washington, D.C. without many more labor “boots on the ground” (and the accompanying sound of marching feet). At least that was the theory behind the AFL-CIO’s “Million-Member Mobilization” for “bargaining rights worth working for and voting for” in 2008. Undertaken at the urging of CWA President Larry Cohen and others on the federation’s executive council, the AFL-CIO resolved to get ten percent of all union members signed up on pledge cards demanding that Congress and the White House take action on EFCA. To reach this proclaimed goal of one million petitioners, labor’s campaign had both an internal and external component:

“Every national union, state federation, central labor council trade department, constituency group, local union and allied organization commits to massive membership mobilization about    the assault on collective bargaining, the middle class, and our unions…We must educate, mobilize, and enlist our members in  the movement to pass the Employee Free Choice Act.
“Every segment of the labor movement also commits to engage   and cultivate more allies, religious leaders, civil rights leaders, academics, think tanks, and other opinion leaders to speak out about the importance of restoring the freedom to form unions to build a just society.” ⁽¹³⁾

Organized labor is very adept at “resolutionary activity” like this, which papers over an inevitable gap between rhetoric and reality due to lack of follow-up.  In the case of the “million member” mobilization, one reality noticeable so far has been rather light campaigning by several major unions rooted in the public sector who won’t benefit much, if at all, from private sector labor law changes.  EFCA is also largely irrelevant to current strategies for regaining “union market share” in construction (although a few building trades unions have worked hard for it). Ditto for airline industry labor which is covered by the Railway Labor Act, rather than the NLRA. Among the industrial, (non-airline) transportation, service and retail unions with the biggest stake in EFCA, the follow-through on effective membership education and internal mobilization has varied widely.  For some, having such an issue-oriented focus added a new wrinkle to political work during a presidential election year.

In March, 2008, a core group of AFL-CIO unions stepped forward to provide initial leadership in the “Million Member” campaign. CWA, the United Auto Workers, the United Steelworkers, and the much smaller International Federation of Professional and Technical Engineers (IFPTE) formed an alliance based on a professed shared commitment to “unprecedented workplace activity” on behalf of EFCA. All four, with a total membership of two million, had earlier balked at paying a $1 per member special assessment sought by the AFL-CIO to fund its more diffuse GOTV drive. The Alliance was critical of that plan because of its “deficient emphasis on laying the groundwork for enacting EFCA.”⁽¹⁴⁾ So, as part of labor’s overall $300 million political effort, CWA, USWA, UAW, and IFPTE decided to pool resources to reach and engage 15% of their own members on the job, plus run a coordinated field campaign. Among the states now targeted for worksite leafleting, door-to-door canvassing, and phone-banking by the Alliance are Virginia, Michigan, Pennsylvania, Kentucky, Louisiana, Minnesota, and Mississippi.

As Cohen of CWA argued earlier this year: “Our own history, as well as that of other labor movements around the world, teaches us that we must act to create change-not sit back and hope for it, or hire others to make it happen for us.” ⁽¹⁵⁾ Subsequently, Cohen became a bridge-builder to  Change to Win unions as well. He urged them to join Alliance union members in grassroots activity that would inject EFCA into 2008 races and build public support for its passage in 2009, by pushing candidates to talk about workers’ rights, in front of non-labor audiences. (In three presidential or vice-presidential debates so far, neither Obama nor his running-mate, Joe Biden, have mentioned EFCA once. Nor do they bother to make the simple point that Cohen does in his EFCA campaigning, namely that greater unionization would be a “rescue package” for workers, by enabling them to boost their incomes during a recessionary period.)

To raise EFCA’s profile, a group of seven unions, acting through American Rights At Work, is spending $5 million on cable TV ads designed to counter big business saturation of the airwaves with anti-EFCA propaganda. (There is also a quite lively op-ed page war going on about EFCA in newspapers all around the country.) With a month to go before the election, CWA is nearing its own goal of signing up 15% of all members on EFCA pledge cards; it has 97, 842 ready to be displayed in the U.S. Capitol in January, at the swearing-in of the new Congress. Around the country, some organizers are trying to put a human face on the EFCA cards they are gathering. They have photographed rank-and-file endorsers of the bill so their pictures can be posted on campaign websites and sent to Washington too-demonstrating to legislators that EFCA is a real worker priority, not just a project of the labor bureaucracy and its paid lobbyists.

