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Can the Employee Free Choice Act Change the Landscape? A Ray of Hope for Organized Labor

A Ray of Hope for Organized Labor

by DAVID MACARAY

Unions don’t have to search very hard for reasons to distrust or resent the Democratic Party. For openers, they can go back to 1947, when the crippling, anti-labor Taft-Hartley Act was passed, with the help of congressional Democrats, over President Truman’s veto. Historians and Party apologists can quibble all they like over why it happened, but the undeniable fact remains that, without the Democrats’ assistance, Truman’s veto couldn’t have been overridden.

Or they can revisit 1978, when the Democrats had control of all three political arms of the government (the White House, Senate and House of Representatives), when, despite enormous pressure from the labor lobby, the Party refused to overhaul the Taft-Hartley Act. With power firmly in their hands, and the stars in alignment, it was a golden opportunity to fix something that badly needed fixing. Instead, they chose not to act.

In fact, 1978 was a bad year all the way around. Not only were legislative opportunities frittered away, but 1978 was the same year that President Carter invoked Taft-Hartley’s "emergency powers" provision to crush the United Mine Workers’ (UMW) national coal strike. There haven’t been many occasions where a president has invoked Taft-Hartley to quell a strike. That it was a Democrat who did it, and that it was done with a Democratic House and Senate watching his back, made it that much more painful.

Or, more recently, they can look to NAFTA (the North American Free Trade Agreement), which went into effect on January 1, 1994. Despite virtually every union in the United States being opposed to it, President Clinton ignored their objections and warnings, and pressed forward with it, insisting that this bogus, turbo-capitalist, job-killing arrangement was the most lustrous jewel in his economic crown. If organized labor needed a reason to believe that the Democrats had not only abandoned them, but insulted them-humiliated them-NAFTA was it.

These disappointments (and many others) aside, there is currently a piece of legislation pending before congress that could be of great benefit to organized labor. And, notably, it was introduced by a Democrat (George Miller-D-CA). It’s called the Employee Free Choice Act (EFCA). Given its potential for altering the national landscape, this could be a landmark piece of legislation.

Should the EFCA become law, employees would be permitted to join a union without having to go through the hassle of sanctioning an NLRB election; all they’d be required to do is sign cards indicating that they wish to join (known as the "card check" method). If a majority signs such cards, the NLRB would be authorized to recognize the union as the employees’ exclusive representative in the collective bargaining process. Simple as that.

A second feature of the EFCA would be to require labor and management to submit to an arbitration board in the event that they were unable to agree on a "first" contract. The parties would be given 120 days to reach a settlement. If unable to agree to a contract during that period, the arbitration board would have full power to settle the dispute.

This proposed legislation includes other pro-labor features as well, such as calling for increased monetary penalties when management is found guilty of unfair labor practices, but the aforementioned two provisions are the most significant. It goes without saying that the "card check" shortcut (as opposed to the traditional secret ballot method) would, in principle, make unions infinitely more accessible.

Currently, union membership in the United States hovers at about 12%. But, according to polls, as many as 60% of America’s workers say they would consider joining a union if only ". . . it were made easier." The way things stand now, management has the upper hand in these certification elections. In addition to working people being a captive audience, dependent on management for their paychecks and livelihoods, they’re also at their mercy when it comes to being bombarded by propaganda.

Not only is management able to stall a union vote for months and months, dragging out the process and thereby weakening the employees’ resolve, they regularly engage in full-blown campaigns of intimidation, coercion and bribery to get the vote they want. If management weren’t vehemently opposed to having a union shop, they wouldn’t insist on forcing an NLRB-sanctioned election in the first place.

And because so many inaugural contract negotiations entered into by a newly formed membership wind up getting stalled and jammed up by a management team looking to sabotage the collective bargaining process (even after the employees voted, fair and square, to form a union), the EFCA’s 120-day provision would prove extraordinarily useful.

It’s about time someone introduced a workable plan that prevents management from killing a fledgling union by the tactically waiting it out. If you can’t hammer out a bargain in four months, you deserve to be replaced by someone who can. Because the notion of giving an arbitrator (An outsider?? The horror!) the authority to set the specific terms of a contract would be so abhorrent, so utterly terrifying to management, it would serve as a surefire incentive to get them to negotiate in good faith.

In March of 2007, by a vote of 241 to 185, the House of Representatives passed the EFCA. Unfortunately, because a subsequent vote for cloture (which would have limited debate and moved the measure quickly to a vote) failed in the Senate (in June of ’07), it’s unlikely that the EFCA will be acted upon by the current session of Congress. For the moment, it’s been left to languish. In any event, President Bush, true to form, has already promised to veto the legislation, should it pass.

Both Barack Obama and Hillary Clinton have come out strongly in favor of the EFCA. The result of the cloture vote in the Senate was 51-48, adhering, without deviation, to strict party lines (Senator Johnson, D-S.D., didn’t vote, due to illness). However, a vote of 60 senators is required for cloture, which means it’s going to be a battle getting this thing passed, even with a Democratic president taking over in ’09.

Still, let’s give the Democrats a little credit for carrying labor’s water. Not that this in any way makes up for the disgraces of the past. Not that it wipes the slate clean. Not that the hundreds of millions of dollars organized labor has raised for the Democrats hasn’t entitled unions to some meaningful reciprocation. But it’s a ray of light in the darkness. And if the EFCA ever gets passed, it could dramatically improve labor’s prospects for the future.

DAVID MACARAY, a Los Angeles playwright and writer, was president and chief contract negotiator of the Assn. of Western Pulp and Paper Workers, Local 672, from 1989 to 2000. He can be reached at: dmacaray@earthlink.net