On Friday, Netroots Nation held a salon titled Can the Netroots help make the Employee Free Choice Act law? But of course, in light of the much-publicized declarations by people like Arlen Specter and Blanche Lincoln that they will not vote for cloture on the bill, one of the questions that must be asked is "what are the chances of the Employee Free Choice Act becoming law at all?" Or, in light of the rumors flying about possible compromise bills, "in what form would the Employee Free Choice Act become law?"
The panelists included Stewart Acuff of the AFL-CIO, who is doing Employee Free Choice field organizing throughout the country, Rebecca Wasserman, Government Relations Manager at American Rights at Work, and SEIU online organizer Michael Whitney. (Plus me, and moderator Chris Hayes of The Nation.) Just about every angle in the fight for Employee Free Choice was covered, therefore: in the field, on the Hill, and online. And everyone was optimistic that we are on the brink of a significant victory.
As to the form of that victory, Acuff said "is sausage going to get made? Yeah, but we will fight to preserve the three core principles" of the Employee Free Choice Act.
Why the reason for optimism? Well, Acuff wasn't kidding when he said unions and their allies are fighting, and he gave a broad perspective on where we stand:
You play the game all the way through. This is a dynamic process, and we’re at the 3-yard line—you can’t just walk off the field now.
We started this six years ago, and I thought it was going to be a 20-year fight. We’ve accomplished so much in the face of such attacks, and all the money they’ve been able to spend has not been able to break it.
The campaign is vibrant and active, and all the forces of corporate America can’t stop it—and they’ve tried everything in their playbook.
Then there's what the other side is doing. Chris Hayes pointed to the moment in late March when Arlen Specter said he would not vote for cloture on the Employee Free Choice Act, noting that at that moment, the bill appeared to be dead. But then a funny thing happened: His announcement was followed by an increase in accidental-on-purpose leaks of corporate-backed "compromises." If anti-worker forces thought they'd won and the bill was dead, he asked, would they have been trying to sell alleged compromises?
Probably not.
Similarly, today we know that substantial labor law reform is coming, even if in a sausage-like form. We know this not only because the American labor movement is fighting for it, not only because the Sierra Club and faith groups and other allies of working people are fighting for it, but because the enemies of working people are still fighting so damn hard to stop it.
So what might the sausage look like? Panelists didn't get into specifics, and Acuff explicitly asked attendees to focus on the fight and not the thousand possible amendments and changes that might get offered.
But Michael Whitney laid out three core principles embodied in the Employee Free Choice Act and which remain non-negotiable, whatever the form of their ultimate passage. Those principles:
- A fair and free chance to form a union.
- The ability to secure a first contract in a reasonable amount of time.
- Strong penalties when companies break the law.
To this point, the most ink has been spilled -- and the most money has been spent by corporate anti-worker forces -- on the first principle, which in the Employee Free Choice Act takes the form of allowing majority sign-up elections.
But these days, the Chamber of Commerce and WalMart and their ilk are ramping up the fight against the Employee Free Choice Act's provision for first-contract arbitration. This provision would provide strong incentives for employers to bargain in good faith with newly-formed unions. At present, a common tactic by employers is to stall indefinitely:
According to Cornell University researcher Kate Bronfenbrenner, more than a year after voting for union representation, workers are unable to negotiate initial collective bargaining agreements 32 percent of the time.
How does that work?
- If management and employees reach a stalemate at the bargaining table, current labor law allows management to impose working conditions unilaterally.
- The National Labor Relations Act (NLRA) prohibits bad faith bargaining ("surface bargaining"), but this is an exceedingly difficult charge to prove.
- No enforceable court order requiring bargaining will typically issue until three or four years after certification of the union.
- The penalty for bad faith or surface bargaining is typically an order to resume bargaining.
- Following an order to resume bargaining, recalcitrant employers frequently resume bad faith bargaining all over again.
So you can see where, for companies eager to deny their workers fair wages and benefits in order to continue paying top executives millions of dollars, facing an actual deadline for bargaining in good faith would be...not what they want. As a result, the Chamber of Commerce (aka the voice of big business) is trying to make first contract arbitration into the new boogeyman of labor law reform. The problem they're running into is that, in their own words, arbitration is an excellent, inexpensive way to settle disputes:
- "For more than 80 years, arbitration has helped Americans settle disputes fairly, quickly and inexpensively, without having to file a lawsuit or navigate the court system." - Lisa Rickard, president of the US Chamber's Institute for Legal Reform (4/2/08)
- "Arbitration is mutually beneficial, which is what we have always thought." - Arne Wagner, assistant general counsel for Bank of America [ABA Journal, December 1994]
- "[F]ederal policy... favors the use of arbitration as an efficient, effective, and less expensive means of resolving disputes...Arbitration, has served as an essential valve for the nation's overburdened civil justice system." - Letter to Senate Judiciary Committee signed by US Chamber of Commerce, Retail Industry Leaders Association, National Retail Federation, National Association of Manufacturers, Jackson Lewis, et al (2/7/08)
In other words, they like it when they control it. When it's fair, a way to level the playing field between corporations and working people, suddenly it's intolerable. Their situational flip-flopping on arbitration lays it bare: Corporate opposition to the Employee Free Choice Act is about maintaining power, about profits over people, about ensuring that our society continues to become less equal.
That's why it's so incumbent on all progressives to fight them -- because they're not just coming for the unions. They're coming for all working people.