Employee Free Choice Act: The Enemies of Unions and the Lies They Tell [Archive]

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adamcturl

23rd February 2009, 18:38

Socialist Worker Online

Analysis: Adam Turl

The enemies of unions and the lies they tell

Adam Turl looks at the employers' dirty campaign to block legislation that would make it easier to join a union.

February 20, 2009
WITHIN DAYS of receiving $25 billion in federal bailout money--paid for with your tax dollars--Bank of America hosted a conference call of corporate executives and conservatives to strategize about how to defeat the Employee Free Choice Act (EFCA).

Corporations have declared war on EFCA because of both its specific provisions and the symbolic role it could play in revitalizing the labor movement.

If EFCA passes, union recognition by employers would be automatic whenever 50 percent plus one of workers in a given workplace sign union cards--which is why the process is often referred to as "card check." The legislation would also provide for greater penalties for companies that violate workers' right to organize. President Barack Obama has said he would sign EFCA into law.
The legislation could play a role similar to Section 7(a) of President Franklin Roosevelt's National Recovery Act, which enshrined into federal law the right to organize and buoyed the formation of mass industrial unions. Labor organizers seized the moment to argue that "the president wants you to join the union."
The class-conscious members of America's corporate elite have no intention of repeating this experience.
"[EFCA] is the demise of civilization," Home Depot founder Bernie Marcus said. "This is how a civilization disappears." During the 2008 elections, Marcus declared that corporate executives "should be shot" if they didn't do their part to re-elect at-risk Republican senators who could filibuster and prevent EFCA's passage.
While no corporate executives appear to have been shot as of yet, EFCA's enemies have marshaled a war chest of at least $100 million, according to union estimates. The U.S. Chamber of Commerce has already spent $10 million on its fierce anti-EFCA campaign.

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COMPANIES ARE using every means at their disposal to build opposition. For example, McDonald's publicly directed all franchise owners to lobby Congress against EFCA.
Predictably, Wal-Mart--the largest employer in the U.S.--has also joined the battle. In August, Federal Election Commission complaints were filed, alleging the company illegally instructed employees to vote Republican and against Barack Obama in order to stop EFCA.

On Christmas Eve, the "Beast of Bentonville" even announced it was suddenly settling 63 lawsuits brought by current and former employees--to the tune of $640 million. Why? The Wall Street Journal reported that Wal-Mart decided to pay out in order to improve its image before the battle against EFCA.
Meanwhile, Republican mouthpieces in Congress are mindlessly repeating talking points created by anti-union think tanks and "advocacy" organizations. The lies of "shadowy front groups"--as David Moberg describes them in In These Times--have wormed their way through the mainstream media and begun to shape the debate around EFCA, even though the political terrain should overwhelmingly favor EFCA's supporters.

The names of these employer groups are perfect examples of Orwellian doublespeak: Americans for Job Security, the Employee Freedom Action Committee, and the Coalition for a Democratic Workplace. The longer-standing anti-labor Center for Union Facts is also waging a full frontal attack against EFCA.
Union Facts is headed by D.C. lobbyist Richard Berman (who also heads up the Employee Freedom Action Committee). The CBS news program 60 Minutes once called Berman "Doctor Evil" for his efforts on behalf of the alcohol, fast food and tobacco industries.

In just one week in June 2007, Union Facts spent $500,000 against EFCA. For its part, the Employee Freedom Action Committee, has announced a $30 million anti-EFCA campaign.
One of the biggest fronts, the so-called Coalition for a Democratic Workplace, claims to be a "coalition of workers, employers, associations and organizations" opposed to EFCA. In reality, it includes 500 employer and business organizations such as the American Beverage Association, National Association of Manufacturers, U.S. Chamber of Commerce, American Meat Institute and Mississippi Manufacturers Association.
As Bill Samuel wrote in the Washington newsletter The Hill:
[W]hat should we make of a group that calls itself the Coalition for a Democratic Workplace? That sounds like something I might be in favor of. Are these people really trying to give workers more say in the workplace? Heck, that's what unions do.
Actually, that is most definitely NOT what the Coalition for a Democratic Workplace tries to accomplish. Just look at who its members are. The coalition is made up of groups such as the Retail Industry Leaders Association (RILA), whose biggest member is the notoriously anti-union Wal-Mart; the Associated Builders and Contractors, an association of anti-union contractors; the National Association of Manufacturers; and the U.S. Chamber of Commerce.
These groups do have a track record on issues that involve giving workers more say in the workplace. Not surprisingly, they're not for that.
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UNFORTUNATELY, EFCA'S enemies have had an impact on the debate, despite the growing support for unions--and the growing disrepute of corporations like Bank of America. Fairness and Accuracy in Reporting (FAIR) and Colorado Media Matters have documented significant disinformation percolating through the mainstream media.
The anti-EFCA head-fixing industry has been based on four key lies. But union members and supporters can demolish their arguments once they have the facts in hand.

Lie Number 1: A majority of workers oppose EFCA.

The Coalition for a Democratic Workplace has released a "poll" claiming that 73 percent of Obama voters (!) oppose EFCA. However, the poll was carefully--and unscientifically--worded in order to insure a negative result. In fact, the poll contradicts a mountain of evidence, including more professionally worded surveys, which show widespread support for unions.
For example, a Hart Research Associates survey found that 78 percent of Americans would favor legislation making it easier for employees to bargain with employers over wages, working-conditions and benefits (in other words, the things a union does).
In other surveys, nearly three-quarters of respondents have favored allowing workers to form unions if a majority sign union cards--a central provision of EFCA. And several polls have shown a majority of non-union workers would join a union if they had the chance.
Polls even show that around three-quarters of people support EFCA itself when the key provisions of the legislation are explained.

Lie #2: EFCA would abolish workers' right to a secret ballot in forming a union.

EFCA in no way prohibits the use of ballots in forming a union.
The fact is that the 1935 Wagner Act provided for two primary methods for organizing unions--"card check" and the NLRB election process. "Card check" allows for a union to be brought into a workplace when a majority of employees sign union cards. The NLRB election process is a government-supervised election in a particular bargaining unit, held after a certain number of employees sign union cards.

From the 1930s into the 1970s, the majority of unions were organized through the card-check process. But since the onset of the employers' offensive in the late 1970s, companies realized they could force workers to use the NLRB election process in order to draw out organization drives, intimidate workers and peel off union support.

This has been a successful strategy for Corporate America. One academic study of union elections from 1999 to 2004 showed that in cases where a majority of workers supported unions and signed union cards, they were only able to win NLRB elections 20 percent of the time. In truth, the current set-up forces workers--in the face of the bosses' opposition and intimidation--to organize a union twice.

Further, EFCA does not abolish employees' rights to a secret ballot in the NLRB election process. Instead, it gives the choice of card-check or the election process to workers instead of the bosses.
Nevertheless, this lie has spread unchecked throughout sections of the mass media. For example, CNN's Lou Dobbs recently asserted that card-check would "end the secret ballot" in union elections and that the "so-called Employee Free Choice Act" is a "bold threat."

This should prove that Lou Dobbs--for all his talk about defending "hard-working Americans"--is not only a racist immigrant basher, but anti-labor, period.

Lie #3: EFCA will expose workers to intimidation by unions.

In December, USA Today wrote, "It is hard to see how ending the secret ballot will do much besides initiating campaigns of subtle, and not-so-subtle, intimidation, as workers contemplate their decision."
This media regurgitation of Coalition for Democratic Workplace talking points turns reality on its head. It's bosses who use intimidation during union organizing campaigns.

A 2007 Center for Economic and Policy Research (CEPR) study found one in five workers were illegally terminated when they attempted to organize a union at their workplace.

The House Committee on Education and Labor reported that in 2005 alone, more than 30,000 workers were receiving back pay from employers that had illegally persecuted them for union activity. This undoubtedly understates the scale of the problem, since proving employer violations is a difficult and time-consuming process.
Even serious business studies have shown that cases of so-called "union intimidation" are miniscule in number.

Lie # 4: EFCA is, in the words of the U.S. Chamber of Commerce, a "job killer."

