Hightower Lowdown - Employee Free Choice Act
Since Reagan, unions have been squeezed out of the
workplace
Time for real workplace democracy-- not the phony company
version
Last October, Home Depot co-founder Bernie Marcus blew a
gasket, spewing outrage in all directions. "This is the demise
of civilization," he exploded. "This is how a civilization
disappears. I'm watching this happen and I don't believe it!"
Bernie's outburst came during an hour-long conference call with
various other corporate executives and their political
operatives. The purpose was to collect industry funds for a
campaign to kill a piece of legislation called the Employee
Free Choice Act (EFCA). Yes, the spark that ignited Bernie's
fury, the hellish horror that he insisted would produce
America's Armageddon, was a simple labor bill, and he was
demanding that the corporate powers rally to save civilization
as they know it.
"As a shareholder, if I knew the CEO of the company wasn't
doing anything on [EFCA]...I would sue the son of a bitch," he
foamed. "If a retailer has not gotten involved in this...he
should be shot. They should be thrown out of their goddamn
jobs."
He didn't specify whether such traitorous executives should
be shot first, then thrown out of their jobs, or vice-versa--
but you get the point: Corporate America is working up a
feverish panic over the very notion of linking the term
"employees" with the concept of free choice.
"It is a political nightmare and a public policy disaster,"
shrieked a PR flack for a corporate front group opposing this
legislation. He even claims that top executives "are ready to
riot in the street about it." Now that's exciting! I, for one,
would pay to watch a horde of red-faced, Gucci-clad, CEOs
rioting, wouldn't you?
Who needs it?
What EFCA does is to restore workers' freedom to organize
themselves into unions so they can bargain with corporate
chieftains for fairer wages and benefits. That's it. Wait, you
might say, can't they do that now? Wasn't this settled back in
the 1930s with collective bargaining laws and creation of the
National Labor Relations Board (NLRB) to protect worker rights?
Yes--and no. It's true that 75 years ago our country took a
stand for promoting workplace democracy--a fundamental national
principle that the great majority of Americans still embrace.
But corporations are not democracies. They are hierarchical,
secretive autocracies, and most have never taken to the idea
that working families ought to have a say in how they are
treated. Thus corporate executives and lobbyists have worked
steadily and stealthily over the years to erode these
democratic gains, pushing against them especially hard in the
past couple of decades.
Indeed, since the Reagan years, there has been a pernicious
campaign by corporate interests and their political enablers to
spread the myth that unions themselves are archaic entities, no
longer necessary or wanted. Sure, there was a need for workers
to get organized back in the bad 01' Depression era, but that
was so last century. As the corporatists might put it:
"Hey, Bucko, we're all in a modern, global economy today, where we no longer have "workers," we have "associates," and we deal with each of them as independent units, giving America a flexible workforce so we can minimize labor costs and maximize shareholder value. Unions just get in the way of this, don't you see?"
This line of self-serving Corporate Think was articulated last
fall by John Engler, the former Michigan politician who's now
chief lobbyist (and self-appointed labor theorist) for the
National Association of Manufacturers. "In the sophisticated
workplaces of the 21st century," he lectured, "you see
management and labor often work closely together to beat the
competition. When they're doing that, the need for unions is
obviated."
What Professor Engler is telling us is that ergo, ipso facto,
and ad absurdum, he's a gooberhead.
The need for unions is hardly obviated when workers have been
dramatically increasing their productivity and generating more
national wealth, only to be rewarded with falling wages,
plummeting purchasing power, elimination of health-care
benefits, and cancellation of pensions. Meanwhile, corporate
downsizing and offshoring of jobs are rampant, part-time work
is the new norm, and job-safety rules have been sacrificed on
the altar of Wall Street's profit demands. Note also that CEOs
who so loudly bemoan union wages are paying themselves in the
neighborhood of $10,000 an hour, contributing to the widest
income inequality seen in America since the 1920s. This gap
between the rich and the rest of us now ranks as the worst in
the industrialized world.