In early 2009, the Employee Free Choice Act will clearly face plenty of competition for inside-the-Beltway attention, due to economic troubles that have now become scarily systemic. Even after union workers help put Obama in the White House, through their exertions in key “battleground states,” the new president will not be spoiling for a knock-down, drag-out fight with corporate American over labor law reform. If recent history is any guide, he may instead be tempted to take a Jimmy Carter-style dive or start bobbing and weaving like the inimitable Bill Clinton.  Only bottom-up pressure on the Democrats, now and after Nov. 4, can insure that this bout even occurs, not to mention ends favorably for labor during Obama’s first term.

(1) Actually, not everyone does agree that EFCA would make that big a difference. See, for example, the provocative arguments of James Pope, Peter Kellman, and Ed Bruno, “The Employee Free Choice Act And A Long-Term Strategy For Winning Workers’ Rights,” WorkingUSA: The Journal of Labor and Society, Vol. 11, March, 2008, pp. 125-144. back

(2) Brian DeBose, “Obama Banks on Union’s Support,” The Washington Times, March 3, 2008, page 14. back

(3) Chris Townsend, “The Deck’s Stacked Against Labor, The UE News, February, 2008, page 15. back

(4) Kim Moody, “Card Check Takes A Hit,” Labor Notes, December, 2007, pp. 4-5. back

(5) Max Fraser, “Beyond the Labor Board,” The Nation, Jan. 21, 2008, pp. 6-8. For  a critique of the performance of the NLRB during the Clinton years, see Steve Early, “How Stands The Union?” The Nation, January 22, 2001 pp. 25-27.back

(6) Richard Hurd, “Neutrality Agreements: Innovative, Controversial, and Labor’s Hope for the Future,” New Labor Forum, Spring, 2008, pp. 35-44. back

(7) See Roy Adams, “The Employee Free Choice Act: A Reality Check,” Labor and Employment Relations Association, Proceedings of the 58^th Annual Meeting, 2006. back

(8) Pope, Kellman, and Bruno in WorkingUSA, March, 2008, page 135. back

(9) See for example the 2005-6 “Hotel Workers Rising” campaign which, according to UNITE-HERE president Bruce Raynor, produced neutrality agreements that have added 6,000 new members to the union. (Cited in Hurd above. For an account of the strike by 75,000 CWA and IBEW members against Verizon in 2000 which occurred, in part, due to a long-running (and still unresolved) union fight over organizing rights at Verizon Wireless, see Steve Early, “Verizon Strike Highlights New Union Role,” The Boston Globe, Sept. 3, 2000, page E7. back

(10) Kris Maher, “Labor Dispute Takes To Airways,” The Wall Street Journal, July 16, 2008, page A6. back

(11) Robert J. Grossman, “Reorganized Labor,” HR Magazine, January, 2008. back

(12) See Dean Baker, “The Recession and the Freedom to Organize,” posted Feb. 6, 2008 by AFL-CIO at http://www.aflcio.org/mediacenter/speakout/dean_baker.cfm back

(13) For full text of AFL-CIO Executive Council’s March 10, 2008 statement, see: http://www.aflcio.org/aboutus/thisistheaflcio/ecouncil/ec030420081.cfm back

(14) See Harold Meyerson, “A Fractured Labor Movement is Throwing Everything Into Its Campaign For Obama,” The American Prospect (web edition only), August 28, 2008 (http://www.prospect.org/cs/articles). The author doesn’t approve of the Alliance. He finds this “political action sub-group” to be further disappointing evidence of the “splintering of a movement whose watchword, supposedly, is solidarity.” back

(15) See “Employee Free Choice Act is Within Reach,”  The CWA News, January-February, 2008, page 8. back

Steve Early worked as a CWA organizer for 27 years. He is the author of a forthcoming book called Embedded With Organized Labor: Journalistic Reflections on the Class War At Home (Monthly Review Press, 2009). A longer version of this article, entitled “Labor Law Reform Thirty Years Later: Back To The Future With EFCA?” will appear in that collection and is being published in Labor: Studies in Working Class History of the Americas, Volume 5, Number 4, November, 2008. For subscription information, see http://labor.dukejournals.org/ )