The Night They Drove Old EFCA Down

Steve Early January 29, 2010

Scott Brown’s Jan­u­ary 19 defeat of Martha Coak­ley in the race to fill Ted Kennedy’s Sen­ate seat has been greet­ed as a game chang­er” for Barack Oba­ma and his polit­i­cal back­ers. This GOP vic­to­ry has deprived Democ­rats of their fil­i­buster-proof” super-major­i­ty in the Sen­ate, mak­ing Obama’s health care plan — at least, in its cur­rent form – the most high-pro­file casu­al­ty of Coakley’s loss.

But, for trade union­ists already dis­ap­point­ed with Oba­ma, the col­lat­er­al dam­age is far worse.

Now, the White House staffers and Con­gres­sion­al lead­ers who’ve been re-assur­ing them that labor law reform was next on Obama’s agen­da don’t even have 60 votes to pre­vent Repub­li­can fil­i­bus­ter­ing of the Employ­ee Free Choice Act (EFCA) — in any form.

EFCA is, of course, a long-over­due set of amend­ments to the Nation­al Labor Rela­tions Act (NLRA) that would help boost orga­niz­ing and bar­gain­ing in the pri­vate sec­tor. The lat­est sta­tis­tics from the U.S. Depart­ment of Labor show why EFCA is nec­es­sary, if not entire­ly suf­fi­cient, for a union revival. Orga­nized labor in pri­vate indus­try lost 10 per cent of its mem­ber­ship in 2009, main­ly in man­u­fac­tur­ing and con­struc­tion – the worst annu­al decline in the last quar­ter cen­tu­ry

Even before Pres­i­dent Oba­ma promised to sign EFCA – when and if it reached his desk — the bill was arous­ing strong busi­ness oppo­si­tion. Dur­ing the horse-trad­ing over health care reform,” some indus­try groups end­ed up ally­ing them­selves with the admin­is­tra­tion, in return for a piece of the action — in the form of more tax-pay­er sub­si­dized cus­tomers for doc­tors, hos­pi­tals, drug com­pa­nies, and pri­vate insur­ers. But no one in Cor­po­rate Amer­i­ca wants to risk heav­ier civ­il penal­ties for com­mit­ting unfair labor prac­tices, so there was nev­er much basis for sim­i­lar bi-par­ti­san” deal-mak­ing over work­ers’ rights. Man­age­ment has been par­tic­u­lar­ly relent­less in its attacks on EFCA’s card check” pro­vi­sion. As orig­i­nal­ly draft­ed, the bill would trig­ger first con­tract nego­ti­a­tions wher­ev­er a major­i­ty of work­ers, in an appro­pri­ate bar­gain­ing unit,” demon­strat­ed their sup­port for a union by sim­ply sign­ing mem­ber­ship cards.

In response to busi­ness lob­by­ing — and with behind-the-scenes labor con­sent — an infor­mal Cap­i­tal Hill com­mit­tee began shop­ping around an EFCA-lite” last Fall to mol­li­fy cen­trist Democ­rats, whose sup­port was already wilt­ing even before Scott Brown’s vic­to­ry. In this new form, the leg­is­la­tion would not require com­pa­nies to rec­og­nize unions based on card sign­ing alone. Instead, the Nation­al Labor Rela­tions Board (NLRB) — now one of the slow­est mov­ing fed­er­al agen­cies alive — would be direct­ed to hold expe­dit­ed” secret bal­lot votes. The the­o­ry is that quick­er elec­tions would leave anti-union man­agers with less time to influ­ence how work­ers vote by fir­ing union com­mit­tee mem­bers or threat­en­ing to close the plant. The flaw in that the­o­ry involves the NLRB itself, which has yet to sched­ule dozens of rep­re­sen­ta­tion votes in Cal­i­for­nia sought by the new Nation­al Union of Health­care Work­ers 12 months ago — a typ­i­cal, if unusu­al­ly mas­sive, dis­play of bureau­crat­ic dither­ing and delay. The idea that this same agency is going to turn on a dime, and per some Con­gres­sion­al direc­tive, start con­duct­ing elec­tions with­in five- or ten-day time-frames defies all known expe­ri­ence with it.