These realities not only explain why today's workers need
unions, but also why there is such a widespread yearning for
them. A 2006 poll of the general public by the Pew Research
Center found that 68% of us believe labor unions are necessary
to protect working families. In that same year, a survey of
workers by pollster Peter Hart indicated that as many as 60
million Americans would join a union tomorrow--if they could.
Why can't they?
Because the corporate powers, abetted by politicians they fund,
have monkeywrenched America's rules for unionizing a factory,
big-box store, hospital, bank, food-processing plant, or other
workplace. Companies are free to be aggressively hostile to any
employee who so much as whispers, "What we need around here is
a good union."
And if an employee actually talks to coworkers about unionizing
the place, it's common for that person to be harassed,
disciplined, demoted, and even fired by corporate managers.
Tens of thousands of workers are either disciplined or given
the boot each year for daring to support unionization. During
organizing campaigns, nearly a third of the companies involved
fire at least one worker for union activity, sending a chilling
message to other employees.
Such sledgehammer tactics are, of course, illegal, but the
corporate-dominated NLRB's enforcement process is so drawn out
and grueling that few of the abused workers can afford even to
try getting justice. And if a corporation does happen to be
cited by the labor-relations board for violations, the
penalties are a joke. Management treats them like parking
tickets--an inconsequential cost of doing business and a cheap
means of stifling workplace democracy and shutting out unions.
Still, against all odds, workers have been persevering,
producing enough support in hundreds of workplaces to force
unionization elections. Great! Elections are the very essence
of democracy, right? No, not when management thinks workers
might win. Once again, the monkeywrenchers have rigged the
rules to make a vote on unionizing as unfair to labor as trying
to bowl in hell with a snowball.
These are "elections" in which only one side (guess which one)
gets to campaign. Under NLRB's distorted rules, union
organizers are not allowed to enter the workplace to talk with
employees! Nor are they given a contact list, so they have no
way to reach all the voters and present their side.
On the other hand, corporate executives can call mandatory,
closed-door meetings to harangue all employees about the evils
of unionization. They can also force every employee to have
intimidating, one-on-one sessions with their supervisors to be
told why voting for the union would not be a good career move.
Corporations bring in outside muscle, too, spending hundreds of
millions of dollars a year to hire professional "labor
consultants" (aka union busters) who are experts in
often-unsubtle ways of convincing employees to vote no on
unionization.
Research by Kate Bronfenbrenner, a widely respected professor
of labor studies at Cornell University, finds that 92% of
companies involved in organizing campaigns use the
mandatory-meetings tactic, 78% require one-on-one sessions with
supervisors, and 75% hire union busters to squeeze employees.
She also found that half of the corporations facing elections
threaten that they will close the plant or store if the union
prevails, costing all employees their jobs. (Interestingly,
when unions do succeed, only 1% of the corporations actually
follow through on this threat.) Even when workers win these
elections, however, they still haven't won. Corporate
executives can simply stonewall, unilaterally nullifying the
election results by refusing to negotiate in good faith (or at
all) to produce a collective-bargaining agreement with the
workers. This, too, is illegal, but corporate lawyers can
easily draw out the process for years, making it extremely
costly. A study published last year in the Industrial and Labor
Relations Review found that 44% of companies do not agree to a
contract after their workers vote to form a union.
Restoring fairness
The NLRB system is not merely broken, it has been thoroughly
perverted. Its original mission was to assure that America's
working men and women have "the right to self-organization, to
form, join, or assist labor organizations, to bargain
collectively through representatives of their own choosing, and
to engage in concerted activities for the purpose of collective
bargaining or other mutual aid and protection." Far from
assuring this right, however, the system today is just another
corporate tool for stiffing workers.
