The EFCA Debate
The labor movement is dedicating much of its energy to passing the law known as the Employee Free Choice Act (EFCA). EFCA has three provisions: 1) increased liability for illegal union-busting during certain critical organizing periods; 2) adding majority sign-up as another mechanism to certify a union alongside the election method; 3) implementing a binding arbitration option if a first contract cannot be agreed upon by a union and an employer.
From the perspective of the corporate CEOs and their special interest front groups, EFCA is all wrong, especially majority sign-up and binding arbitration. Bernie Marcus, the co-founder of Home Depot, probably reflected the sentiments of many CEOs on EFCA when he lamented that: "This is the demise of a civilization. This is how a civilization disappears."
I’m not going to delve into the corporate argument since others have already debunked the corporate position copiously and persuasively. But I will make just one point about the leading corporate argument against EFCA though their argument is bogus for many reasons.
The corporate CEOs are spending millions to promote their primary argument that EFCA undermines the secret-ballot election. Yet, one of the first things companies do like clockwork when confronted with an upcoming union election is file a legal challenge to get the election called off outright.
There are various arguments that employers make to achieve the goal of killing an election such as challenging the scope of the bargaining unit. As employers litigate to cancel the election altogether, they simultaneously unleash a relentless campaign to win more votes than the union in case the bid to cancel the election fails. These corporations like Starbucks, Wal-Mart, and Home Depot that are portraying themselves as guardians of the secret ballot actually attack secret ballot elections as a matter of course.
There are however dissenting voices on EFCA among some progressive unionists that should be taken seriously. With respect to majority sign-up, the dissenters worry that large unions will become disengaged from their membership by virtue of an organizing process that frankly requires less organizing. The fear is that union’s will succumb to the temptation of just signing up workers without building strong organizing committees and facilitating rank & file leadership development.
On the issue of binding arbitration, EFCA dissenters worry about potentially putting union contracts into the hands of an outside party (the government) and radical unionists seeking to move away from no-strike pledges and other pro-management provisions can’t imagine such dramatic changes happening in a system that includes a government arbitration component.
The good news is that all unionists are united in the understanding that EFCA is not a cure-all for what ails the labor movement and by initiating discussion about an Employee Liberation Act I’m not seeking to make judgments among competing EFCA arguments (except the judgment that the corporate argument is the biggest joke of all time).
I’m also not thinking here about paradigm-shifting legislative reform. Looking around the world, there are many labor law regimes one could choose from to derive ideas. For example, there are labor law regimes which allow certification of unions which represent only their members regardless of majority status, unlike our model which requires a majority for certification. (Note that U.S. unionists not interested in government certification absolutely have the right to organize at work and take action to address issues of concern regardless of majority status). See the work of Professor Charles Morris for the leading case in favor of requiring employers to bargain with members-only unions in the U.S.
For the Employee Liberation Act, I’m thinking of politically-feasible though not unambitious labor law reforms, the majority of which are achievable in the near-to-mid term with the support of a dynamic grassroots movement. I’m also limiting myself to three provisions as in EFCA.
Of course limiting the proposal to three provisions means I have had to leave out all kinds of important reforms. I’d love to hear from you about your own Employee Liberation Act; based on your experience as a worker and an organizer which elements would you choose?
My co-author and friend Staughton Lynd says that high on his list would be doing away with the Fansteel decision and giving protection to workers occupying their plants when the boss has engaged in wrongdoing. He’d also like to take an ax to the Elk Lumber case and give protection to that wonderful tactic known as the slow-down.
It’s also important to point out that some of the current rules I will take to task were created by judges, not Congress, and therefore could be modified in court without need for legislative action. In other words, the Employee Liberation Act in certain key respects need not be a legislative "act" at all and direct actions on the job and in the community could be directed in more than one direction.
You’ll notice that the reforms I will propose are essentially unrelated to both union certification and the formal collective bargaining process. This is in line with the writing and speaking I’ve been doing with Brother Lynd on solidarity unionism in which we’ve focused on the National Labor Relations Act’s Section 7 (protecting concerted activity) and Section 8 (enforcing that protection) rather than Section 9 (government certification process). We have concerns about how the certification process and its aftermath may unduly favor representational activities by union staff not employed on the shop floor at the expense of rank & file organizing and action.