The idea that EFCA would further strangle an already hard-hit job market flies in the face of economic reality and even the opinion of countless mainstream economists--such as New York Times columnist and Nobel Prize winner Paul Krugman.
One of the factors in the deepening economic crisis is a sharp decline in consumer demand. While the credit crunch is causing companies to scale back investments, economically wounded consumers can't afford to buy goods and services, leading businesses to scale back more or move towards bankruptcy, shedding workers and creating more unemployment, which further curtails demand.

Washington's roughly $800 billion stimulus package was supposed to put a check on this vicious cycle.
As Krugman has argued, since unionized workers tend to have greater job security and receive greater wages and benefits, unions are essentially a "stimulus package" that costs taxpayers nothing. A 2007 CEPR study showed this clearly. Median weekly earnings for union members were $886 (prior to the crisis), but just $691 for non-union workers.
Employer opposition to EFCA isn't about the health of the economy or stemming job loss, even though declining demand means they are increasingly unable to sell goods and services.

In truth, companies are caught in an economic "Catch 22." Under capitalist competition, every employer is compelled to extract as much surplus value as possible out of their workers. Failure to do so means that rival companies will benefit at their expense. As a result, corporate executives must try to maintain dictatorial control over production and exploit labor as they see fit. For that reason, unions are anathema to them.

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CAPITAL IS right to be worried. The "pull-yourself-up by the bootstraps" ideology of the past three decades was dealt a blow by the ongoing federal bailout of the financial system--and the economic crisis makes a rise in class struggle increasingly certain.
Significantly, 2008 saw a second straight year of modest, but definite, union growth in the United States. The Bureau of Labor Statistics reported union density grew from 12.1 percent of the workforce to 12.4 percent--an increase of 428,000 workers for a total of 16.1 million union members.

However, labor and the left can't be complacent. The uptick in union membership, while real, is still far below the historic high of about 35 percent in the 1950s, when labor was able to set industry standards for workers' wages and benefits. Since then, unions have been in a steep decline, not only because of economic restructuring that has cost union jobs, but because labor failed to follow production into the South, where most former slave states are virtually union-free.
Now, the prolonged economic crisis has put hundreds of thousands, if not millions, of union jobs on the chopping block. Hundreds of thousands more unionized manufacturing jobs are likely to be lost. Furthermore, public sector unions--where organized labor had its greatest success in recent decades--will be increasingly hit by budget cuts and job losses as tax revenues plummet at the state and local level.

Despite the pressures of a terrible economy, advocates of EFCA have political momentum. The mainstream political shift towards liberalism has opened up new space for labor and for pro-union legislation like EFCA. Much of the Democratic-controlled Congress is on record of supporting EFCA, and President Barack Obama has probably issued more pro-union statements than Roosevelt. All this makes passage of EFCA possible.

But as the debate around the stimulus package showed, we can't risk allowing the Republicans and the right wing to shape the political debate about EFCA--and there is already plenty of cause for concern.
For example, "realistic" politicians are wavering in their support of Obama's pick for Secretary of Labor, Hilda Solis, because of her past support for EFCA.

Some "progressive" journalists have even suggested dumping the more "controversial" parts of EFCA, like card check, in order to win passage of the legislation. This would needlessly concede the terms of the debate to the likes of the National Association of Manufacturers and the Coalition for a Democratic Workplace.
Most worrisome, it's entirely unclear whether the two labor federations--the AFL-CIO and Change to Win--are willing or able to mobilize the sort of grassroots struggle needed to shift the debate around EFCA and put real pressure on the politicians.
The potential is clearly there for a mass movement for EFCA. A February 17 meeting called by the Chicago Federal of Labor in support of the legislation build drew so many people that hundreds had to be turned away from a union hall that normally seats 1,000.

At the same time, however, the willingness of the United Auto Workers--once the standard-bearer of the U.S. labor movement--to give up its right to strike in support of the government auto bailout, could be a harbinger of even worse "compromises" to come.
The enemies of EFCA are take-no-prisoners CEOs. As they spend millions of dollars and marshal all their resources to defeat card-check, it should be clear that they aren't going to go quietly into that long night. So for labor, lobbying and fine words simply won't be enough. It will take protests and pickets that tap into the growing public energy in support of EFCA.
In fact, the way to win EFCA is being shown by our side's most class-conscious fighters.
For example, Republic Windows & Doors workers--represented by the United Electrical, Radio and Machine Workers of America (UE)--are building support for EFCA as they tour the country to spread the lessons of their successful factory occupation last December.

As UE organizer Leah Fried remarked at one such event, "If Republic workers hadn't had a union, nothing would have happened... Laws like EFCA are imperative at a time where corporations are cutting jobs and laying off thousands."

Martin Blank

23rd February 2009, 19:25

Hi comrade. Normally, a post like this would be moved to the Events and Propaganda forum, since it was written for a leftist publication. However, given the relevance of the topic, I'm not going to move it. But do keep this in mind for the future. Thanks.

redSHARP

24th February 2009, 02:50

shit! this piece of work can help bring unions back to the USA! we must do everything in our power to pass this thing!

JimmyJazz

24th February 2009, 02:52

MarxSchmarx

24th February 2009, 05:34

I don't pretend to be an expert on EFCA, but I have talked to a few organizers who were, and it's not some great solution to organizing. On the one side you have companies arguing against it because they don't want workers in unions and to be forced to engage in collective bargaining. On the other side you have labor bureaucrats arguing for it, because their paycheck comes from unionized workers. But the passage of EFCA, even if it did result in more widespread unionization (currently it's at an abysmal 8% for the private sector, 12% for the public sector), would just entrench the whole government-run arbitration process through the unbelievably slow, bureaucratic, conservative National Labor Relations Board.

Essentially, given the trend toward business unions, who happily sign no-strike agreements with employers, increasing the unionization of the workforce without changing the structure of unions means that workers would be trading their right to strike for practically nothing in return. So EFCA is not the fight that the militant American labor movement needs to be fighting right now. Only once unions are vehicles for militant labor action will it be beneficial to fight for laws that make unionization easier. It isn't necessarily impossible to reform business unions; in the 1930s and prior, American unions really were bodies for militant labor action. So hypothetically it's possible. But if unions do prove impossible to reform, then militant workers would be best to work outside of them and around them, or even against them from within.

Analyses of this sort can only get us so far.

True, labor laws are only as strong as their advocates. But that doesn't mean that they are inherently useless, and the NLRB falls into this category.

For all its faults (and there are many) the NLRB and NLRA and related labor laws in America were created by radical unionists strong arming American politicians during teh great depression. As such, they are designed to give unions a "structural advantage". They are, at least on paper, arguably the most pro-worker legislation in the capitalist world.

Only in recent years have they been detoothed and marginalized by a sustained and coordinated assault by misguided legal rulings made by conservative judges and spineless political executives.

Read "Taking Back the Worker's Law" by Ellen Dannin, where she explains why the NLRB is indeed a radical piece of legislation, and how it has been subverted over the decades.

On a broader level, EFCA is a step in the right direction. To be sure, these are capitalist reforms. You are correct that we can't lose sight of the fact that reforms are merely means to an end, not ends in themselves.

JimmyJazz

24th February 2009, 07:26

Analyses of this sort can only get us so far.

True, labor laws are only as strong as their advocates. But that doesn't mean that they are inherently useless, and the NLRB falls into this category.

For all its faults (and there are many) the NLRB and NLRA and related labor laws in America were created by radical unionists strong arming American politicians during teh great depression. As such, they are designed to give unions a "structural advantage". They are, at least on paper, arguably the most pro-worker legislation in the capitalist world.

Only in recent years have they been detoothed and marginalized by a sustained and coordinated assault by misguided legal rulings made by conservative judges and spineless political executives.

Read "Taking Back the Worker's Law" by Ellen Dannin, where she explains why the NLRB is indeed a radical piece of legislation, and how it has been subverted over the decades.

On a broader level, EFCA is a step in the right direction. To be sure, these are capitalist reforms. You are correct that we can't lose sight of the fact that reforms are merely means to an end, not ends in themselves.

