U.S. Labor Law Reform Thirty Years Later: Back to the Future with EFCA?

[Earth Bound Misfit]

"If Obama makes it to the White House, he may be tempted to take a Jimmy Carter-style dive or start bobbing and weaving like Bill Clinton to avoid another knock-down, drag-out fight with corporate America early in his administration."

I recently came across an article in the United Mine Workers Journal denouncing the management bias of the National Labor Relations Board (NLRB) and calling for labor law reform. Here’s how it described the workers’ rights violations that cry out for new legal remedies:

As the National Labor Relations Act (NLRA) has been weakened over the years by the presidential appointment of conservatives to the NLRB, coal operators and companies in other industries have returned to the traditional weapons of anti-union employers. With increasing frequency, they are discharging or laying off union supporters, blacklisting them, making threatening speeches, engaging in other conduct designed to prevent fair representation elections, and then refusing to bargain in good faith when unions win these elections. And the Board is letting them get away with it.

The UMW Journal goes on to demand immediate “legal and policy changes” – including a requirement that the NLRB “certify new unions and order employers to bargain with them on the basis of signed authorization cards showing clear majority support within an appropriate bargaining unit.”

In addition, labor law violators should face heavier financial penalties and federal court injunctions that would “put workers dismissed for union activity back to work while the NLRB is investigating and processing charges filed on their behalf.”

Unfortunately, this was not a recent story in the Journal. It was written (by me) in 1975, when a quarter of the U.S. workforce was unionized and the UMW could still shutdown much of the coal industry. My article was part of a broader membership education and publicity effort. Unions, at that time, were trying to lay the groundwork for a grassroots campaign for labor law reform when the Democratic Party regained control of the presidency in 1976, after its big (Watergate-related) victories in mid-term Congressional elections in 1974.

With help from labor, Jimmy Carter defeated Republican Gerald Ford less than a year after the article quoted above was sent to the homes of 225,000 active and retired coal miners. (Today, the UMW has only 86,000 members.) In 1978, during Carter’s first and only term, unions came closer to strengthening the Wagner Act (NLRA) than at any other time since Congress enacted labor’s “Magna Carta” in 1935. An AFL-CIO (American Federation of Labor and Congress of Industrial Organizations) -backed bill that would have speeded up representation votes, helped fired organizers, and penalized union-busting employers got filibustered to death in the Senate, after tepid White House lobbying on its behalf.

On the 30th anniversary of that set-back – and partly because of it – American unions now represent only 12.1 percent of the total workforce. In the NLRA-covered private sector, union density is down to 7.5%. However, as part of the popular backlash against another discredited GOP administration, mid-term elections two years ago have changed the composition of Congress for the better, and raised new hopes for labor law reform. In 2008, union members are once again being urged to elect big Democratic majorities in the House and Senate, plus a new president – so legislation called the Employee Free Choice Act (EFCA), described in more detail below, can be enacted early next year.

At this important juncture – when amending the NLRA is even more essential to union survival than three decades ago – it’s worth examining the current labor-community campaign for EFCA. Are the lessons of past political defeats being applied in this renewed bid for labor law reform? Can the AFL-CIO – and its Change to Win (CTW) rival – join forces to win NLRA changes despite organized labor’s loss of density and political clout since the late 1970s? Even if enacted, will EFCA be able to remedy widespread employer rejection of collective bargaining?

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Implicit in the critique above is the idea that labor law reform will always fall short if it doesn’t overturn Taft-Hartley Act restrictions on real union solidarity and the Supreme Court’s 70-year old sanctioning of the use of striker replacements. Unfortunately – except in the speeches of Ralph Nader – repeal of Taft-Hartley and a ban on permanent striker replacements is not a big part of political discourse today. Pope, Kellman, and Bruno propose to change that by recasting labor’s campaign as a fight for “the full acceptance of workers rights as an essential component of American freedom.” They reject “EFCA’s slogan of ‘free choice’” as “a short term marketing soundbite” that “kowtows to our society’s dominant ethos of individualism” and fails to “capture the labor movement’s true objectives or its appeal to workers.” In order to “win workers rights, the labor movement needs to act like a genuine rights movement.” Instead, they believe that EFCA inadvertently “plays into the hands of anti-union spin-masters, whose vision of the natural, union-free workplace is pervasive in the media, in academia, and in the public consciousness.”

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A Million Member Mobilization?

Key strategists in the campaign for EFCA are not unaware of this history. While “organizing unions” can’t summon up a social movement out of thin air, they can try to build on their collective experience of strikes, lock-outs, and membership mobilization on behalf of organizing-related demands. Some of these recent “bargain to organize” struggles have raised membership consciousness about the importance of winning EFCA-type card check language (plus employer neutrality) in new contracts. Past labor law reform efforts – such as the failed 1977-78 bid – had much less of a grassroots orientation than the current effort, relying instead on consultant-driven Capitol Hill lobbying. The Carter Administration, in turn, backed changes in the NLRA like it was doing a favor for a special interest group – providing a quid pro quo for past election support not much different than Congressional Democrats’ perennial introduction, years ago, of “common situs picketing” bills. (Long viewed as a sop to the building trades, this AFL-CIO-backed legislation never succeeded in loosening restrictions on worker solidarity on construction sites.)

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Labor’s combined efforts may still not be enough to pressure the Democrats to use any mandate they get in November. In January, workers’ rights could face stiff competition from other priorities related to health care or the nation’s economy, which has dominated the Congressional agenda lately. If Obama makes it to the White House, he may be tempted to take a Jimmy Carter-style dive or start bobbing and weaving like Bill Clinton to avoid another knock-down, drag-out fight with corporate America early in his administration. Only grassroots pressure, now and then, can insure that this bout even occurs – plus ends favorably for labor.

The article above is also being published in 'Labor: Studies in Working-Class History of the Americas', Journal of the Labor and Working Class History Association (see http://www.lawcha.org)
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Steve Early has been active in labor since 1972 as a lawyer, journalist, organizer, and union representative. He worked for the Communications Workers of America for 27 years and was involved in CWA organizing at AT&T, Verizon, Lucent, and many other companies. He is the author of a forthcoming book for Monthly Review Press (Spring, 2009) called Embedded With American Labor: Journalistic Reflections on the Class War At Home. He can be reached at [e-mail] .
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Written in the Fall of 2008. The author really nailed it here.

More at link: http://www.stateofnature.org/usLaborLawReform.html