Who killed EFCA?

July 23, 2009

Adam Turl explains how big business and the politicians on their payroll conspired to block the Employee Free Choice Act--and why unions failed to challenge them.

THE EMPLOYEE Free Choice Act (EFCA) is dead--killed off by Corporate America while the unions stood by passively.

EFCA had been the centerpiece of organized labor's designs on the new Democratic president and Congress. The legislation was set to easily pass in the House of Representatives, and would certainly have garnered a majority of votes in the Senate, although not necessarily enough votes to defeat a filibuster.

The three key planks of the legislation were:

A "card check" provision that would have allowed workers to form a union by a simple majority signing union cards. Card check is necessary because current labor law essentially forces workers to organize a union twice--once by signing cards and a second time in a National Labor Relations Board (NLRB) election, often held months or even years later--all in the face of massive (and often illegal) employer intimidation.

Binding arbitration on companies that refuse to sign an initial union contract. This measure is necessary because companies often refuse to bargain with newly formed unions, delaying negotiations until they can try to get the union decertified.

Increased fines on companies that violate workers' rights to organize. This is important because companies routinely break the law by firing union organizers to kill off organizing drives. While such employers may eventually have to pay fines for such actions, they view it as a worthwhile investment in what anti-labor lawyers call "union avoidance."

In February, SEIU mobilized to deliver 1.5 million postcards in support of EFCA to Senators in Washington D.C.
In February, SEIU mobilized to deliver 1.5 million postcards in support of EFCA to Senators in Washington D.C.

Such legislation, even in its original form, wouldn't have been a panacea to reverse labor's decline. But it would have been an important tool for unions to organize the unorganized, and give workers confidence that federal law was on their side.

Now, however, a "compromise" in the Senate has jettisoned the card check provision--the most important part of the proposed legislation--from EFCA.

There are several suspects in connection to the murder of card check--and all of them are guilty, to one degree or another.

The first group in the lineup is the U.S. Chamber of Commerce and corporate lobbyists, and their massive, multimillion-dollar K Street smear campaign. The next group includes, of course, congressional Republicans.

But with Senate Democrats now holding a 60-seat "filibuster proof" majority, EFCA's killers needed the collusion of "moderate" and conservative Democratic senators--including Dianne Feinstein of California and Blanche Lincoln of Arkansas, the home state of anti-union behemoth Wal-Mart. Both reneged on earlier support for EFCA.

Behind this gang was a wider group of accessories--including other congressional Democrats and the White House, which failed to muster even a modest lobbying effort for EFCA.

Lastly, EFCA's enemies needed a labor movement that pulled its punches to give Corporate America the political space it needed to finish off the pro-union legislation. Unfortunately, organized labor obliged.

HOW DID things go so wrong?

First of all, labor misread the dynamics of the Democratic Party and its commitment to pass genuine pro-labor reform. While the Democrats put forward EFCA in the first place, they are at the end of the day a pro-corporate party. So predictably, they wavered on the legislation. The Senate hemmed and hawed for months, and the legislation remained in limbo.

Instead of disciplining conservative Democrats into supporting EFCA, the party leadership started the process of compromising on the content of the legislation. Ultimately, six Democratic Senators--Tom Harkin (Iowa), Arlen Specter (Pa.), Sherrod Brown (Ohio), Thomas Carper (Del.), Mark Pryor (Ark.) and Charles Schumer (N.Y.)--met behind closed doors and came up with the "compromise" that removed card check.

As the Atlantic Monthly put it:

The failure of card check, now known as "majority sign-up," speaks as much to the political priorities of the Obama administration as it does the power of moderate Democrats, most of whom opposed card check for fear of alienating employers in their mostly non-union districts.

As of a few months ago, labor strategists could accurately claim as many as 58 votes in the Senate, just two shy of the magic 60 needed to avoid a filibuster. But even as President Obama and Vice President Biden dutifully praised card check in speeches, the White House did not put any political muscle into passing it, and they very clearly indicated to congressional leaders that its passage was less important than health care, its economic stimulus efforts, its financial industry regulation proposals...

The loss of "card check" is a major blow. However, if the remaining version were passed, it would still be an improvement over current law.

The "compromise" EFCA would include a reduced period for union elections--from three months to 10 days after union cards are filed with the National Labor Relations Board (NLRB). The new EFCA would retain binding arbitration on first union contracts and increased fines on companies that violate workers' rights.

It may also include something called "injunctive relief," which would force employers to immediately reinstate workers if the NLRB believed they had been fired for union activity. Another possible amendment would provide greater access to worksites for union organizers.

However, since Democrats already gave away card check without a fight, there is little reason to believe they will mount a vigorous defense of the compromised EFCA when the Republicans move in to destroy what remains.