Like I said (or at least hinted), this is not my own personal opinion so much as me passing on what I have been told by 3 or 4 long-time radical labor organizers, and they told me for the most part independently of each other.

I will see if I can find the piece you recommend and read it, but I'm incredibly skeptical, because I've never heard the remotest good thing about the NLRB from anyone with experience in the labor movement. At least, not anyone with the slightest radical convictions. I don't know enough to say so myself, but my feeling is that they would laugh at the claim that America has the most "pro-worker" legislation of the capitalist world. Do you realize that there are workplaces which have had votes to unionize ten years ago and still aren't unionized because of processes being dragged out by the companies before the NLRB? The same goes for some grievances filed against bosses.

When you get the company to provide you with health insurance, that's a reform. Signing away your right to strike isn't a reform. It's suicide.

I think I hear what you're saying about labor law, because I do think that America compared to other countries has some pretty decent rights for individual workers (strict laws against workplace discrimination, etc.). But that's not the issue that EFCA addresses. EFCA addresses unionization of workplaces. As far as claiming your rights on the job according to existing law, you don't need a union for that; any individual worker can file an Unair Labor Practice charge if he thinks his rights have been violated. You also don't need a union to strike. In theory it's supposed to make it easier, of course. But if unions are signing away the right of workers to strike, then how can anyone who cares about labor be in favor of making unionization easier? See, I'm not just *****ing that EFCA doesn't go are enough; I'm saying that given current union practices, it might be a step backwards.

I say "might" because not every major union is so pro-business. UNITE-HERE, to name one that I happen to know about, is staging some impressive boycotts. And of course, these more militant unions would benefit from EFCA just as much as the more blatantly collaborationist ones would. Unfortunately I have no statistics on how many unions make contracts with no-strike pledges in them and how many still refuse to.

Just imagine though, if EFCA passes and unionization actually does expand as a result, and a lot of places start following the "closed shop" model so that you can't work there without joining the union: it would mean that there would be places you could not work unless you agreed to a no-strike pledge, that was already in the contract before you got there. I mean, fuck, that's not even capitalism, it's full-blown corporatism.

Giving up our right to fight is not a "reform", it's a slave measure. The focus now has to be on defeating the trend toward no-strike pledges and similar class collaborationist crap, and undercutting--hopefully humiliating--the worthless union leaders who engage in it. Until we manage to do that, I'm ambivalent towards or maybe even opposed to more widespread unionization. Because there's no way to help the good unions organize more people that doesn't also help the bad ones spread their tentacles.

Bolshevik-Leninist

24th February 2009, 14:58

JimmyJazz is correct. EFCA is unsupportable because of its arbitration requirement -- which the ISO scandalously does not mention at all. This, I believe is more criminal than supporting the bill, which is itself a tactical question. But the ISO has been crucial in providing left cover for Obama, including attacks like EFCA which are intended to pre-empt a wave of struggles that have not yet erupted in the US in the current economic crisis.

At this point, the labor bureaucracy and the pro-capitalist misleaders of the working class are a bigger obstacle to union organizing than signature requirements. May I remind comrades that major unions were organized illegally in the 1930s through strikes?

JimmyJazz

24th February 2009, 18:02

JimmyJazz is correct. EFCA is unsupportable because of its arbitration requirement

Oh yeah - I forgot about that. I've read a bit about that and I don't quite understand it: would it actually force unions and employers to sit down and talk about an agreement?

And was I mixed up in talking about an existing trend towards voluntary no-strike agreements between unions and employers? Is there already such a trend, or was it just that EFCA would encourage that trend to start...?

I dunno. I'm gonna see my buddy from a hotel workers' union today and I'll ask him.

MarxSchmarx

26th February 2009, 05:16

I'm incredibly skeptical, because I've never heard the remotest good thing about the NLRB from anyone with experience in the labor movement. At least, not anyone with the slightest radical convictions. I don't know enough to say so myself, but my feeling is that they would laugh at the claim that America has the most "pro-worker" legislation of the capitalist world. Do you realize that there are workplaces which have had votes to unionize ten years ago and still aren't unionized because of processes being dragged out by the companies before the NLRB? The same goes for some grievances filed against bosses.

Of course I don't disagree, in practice the NLRB is a joke.

It's only that the pathetic state of the NLRB is not how the text and spirit of the law goes, and that is the gist of Dannin's argument.

I think I hear what you're saying about labor law, because I do think that America compared to other countries has some pretty decent rights for individual workers (strict laws against workplace discrimination, etc.). But that's not the issue that EFCA addresses. EFCA addresses unionization of workplaces. As far as claiming your rights on the job according to existing law, you don't need a union for that; any individual worker can file an Unair Labor Practice charge if he thinks his rights have been violated. You also don't need a union to strike. In theory it's supposed to make it easier, of course. But if unions are signing away the right of workers to strike, then how can anyone who cares about labor be in favor of making unionization easier? See, I'm not just *****ing that EFCA doesn't go are enough; I'm saying that given current union practices, it might be a step backwards.

I was talking about those segments of the NLRA that address unionization specifically.

Just imagine though, if EFCA passes and unionization actually does expand as a result, and a lot of places start following the "closed shop" model so that you can't work there without joining the union: it would mean that there would be places you could not work unless you agreed to a no-strike pledge, that was already in the contract before you got there. I mean, fuck, that's not even capitalism, it's full-blown corporatism.

Giving up our right to fight is not a "reform", it's a slave measure. The focus now has to be on defeating the trend toward no-strike pledges and similar class collaborationist crap, and undercutting--hopefully humiliating--the worthless union leaders who engage in it. Until we manage to do that, I'm ambivalent towards or maybe even opposed to more widespread unionization. Because there's no way to help the good unions organize more people that doesn't also help the bad ones spread their tentacles... EFCA is unsupportable because of its arbitration requirement

Well all I can say to this is that these are valid points, but short of repealing the NLRA, such a requirement has to remain the basis for subsequent laws. Unfortunately right now the choice is between no unions and crappy union contracts. Yeah this isn't ideal but at least it's a step in the right direction.

John Lenin

26th February 2009, 22:20

http://c4.ac-images.myspacecdn.com/images01/18/l_5470b382cbf5b5729a6f12859ba89af7.jpg

Bolshevik-Leninist

28th February 2009, 16:34

Oh yeah - I forgot about that. I've read a bit about that and I don't quite understand it: would it actually force unions and employers to sit down and talk about an agreement?

And was I mixed up in talking about an existing trend towards voluntary no-strike agreements between unions and employers? Is there already such a trend, or was it just that EFCA would encourage that trend to start...?

I dunno. I'm gonna see my buddy from a hotel workers' union today and I'll ask him.

Hell yes, there is such a trend, and groups like the ISO and Solidarity provide left-cover for these bureaucrats. Make no mistake, the union bureaucracy is a bigger obstacle to union organizing than is US labor law -- draconian as it is. The EFCA would represent something of a gain in allowing card-check for union organizing -- this is a good aspect of the bill. But my organization opposes the EFCA as a whole because we believe that this is far outweighed by the no-strike requirement. The bosses can demand arbitration for a first contract under an EFCA organized union. Arbitration works on the side of the bosses, and union bureaucrats know they can use it to avoid real contract fights, thus serving their interests in getting more members and dues without any fight back. Further, because unions organized in this way would have a first contract period before strikes would be allowed, the bureaucracy has the chance to entrench itself to prevent a real fight for the second contract as well.

In the words of Leon Trotsky in the Transitional Program:
The Bolshevik-Leninist ... takes active part in mass trade unions for the purpose of strengthening them and raising their spirit of militancy. He fights uncompromisingly against any attempt to subordinate the unions to the bourgeois state and bind the proletariat to “compulsory arbitration” and every other form of police guardianship – not only fascist but also “democratic.”

JimmyJazz

4th March 2009, 23:18

I am on the verge of giving up trying to understand all the implications of this bill, frankly. But thanks to B-L and MarxSchmarx for your posts.

