After EFCA – Industrial Democracy in America

Let the workers organize. Let the toilers assemble. Let their crystallized voice proclaim their injustices and demand their privileges. Let all thoughtful citizens sustain them, for the future of Labor is the future of America.
John L. Lewis

Introduction:

The recent announcement of a compromise version of the Employee Free Choice Act (one that might get the Blue Dogs back in line and over the 60-vote cloture threshold) was predictably completely drowned out in the news media, where health care is the big political story of the day.  Even among the circle of progressive labor activists I know, reaction seems decidedly mixed, some are quite unhappy; I’m something of a cockeyed optimist, and others are somewhere in the middle.

Background:

Just so that we’re all on the same page, let’s lay out the details of this new compromise, which actually follows closely to what I wrote about previously:

1. Card Check’s Out, Elections+ Is In –  the emotional and ideological heart of the bill, and its most politically vulnerable portion, card check seems to have been removed to placate Blue Dog Democrats who fear the wrath of their corporate mascots. In its place, “under the expected revisions, union elections would have to be held within five or 10 days after 30 percent of workers signed cards favoring having a union…key senators are considering several measures. One would require employers to give union organizers access to company property. Another would bar employers from requiring workers to attend anti-union sessions that labor supporters deride as “captive audience meetings.” The trade therefore is card check in return for 5-10 day campaigns, access to worksite, and banning captive audience meetings. To my mind, and I’m open to be told I’m wrong, that’s actually not a bad trade. 5 to 10 days is a very short period for employers to reduce union support below 50%, especially if captive audience meetings are banned. By itself, access to the worksite is probably the most significant change in labor law in the last generation, giving the union a visible legitimate presence in the workplace where they can meet and talk with workers, observe and immediately litigate labor law violations, and find the electorate in one place. One of my favorite scenes in Ken Loach’s “Bread and Roses” is where an SEIU organizer played by Adrien Brody, in the process of being spirited out of an anti-union office building by Elena, an immigrant janitor, reads down a list of workers that he’s stolen to find out who his rescuer is – access to the worksite would make such dramatic rescues unnecessary.
2. Arbitration Is Still In, For Now – although card check got most of the attention, first contract arbitration is probably just as important. As it stands, 33-46% of all union victories at the ballot box don’t result in a first contract and an established union, as employers use the courts and delaying tactics to wear down and outlast the union. Mandating arbitration for the first contract (90 day after ratification of the vote) could potentially increase the rate of union density growth by 33-46%, which is probably why “business also opposes the bill’s provisions to have binding arbitration if an employer fails to reach a contract with a new union. Companies argue it would be wrong for government-designated arbitrators to dictate what a company’s wages and benefits should be.”
3. Penalties Are Still In, But Small Fry –  in policy, like in jazz, silence is often as important as sound. If politicians or interest groups don’t mention a provision of legislation in public discussion and debates, there’s probably something going on – and here, sadly, it’s the fact that business would probably be happy to give up on triple backpay and civil fines while continuing to treat the penalties incurred by  illegal firings as the cost of doing business.

A Theory of Institutional Change:

One thing is makes very clear is that, even if the EFCA compromise passes, we will still need future labor law reforms. However, this was always the case – even a pristine EFCA bill would still have required future legislative efforts, given the immensity of the task involved and the fifty years of bad labor law and other institutional barriers that have been thrown up against labor organizers. Indeed, one of the hidden virtues of the current effort, little remarked on by activists, is that the Employee Free Choice Act is also targeted at changing the institutional culture and habits of Congress. One upon a time, passing labor law reform was a part of the routine of the legislative process, but over the last fifty years, a combination of intensified business opposition and increased anti-union hostility on the part of a more conservative GOP has made labor law reform a rare and therefore frightening experience for Congressfolk.

For most Representatives and Senators, labor law reform appears a losing proposition, likely to win them the embittered opposition of powerful and well-financed interests, unlikely to garner them much in the way of public approval or political influence, and bearing the acrid stench of past failures. In that sense, every labor law bill becomes a threat to re-election. However, as is the case for health care, or for climate change, or any other systemic change, this is only true before passage – after, labor law reform becomes a normal piece of legislation, encapsulated within the common calculations of political profit and loss, safe. Thus, passing any bill smooths the way for the next bill, and the next bill, and the next bill.

Not card check, nor arbitration, nor any other policy; this is the ultimate political end-game, not merely to claim victory on one bill here and there, but to seize the Congress itself and make it once more the People’s House.

So What’s Next – 6 Labor Law Reforms:

Whether or not the Employee Free Choice Act passes, there are no few options for labor law reforms for the AFL-CIO, Change to Win, and their political allies to tackle next. Here are just a few of the bigger items, arranged in order of most immediate to most long-range.

