The Employee Free Choice Act might have died this week. Arlen Specter refused a deal wherein labor unions would encourage their members who are registered Republicans to support the Senator in a tough primary in exchange for his vote for cloture. Instead, the entire Republican caucus will filibuster the Act. Now is as good a time as any to ask: Why did the entire labor movement choose to make the Employee Free Choice Act the all-or-nothing focus of labor law reform?
The Free Choice Act is a fairly narrow tweaking of a legal framework that has become a union-busting machine. It does nothing to address so-called “Right To Work” rules that allow scab workers to utilize union resources without paying a dime in dues. It does nothing to outlaw, or even curtail, the use of permanent replacement workers by employers during strikes and lockouts. It does nothing to repeal the sections of the Taft-Hartley and Landrum-Griffin Acts that outlawed union solidarity in the form of unions taking a fight with one employer to a related secondary employer. It does nothing to expand the right to organize to the millions of employees whose rights have been systematically stripped from the Act: supervisors, graduate employees, temps and on and on.
The Free Choice Act does provide for some financial penalties for employers who violate the terms of the act and the basic human rights of their employees. That would be put some teeth in a regulatory machinery that routinely gives employers a slap on the wrist for firing union activists. It would also curtail ability of an employer to thwart a successful unionization effort by subsequently going through the motions during bargaining and never agreeing to a first contract, by subjecting first contract negotiations to binding arbitration after three months. And, finally, it would allow unions to organize through majority sign-up procedures.
I’ve been organizing under a majority sign-up law in New Jersey for a few years now, successfully. Does it make organizing easier? Only slightly. In the private sector, card check has been used very successfully by UNITE HERE and SEIU, usually in combination with a neutrality agreement with the employer. Perhaps that combination of card check neutrality has dazzled too many labor leaders and caused us to put all our eggs in one EFCA basket.
Make no mistake: card check is not neutrality. Even with financial penalties, employers will still campaign against unionization. Employers will still fire union activists and threaten to go out of business. They will be fined, after the fact. In the meantime, union supporters will lose their resolve and give up. Under the curent framework, even after a majority (usually 60% or more) have voted for a union by signing authorization card, they still must vote a second time, some months later after enduring a phalanx of legal hearings, captive audience meetings and the firing of activists. All too often, when that second election is held, many of the employees who had signed cards are frightened into not voting or voting no. All that EFCA gives us, then, is that the initial cards count as the votes, and those votes are impounded at the National Labor Relations Board while the employer beats up and scares the shit out of the employees who voted for the union. EFCA will get you a bargaining unit, but it will not get you a union.
As best as I can tell, the fantasy is that moments after the Employee Free Choice Act is signed into law, the large industrial unions will send hundreds of organizers out into the field to collect cards at major employers in retail, shipping and even manufacturing – Wal-Mart, Toyota and so on – get the cards, get the bargaining unit and get get the first contracts by arbitration. Then, hopefully, with new dues resources, the unions would turn around and actually organize these new union members, gain thousands of new labor voters and press for greater reform. It sounds wonderful, but it it, I believe, a fantasy. Unfortunately, I don’t think that most unions are prepared to run major nationwide campaigns like that. At least not effectively. And at the AFT, the Free Choice Act will do very little for us since most of the private sector workers in our field are still not defined as “employees” under the act.
Gaining card check and doing little with it is far worse than never gaining it at all. Just think of how much fund the Wall Street Journal would have fun with that. Labor gets its dream bill to make organizing “easier” and workers still don’t sign up in droves. It seems to me far better to focus on winning fines against union-busting employers, compulsory arbitration for first contracts and expanding the Act to define as “employees” the workers in the information economy whose unionization is as crucial to labor today as General Motors’ was 70 years ago.