BIG BROTHER

5th March 2009, 01:42

Bolshevik-Leninist

5th March 2009, 04:58

Yes the no strike clause sucks, but its not permanent. And yes the union burocracy its an obstacle too, but not supporting the EFCA just because its not radical enough for you seems to me like something chidlish, in the long run it will be beneficial because it will help organize labor into unions.
It's not that it's not radical enough. Indeed it does present some gains for workers. But these gains are matched by the no-strike clause which guarantees the bosses an arbitrated contract and a union with no radical history. Then add to that time before the next contract for the new bureaucracy to entrench itself.

The EFCA does lower the legal requirements for union recognition. Let us not forget that the present-day bureaucratic unions were able to gain recognition through strikes in the 1930s. The legal requirements are currently presenting a lower obstacle to organizing than the union bureaucracy itself, and arbitrated first contracts are exactly what the union bureaucracy wants in order to deepen its hold while still increasing its dues income. The EFCA is designed to head off struggles before they happen by reinforcing the union bureaucracy that the capitalist class has long known is a necessity to preventing mass struggle. Revolutionaries should oppose EFCA because its gains are overshadowed by what is lost, the right to strike, indeed the right to have a meaningful union at all, for the first contract. Workers should be very suspicious of those, such as the International Socialist Organization, promoting EFCA without at least balancing the no-strike clause with the gains presented by the bill.

MarxSchmarx

5th March 2009, 06:30

thanks to B-L and MarxSchmarx for your posts.Glad to have helped :)

The legal requirements are currently presenting a lower obstacle to organizing than the union bureaucracy itself, and arbitrated first contracts are exactly what the union bureaucracy wants in order to deepen its hold while still increasing its dues income. The EFCA is designed to head off struggles before they happen by reinforcing the union bureaucracy that the capitalist class has long known is a necessity to preventing mass struggle. Revolutionaries should oppose EFCA because its gains are overshadowed by what is lost, the right to strike, indeed the right to have a meaningful union at all, for the first contract. Workers should be very suspicious of those, such as the International Socialist Organization, promoting EFCA without at least balancing the no-strike clause with the gains presented by the bill.I am sorry, but I will be blunt. Whatever group takes this stand is doing so from the luxury of an already unionized work place at best and the ivory tower at worst.

Union organizing is not about empowering bureaucrats. This is really an insult to the millions of workers and, yes, union organizers, who risk their jobs and the well being of their families by trying to organize a union.

Whatever the merits of "limited trade-union consciousness" or whatever, without a union, we as the working class are basically powerless.

I know of no on-the-ground union organizer, radical or bureaucratic, who takes the position you describe. Every union organizer I have talked to and worked with cites American labor laws, and the powers they give corporations, as a major impediment to organizing. Well, some of the more sensible ones rail against false consciousness, but this is another story.

Yes I am biased because every organization drive I have been personally involved with has been spearheaded by organizers from my union or organizers who I know and respect personally.

And to be sure, the ISO's embrace of EFCA is opportunistic.

Look at it this way. If this reform were such a raw deal for workers, and were as toothless as you suggest, then capital won't be amassing the troops big time to prevent it. To oppose this reform, however imperfect and apparently on the basis of principle, is to play into their hands.

communick

5th March 2009, 13:39

communick

5th March 2009, 13:44

Employee Free Choice Act (Introduced in House)

HR 800 IH
110th CONGRESS
1st Session
H. R. 800
To amend the National Labor Relations Act to establish an efficient system to enable employees to form, join, or assist labor organizations, to provide for mandatory injunctions for unfair labor practices during organizing efforts, and for other purposes.
IN THE HOUSE OF REPRESENTATIVES
February 5, 2007

Mr. GEORGE MILLER of California (for himself, Mr. KING of New York, Mr. ANDREWS, Mr. PETERSON of Minnesota, Mr. DOYLE, Mr. MURTHA, Mr. OLVER, Ms. MOORE of Wisconsin, Ms. KILPATRICK of Michigan, Mr. BRADY of Pennsylvania, Mr. DINGELL, Mr. KILDEE, Mr. BERMAN, Ms. MATSUI, Mr. WEXLER, Mrs. TAUSCHER, Mr. NADLER, Mr. ROTHMAN, Mr. BOSWELL, Mr. HOLT, Mr. CONYERS, Mr. ENGEL, Ms. BERKLEY, Ms. DELAURO, Mr. HARE, Mr. RYAN of Ohio, Mr. KUCINICH, Mr. CLAY, Mr. ROSS, Mr. BAIRD, Mr. HOYER, Mr. VAN HOLLEN, Ms. CARSON, Mr. HINCHEY, Mr. FARR, Mr. BUTTERFIELD, Ms. MILLENDER-MCDONALD, Ms. BALDWIN, Mr. SHERMAN, Mr. RAHALL, Mrs. MALONEY of New York, Ms. WATERS, Mr. POMEROY, Mr. WU, Mr. PAYNE, Ms. WOOLSEY, Mrs. DAVIS of California, Mr. HINOJOSA, Ms. SCHAKOWSKY, Mr. KIND, Mr. DAVIS of Illinois, Mr. HOLDEN, Ms. LEE, Mr. UDALL of New Mexico, Mr. MCDERMOTT, Ms. MCCOLLUM of Minnesota, Ms. HOOLEY, Mr. HONDA, Mr. MILLER of North Carolina, Mr. FILNER, Mr. GRIJALVA, Mr. JOHNSON of Georgia, Mrs. MCCARTHY of New York, Mr. LEWIS of Georgia, Mr. MORAN of Virginia, Mr. WYNN, Mr. AL GREEN of Texas, Mr. PRICE of North Carolina, Mr. SPACE, Mr. CLEAVER, Mr. HIGGINS, Mr. ABERCROMBIE, Mr. YARMUTH, Mr. GENE GREEN of Texas, Mr. ALTMIRE, Mr. SCHIFF, Mr. CAPUANO, Mr. MOLLOHAN, Mr. STARK, Mr. DONNELLY, Mr. DEFAZIO, Mr. COOPER, Mr. RUPPERSBERGER, Mr. KAGEN, Mr. BISHOP of New York, Ms. SLAUGHTER, Mr. CHANDLER, Mr. WELCH of Vermont, Ms. BEAN, Mr. OBEY, Ms. SCHWARTZ, Mr. SALAZAR, Mr. BISHOP of Georgia, Mr. BACA, Ms. VELAZQUEZ, Mr. ALLEN, Mr. GUTIERREZ, Mr. ORTIZ, Ms. LINDA T. SANCHEZ of California, Mr. LEVIN, Mr. ISRAEL, Mr. LANGEVIN, Mr. ELLSWORTH, Ms. SOLIS, Mr. MEEHAN, Mr. HILL, Mrs. JONES of Ohio, Mr. INSLEE, Mr. RUSH, Mr. BOUCHER, Mr. PATRICK J. MURPHY of Pennsylvania, Mr. SHAYS, Mr. BRALEY of Iowa, Mr. LOEBSACK, Mr. JEFFERSON, Mr. WATT, Mr. CUMMINGS, Mr. PALLONE, Ms. JACKSON-LEE of Texas, Mr. PASTOR, Mr. DELAHUNT, Mr. SIRES, Mr. LYNCH, Mr. LARSON of Connecticut, Mr. FALEOMAVAEGA, Ms. SUTTON, Mr. BLUMENAUER, Ms. KAPTUR, Mr. FRANK of Massachusetts, Mr. NEAL of Massachusetts, Mr. LIPINSKI, Mr. MCGOVERN, Mr. MEEK of Florida, Mr. SARBANES, Mr. THOMPSON of Mississippi, Mr. VISCLOSKY, Mr. MARSHALL, Mr. MOORE of Kansas, Mr. BARROW, Mr. CARNAHAN, Mr. SHULER, Ms. CORRINE BROWN of Florida, Mr. WILSON of Ohio, Mr. ARCURI, Mr. RODRIGUEZ, Mrs. CAPPS, Mr. WALZ of Minnesota, Mr. MARKEY, Mr. SMITH of Washington, Mr. PERLMUTTER, Mr. SCOTT of Virginia, Mr. DICKS, Mr. STUPAK, Mr. REYES, Ms. WASSERMAN SCHULTZ, Mr. EDWARDS, Mr. UDALL of Colorado, Mr. KENNEDY, Mr. DAVIS of Alabama, Ms. ZOE LOFGREN of California, Ms. SHEA-PORTER, Mr. CROWLEY, Mr. LANTOS, Mr. CARDOZA, Ms. LORETTA SANCHEZ of California, Mr. COHEN, Mr. CARNEY, Mr. COSTELLO, Mrs. LOWEY, Mr. HODES, Mr. TOWNS, Mr. LINCOLN DAVIS of Tennessee, Mr. WEINER, Ms. HARMAN, Mr. MURPHY of Connecticut, Mr. PASCRELL, Mr. GORDON of Tennessee, Mr. MICHAUD, Mr. ETHERIDGE, Mr. MATHESON, Mr. KLEIN of Florida, Mr. ACKERMAN, Mr. SESTAK, Mr. MCNERNEY, Mr. HALL of New York, Ms. EDDIE BERNICE JOHNSON of Texas, Mrs. GILLIBRAND, Ms. NORTON, Mr. WAXMAN, Mr. LARSEN of Washington, Mr. ELLISON, Mr. HASTINGS of Florida, Ms. ROYBAL-ALLARD, Mr. JACKSON of Illinois, Ms. ESHOO, Mr. OBERSTAR, Mr. SERRANO, Mr. TIERNEY, Mr. LATOURETTE, Mr. BECERRA, Mr. COURTNEY, Mrs. NAPOLITANO, Mr. MEEKS of New York, Mr. GONZALEZ, Mr. SCOTT of Georgia, Ms. HIRONO, Ms. WATSON, Mr. THOMPSON of California, Ms. GIFFORDS, Mr. MCHUGH, Mr. FATTAH, Mr. COSTA, Mr. MCNULTY, Mr. SMITH of New Jersey, Mr. KANJORSKI, Ms. DEGETTE, Mr. EMANUEL, Ms. CLARKE, Ms. HERSETH, Mr. CLYBURN, Mr. SKELTON, Mr. FOSSELLA, Mr. RANGEL, Mr. LOBIONDO, Ms. CASTOR, Mr. MELANCON, Mrs. BOYDA of Kansas, Mr. MITCHELL, Mr. LAMPSON, Mrs. CHRISTENSEN, and Mr. DOGGETT) introduced the following bill; which was referred to the Committee on Education and Labor
A BILL
To amend the National Labor Relations Act to establish an efficient system to enable employees to form, join, or assist labor organizations, to provide for mandatory injunctions for unfair labor practices during organizing efforts, and for other purposes.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This Act may be cited as the `Employee Free Choice Act'.

