Ready to Rumble

Workers and Corporate America battle over the Employee Free Choice Act.

David Moberg February 2, 2009

Illustration by Mark Sugar

As Pres­i­dent Oba­ma and a more solid­ly Demo­c­ra­t­ic Con­gress get down to work, their first pri­or­i­ty will be deal­ing with three decades of fis­cal mis­man­age­ment. The destruc­tion of gov­ern­ment as a sta­bi­liz­ing force – along with finan­cial dereg­u­la­tion, cor­po­rate glob­al­iza­tion and wealth redis­tri­b­u­tion to the rich – have led to the deep­est eco­nom­ic cri­sis since the Great Depres­sion. This great 30-year shift in wealth, pow­er and pub­lic pri­or­i­ties coin­cid­ed with – and was in large part caused by – the decline of a labor move­ment under assault from cor­po­ra­tions and right-wing ideologues.

‘We like driving the car, and we’re not going to give the steering wheel to anybody but us,’ outgoing Wal-Mart CEO Lee Scott said, when asked about the Employee Free Choice Act.

No sin­gle rem­e­dy will fix all that ails Amer­i­ca, nor is any strat­e­gy like­ly to suc­ceed if it does not give work­ing peo­ple more pow­er over their jobs. A renais­sance for labor could ensure that work­ers share in the growth of their pro­duc­tiv­i­ty and pro­vide the stim­u­lus of con­sumer demand that the econ­o­my will need for a sus­tained recov­ery. Con­se­quent­ly, one of the most crit­i­cal polit­i­cal bat­tles this year will be the fight over the Employ­ee Free Choice Act (EFCA). Passed by the House but fil­i­bus­tered in the Sen­ate in 2007, the act would make it eas­i­er for work­ers to form unions.

Here’s how it would work: When a major­i­ty of work­ers sign union autho­riza­tion cards, they would gain recog­ni­tion for their union. EFCA would sharply increase penal­ties against employ­ers who vio­late labor laws when work­ers orga­nize. It would pro­vide work­ers faster relief from vio­la­tions, such as fir­ing for union activ­i­ty. And it would pro­vide the option of medi­a­tion and arbi­tra­tion if the employ­er and union fail to reach a first con­tract on their own.

It is a mod­est reform that could not only help work­ers who join unions but all work­ing peo­ple, the econ­o­my and the future of pro­gres­sive politics.

Armaged­don’

After a long wait in line, Albert Hig­gins, a for­mer secu­ri­ty guard and now a union orga­niz­er, reach­es the counter at a super-sized McDon­ald’s in down­town Chica­go. One small hot choco­late,” he says. Then, address­ing the clerk, he asks, Fran­cis­co, do you know that your boss is mak­ing more than $6,000 an hour while you’re mak­ing $8?”

Hig­gins and oth­er union sup­port­ers were pok­ing back at the fast food giant, whose pres­i­dent, Don Thomp­son, in late Novem­ber, urged 2,400 fran­chise own­ers to con­tact Con­gress to oppose EFCA.

Cor­po­rate Amer­i­ca is gird­ed for bat­tle. An employ­er offen­sive – cost­ing upward of $100 mil­lion, accord­ing to union esti­mates – is being mobi­lized against EFCA. Ran­del John­son, vice pres­i­dent of the U.S. Cham­ber of Com­merce, described the com­ing bat­tle over the act as Armaged­don.” The Cham­ber has pledged $10 mil­lion toward the war against EFCA.

Dur­ing last year’s elec­tion cam­paign, Wal-Mart told its super­vi­sors that vot­ing for Democ­rats would lead to pas­sage of EFCA, which would be bad for the cor­po­ra­tion. And Home Depot founder Bernie Mar­cus raged that cor­po­rate exec­u­tives who did not con­tribute to endan­gered Repub­li­can Sen­ate can­di­dates should be shot.”

Shad­owy front groups, with undis­closed finan­cial back­ing that almost cer­tain­ly comes from major cor­po­ra­tions and rich right-wingers, have entered the fray.

