Labor Needs a New Survival Plan—Now

Scott Brown’s January 19 defeat of Martha Coakley in the race to fill Ted Kennedy’s Senate seat has been widely hailed in the mainstream media 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 frustrated and 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 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 percent 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 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 taxpayer-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. In response to business lobbying—and with behind-the-scenes labor consent—an informal Capitol 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—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 10-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 pressured unions to go along with weaker amendments to the NLRA than they originally sought. Then, after being weakened during a Senate battle over the Panama Canal treaty, the White House failed to marshal 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. 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, 10 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.



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Of course, back then, no one thought “fixing health care” would take so long or that “Obamacare” would become such an unworkable mess that even Massachusetts voters would end up electing a Republican to Ted Kennedy’s Senate seat. 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 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 private medical plans. If enacted, this 40 percent 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 derailing such “reforms” would be a victory for the GOP and, thus, the death knell of employee free choice.

Now, in a real case of déjà vu all over again, 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 January 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 away 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 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 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 February 27 to help develop a local “Plan B” for more “bargaining to organize” that would better use remaining pockets of union strength before they disappear like the Martha Coakley signs in my neighborhood.

And in late April, more than 1,000 labor and community activists from around the country will descend on Detroit for a national Labor Notes conference, an even-larger brainstorming session for stewards, elected officers and organizers from an array of unions and worker centers. In scores of workshops and plenaries, they will 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 January 19 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 is a labor journalist and lawyer who dealt with the NLRB for many years while working as a CWA organizer in New England. He is the author of Embedded with Organized Labor, which reports on the history of labor law reform efforts over the last 30 years. You can get it here. A shorter version of this article originally appeared in The Boston Globe. Early can be reached at lsupport [at] aol [dot] com.

Steve Early
Steve Early was a longtime Boston-based national union representative for the Communications Workers of America. He has written four books about labor and politics, including Save Our Unions (Monthly Review), and just co-authored a new book dealing with veterans’ issues. He can be reached at


Mike Wilzoch | 02/01/10

While I have been more directly familiar with sell out Labor bosses than has been healthy for me, to suggest that a faction from the study group which is the honorable but powerless IWW leading the way out of Hades reminds me of those who were sure we would establish the dictatorship of the proletariat in a couple weeks, once two-thirds of the subcommittee recommended the plan.

The tough and principled but disparate voices of labor still have the capacity but not the program to communicate with and connect EFFECTIVELY in action at the grass roots level with the increasingly disaffected, beat up and broke working class. The good and bad news is that there's a void of national and regional leadership waiting to be filled, and progressive labor could be at the core of our way out of Dodge. But while EFCA is likely to become as much a cruel joke as "universal health care," there's still plenty we can do to either bypass or minimize the NLRB in organizing (J4J, PLAs, Community Benefit Agreements...), and at least get a bone thrown our way from DC in lieu of a real EFCA by demanding a reallignment of the Board nationally and at the Regional Director level, with some executive intent statements and directives which could produce some workable progress in the broader fight.

As for uniongrrl, she has clearly never dealt in any real way with the NLRB, or she would know that they're "constrained" more by being bureaucratic hacks, many appointed by the GOP, than by weak labor law they have routinely allowed to be perverted to the bosses’ advantage. Having just been purged from a once good union gone nuts, no need to convice me that these are crucial battles that must be fought and won. But let's not repeat the Board's own excuse--"we're just following the law"-- for remaining inert and useless in the face of actionable evidence. The examples from just my organizing experience are too numerous to list, but just one recent campaign illustrates the point:

Staff at Rady Children's Hospital in San Diego first hurdled unprotected for a year by the Board's failure to charge the employer with blatant ULPs and voted in SEIU in 2004. Management, through their Union busting attorneys, did not move an inch at the table for 2 years and were again blatantly guilty but uncharged for not bargaining in good faith. The bosses then stirred up the discontent they created and orchestrated 2 decerts—both of which they lost as the workers again ran the gauntlet through uncharged ULPs of coercion, intimidation, and a lavishly funded and staffed anti-Union campaign to reaffirm their decision to have a Union.