SEC. 2. STREAMLINING UNION CERTIFICATION.

(a) In General- Section 9(c) of the National Labor Relations Act (29 U.S.C. 159(c)) is amended by adding at the end the following:

`(6) Notwithstanding any other provision of this section, whenever a petition shall have been filed by an employee or group of employees or any individual or labor organization acting in their behalf alleging that a majority of employees in a unit appropriate for the purposes of collective bargaining wish to be represented by an individual or labor organization for such purposes, the Board shall investigate the petition. If the Board finds that a majority of the employees in a unit appropriate for bargaining has signed valid authorizations designating the individual or labor organization specified in the petition as their bargaining representative and that no other individual or labor organization is currently certified or recognized as the exclusive representative of any of the employees in the unit, the Board shall not direct an election but shall certify the individual or labor organization as the representative described in subsection (a).

`(7) The Board shall develop guidelines and procedures for the designation by employees of a bargaining representative in the manner described in paragraph (6). Such guidelines and procedures shall include--

`(A) model collective bargaining authorization language that may be used for purposes of making the designations described in paragraph (6); and

`(B) procedures to be used by the Board to establish the validity of signed authorizations designating bargaining representatives.'.

(b) Conforming Amendments-

(1) NATIONAL LABOR RELATIONS BOARD- Section 3(b) of the National Labor Relations Act (29 U.S.C. 153(b)) is amended, in the second sentence--

(A) by striking `and to' and inserting `to'; and

(B) by striking `and certify the results thereof,' and inserting `, and to issue certifications as provided for in that section,'.

(2) UNFAIR LABOR PRACTICES- Section 8(b) of the National Labor Relations Act (29 U.S.C. 158(b)) is amended--

(A) in paragraph (7)(B) by striking `, or' and inserting `or a petition has been filed under section 9(c)(6), or'; and

(B) in paragraph (7)(C) by striking `when such a petition has been filed' and inserting `when such a petition other than a petition under section 9(c)(6) has been filed'.

SEC. 3. FACILITATING INITIAL COLLECTIVE BARGAINING AGREEMENTS.

Section 8 of the National Labor Relations Act (29 U.S.C. 158) is amended by adding at the end the following:

`(h) Whenever collective bargaining is for the purpose of establishing an initial agreement following certification or recognition, the provisions of subsection (d) shall be modified as follows:

`(1) Not later than 10 days after receiving a written request for collective bargaining from an individual or labor organization that has been newly organized or certified as a representative as defined in section 9(a), or within such further period as the parties agree upon, the parties shall meet and commence to bargain collectively and shall make every reasonable effort to conclude and sign a collective bargaining agreement.

`(2) If after the expiration of the 90-day period beginning on the date on which bargaining is commenced, or such additional period as the parties may agree upon, the parties have failed to reach an agreement, either party may notify the Federal Mediation and Conciliation Service of the existence of a dispute and request mediation. Whenever such a request is received, it shall be the duty of the Service promptly to put itself in communication with the parties and to use its best efforts, by mediation and conciliation, to bring them to agreement.

`(3) If after the expiration of the 30-day period beginning on the date on which the request for mediation is made under paragraph (2), or such additional period as the parties may agree upon, the Service is not able to bring the parties to agreement by conciliation, the Service shall refer the dispute to an arbitration board established in accordance with such regulations as may be prescribed by the Service. The arbitration panel shall render a decision settling the dispute and such decision shall be binding upon the parties for a period of 2 years, unless amended during such period by written consent of the parties.'.

SEC. 4. STRENGTHENING ENFORCEMENT.

(a) Injunctions Against Unfair Labor Practices During Organizing Drives-

(1) IN GENERAL- Section 10(l) of the National Labor Relations Act (29 U.S.C. 160(l)) is amended--

(A) in the second sentence, by striking `If, after such' and inserting the following:

`(2) If, after such'; and

(B) by striking the first sentence and inserting the following:

`(1) Whenever it is charged--

`(A) that any employer--

`(i) discharged or otherwise discriminated against an employee in violation of subsection (a)(3) of section 8;

`(ii) threatened to discharge or to otherwise discriminate against an employee in violation of subsection (a)(1) of section 8; or

`(iii) engaged in any other unfair labor practice within the meaning of subsection (a)(1) that significantly interferes with, restrains, or coerces employees in the exercise of the rights guaranteed in section 7;

while employees of that employer were seeking representation by a labor organization or during the period after a labor organization was recognized as a representative defined in section 9(a) until the first collective bargaining contract is entered into between the employer and the representative; or

`(B) that any person has engaged in an unfair labor practice within the meaning of subparagraph (A), (B) or (C) of section 8(b)(4), section 8(e), or section 8(b)(7);

the preliminary investigation of such charge shall be made forthwith and given priority over all other cases except cases of like character in the office where it is filed or to which it is referred.'.

(2) CONFORMING AMENDMENT- Section 10(m) of the National Labor Relations Act (29 U.S.C. 160(m)) is amended by inserting `under circumstances not subject to section 10(l)' after `section 8'.

(b) Remedies for Violations-

(1) BACKPAY- Section 10(c) of the National Labor Relations Act (29 U.S.C. 160(c)) is amended by striking `And provided further,' and inserting `Provided further, That if the Board finds that an employer has discriminated against an employee in violation of subsection (a)(3) of section 8 while employees of the employer were seeking representation by a labor organization, or during the period after a labor organization was recognized as a representative defined in subsection (a) of section 9 until the first collective bargaining contract was entered into between the employer and the representative, the Board in such order shall award the employee back pay and, in addition, 2 times that amount as liquidated damages: Provided further,'.