Richard Berman, pro­filed by CBS’s 60 Min­utes” as Dr. Evil,” is a noto­ri­ous anti-con­sumer pub­li­cist and a hired gun for the alco­hol, tobac­co and fast food indus­tries. Berman, who has close ties to the Bush admin­is­tra­tion and the Cham­ber of Com­merce, oper­ates the Cen­ter for Union Facts (and its spin-off the Employ­ee Free­dom Action Com­mit­tee) and pro­duces hyper­bol­ic anti-EFCA ads that depict union lead­ers as crooks and thugs.

Oth­er anti-EFCA front groups include the cor­po­rate alliance called Coali­tion for a Demo­c­ra­t­ic Work­place, Amer­i­cans for Job Secu­ri­ty (a Cham­ber of Com­merce front group financed by the insur­ance indus­try), the old-line Nation­al Right to Work Com­mit­tee (along with its off­spring, the Pub­lic Ser­vice Research Foun­da­tion), and right-wing king­mak­er Grover Norquist’s Alliance for Work­er Freedom.

Cor­po­ra­tions and the right argue that EFCA will take away the secret bal­lot, let union thugs intim­i­date work­ers into join­ing unions and destroy busi­ness­es. But EFCA does not elim­i­nate the option of Nation­al Labor Rela­tions Board (NLRB) elec­tions, even though most unions would pur­sue major­i­ty sign-up when they can. EFCA sim­ply gives the right to choose the method to work­ers and unions, not the employers.

And it is employ­ers – not unions – that have intim­i­dat­ed work­ers. In 2007, near­ly 30,000 work­ers suf­fered ille­gal employ­er retal­i­a­tion for exer­cis­ing their rights at work, rough­ly five times as many than in 1967, accord­ing to the NLRB.

Even a sur­vey by the anti-union HR Pol­i­cy Asso­ciates turned up only 42 clear cas­es of union mis­con­duct in sign­ing union autho­riza­tion cards in the more than 70 years since the Nation­al Labor Rela­tions Act was passed in 1935, accord­ing to the AFL-CIO.

In form­ing a union, work­ers are sim­ply vol­un­tar­i­ly asso­ci­at­ing – as pro­tect­ed under fed­er­al and inter­na­tion­al human rights laws – in order to estab­lish a col­lec­tive voice to coun­ter­bal­ance the pow­er of employ­ers. They are not vot­ing between two can­di­dates: man­age­ment and a union.

Fur­ther, the employ­er defense of secret bal­lots is a sham. Work­ers with­out a union don’t vote on any­thing,” says Tom Woodruff, direc­tor of Change to Win’s strate­gic orga­niz­ing cen­ter. When was the last time non-union vot­ers vot­ed on a pay raise?” For that mat­ter, when did cor­po­ra­tions seek work­er secret bal­lots on exec­u­tive pay or off­shoring jobs?

EFCA oppo­nents object to unions on prin­ci­ple. And, if they could, they would make it even hard­er for work­ers to union­ize. What they want is pow­er – and the wealth they can cap­ture with that power.

We like dri­ving the car, and we’re not going to give the steer­ing wheel to any­body but us,” out­go­ing Wal-Mart CEO Lee Scott said when asked about EFCA.

Cor­po­ra­tions and Repub­li­cans are attack­ing not just EFCA’s rule changes but union­ism itself – even the notion that work­ers should be paid well. Tak­ing aim at the Unit­ed Auto Work­ers in par­tic­u­lar, they have used the Detroit Three auto cri­sis to argue that unions – and good wages – are bad in a glob­al economy.

In an unsigned copy of a Dec. 10 memo cir­cu­lat­ed among Wash­ing­ton Repub­li­can insid­ers, con­ser­v­a­tive Repub­li­cans crit­i­cized auto indus­try aid as Demo­c­ra­t­ic pay­off to orga­nized labor. They wrote, This is a pre­cur­sor to card check and oth­er items. Repub­li­cans should stand firm and take their first shot against orga­nized labor, instead of tak­ing their first blow from it.”