The water­ing-down of EFCA — and Obama’s delay in bring­ing the bill to a vote (despite what one union leader calls “ a firm com­mit­ment to do that in Decem­ber”) — fol­lows a famil­iar pat­tern. A vari­a­tion of the same thing hap­pened under Jim­my Carter and then, in worse fash­ion, with Bill Clin­ton. In 1977 – 78, Pres­i­dent Carter first pres­sured unions to go along with weak­er amend­ments to the NLRA than they orig­i­nal­ly sought. Then, after being weak­ened itself dur­ing a Sen­ate bat­tle over the Pana­ma Canal treaty, the White House failed to expend any remain­ing polit­i­cal cap­i­tal on mar­shalling what was then a much larg­er pro-labor major­i­ty to over­come a fatal GOP fil­i­buster.

Fif­teen years lat­er, Bill Clin­ton didn’t even both­er to intro­duce NLRA changes. Instead, he pla­cat­ed the AFL-CIO by appoint­ing a pres­i­den­tial com­mis­sion to study the sub­ject. Filled with Boston-area aca­d­e­mics, this pan­el frit­tered away the only two years dur­ing Clinton’s pres­i­den­cy when Democ­rats con­trolled Con­gress. Its reform pro­pos­als were dead on arrival by 1994, after vot­ers swept Newt Gin­grich and the GOP back into pow­er in mid-term elec­tions.

Know­ing this his­to­ry very well, ten top labor lead­ers trooped over to the White House last June for a pri­vate audi­ence with Oba­ma. There, they were informed, in no uncer­tain terms, that fix­ing health care” had to come first and EFCA would be next. Some objec­tions were raised about this sequenc­ing, but, over­all, the joint AFL-CIO/Change To Win/​NEA del­e­ga­tion polite­ly went along with the plan.

Of course, back then, no one thought fix­ing health care” would take so long or that Oba­macare” would become such an unwork­able mess. To keep labor in line, the admin­is­tra­tion has, for the last sev­en months, repeat­ed­ly dan­gled the car­rot of labor law reform when­ev­er lead­ing union­ists joined oth­er crit­ics of the president’s health care plan who lament­ed its emerg­ing lack of a pub­lic option, expand­ed access to Medicare, or any oth­er sin­gle-pay­er strength­en­ing fea­tures. Ear­li­er this month, unions were even prod­ded to accept, in post­poned form, a con­tro­ver­sial tax on more expen­sive med­ical pri­vate plans; if enact­ed, this 40 per cent excise tax will encour­age fur­ther cost shift­ing by man­age­ment, leave work­ers with­out bar­gain­ing rights more exposed to an already dev­as­tat­ing trend, and, ulti­mate­ly, sad­dle union mem­bers with high­er co-pay­ments and deductibles as well. In marathon talks with the White House that pro­duced this self-defeat­ing deal, labor reps were remind­ed once again, that any derail­ing of such reform” would be a vic­to­ry for the GOP and, thus, the death-knell of employ­ee free choice.

Now trade union­ists are see­ing the lat­est oppor­tu­ni­ty to strength­en work­place rights, as promised by the Democ­rats, sim­ply van­ish. As one dis­mayed union offi­cial in Wash­ing­ton, D.C. told me: It’s the end of labor law reform for anoth­er gen­er­a­tion.” Of course, that unpleas­ant truth hasn’t stopped oth­er labor fig­ures from being in deep pub­lic denial. On Jan. 24, the federation’s Leg­isla­tive Direc­tor Bill Samuel told Work­ers Inde­pen­dent News: No, we don’t see it [EFCA] being dead. We’re obvi­ous­ly re-eval­u­at­ing our strat­e­gy and look­ing at the tim­ing to take up the Employ­ee Free Choice Act. But we have no inten­tion to back off that com­mit­ment.”