(2) CIVIL PENALTIES- Section 12 of the National Labor Relations Act (29 U.S.C. 162) is amended--

(A) by striking `Any' and inserting `(a) Any'; and

(B) by adding at the end the following:

`(b) Any employer who willfully or repeatedly commits any unfair labor practice within the meaning of subsections (a)(1) or (a)(3) of section 8 while employees of the employer are seeking representation by a labor organization or during the period after a labor organization has been recognized as a representative defined in subsection (a) of section 9 until the first collective bargaining contract is entered into between the employer and the representative shall, in addition to any make-whole remedy ordered, be subject to a civil penalty of not to exceed $20,000 for each violation. In determining the amount of any penalty under this section, the Board shall consider the gravity of the unfair labor practice and the impact of the unfair labor practice on the charging party, on other persons seeking to exercise rights guaranteed by this Act, or on the public interest.'.

Lord Testicles

5th March 2009, 14:30

Some of you might find this link interesting.

http://wikileaks.org/wiki/Anti-union_call_between_Bank_of_America%2C_Bernie_Marcu s%2C_et_al._and_Rick_Berman%2C_17_Oct_2008

Bolshevik-Leninist

5th March 2009, 15:17

Where is the "no strike clause" in EFCA. I want a real quote from the text of the bill not some "I heard from somebody" bullshit.

I have heard nothing from anybody (except on this board) about a no strike clause.

It is in what you posted. It does not say "no strikes" but it allows the bosses to call for binding arbitration, which is a favorite weapon against workers used by bosses and bureaucrats.

The Spartacist League has mentioned the no-strike clause but still supports the bill. Other groups have criminally not mentioned the clause at all. For example, Adam Turl's article, which was the start of this thread (it seems like he posted this thread too). Where is he now?

MarxSchmarx

7th March 2009, 04:34

It is in what you posted. It does not say "no strikes" but it allows the bosses to call for binding arbitration, which is a favorite weapon against workers used by bosses and bureaucrats.

But this is only in the first two years following unionization, and is arguably already the law throughout the land:

(Arbitration) is commonly designated in collective agreements between employers and employees as the way to resolve disputes. The parties select a neutral third party (an arbiter) to hold a formal or informal hearing on the disagreement. The arbiter then issues a decision binding on the parties. Both federal and state law governs the practice of arbitration. While the Federal Arbitration Act, by its own terms, is not applicable to employment contracts, federal courts are increasingly applying the law in labor disputes. Fourty-nine states have adopted the Uniform Arbitration Act (1956) as state law. Thus, the arbitration agreement and decision of the arbiter may be enforceable under state and federal law.http://topics.law.cornell.edu/wex/collective_bargaining

Also:

http://www.naarb.org/proceedings/pdfs/1962-60.pdf

JimmyJazz

7th March 2009, 09:31

Where is the "no strike clause" in EFCA. I want a real quote from the text of the bill not some "I heard from somebody" bullshit.

I have heard nothing from anybody (except on this board) about a no strike clause.

No-strike clauses are not in EFCA, they are in the contracts that many business unions willingly sign with their employers these days. That's the concern: workers are getting sucked into these business unions, and then union bureaucrats are signing contracts with no-strike clauses in them. Non-unionized workers, on the other hand, are always free to strike.

Of course, unions can always hold out on a new contract when the old one expires. It's not like they are signing it away their right to strike for all eternity. But they are signing it away for, usually, about four years at a time (the duration of a contract).

EFCA does include an arbitration requirement, which to the best of my ability to tell, will require employers and unions to come before a third party mediator (government agency) if they can't come to a solution by themselves within 120 days. This government mediator will hand down a ruling one way or the other (or some kind of compromise), although I'm not sure if these decisions will be binding.

As a note, I definitely way overstated the case earlier. Of course we should support EFCA, now, while it is up on the table: we should jump at this chance. The internal reform of unions can come afterwards. But the reform part does have to come; we can't consider the passage of EFCA a victory in itself.

Bolshevik-Leninist

7th March 2009, 16:23

JimmyJazz, the decisions are binding and the arbitration can be requested by the employer to stop a strike from happening! That's the whole point of binding arbitration, to prevent strikes from happening. In fact that clause applies to any workplace organized through EFCA. The fact is, EFCA allows the bosses to require binding arbitration instead of a strike.

The fact that almost none of EFCA's supporters even know about the no-strike clause is very disturbing, but perhaps less disturbing than the fact that those who really understand it haven't made good arguments why EFCA is supportable regardless.

communick

7th March 2009, 19:17

The binding arbitration is to prevent the bosses from dragging on contract negotiations for years and years. If they can prevent a contract for long enough it is possible to discredit and de-certify the union.

There is no wording about no strike clauses in the arbitration requirement.

Personally, I think that a strike for union recognition would be more empowering for workers than mediation/arbitration, but only if the strike wins. If the strike loses then the workers are out of jobs and probably wishing that they had gone to arbitration.

It is easy to be ideologically pure on this subject if you are not actually engaged in workers' struggles as a worker. But the reality on the ground is that most workers are not currently prepared to strike for union recognition. It is just too risky for them considering the current low level of struggle.

EFCA is definitely a (baby)step forward for the labor movement and there are very real reasons that employers are spending $300,000,000 to try to kill it.

JimmyJazz

7th March 2009, 21:11

JimmyJazz, the decisions are binding and the arbitration can be requested by the employer to stop a strike from happening! That's the whole point of binding arbitration, to prevent strikes from happening.

Can you link to something that says this?

From my understanding an agreement will only be imposed from outside after 120 days. Which is not to say that employers won't deliberately wait strikes out for four months: especially under a pro-corporate administration like the Bush admin, they undoubtedly will.

But I haven't seen anything saying they can just request it and get it. What I've seen has been pretty clear about the 120 days thing.

The fact that almost none of EFCA's supporters even know about the no-strike clause is very disturbing

"The no-strike clause"? Are you calling the arbitration requirement a "no-strike clause"? Because when I use that phrase I'm referring to a thing that exists in some union contracts, not a part of the federal legislation known as EFCA.

Bolshevik-Leninist

10th March 2009, 03:38

Can you link to something that says this?

From my understanding an agreement will only be imposed from outside after 120 days. Which is not to say that employers won't deliberately wait strikes out for four months: especially under a pro-corporate administration like the Bush admin, they undoubtedly will.

But I haven't seen anything saying they can just request it and get it. What I've seen has been pretty clear about the 120 days thing.

Based on my reading of the bill I think I have been imprecise in terming it a "request" for arbitration. It seems they can simply wait out the negotiations at which point mandatory compulsory arbitration gives them the contract they wanted anyway. The union leaders and the bosses both know this and understand that it gives each what they want: for the union leaders, easier potentially dues paying workplace organizing without struggle, and for the bosses, compulsory binding arbitration whenever they want it.

So support for the bill must weigh these factors against one another. I believe communists must oppose the EFCA because I believe that presently, nonfighting bureaucratic unions present a bigger obstacle to be overcome in organizing than bourgeois legal provisions do. While card-check would be good, it is not worth the right to strike on a first contract.

Bureaucratic unions have failed to organize widely because of a lack of struggle. Their unwillingness to fight has been a bigger obstacle than lack of card-check. But selling off the right to strike in order to facilitate organizing without fighting, would in fact make this worse.

"The no-strike clause"? Are you calling the arbitration requirement a "no-strike clause"? Because when I use that phrase I'm referring to a thing that exists in some union contracts, not a part of the federal legislation known as EFCA.
Sorry, I realize you were talking about those, and I should have been more clear. I am referring to the arbitration clause because to be clear, it is a 2 year first contract no-strike clause.

The binding arbitration is to prevent the bosses from dragging on contract negotiations for years and years. If they can prevent a contract for long enough it is possible to discredit and de-certify the union.

Binding arbitration by their state, on their terms, when they want it is an attack on workers that saps us of our right to strike. I challenge you to show Socialist Alternative (your organization, correct?) material that argues that binding arbitration is a desirable thing.