Finally, while yet another decert (this would be the 4th vote, filed for just before the workers ratified their first contract) was looming, the Board filed a 5 part complaint—11 months after we yet again documented how these workers’ rights had been grotesquely and repeatedly violated. This first and only Board action came 4 years after the workers had the bad manners to first advocate for the Union, and hope and stamina was being lost by even the most ardent Union supporters. This is, of course, the object of this well documented and routinely repeated sequence of moves—to strangle the Union by whatever means necessary, including in this case the disgusting diversion of millions that should have been be used directly to save kids’ lives, and improve their chances for survival and good health by treating their caregivers and support staff with dignity and respect—instead of into an unethical and illegal campaign to deny workers their most basic rights.

The last dagger demonstrates the point unequivocally: As we were preparing for the trial where the NLRB was to take the role of our advocate and prosecute the employer—where the bosses, their consultants and goons would have to stand in the dock and finally be held accountable by the workers’ testimony, and consequently blow the doors off their wall of lies to the staff, their donors, and the whole community—a deal got cut behind our backs by our “advocates” and the boss. No trial, no accountability, but yet another gift: the case was resolved completely by an agreement for a goddamn posting in 3 places in the Hospital in which management would acknowledge that they would at last honor the contract they signed, would “allow” Union staff access—up to that time denied—to represent and even talk to workers in the Hospital, would not intimidate or coerce workers for Union activity, and specifically would assure that security would not rip Union leaflets from workers’ hands (I am not making this up). THEY DID NOT EVEN HAVE TO ACKNOWLEDGE ANY GUILT IN THE DEAL.

The coups de gras for the campaign was the International putting UHW under trusteeship, back channeling to the rat scab boss attorneys, and then selling out the workers completely by ignoring then walking out on those who had bled by then for 6 long years to have a Union, by disclaiming interest in the 4th election—THE FOURTH ELECTION IN 6 YEARS—that these weary workers should never have had to face if the damn Board had done their job in any of the years before the Trusteeship, and a Union was in place long before Andy Stern done lost his mind.

The Board has, in fact, wide discretion in filing complaints, dismissing bullshit stalling maneuvers, and prosecuting the guilty. It’s just that they require videotape of the aggrieved workers being horsewhipped by the man before they’ll get their head out of their ass and act like their job is supposed to include protecting workers’ rights. Organizers everywhere know this, and while nobody on the port side disputes that the laws themselves are deeply flawed and responsible for much of this stupidity—neither is it in reasonable dispute that too many of the bureaucrats that run this machinery could find an excuse not to find their own ass even if it had a bell on it. If we're to be sold short again on what would be true justice right now, we should at least be able to get the trash taken out while we keep moving on our own.

JimDelDuca (not verified) | 02/03/10

There is only one union I know of that has never sold out, fights hard, and uses direct action in a timely fashion. You guessed it! The IWW!

Lots of folks complain about their crooked unions, and swear the crooks at the top are too powerful to throw out. Well, to that I say, stop complaining and organize with the Industrial Workers of the World! We walk the walk...

uniongrrl (not verified) | 01/30/10

Why slag the Board when the Board is constrained on all sides by the narrowness of labor law? The Board isn't the problem; its labor law. And for someone "who dealt with the NLRB for many years", Steve, you should understand precisely why there has been a delay in scheduling elections in California for NUHW. The Board can't just run an election if another union petitions as an intervenor or files charges to block the election. Its not that the Board isn't due some criticism, but productive criticism would be better directed at Congress, President Obama, unions that raid instead of organize, and the U.S. Chamber of Commerce.

JimDelDuca (not verified) | 01/29/10

Aggressively, honestly, and courageously representing the workers is nothing new, is it? Organized Labor (not including revolutionary Labor Unions like the IWW, which I belong to) started down the slippery slope leading to the current crisis when they chose to compromise with the Bosses, and deluded themselves into thinking that there could be some sort of partnership with Capitalists. Aggression, honesty and courage were replaced with temerity, corruption, and complacency. Put bluntly, the workers don't just feel like they have been betrayed. They truly have been sold down the river by leadership who have more in common with corporate management than working class families. Once again it is up to the revolutionary unions, like the Industrial Workers of the World, to lead the way back to the vital basics of "Education, Organization, Emancipation."