To break the corporate shackles on America's unionization
process, to restore a reasonable balance of power between labor
and executives, and to make "workplace democracy" more than a
rhetorical sham, unions and their advocates have crafted an
alternative method for voting on unionizing. It's called
Employee Free Choice, and it streamlines the current cumbersome
process by providing three straightforward steps:
1. Majority sign-up. If a majority of employees in a
workplace sign cards attesting that they choose to form a
union, the NLRB must recognize this "card-check election" and
certify the will of the workers. This alternative,
majority-rule process is used without a problem in Canada and
by some U.S. corporations, including AT&T and Kaiser
Permanente. If employees prefer, they still can decide to use
the current elections system--the choice is theirs, as it
should be, since it is their organization.
2. Contract arbitration. If workers choose to unionize,
their representatives and those of the corporation have three
months to negotiate a first contract. If they cannot reach an
agreement, a federal mediator is brought in to try resolving
the differences. If no agreement is reached after 30 days of
mediation, the disputed issues are submitted to binding
arbitration, thus preventing endless foot-dragging.
3. Penalties against coercion. No more wristslaps for
intimidating, firing, or otherwise pressuring employees in the
process of deciding on unionization. It is illegal to use
coercion, and this provision jacks up the penalties so there is
a real deterrent to violations, including $20,000 fines for
each incident and treble back pay for employees who've been
fired, demoted, or otherwise discriminated against for
unionizing activity.
Corporate sanctimony
To attack the card-check approach, corporate executives (who
have shown themselves to be champion intimidators of their
employees) have suddenly metamorphosed into caped crusaders
against employee intimidation! By unions, that is. Beware, they
shout, for dastardly union "BOSSES" will stop at nothing to
browbeat workers into signing those cards. Therefore, in order
to protect our vulnerable employees from the possibility of
labor thuggery, it is imperative that we maintain the current
system of NLRB elections (which leaves browbeating in the
trusted hands of management).
To give such naked hypocrisy a cloak of respectability,
corporate interests insist that what's really at stake here is
[cue the patriotic music and unfurl the stars and stripes] the
sanctity of the secret ballot. Bernie from Home Depot covered
himself with this cloak in a Business Week piece he wrote last
fall: "[EFCA] eviscerates traditional democratic principles by
effectively taking away an employee's right to vote by secret
ballot."
It's always touching to hear top management almost sob with
concern about employee rights, but Mr. Marcus is flat wrong.
EFCA does not eliminate the secret ballot. The entire NLRB
process is left in place, still available if workers choose to
use it. EFCA simply restores the original intent of the 1935
National Labor Relations Act. The card-check method was
authorized in that law--but, over the years, corporate
interests were able to kill it by chiseling into NLRB rules a
provision that management can veto the use of card checks. EFCA
eliminates that corporate veto, thus expanding the democratic
possibilities of working folks.
Of course, secret balloting has a natural appeal, since it is
how we elect people to public office. But this is not an
election of public officials. It's a group of people deciding
whether to form an organization, which is commonly done by a
mere show of hands (from those forming a neighborhood
association to those forming a local chamber of commerce).
Again, it is their union we're talking about, not management's.
A union is an employee organization, and sanctimonious
management honchos like Marcus should have no say over the way
employees organize themselves. If management is feeling any
genuine democratic impulse, how about applying it to their own
organizations? After all, corporate managers have become
entrenched despots, effectively shutting out the people who
actually own the company (shareholders) from their rightful
role in decision-making--including, for one fat example,
decisions over the outlandish salaries, bonuses, and perks that
top managers award to themselves.
The wailing we hear from the executive suites about the
card-check process has nothing to do with democratic principles
and everything to do with preserving the autocratic power that
executives hold over America's workforce. If employees can
organize themselves (and CEOs have now realized that card-check
elections would make this much more feasible), then workers
will have a meaningful say in decisions that affect them.
In other words, democracy is exactly what the corporate
interests so vehemently oppose. As Wal-Mart's CEO put it last
October when asked why corporate managers are dead set against
card-checks: "We like driving the car, and we're not going to
give the steering wheel to anybody but us."