The attack will get nas­ti­er, and labor needs to respond by going on the offen­sive. We have to expose them,” Woodruff says. They brought us the dis­as­ter we’re in. If we fol­low them, we’ll be stuck in this dis­as­ter, or worse. Peo­ple vot­ed for change. We have to orga­nize and demand the change we vot­ed for.”

Aggres­sive tactics

When pri­vate employ­ers fight against union­iza­tion, they often do so with tac­tics that are ille­gal or bare­ly legal.

Kate Bron­fen­bren­ner, direc­tor of labor edu­ca­tion research at Cor­nell Uni­ver­si­ty, has found in her most recent research that employ­er oppo­si­tion has steadi­ly increased,” includ­ing in inten­sive­ness and aggres­sive­ness,” such as fir­ing union supporters.

Employ­er oppo­si­tion takes its toll, as work­ers fear for their jobs or eco­nom­ic well­be­ing. In the face of employ­er hos­til­i­ty and long, drawn-out cam­paigns for union recog­ni­tion, work­ers grow cyn­i­cal or dis­il­lu­sioned, per­suad­ed that col­lec­tive action is futile, even if they would like a union.

Even when unions have enough work­er sup­port – usu­al­ly well over a major­i­ty – to call an elec­tion, work­ers only suc­ceed in win­ning recog­ni­tion and a con­tract 20 per­cent of the time, accord­ing to a study of union elec­tions from 1999 to 2004 con­duct­ed by John-Paul Fer­gu­son and Thomas A. Kochan, respec­tive­ly a grad­u­ate stu­dent and pro­fes­sor of man­age­ment at the Mass­a­chu­setts Insti­tute of Tech­nol­o­gy. When employ­ers fought unions so aggres­sive­ly that they were charged with an unfair labor prac­tice, only one in 10 peti­tions for an elec­tion result­ed in a contract.

If employ­ers are caught vio­lat­ing the law now, their actions – like fir­ing a union sup­port­er – can be redressed only long after they have chilled work­ers’ desire to orga­nize. And com­pared to oth­er work­place vio­la­tions, like racial or sex­u­al dis­crim­i­na­tion, the penal­ties against employ­ers are minus­cule – such as post­ing a promise not to break the law again.

Bill Lawhorn and Lucille Muss­er are vic­tims of our present weak labor laws.

In 2002, tired of watch­ing Con­sol­i­dat­ed Bis­cuit Com­pa­ny (CBC) super­vi­sors harass oth­er work­ers, Bill Lawhorn con­tact­ed the Bak­ery, Con­fec­tionary, Tobac­co Work­ers and Grain Millers union, hop­ing that he and fel­low employ­ees could orga­nize a union and improve life in the McComb, Ohio, fac­to­ry. Out of 875 work­ers, 650 agreed and signed union cards. But the com­pa­ny respond­ed by bring­ing in a pro­fes­sion­al anti-union firm and insist­ed on hold­ing an election.

Super­vi­sors threat­ened that if the union won there would be pay cuts, that immi­grant Lati­no work­ers would lose their jobs and that the plant might even be closed. They came to Lawhorn’s house and told him he would be fired if the union won.

The scare cam­paign worked. The union lost. The next day, the com­pa­ny fired Lawhorn.

On Dec. 3, 2008, more than six years after he was fired, the Nation­al Labor Rela­tions Board final­ly restored Lawhorn’s job, fol­low­ing lengthy CBC appeals of the 40 com­plaints filed against it.

Labor laws in this coun­try are just bad,” says Lawhorn, 52, a fork­lift dri­ver who joined in a new dri­ve to orga­nize a union when he returned to work. I thought I had a pro­tect­ed right to do this union orga­niz­ing. Appar­ent­ly not. They say I won this case, but it took over six years. The own­er lost, but he won: He tells every­one, If you try to get a union, this will hap­pen to you.’ “

Such employ­er abuse is the main rea­son why, even though more than half of non-union work­ers say they would like to join a union, the share of the work force in labor unions con­tin­ues to shrink – down from around 35 per­cent in the mid-1950s to 12 per­cent today, with only 7.5 per­cent in the pri­vate sector.

