Industrial Democracy: The True Meaning of EFCA

The back-and-forth over the Employee Free Choice Act is often hard to decipher; like negotiations over health care or climate change, the real work is happening quietly behind the closed doors of committees and Congressional offices while the propaganda wars rage above them. Occasionally, there's a sudden announcement as a senator picks sides, but that's it.

It's a bit like a classic medieval siege - all the visible action is the catapults flinging giant rocks through the air, but beneath the ground, there are teams of miners burrowing under the walls.

But for all the confusion, it's important to take a step back and ask ourselves what the true importance of EFCA really is.

Where We Stand:

At the moment, the picture for EFCA is rather blurred. Most Democrats are on board, virtually every Republican is against, and significant numbers of moderate-to-conservative Democrats are walking sideways (Bayh, Lincoln, even our own Senator Feinstein). Arlen's Specter's switch to the Democratic party and non-switch on EFCA is a good sort of symbol of the ambiguity - neither here nor there.

Ezra Klein points out an interesting piece in the Washington Post:

That approach is being floated in Congress by, among others, Sen. Arlen Specter (D-Pa.), who suggested that an election be held within three weeks of the union filing such a request with the National Labor Relations Board and that union organizers be allowed "equal time under identical circumstances" to make their pitch to employees if management has held "captive audience" speeches making the anti-union case.

Floated "compromises" like this are difficult to suss out. Specter's compromise, that's being backed by Costco, Starbucks, and Whole Foods (and Lanny Davis), basically chops out card check and arbitration, but adds in a shorter, 15-day election campaign, guarantees "equal access" (organizers would have access to the workplace during the workday, on equal terms so that if management holds a captive audience meeting, labor gets one too), and increased unfair labor practices penalties. There's also another proposal being backed by Jay Krupin, called the 70/50/30 plan, that allows for card-check if you bring in 70% in cards, that chops the election campaign to 15 days if you bring in 50% in cards, and that guarantees "equal access" if you bring in 30% of cards.

These compromises leave me feeling rather ambivalent. On the one hand, passing EFCA straight-up would be best, and I still think there's a reasonable shot at getting it if Specter and the sideways Dems are willing to vote for cloture and then against the bill so that it passes with less than 60. On the other, I think these compromises are positive indications - first, because they indicate that the waverers and at least part of the business community doesn't think they can actually defeat the bill without paying a big price, and second, because it's focusing real attention on the unfairness of our labor elections system and forcing opponents to justify captive-audience meetings and barring labor organizers from campaigning on company property.

As Ezra points out, "The corporate community opposes this, too. But having predicated their assault on a principled belief in "workplace democracy," it's extremely hard for them to credibly oppose reforms that would help bring democracy to the workplace...the business community has made a bad decision centering their counterattack around workplace democracy."

These days, I am feeling more confident about the prospects of passing something - and that's what really matters. Especially when we're caught up in the passion of the moment, trying to push this bill through, it's important to remember our history and why laws are really important.

On June 16, 1933, President Franklin Delano Roosevelt signed the National Industrial Recovery Act (NIRA) into law. Among other things, the law established a system of industrial codes by which corporations could set price floors, production agreements, market share agreements, and so on. The sop to labor was Section 7a, which read:

Employees shall have the right to organize and bargain collectively through representatives of their own choosing, and shall be free from the interference, restraint or coercion of employers of labor, or their agents, in the designation of such representatives or in self-organization or in other activities for the purpose of collective bargaining or other mutual aid or protection

This provision was almost entirely ignored by employers, who continued to establish company unions and enforce the open shop, and the law itself would be declared unconstitutional two years later. Yet 7a lead to a huge upsurge in labor organizing, as millions of workers surged into the AFL. Why such a change, even when the law hadn't actually changed?

Because after June 16, 1933, labor organizers could go into any workplace in America and say "the president wants you to join the union," could point to 7a and reframe the entire conversation about joining a union as being the exercise of your rights as an American, and cast the conflict between workers and bosses as a conflict between patriotic citizens upholding the rule of law, and greedy, lawbreaking fat cats. In Fabric of Defeat, Bryant Simon writes about textile mill strikes where workers marched on mills defended with machine-gun nests and private armies, waving the American flag and led by preachers who declared that the union crusade was a fulfillment of Christ's Sermon on the Mount. Symbols matter, and in the United States, the presidency and the law are still important symbols.

Labor historians talk about the impulse behind this phase of the 1930s union upsurge as "industrial democracy." Industrial democracy is a remarkably fluid term that at its most expansive form imagines workers owning the factory and organized through an internal democracy with management elected by the workers; or a system in which workers and unions have a say not just in bargaining for wages and benefits, but also deciding questions of pricing and design and organization and production;or a tripartite collaboration between labor, business, and government. But another form that labor historians talk about is instilling the "rule of law" inside the factory. If we think about it, the workspace is one of the least American places we live in - somewhere where the concepts of free speech or the rights of the individual or equality before the law, things we automatically assume are functioning everywhere we go in America- do not operate.

The idea of industrial democracy in the wake of 1933 was that 7a had extended the rule of law into the factory, that you had the fundamental right to tell your foreman that he was a son-of-a-bitch, the right to be treated with dignity when you needed to use the bathroom or eat lunch or even talk, or the fundamental right to not be fired without a good reason. And it was the belief in those rights that brought so many people under the union banner, even when the rights in question existed only in their minds.

So if we can pass a law, even if it gets us part of the way, if we can get a picture of Barack Obama signing a piece of paper and telling the tv audience that they have a legal right to join a union, that might be all the opening the labor movement needs to begin the hard work of changing this country.

Note bene, though. This does not mean that any compromise is legitimate, or desirable. To me, there are some "bright lines" that have to be honored:

1. Either Card Check or Fair Elections - in negotiations, it's always a good idea to go in asking 200% of what you want so you end up closer to 100% rather than 50%. Thus, while it's tempting for Democrats who are walking sideways on EFCA to look for a compromise that ditches the "controversial" card check provisions, there has to be some serious returns in exchange. Equal access and 15-days is a bare minimum; negotiators should ask for the abolition of one-on-one meetings without a union rep present, the abolition of the prophecy doctrine, campaign finance for union elections, and anything else necessary for truly fair elections.
   
2. Binding Arbitration - according to the Federal Mediation and Conciliation Service, 33-46% of successfully-recognized bargaining units fail to reach a first contract, because employers can easily and painlessly extend bargaining, appeal, stretch things out until workers get frustrated and give up. If you look at the compromises being offered by retailers, arbitration is the one thing they don't mention, because it's hard to defend dragging your feet, but it's also a key fulcrum of labor relations. I think labor should fight hardest here, and demand some form of binding arbitration for first contracts as the "drop dead" line on EFCA.
   
3. Labor Penalties - sadly, this is one area where employers don't care and cheerfully throw in expanded unfair labor practices penalties, because even tripling the costs makes the accounting come out in favor of firing and paying the penalty down the road. Labor should not "weight" compromises here very heavily; even if senators start larding up penalties, it's unlikely to make a difference unless punitive damages come on the table.
   

So there you have it.