In the meantime, here's Trotsky in the Transitional Program:
"The Bolshevik-Leninist ... takes active part in mass trade unions for the purpose of strengthening them and raising their spirit of militancy. He fights uncompromisingly against any attempt to subordinate the unions to the bourgeois state and bind the proletariat to 'compulsory arbitration' and every other form of police guardianship – not only fascist but also 'democratic.'"

Reclaimed Dasein

11th March 2009, 07:22

adamcturl

3rd April 2009, 07:49

EFCA on the ropes
Adam Turl reports on the bosses' backlash against the Employee Free Choice Act--and analyzes the shortcomings of organized labor's strategy.
April 3, 2009
A SENSE of imminent triumph in the house of labor has been replaced by uncertainty and unease about the prospects for the Employee Free Choice Act (EFCA).
As Politico.com reported on March 26: "Key Democrats fled from the Employee Free Choice Act on Wednesday, saying they couldn't support the bill unless significant modifications were made, including some ardently opposed by labor unions."
The same day, Republican Sen. Arlen Spector, who was a co-sponsor of EFCA when it was first introduced in 2003, did an about-face and vowed to oppose the legislation. That means Senate Republicans will have the 40 members they need to use procedural moves to block votes on EFCA.
"The bill, as written," the Politico article concluded, "appears to have a slim chance of moving forward, and labor union supporters now fear it may be on hold until after next year's midterm elections."
EFCA was the major political priority of the U.S. labor movement in the 2008 elections. The proposal would make it easier for workers to join unions by giving them the option of bypassing a drawn-out National Labor Relations Board (NLRB) supervised election--a process frequently abused by corporations to intimidate workers--in favor of a simple majority of workers signing union cards to achieve legal union recognition. EFCA would also increase fines on companies that violate workers' rights and make it harder for employers to avoid signing initial contracts with newly unionized workers.
Needless to say, Corporate America didn't take kindly to EFCA, and spent hundreds of millions, mobilizing all its forces to defeat the legislation.
The anti-EFCA war had its intended impact. In addition to Specter's flip-flop, Democratic Sen. Ben Nelson has called for compromise that would gut the legislation. Even one of EFCA's authors, Sen. Tom Harkin, has now said he would open up the bill to changes.
EFCA isn't dead yet--but it is in danger. There's still time to shift things, but that time is growing short.
Unfortunately, the blame for what's happening to the legislation doesn't lie solely with EFCA's corporate enemies, but also with the strategy of its supporters.
The AFL-CIO and Change to Win labor federations have been oriented on the Senate vote-count. Labor focused in on lobbying 10 key senators who wavered on the legislation, running pro-EFCA advertisements in their states.
There are a number of problems with this math-based approach.
First of all, in terms of lobbying and running advertisements, organized labor will always be outgunned by Corporate America. Lobbying is about access to the corridors of power. Running television, radio and newspaper ads takes money. Big business simply has more access and more money.
Secondly, organized labor approached individual senators as allies who just needed to hear good arguments in favor of the legislation and be shored up so they would do "the right thing"--instead of approaching the Senate as a collection of politicians worried about their own power.
And by focusing all their energy on lobbying "swing" votes in the Senate, the unions gave the most conservative Democrats the most attention in the political debate about EFCA. Thus, the entire media waited with bated breath for the opinions of two Arkansas senators who, though they are Democrats, are ultimately in the pocket of home-state union-buster Wal-Mart.
This was a lost opportunity. If the unions had launched a mass, grassroots and active campaign for EFCA, the media would be hearing arguments from workers about why labor law reform is needed.
- - - - - - - - - - - - - - - -
EFCA'S SETBACKS are in part the result of labor's misreading of the dynamics of the Democratic Party--again. While the Democrats have long counted the unions as part of their base and the party's liberal politicians are adept at making pro-worker speeches, the Democrats are, in fact, a pro-business party. The party's approach to EFCA reflects this contradiction.
On the one hand, the political shift that brought President Barack Obama into the White House and increased the Democratic majorities in both houses of Congress has made it more possible to pass EFCA. But the dirty secret is that that this same Democratic Party is entirely capable of sabotaging its own legislation if Corporate America wants it to.
While Congressional Republicans--backed up by the corporate anti-EFCA blitzkrieg--were confidently denouncing the bill and planning for its defeat, Democratic leaders treated EFCA like a legislative stepchild, professing support, but not getting "too close." No senior Senate or House leader--House Speaker Nancy Pelosi and Majority Leader Harry Reid included--even showed up for the Capitol Hill press conference announcing the reintroduction of EFCA on March 10.
The White House also kept EFCA at arms' length and avoided putting any pressure on members of congress to support the legislation. And when Vice President Joe Biden spoke to union leaders about EFCA, cameras weren't allowed to cover the proceedings. Thus, when the bill was reintroduced on March 10, several former sponsors of the 2007 version of the legislation had already gone AWOL.
Why? Well, it's one thing for the Democrats to vote for pro-union legislation when there's no chance of it actually becoming law. It's quite another to do so when it is possible.
In 2007, with George W. Bush in the White House and a bare Democratic majority in the Senate, there was simply no chance of EFCA becoming law. Democrats could vote for the legislation to be on record as fighting for workers, yet be assured that their actions would not actually infringe on the interests of big business.
Now that EFCA is possible, however, some party leaders have apparently concluded that the "best" outcome would be to allow a narrow defeat for EFCA in the Senate, or a compromise that guts the legislation, or indefinite postponement. This would allow the Democrats to defend corporate interests while appearing to be loyal to their pro-union working-class base.
In fact, Congress has been caught in a tug of war between its increasingly discredited corporate patrons and an increasingly angry working-class base. Members have been weighing which course of action--EFCA's success or failure--poses the greatest risk.
Genuine grassroots pressure could tip the scales back in labor's favor. Democratic-controlled Congresses have passed pro-union and pro-working-class legislation in the past--in the 1930s and the 1960s in particular--when there was sufficient pressure to force their hand.
But lobbying alone can't produce that sort of pressure. Democrats who have turned on EFCA should not merely be challenged with words or targeted in the next election. Those politicians should be targeted with protests--now.
- - - - - - - - - - - - - - - -
ANOTHER THREAT to EFCA comes from supposedly "progressive" companies that are proposing an alternative process to expedite union elections.
Some on the left see this is an advance. In a recent article, titled "Corporate United Front Against EFCA Cracking," posted on the Web site of the magazine Political Affairs (published by the Communist Party USA), Joel Wendland cites two signs of a supposed corporate retreat--the so-called "compromise" proposal on labor law reform put forward by Costco, Starbucks and Whole Foods, and an admission in the Wall Street Journal that EFCA would not, contrary to the claims of its opponents, prevent the use of secret ballots in union elections if workers decide they want one.
Wendland argues that the Journal's acknowledgement of the truth about EFCA opened up the potential for Republicans (!) to support EFCA. He adds:
“It is likely that many Republicans, without reading the bill, simply accepted the word of anti-worker television entertainers like Lou Dobbs and Glenn Beck, and a massive $200 million ad campaign by big business groups like the National Association of Manufacturers.”
In fact, one day after Wendland's article was posted, Specter publicly announced his opposition to the bill. So much for "Republicans for EFCA."
What about the Costco, Starbucks and Whole Foods proposal? AFL-CIO Organizing Director Stewart Acuff described it this way:
“[S]ections of Corporate America have smelled the coffee and are looking for compromise legislation...Though their compromise is totally inadequate, it does signal that the ranks of Corporate America have been broken, and that passage of the Employee Free Choice Act is increasingly inevitable."
Of course, the fact that Costco, Starbucks and Whole Foods felt compelled to break with the Chamber of Commerce's strategy of total war is a sign of the times. Big business has been discredited by the crisis and by government bailouts for corporations. The overall terrain should be politically favorable to unions.
But labor needs to take stock of the balance of forces. There are more than 500 business organizations aligned with the Chamber's hard-line "no-compromise" approach to EFCA. Steven Law, general counsel for the Chamber, made Corporate America's position clear on March 10 while speaking to businessmen and Republican members of congress: "The only thing that stands between [EFCA] and your workplace is the filibuster. There is no compromise."
It should be further emphasized that only three companies have "broken ranks"--and there is a reason why it was these three. Starbucks and Whole Foods in particular--despite (or because of) a long and sordid history of union-busting--have tried to present themselves as "socially responsible," and are worried about their corporate images. Moreover, as most EFCA supporters have argued, including Wendland and Acuff, the "Third Way" proposal (as it has been dubbed) would gut EFCA.
The distressing reality is that things are going the wrong direction on EFCA. The proposal is losing support in the Senate, and Corporate America is increasingly confident that it will be defeated. There is no point in pretending otherwise.
- - - - - - - - - - - - - - - -
THE ONLY way to revive chances of passing EFCA is through organization, activism and protest.
Some of this is already taking place. As Acuff wrote of labor's pro-EFCA activism:
“What grassroots movement can in the span of one week run 57 letters to the editor in newspapers across America, send 14,000 handwritten letters to 10 U.S. Senators and simultaneously plan 35 grassroots advocacy events with workers in 10 states?
“America's labor movement, the AFL-CIO can. Now that the Employee Free Choice Act has been introduced in the U.S. House and Senate, organized labor's multi-state grassroots campaign is running at full throttle.”
But is this really all organized labor can do?
Labor's muscle--its membership--has not been flexed in the battle for EFCA, even though union members and many other workers are itching for a fight, and on exactly this issue. Union members could be mobilized to pressure senators who have dropped their support for EFCA, as well as to protest companies and CEOs involved in the anti-EFCA campaign.
In such an activist pro-EFCA campaign, organized labor could win the support of tens of millions of nonunion workers to back the legislation. For example, a Gallup poll released March 17 showed that a solid majority of 52 percent favored laws making it easier to join a union. Previous polls have shown even greater support.
More worrisome, however, was that the Gallup poll showed only 12 percent of Americans were following the debate around EFCA closely. Another recent poll found that only half of respondents were even clear as to what EFCA was.
Organized labor, by focusing on the Senate vote count at the expense of much else, has simply not done a good enough job educating the people about EFCA and the reasons why working people should pull out all the stops to support it.
While there have been some important rallies and protests called by local union federations, union locals and chapters of Jobs with Justice, more can and should be done.
Certainly, the moment is right to target big business. Today's corporate giants have clay feet. After Citibank joined fellow ward of the state Bank of America in organizing anti-EFCA conference calls, unions sent a letter to the Treasury Department in protest. But this is a political crack that labor could drive every unionized truck in the country through--if it looked beyond the Beltway.
Some chapters of Jobs with Justice and student groups have organized protests at these banks. Unions and pro-worker groups everywhere should follow this example.
Industrial action could also have an impact. For example, what if Teamsters at UPS refused to deliver packages to Bank of America for just a single day? They would be heroes--and it could connect the struggle for EFCA to the fight against corporate greed in the public imagination.
As the great abolitionist Frederick Douglas famously said, "Without struggle, there is no progress." At the end of the day, our fight isn't about one piece of pro-labor legislation--however important it may be--but building a militant rank-and-file workers' rebellion that can change the world.
EFCA is one battle in that war--and we could still win that battle. But only if we fight.