Lawhorn, who is still fight­ing for a union, says, If we’d passed the Employ­ee Free Choice Act, we’d be work­ing on our third con­tract now.”

Per­haps. Con­sid­er the case of Lucille Muss­er. She knows all too well, that even if work­ers at her job had vot­ed for the union six years ago, they might not have a con­tract yet. In late 2005, Muss­er, 70, and sev­er­al dozen oth­er work­ers at Heart­land Human Ser­vices, a pri­vate non­prof­it men­tal health facil­i­ty in the small south­ern Illi­nois town of Eff­in­g­ham, decid­ed they need­ed a union to pro­tect them from a capri­cious boss.

They quick­ly approved the Amer­i­can Fed­er­a­tion of State, Coun­ty and Munic­i­pal Employ­ees (AFSCME) as their union, but con­tract nego­ti­a­tions dragged on fruit­less­ly – even with medi­a­tion and a union offer of arbi­tra­tion. The work­ers went on strike in July 2007, but Heart­land brought in strike­break­ers. Near­ly a year lat­er, the strik­ers col­lec­tive­ly walked back in to right­ful­ly reclaim their jobs, but Heart­land locked them out.

I knew it would be dif­fi­cult but worth it,” Muss­er says. We knew Heart­land would not change if we did­n’t do some­thing dras­tic. But had the Employ­ee Free Choice Act been in effect, we would not have had to go out on strike.” And they would have had a con­tract by now.

Orig­i­nal intent

Orga­niz­ing was quite dif­fer­ent after the Wag­n­er Act, also known as the Nation­al Labor Rela­tions Act, passed in 1935. The NLRB rec­og­nized unions either through major­i­ty sign-up (about one-fourth of cas­es) or elec­tions (often used to deter­mine work­er sup­port when there were com­pet­ing unions, com­pa­ny-spon­sored unions, or unions orga­nized top-down” with employ­er agreement).

For the drafters of the act, it was incon­ceiv­able that, giv­en the oppor­tu­ni­ty, work­ers would not join a union,” says James Gross, Cor­nell Uni­ver­si­ty pro­fes­sor of labor pol­i­cy. Typ­i­cal­ly 80 per­cent to 90 per­cent of work­ers vot­ed for a union.

The NLRB ruled ear­ly that the selec­tion of the bar­gain­ing rep­re­sen­ta­tive was none of the employ­er’s busi­ness, either for or against. It was sole­ly the busi­ness of the employ­ees. Any state­ment from employ­ers was inher­ent­ly coer­cive,” says Gross.

Indeed, the law’s prin­ci­pal author, Sen. Robert Wag­n­er (D‑N.Y.), con­sid­ered the pur­pose of the law to encour­age col­lec­tive bar­gain­ing as a coun­ter­weight of indus­tri­al democ­ra­cy” to the eco­nom­ic despo­tism” of wage labor. Since then, how­ev­er, through both court and admin­is­tra­tive actions, the bal­ance of rights and pow­er has shift­ed to employers.

Is EFCA enough?

Labor strate­gists have long debat­ed over how best to rem­e­dy the sit­u­a­tion. Should labor once again try to restrict employ­ers’ speech, forc­ing them to be neu­tral, so only work­ers decide if they want a union? Should labor try to equal­ize access to the work­place for both union orga­niz­ers and employ­ers? Should labor try to require that all work places be rep­re­sent­ed by a union and col­lec­tive bar­gain­ing, but give work­ers the choice of what kind of rep­re­sen­ta­tion they want? Or, as John Wil­helm of UNITE HERE!, the hotel and gar­ment work­ers’ union, argues, should labor focus less on leg­is­la­tion and more on con­vinc­ing Pres­i­dent Oba­ma to sup­port orga­niz­ing campaigns?