1. Banning of Permanent Replacement Workers – for the last thirty years, ever since the Labor Law Reform Bill of 1978 failed in the wake of the Panama Canal Treaty, the chief legislative aim of the AFL-CIO (up until the introduction of EFCA in 2007) was the abolition of the hiring of permanent replacement workers during strikes – resulting in repeated defeats in Congress and in the courts. Next to the lock-out, the ability of employers to replace their entire workforce with replacement workers (i.e, scabs) is the chief power of management during conflicts between themselves and labor.  On its own, it allows employers to continue operations unchecked during strikes and, for workers, turns every strike into a gamble with their job on the line. A new effort would be quite interesting – unlike the somewhat messy rhetorical politics of card check, this legislation can be boiled into a very simple moral question: should workers lose their jobs for exercising rights given to them by law? If EFCA can pass, even in a compromised form, it might give momentum to try again, given the political sea-change we’ve seen over the last generation.
2. NLRB Election Campaign Finance – one idea that has come to my mind is to extend campaign finance reform to NLRB elections as well as regular elections for government. The core of this reform should be simple requirements: transparency (union drives would have to declare how much funding they’re getting from the International (hardly a major secret), but employers would have to reveal how much of their shareholder’s money was being spent on union-busting firms and consultants), equal funding (perhaps by matching funds, perhaps by capping how much could be spent on a given unit or a set amount per worker), and equal access (both sides have a right to distribute and post campaign literature, and both sides have the right to a full and accurate list of all eligible voters).
   
3. Eligibility Reform – one of the peculiar aspects of U.S labor law is that individual workers can be simply classified out of their rights – not denied them on some pretext like “reverse discrimination” or “separate but equal,” but to be simply told “you’re not a worker, you don’t count. Large numbers of workers do not have the right to form a union under U.S labor law – agricultural and domestic workers, and government workers (even government workers engaged in jobs that are identical to private sector jobs, like medical workers at public hospitals) aren’t included under the NLRB, and rail and air travel and freight employees are covered under other, more restrictive laws. In the last decade, there’s especially been a push to re-classify workers as supervisors (who have no rights under labor law, and who are often legally coerced into anti-union activity during organizing drives), with the case of charge nurses in the Kentucky River decision being the most prominant. Simply put, all workers should be able to form and join unions, regardless of what industry they work in.
4. NLRB Reform – when the newly rejuvinated conservative movement first turned its attentions to their enemies in the labor movement in the 1940s, their first move was actually against the National Labor Relations Board, which was viewed as a haven for leftists. The original NLRB was both a judicial body dealing with disputes over labor regulations, but also had the authority to act as an investigator and prosecutor – so those latter functions were moved out of the NLRB, which was reduced to a passive judicial body. The position of Secretary of the Board, which had given a form of expert, executive leadership to the Board, was reduced to “office management.” The Division of Economic Research had allowed the NLRB to produce ground-breaking research on the state of industrial relations to guide the Board’s decision-making by studying potential impacts and side-effects, or to recommend new policies that might firm up weaknesses in labor law, so it was eliminated. The Taft-Hartley Act required the NLRB to file injunctions against unions that engaged in “secondary boycotts” and other unfair labor practices (thus tying the hands of a liberal NLRB), while making injunctions against employers voluntary (thus freeing the hands of a conservative NLRB). And over the decades, the NLRB has been systematically starved of funding and recently left without a quorum, which slowed down the process of applications, certifications, and appeals, making the institution less and less useful to those who need it most. Thus, an effort should be made to repair this by restoring the powers of the Secretary of the Board, providing the Board with the ability to seek justice through cease and desist and mandamus orders, making orders mandatory in the case of employers as well as unions, re-establishing the Divison of Economic Research with a specific mandate, and creating an independent source of funding for the NLRB (perhaps tied to a small tax on payrolls).
5. Partial Repeal of Taft-Hartley – before EFCA, and even before permanent replacement, there was Taft-Hartley repeal. For the vast majority of the post-war half-century, the repeal of Taft-Hartley was the centerpiece of labor’s political agenda, a frequent if symbolic part of the Democratic Party’s platform, and a legislative impossibility. Even when Democrats held strong majorities and the presidency, as they did in the 196os, 70s, and 90s, Taft-Hartley has never been repealed. In 2001, large elements of the law are no longer of major importance – the requirement that union officers declare that they are not a member of the Communist Party is not a major barrier to union organizing, and the banning of jurisdictional strikes hardly rates high on organized labor’s to do list. However, Taft-Hartley did create several inherent injustices that have to be corrected. The proper political course, I feel, is not to “repeal Taft-Hartley” (in part because institutions reflexively defend the status quo, and because the term is too abstract to engender political emotion sixty two years after the fact. It is to push legislation aimed at restoring labor’s democratic rights – the right to freedom of conscience regarding crossing picket lines, the right to free speech by engaging in boycotts (which civil rights law recognizes as fundamental free speech) and sympathy strikes, and the right to due process, by restoring the Norris-LaGuardia act on injunctions. 
6. Industry-Wide Bargaining – one of the major differences between American and European labor law is the absolute absence of industry-wide bargaining, save in those sectors and periods where an individual union was able to  wield an effective majority power in dealing with a few oligopolistic companies (think the UAW and the Big Three, or United Steelworkers and U.S Steel, and so forth). Ironically, this is one area where unionized employers’ opposition to progressive reform actually hurts them – industry-wide bargaining eliminates “competative disadvantages,” eliminates market distortions caused by firms attempting “labor arbitrage,” so to speak, and by spreading the union standard across entire industires, protects unorganized workers and lifts their living standards (thus promoting widespread purchasing power) and protects organized workers from “runaway factories.” Potentially, I could see a future labor law allowing collective bargaining between national industrial associations and national industrial unions to establish “industrial standards” as a basic floor for firm-specific collective bargaining.