Rather than focusing on government certification or formal collective bargaining, the reforms I propose go to relieving some of the burdens which exist on a) worker self-activity and b) direct action, the two fundamental pillars of a transformative labor movement and the two key drivers of working class power.
The Employee Liberation Act
Provision #1: Getting serious about discrimination against workers by putting anti-union discrimination on par with other forms of discrimination
The contemporary United States workplace is a zone of impunity. Probably the greatest impediment to worker free association today is the pandemic of firing, harassing, and disciplining employees who join labor unions, engage their co-workers in conversations about organizing, hand out union documents, or engage in collective action around issues of concern at work. If you’ve heard about the concept of class struggle but are not sure if it really exists, start organizing a union at your workplace and watch your doubts melt away.
The most active, most public organizing on the Industrial Workers of the World union campaign at Starbucks is taking place in four cities: New York City, Chicago, Minneapolis, and Grand Rapids. Would you be surprised if Starbucks had discriminatorily fired in each of those cities the barista who was instrumental in getting the ball rolling on an organizing drive? Starbuck did do that in addition to firing several other key outspoken organizers. Only through an organizing model based on broad-based leadership and through the determination of members in the face of adversity has the Starbucks campaign continued to grow.
The prominent New York seafood retailer and wholesaler Wild Edibles has fired the entirety of its workforce that engaged in collective activity; one-by-one everyone was taken out, forcing some to rely on food banks to feed their families and some to leave their homes. Remarkably, most of the workers have stuck it out and continue to wage a powerful campaign for accountability.
These are just two stories from campaigns I work on that illustrate the enormous phenomenon of discrimination against workplace organizers across the United States and across industries. The massive amount of firing, disciplining, and harassment of workers for building a union or joining a worker center sends an unmistakable and powerful chill among employees who otherwise would be inclined to band together.
Companies are able to discriminate against union supporters with impunity largely because labor law administers just a slap on the wrist when violations occur and even that slap on the wrist can be delayed for many years.
For many violations of union rights, the sole remedy is literally the company being required to post a piece of paper on the wall saying it won’t do that illegal act again. If the company does repeat-offend, well then you guessed it, it’ll have to post a piece of paper again. The hope that companies will be held accountable for recidivism through a contempt of court sanction is a near-total fantasy.
On the delay issue (and for you legal eagles), try reading court cases about union campaigns and compare the date of the court decision with when the campaign at issue took place. All too often, in the many intervening years you’ll find the abyss where union efforts have faltered.
I’m always haunted by the Darlington case in the Supreme Court. The boss in that case shut down a textile mill immediately after workers voted to unionize in a clear effort to break the union. Hundreds of workers lost their jobs. The year was 1956. The case went all the way up to the Supreme Court and back down again for further litigation. The case was finally "settled", for money damages only, 24 years later in 1980. The problem was that many of the workers had died in the meantime.
Thankfully there is already ample statutory precedent for putting some teeth into anti-discrimination law. That precedent is federal civil rights law which protects against discrimination based on race, gender, and age, among other protected classes.
Here’s how labor law would change if we put it on par with civil rights law. With respect to money damages, workers discriminated against for union activity are currently entitled only to back pay, which usually works out to the money you would have earned between the time you got fired and the time you got a new job. If you line up a job right away, you may be entitled to little or even no compensation. And in case you were thinking about hitting Atlantic City for a while to up your damages, labor law imposes a duty upon you to mitigate your damages by seeking a job.
Under the federal civil rights law, back pay is available as well. But critically, the boss may owe compensatory damages as well, that is, damages which take a more accurate and complete look at the harm done than simple back pay. Compensation for future, not just past, economic loss is an important type of compensatory damages. Compensation for mental anguish is another example of compensatory damages not available under labor law. Sometimes workers can also receive punitive damages which are damages designed to punish the wrongdoer.
Compensatory and punitive damages can add up and can create a significant deterrent to corporate wrongdoing compared to a measly back pay award. The boss’s court system takes the bite out of civil rights law by making many of the cases extremely difficult to prove, a function of civil rights law we wouldn’t want to transmit to the labor context.
In addition, federal civil rights law contains a private right of action, albeit after a first administrative step, meaning a worker can file her own case in court without relying on the government to prosecute the matter. In the labor law context, a worker must go through the National Labor Relations Board and can’t have her day in court directly. Putting anti-union discrimination on par with other prohibited discrimination would give workers the option to file their cases in court where they could have more control of the proceeding.