EFCA came out of a 2003 sum­mit meet­ing of 245 union orga­niz­ers from 45 unions. Unions then began intro­duc­ing work­ers who had gone through orga­niz­ing dri­ves to politi­cians and made EFCA cen­tral to their polit­i­cal endorsements.

Hav­ing work­ers feel that they tru­ly do have a right to form unions, that employ­ers will be pun­ished for vio­lat­ing their rights, and that there is a smooth, stream­lined process avail­able to them will solve the major­i­ty of prob­lems,” says AFL-CIO orga­niz­ing direc­tor Stew­art Acuff.

In elec­tions last year, espe­cial­ly in hot­ly con­test­ed Sen­ate races in North Car­oli­na and Min­neso­ta, a group of unions infor­mal­ly worked togeth­er to counter efforts by far-right polit­i­cal action groups and cor­po­ra­tions to attack Demo­c­ra­t­ic can­di­dates’ sup­port for EFCA.

Labor is keep­ing its polit­i­cal appa­ra­tus intact to mobi­lize sup­port from both union mem­bers and the cit­i­zens. To that end, pub­lic edu­ca­tion will be crit­i­cal: Many peo­ple – even union mem­bers – do not under­stand what work­ers face when orga­niz­ing, nor do they under­stand how a stronger labor move­ment ben­e­fits even non-mem­bers. In Decem­ber, a Peter Hart poll found that 73 per­cent of the pub­lic – includ­ing 37 per­cent who felt strong­ly – favored the Employ­ee Free Choice Act after hear­ing its three pro­vi­sions. This poll hints at what edu­ca­tion could mean for pub­lic sup­port of EFCA.

Get­ting through the Senate

Ear­ly this year, unions plan to present 1 mil­lion sig­na­tures in sup­port of EFCA to Con­gress, and they are call­ing on allies from civ­il rights, envi­ron­ment, reli­gious and oth­er move­ments to broad­en the cam­paign beyond labor. Amer­i­can Rights at Work, a labor-found­ed coali­tion, is play­ing a lead­ing role in this effort.

EFCA almost cer­tain­ly has major­i­ty sup­port in the House and Sen­ate, but it is less clear that Democ­rats can muster the 60 votes need­ed in the Sen­ate to stop a fil­i­buster. Already, Sen. Blanche Lin­coln (D‑Ark.), with vir­u­lent­ly anti-union Wal-Mart and Tyson as cor­po­rate con­stituents, has sig­naled she’s not sure EFCA is need­ed. And anoth­er four to six Demo­c­ra­t­ic sen­a­tors from rel­a­tive­ly rur­al or non-union states are also uncer­tain (though some Democ­rats and mod­er­ate Repub­li­cans might be per­suad­ed to vote for clo­ture, if not the bill itself). Yet even if a clo­ture vote fails, Demo­c­ra­t­ic lead­ers have par­lia­men­tary options to move the legislation.

Oba­ma con­tin­ues to pub­licly sup­port EFCA, but the ques­tion remains as to how much influ­ence he is will­ing to expend both pub­licly and pri­vate­ly for the bill when he is push­ing so many oth­er ini­tia­tives. Unions insist that EFCA must be an inte­gral part of both the eco­nom­ic stim­u­lus and Oba­ma’s promised plan to restore the mid­dle class.

Tom Woodruff puts it this way: The Employ­ee Free Choice Act is essen­tial to the eco­nom­ic recov­ery of the coun­try, doing some­thing about the income inequal­i­ty that fed the reces­sion – near depres­sion – we’re in today.”

David Moberg, a senior edi­tor of In These Times, has been on the staff of the mag­a­zine since it began pub­lish­ing in 1976. Before join­ing In These Times, he com­plet­ed his work for a Ph.D. in anthro­pol­o­gy at the Uni­ver­si­ty of Chica­go and worked for Newsweek. He has received fel­low­ships from the John D. and Cather­ine T. MacArthur Foun­da­tion and the Nation Insti­tute for research on the new glob­al economy.

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