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The Employee Free Choice Act

The Enemies of Unions and the Lies They Tell

by ADAM TURL

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.

* * *

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, the director of political affairs for the AFL-CIO, 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.

* * *

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 Number 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 Number 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 Number 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 toward 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.

* * *

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."

ADAM TURL writes for the Socialist Worker.