Perhaps most importantly, as a litigant in court under the civil rights model, a worker could immediately petition the court for a temporary restraining order to undo a retaliatory firing instead of waiting for years while the Board process plays out. The Board can also seek injunctive relief for a fired worker but rarely does so. One of the enforcement features of EFCA would require the Board to seek these injunctions in the same way it must when a union violates certain provisions of the National Labor Relations Act.
The nice thing about this legislative reform is that we are simply placing anti-union discrimination on par with other forms of discrimination, so it’s a straight-forward proposal to articulate. Since unions are how workers exercise the fundamental and cherished right to free association, it’s fair to put union activity in the same category as other critically important protected classes. Employers will argue that this reform will open up the flood-gates of litigation but they always argue that. Law-abiding employers need not fear this proposal as liability only attaches for unlawful activity.
The most exciting aspect of upping the ante against employers for illegal union-busting is the stimulating effect on self-activity and direct action that workers will experience as corporate impunity erodes. Because ultimately, it is organized workers using their own creativity and initiative, not the legal system, that can seriously beat back union-busting and check the incredible power of the corporations.
Provision #2: Ending second-class status in the workplace
No issue in labor law has more economic and moral resonance than the issue of solidarity between workers of differing immigration statuses. Employers since time immemorial have sought to undermine unity between workers and drive down wages by dividing folks based on race, gender, religion, country of origin, and more. The bosses’ great lie is that if workers exclude one group or the other, then workers in the in-group will see their economic boats rise. But letting the corporations divide and conquer us is a losing strategy for working families.
Then there’s the moral part. Whenever one group is placed into a second-class category, horrors occur. Horrors like lynching and Jim Crow. Horrors like paramilitary immigration raids on peace-loving people at work, whose children are left to fend for themselves while their parents are treated like criminals.
Workers without immigration status come to work, work hard every day, add tremendous value to society, and yes, taxes come off their paychecks just like they do for a worker with papers. Except when these workers need social security benefits or need unemployment insurance, they won’t get the benefit of the systems they’ve paid into. For workers who put their sweat and sometimes blood into their labor every day to make goods or provide services like any other worker, it’s wrong for a single right to be denied them.
Yet under then-Chief Justice Rehnquist, the Supreme Court did just that in the Hoffman Plastic case. The Court gutted the already meager protections of the NLRA even further for workers who gave inauthentic immigration information when hired. Under current law, it is still technically illegal for a boss to fire an undocumented worker who applied with invalid immigration information. But the boss need not 1) pay any back pay nor 2) reinstate the worker who has been discriminated against to her job. What does it mean then for the employer’s misconduct to be unlawful? Yes, it’s the piece of paper on the wall again!
Under Hoffman, bosses exploit undocumented immigrant labor for years with no mention of status issues. But just as workers begin to organize, the boss raises up Hoffman like a bazooka and blows workers right out of the workplace, often en masse, with no real repercussion. It’s a tremendous union-busting tool which harms all workers because non-union workplaces bring down all boats.
Because the Hoffman case was a matter of the Supreme Court interpreting acts of Congress rather than the Constitution, Congress has the right to pass legislation which undoes Hoffman.
The Employee Liberation Act would help ensure that workers have the right to all of labor law’s remedies and that no one is a second-class worker. It’s both the right thing to do and the smart thing to do for all workers’ pocketbooks. Because the Hoffman case actually promotes undocumented immigration by giving employers an incentive to hire workers with the least amount of rights, the argument to repeal Hoffman has a natural defensive message against opponents who will claim the reform is a slight against workers with papers.
On a concluding note, repealing Hoffman, while necessary, is just a stop-gap measure. The woefully unjust immigration law system impacts workers and their children in myriad ways and requires comprehensive reform.
It’s important to note that farm workers and domestic workers are also treated as second-class. However, unlike undocumented workers who are technically protected by the National Labor Relations Act but denied important remedies, domestic and farm workers (with or without papers) are subject to a complete and racist exclusion from the NLRA.
Whether the best way forward for these workers is to come under the ambit of the problematic NLRA or increase their rights through some different reform is debatable and beyond the scope of this piece. Domestic Workers United in New York City, which has organized the largest base of domestic workers in the United States, is fighting for a Bill of Rights in the sector specifically guaranteeing decent wages and working conditions; an approach different than the collective bargaining model of the NLRA. And many scholars have argued that the passing of an NLRA-type law governing California farm worker organizing has been a serious failure in protecting worker free association.