Meanwhile, Corporate America shows no sign of scaling back its multimillion-dollar war against EFCA, continuing a take-no-prisoners approach to defeat the proposal to force binding arbitration on employers.

Tellingly, opponents are now calling the compromise EFCA "card-check Lite." The Chamber of Commerce's Randel Johnson told reporters that his organization will "remain adamantly opposed to the bill, regardless of whether card check provisions remain in or out...the arbitration provisions are completely unacceptable to us."

LABOR'S RESPONSE, by contrast, has been that of a deer caught in the headlights. The end of card check was announced just days after President Barack Obama and Vice President Joe Biden met with 11 AFL-CIO and Change to Win union leaders to assure them that the White House remained committed to EFCA.

At the time, Communications Workers of America President Larry Cohen told reporters, "We believe [Obama's] commitment to [EFCA] is as strong now as it ever was...He said he will work with us to get this done." Yet while the White House was promising action, the details of the killer "compromise" were being ironed out on Capitol Hill.

But labor leaders should not have been surprised. Several of them appear to have--at the very least--telegraphed their willingness to dump card check. According to the Chicago Tribune, "A Democratic official familiar with compromise talks on [the] bill...said union leaders are willing to drop the politically volatile card check plan to win over wavering Senate Democrats."

AFL-CIO President John Sweeney and Service Employees International Union (SEIU) President Andrew Stern, while publicly claiming absolute victory on EFCA was assured, were reportedly involved in ongoing "negotiations" on jettisoning card check.

Nevertheless, the official AFL-CIO blog had a "see no evil" take on the defeat: "Despite speculative news reports today, momentum for real labor law reform is still going strong, and we can still be optimistic that a bill will be signed into law this year giving workers--not their bosses--the choice about how to form a union."

Stern echoed those sentiments--but went even farther in letting Congress off the hook:

As we have said from day one, majority sign-up is the best way for workers to have the right to choose a voice at their workplace. The Employee Free Choice Act is going through the usual legislative process, and we expect a vote on a majority sign-up provision in the final bill or by amendment in both houses of Congress. With Congress focusing on health reform legislation this summer, a vote on the EFCA is not expected until the fall at the earliest.

Stern also bears responsibility for the labor infighting that has made the fight for EFCA that much harder. Besides ordering the undemocratic takeover of the SEIU's big West Coast health care local, Stern's union has also absorbed a breakaway faction of the UNITE HERE union and launched raids on workplaces already organized by that union.

But many other labor leaders share the blame for the card check fiasco. Instead of harnessing the anger of union members to fight for what's left of EFCA, some labor leaders appear to be lowering expectations. According to the New York Times:

One top union official, who insisted on anonymity because lawmakers and labor leaders have agreed not to discuss the status of the bill, said, "Even if card check is jettisoned to political realities, I don't think people should be despondent over that because labor law reform can take different shapes."

AFL-CIO spokesperson Eddie Vale also put a positive spin on the setback. "As Schoolhouse Rock taught us, this is the normal process of how a bill becomes a law," he said, in a reference to the old educational cartoon for kids. "We are very optimistic about passing the strongest labor law reform since the Wagner Act," a reference to the 1935 federal law that guaranteed workers the right to organize.

Vale's optimism is almost certainly misplaced. And by focusing on the formal way "a bill becomes law," labor leaders missed the real way pro-worker and pro-labor reforms like the Wagner Act were won--through struggle and grassroots mobilization.

In the case of EFCA, this would have meant protests, organizing drives, strikes and activating at least a fraction of the millions of union members in order to put pressure on ever-wavering Democrats.

A number of left-wing labor activists have argued for months that labor's largely legislative strategy was putting the battle for EFCA at risk. While important local actions have been organized--most recently, a march of some 1,500 workers in Arkansas--they have been too few and far between to put enough pressure on the Senate and White House.

"Privately, union hands and progressives are sniping at what they view as a poorly handled legislative strategy," wrote Sam Stein for the Huffington Post. "When Senate Democrats began airing their concerns with the bill, there was little pushback from the grassroots community. Instead, talk of compromise began almost immediately."

This was true from the start--when unions pulled field organizers after the 2008 election rather than keep them in place to organize for EFCA, as originally planned.

It is time--once again--for organized labor to take stock of its serious and deteriorating situation. With wages declining and jobs continuing to melt away, unions are going to be necessary for millions to maintain their livelihoods--and even their lives. But to organize those workers we need a fighting labor movement, not one that compromises away its goals without any real battle at all, as it did with EFCA.

Union members and progressives are right to "snipe" about the failed strategy on EFCA. But criticism isn't enough. We need to mobilize the union rank and file and unorganized workers to chart a new--and militant--course for organized labor based on class struggle and solidarity.

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