At a Jan­u­ary 26 forum in D.C. spon­sored by the Cen­ter for Amer­i­can Progress, a think tank close to the Admin­is­tra­tion, Anna Burg­er from Change to Win and SEIU seemed dazed and con­fused too. In response to a ques­tion about EFCA, she beat around the bush as fol­lows:

If we real­ly want to get this econ­o­my going again, we need to fig­ure out a way to pass the Employ­ee Free Choice Act. Does 60 mat­ter? Sure it mat­ters. Is there a way that we can try to make the Sen­ate under­stand that we have to do what’s good for Amer­i­ca, what’s good for work­ing fam­i­lies? I don’t know. That’s the chal­lenge we have…”

It might have helped, just a wee bit, in the Sen­ate under­stand­ing depart­ment, if Oba­ma, when deliv­er­ing his state of the union” address a day lat­er had men­tioned the state of unions or EFCA even once. He didn’t, of course, thus sig­nal­ing to the assem­bled solons that the time for labor law reform has come and gone again.

In the wake of this demor­al­iz­ing set­back, the few unions that are still try­ing to do new orga­niz­ing must quick­ly go back to the draw­ing board and devel­op a fall­back strat­e­gy for defend­ing and extend­ing col­lec­tive bar­gain­ing that doesn’t depend on amend­ing fed­er­al law. That process won’t be easy. And it will cer­tain­ly be more pro­duc­tive if under­tak­en from the bot­tom up, rather than just the top-down. Even before labor’s 60th vote in the Sen­ate went miss­ing, labor’s inside-the-Belt­way gen­er­als have, for months, been over­ly pre­oc­cu­pied with mak­ing grand plans for a new wave of pri­vate sec­tor orga­niz­ing — all based on the now crum­bled edi­fice of EFCA and its long-ago jet­ti­soned card check mech­a­nism. Today, they’re not even lev­el­ing with the thou­sands of labor activists who’ve cam­paigned for EFCA since 2007 about where things real­ly stand at this very moment.

Turn­ing polit­i­cal defeat — not to men­tion a lot of inchoate work­ing class anger — into new work­place orga­niz­ing will require a grass­roots ral­ly­ing of the troops through net­works like Jobs With Jus­tice and the work­ers’ cen­ter move­ment, In Mass­a­chu­setts, JWJ is already plan­ning a day-long labor troublemaker’s school” in Boston on Feb. 27 to help devel­op a local Plan B” for more bar­gain­ing to orga­nize” that would bet­ter uti­lize remain­ing pock­ets of union strength before they dis­ap­pear like the Martha Coak­ley signs in my neigh­bor­hood (quite scarce before Jan. 19, even in a town that vot­ed 2 to 1 for her.)

In late April, more than 1,000 labor and com­mu­ni­ty activists from around the coun­try will also descend on Dear­born, Michi­gan for a nation­al Labor Notes con­fer­ence. This will be an even larg­er brain­storm­ing ses­sion for shop stew­ards, elect­ed offi­cers and orga­niz­ers from many dif­fer­ent unions and work­ers’ orga­ni­za­tions. In scores of work­shops and ple­nar­ies, they will com­pare notes and try to sort out, with a min­i­mum of the usu­al labor blus­ter, what works and what doesn’t in strikes, bar­gain­ing, polit­i­cal action, and new mem­ber recruit­ment.

From the ash­es of the old, some­thing new and dif­fer­ent must arise pret­ty soon, if unions are going to make it in this coun­try. Oth­er­wise, the elec­tion night in Mass­a­chu­setts that drove old EFCA down could leave labor near­ly as lost and for­lorn as the long-ago cause of Dixie.

A short­er ver­sion of this arti­cle appeared in The Boston Globe on Jan­u­ary 29.

Steve Ear­ly worked for 27 years as an orga­niz­er and inter­na­tion­al rep­re­sen­ta­tive for the Com­mu­ni­ca­tions Work­ers of Amer­i­ca. He is the author of sev­er­al books, includ­ing Refin­ery Town: Big Oil, Big Mon­ey, and the Remak­ing of an Amer­i­can City (Bea­con Press). 

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