Provision #3: Unshackling workers’ right to strike
The right to strike has been whittled to the bone and exists only in name in the U.S. Or to put it another way and only slightly in jest, U.S. law solely protects the right to wage a losing strike. Because one of EFCA’s provisions (the enforcement one) packs in a few related reforms, I’m going to pack a couple of closely related features into this provision making the right to strike real. Since this provision deals with incredibly powerful tools which would benefit workers, it will engender the most employer opposition but a powerful direct action movement in favor of worker freedom of association can overcome that opposition.
First, the Employee Liberation Act will undo the judge-made rule known as the permanent-replacement doctrine. As anyone who has gone on an economic strike knows, that doctrine means you can be permanently replaced, that is, essentially discharged while striking. Employers have the right to continue employing the scabs even after the strike has concluded. The permanent replacement of striking air traffic control workers in 1981 by then President Ronald Reagan is often considered the call to arms for the escalation of union-busting that continues into the present. It’s a doctrine repellent to the basic concept of a strike and it’s no surprise that permanent replacement has been deemed incompatible with international law and norms.
Second, the Act will undo the Taft-Hartley secondary pressure prohibitions which are varied but I’ll lay out the paradigmatic example which also happens to be the most powerful. Say you’re working at a meatpacking plant and you’re organizing a labor union. Your plant makes a big portion of its revenue by selling hamburger patties to McDonald’s. Your boss is union-busting and you need to exert real power to win your demands. Imagine if your union called on McDonald’s workers to strike. The strike would put tremendous direct pressure against your boss by shutting down the hamburger patty purchases and put strong indirect pressure on your boss by disrupting business as usual to a major client because of the company’s union-busting.
This is class solidarity, this is exponential power, and this is the seed of a General Strike. Under current law, such activity is also the giver of crushing and swift liability onto a labor union and that should change. The right to withhold one’s labor is an integral part of being free and should not be curtailed merely because the purpose of the strike is solidarity with workers at another place of employment.
I’ve got to mention that one of the greatest inhibitors to effective striking actually has little to do with the law of the land. Taft-Hartley does not prohibit unions from striking in solidarity with workers in different bargaining units at the same employer, often referred to as a sympathy strike. So why do we so often see strikes where one set of workers stop work and workers in different units cross pickets lines to continue work as usual? The answer is looking us in the mirror and it’s the labor movement itself.
Unions are routinely agreeing to no-strike clauses in contracts with employers that are so broad that they encompass even sympathy strikes. A basic no-strike clause is not held to ban sympathy strikes; only where the waiver of the right to engage in a sympathy strike is clear and unmistakable will a no-strike clause be held to ban a sympathy strike. While even a limited no-strike clause is a serious concession from workers, a clause broad enough to ban sympathy strikes compels workers to scab on their own co-workers! If unions begin to reprioritize their objectives in collective bargaining negotiations toward class solidarity, they can muster the will to defend the right to sympathy strike without any need for law reform.
This is Our Time
The overturning of unjust laws which offend the cherished principle of free association will not happen through a Washington, D.C. lobbying campaign. Bold organizing, solidarity, and action are required on the ground from a multitude of community-based groups, worker centers, and labor unions. In the process, unjust laws that run contrary to fundamental rights and liberties will be defied. Emma Goldman did it. Martin Luther King, Jr. did it. Rosa Parks did it.
Amid this economic crisis, many are recognizing that the past decades of unchecked corporate power have been a disaster for working families. The founding capitalist principle that democracy should not and must not exist in the workplace is being exposed for the myth that it is. Contending with hardships from declining wages and lack of job security, to unaffordable health care and spiraling debt, working people are clamoring for a competing voice to take on the corporations at work and in the public arena.
In that vein, I hope this introduction to the Employee Liberation Act provides a useful framework to discuss and promote the worker self-activity and direct action that can help usher democracy into the workplace and affirm the dignity of every working family.
Daniel Gross is the founding director of Brandworkers International and an organizer with the Industrial Workers of the World. He is the co-author with Staughton Lynd of "Labor Law for the Rank & Filer: Building Solidarity While Staying Clear of the Law" (PM Press). He can be reached through www.Brandworkers.org.