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"The End of Labor Law Reform for Another Generation"

The Night They Drove Old EFCA Down

by STEVE EARLY

Scott Brown’s 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 aroused 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 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 any 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 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 that 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 “reforms” 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 movement talking heads 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, Anna Burger from Change to Win and SEIU also beat around the bush, in dazed and confused fashion:

“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 bothered to address the state of unions or mention EFCA 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. Now, they’re not even leveling with the thousands of labor activists who’ve campaigned for EFCA since 2007 about where things really stand with that fight.

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 (never numerous to begin with, 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 health care, public employee, telecom, transportation, manufacturing, and service sector unions. 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.

STEVE EARLY worked for the Communications Workers of America in New England for 27 years and, before that, was  Vermont Field Secretary for the American Friends Service Committee. He is a longtime supporter of Labor Notes and author of “Embedded With Organized Labor: Journalistic Reflections on the Class War at Home” from Monthly Review Press). He can be reached at Lsupport@aol.com