The fight is on
With the exception of a few openly hostile outfits like
Wal-Mart and Home Depot, most of corporate America is skittish
about appearing antiworker (especially given today's sour
public attitude toward fat-cat executives), so they are putting
millions of dollars into several front groups to lead the
corporate fight against the free-choice proposal. Here are a
few of them:
Center for Union Facts. Launched in 2006 by professional
smear artist and corporate lobbyist Richard Berman, CUF is
presently running a multimillion-dollar, high-profile assault
on unions generally and EFCA specifically. It has placed
several full-page ads in the New York Times (at $150,000 a pop)
that crudely caricature union leaders as thugs. Berman, who
calls himself "Dr. Evil," is known as an ethically challenged
spinmeister who has previously fronted political campaigns for
Big Tobacco, the alcohol industry, fast-food purveyors, etc. He
always refuses to disclose which corporations fund his attacks.
Americans for Job Security. This front group sprang out
of another front group, called The Coalition, that was formed
by the U.S. Chamber of Commerce in the 1990s to run attack ads
against Democrats. AJS is essentially operated by Republican
political consultants. Last December, it bought time on most TV
networks for an ad titled "Blago," which tried to link
EFCA-supporting unions to disgraced Illinois Governor Rod
Blagojevich. The AJS website flatly states that the group "does
not disclose or discuss its membership"--as AJS officials
explain, such disclosure "would distract from the group's
message."
Coalition for a Democratic Workplace. This group exists
to shed crocodile tears for the "sanctity of the secret
ballot." It's backed by several corporate consortiums,
including the U.S. Chamber of Commerce, Retail Industry Leaders
Association (whose biggest member is Wal-Mart), and Associated
Builders and Contractors. CDW will not reveal its backers.
Workplace Fairness Institute. The soft name glosses over
this outfit's hard corporate intention to stop workers from
organizing. Formed by corporate lobbyists and PR agents, WFI
claims that the card-check option "is an attempt to undermine
the democratic system that Americans hold dear." WFI asserts on
its website that its funders are "NOT anti-union" but merely
prefer to maintain good employer/employee relationships
"without the unfair interference of... union organizers." WFI
refuses to disclose the names of its funders.
Alliance for Worker Freedom. This is an arm of another
right-wing group, Americans for Tax Reform. Both were founded
by Republican operative Grover Norquist. AWF exists to rally
the far-right political network to oppose EFCA. Norquist is not
given to much subtlety: "We're going to crush labor as a
political entity," he boasts. He will not name the companies
financing AWF.
Save Our Secret Ballot. SOSB's founders include such
corporate-backed, right-wing outfits as the Heritage
Foundation, the Goldwater Institute, and Norquist's Americans
for Tax Reform. SOSB is going to the extreme of trying to
outlaw the card-check process by introducing state
constitutional amendments to require secret ballots in all
elections, including "designations or authorizations of
employee representation." SOSB is unwilling to identify its
funders.
Political will
Across the country, there is broad support for the Employee
Free Choice proposal. A Peter Hart poll released this January
shows that 73% of the public supports it, including nearly half
of Republicans.
The problem is that popular support must endure a gauntlet of
naysayers in Washington, including 13,000 corporate lobbyists,
a solid line of recalcitrant Republicans, and a contingent of
weak-kneed corporate Democrats. Senate Minority Leader Mitch
McConnell has already declared that "this is an issue on which
there will be no bipartisanship," claiming that the proposal
would "Europeanize America." Oh, the horror.
This is going to be a major test for Obama, who pledged
unequivocally last year that he would "get this thing done" if
he won the presidency. Getting it done will require him to make
a choice between working families and his corporate funders, to
face down his own corporatist economic advisors, to use real
presidential muscle with Congress, and--most important--to
rally grassroots support to bring the people directly into the
fight.
Yes, he can, but will he?