Bolshevik-Leninist

3rd April 2009, 15:03

brigadista

3rd April 2009, 16:34

Just imagine though, if EFCA passes and unionization actually does expand as a result, and a lot of places start following the "closed shop" model so that you can't work there without joining the union: it would mean that there would be places you could not work unless you agreed to a no-strike pledge, that was already in the contract before you got there. I mean, fuck, that's not even capitalism, it's full-blown corporatism

that would be a very serious development. Please keep us posted as to what happens with this legislation - we are no longer in the UK legally allowed to have a closed shop or secondary picket ,and workplaces have to have recognition agreements for workers to join a Union - all courtesy of the Thatcher Governmnt and with no reform by the Blair gov who de -nationalised all the nationalised industries in the UK.

Thanks a lot for this info and your analysis

JimmyJazz

3rd April 2009, 19:28

Actually, I meant to say "union shop" in that quote, not "closed shop". Closed shops are something different, and have been illegal since Taft-Hartley in 1947. And in a union shop, I'm not sure you as an individual worker would "have to" sign on with a no-strike pledge if there was one--in a union shop, you are only required to either join the union or pay union dues without joining. If you did the latter then I assume you wouldn't be part of any contracts the union signed.

I am not sure anyone fully understands or can predict all the effects EFCA would have. I have heard too much contradictory stuff. Professional union organizers I have talked to, including one who is also an IWW member, have an overall "meh" attitude towards it, although they do want it to pass. I just assume they're right.

Martin Blank

7th April 2009, 00:38

Adam C Turl, be ashamed of yourself for calling EFCA "pro-labor". You do not mention its binding arbitration which would in effect BAN STRIKES! Support for EFCA is a tactical question, and my organization believes that binding arbitration outweighs card-check, given how much more entrenched an obstacle to union organizing the labor bureaucracy currently is than labor law. But it is a matter of principle that revolutionaries expose EFCA's strike ban, which is an attack on workers, even if they support the bill after weighing it out. Your article makes no mention. You do not justify support for EFCA. It is just taken as a given because the union bureaucrats and some Democrats support it. Shame on you.

I also think it's a problem to call the EFCA "pro-labor" ... unless "pro-labor" means pro-AFL-CIO/Change to Win officials, in which case the description fits. The EFCA is what the corporatist union officials want, because it will allow them to maintain membership numbers with minimal effort and keep the dues money flowing.

As for the arbitration issue, I'm not sure if it is any worse than the rest of the bill. For example, arbitration cannot start until 30 days after a union is recognized and 20 days after contract negotiations begin, and then only if it is requested by one or the other side. This means that a union has 20 days to call a strike, if they believe that the bosses are not negotiating in good faith. And, IIRC, if a strike is called, the question of it going to arbitration has to be by mutual agreement (as per existing NLRA provisions).

To me, the issue of card check is more pernicious than the arbitration guidelines. Besides the fact that it is highly unlikely to actually lead to an increase in unionization, the corporatist officials in the AFL-CIO and Change to Win want this provision for no reason other than to keep the dues money flowing into the pockets with the least amount of effort. If the EFCA passes, the disconnect between union officials and union membership will grow, since few, if any, of those holding a card will have put any effort into bringing the union into existence (such efforts breed a sense of "ownership" and make people feel like they are really a part of the organization).

Concretely, this will mean that workers will take less interest in what the union is doing, and could even result in more people becoming anti-union, since they will see post-EFCA unions as little more than some anonymous body that takes another cut out of their paycheck every week or two weeks. I actually expect that, if the EFCA passes, you will see many of the unions that are certified be decertified within months, since there will be no bulwark -- no culture of solidarity -- to counter the bosses' propaganda war. (And I really don't know if the current line of the corporatist unions, that unions will protect or raise their standards of living, will be able to hold water with workers, given what's been happening to the UAW and other similar organizations.)

At the same time, I do understand why a lot of workers are supporting the EFCA, in spite of its problems. Today, 44 percent of employers confronted with a successful organizing drive refuse to recognize the union (even after a NLRB election), and of those that do, most of them never sign a contract. The EFCA would undoubtedly change those numbers in favor of existing unions, though I suspect it will not be at the levels predicted by the AFL-CIO and Change to Win officials. And a lot of workers are willing to trade off the right to call a strike right away in order to get that first contract (even if that contract is a piece of shit).

Moreover, I do understand why many of the Democrats in Congress, and even Obama himself, favor this bill. The EFCA is a bribe, offered by sections of the exploiting and oppressing classes to the remnants of the labor aristocracy in exchange for their continued loyalty during the current economic depression. In that sense, it's not too different from what the Wagner Act was meant to be in 1935. But, as we could expect, the EFCA follows the "first time as tragedy, second time as farce" dictum.

Die Neue Zeit

7th April 2009, 03:21

Yikes! That's a lot to consider there! Of course, the bribery would be less effective if the 70-50-30 alternative proposed by some businesses were passed.