Think Progress

by Faiz Shakir, Amanda Terkel, Satyam Khanna, Matt Corley, Benjamin Armbruster, Ali Frick, Ryan Powers, and Pat Garofalo

The State Of The Employee Free Choice Act

The Los Angeles Times yesterday -- in an article titled, "Labor unions find themselves card-checkmated" -- made the case that "business groups have outmaneuvered workers groups, jeopardizing key components of a congressional proposal that has been unions' top priority," the Employee Free Choice Act (EFCA). "We were outspent, outhustled and outorganized," said one union adviser. However, lost among the doom and gloom was the simple fact that labor reform is still vitally necessary and has a good chance of getting through Congress. And while much of the debate around EFCA has been on the bill's majority sign-up provision -- which would have allowed workers to form a union by signing cards of consent -- there are other important measures aimed at ensuring fair contract negotiations and instituting penalties that actually deter labor law violations. Last week, Vice President Biden reaffirmed the White House's commitment to labor reform, telling union members, "You've got to climb up a hill with so many roadblocks on the way to organize that it's just out of whack. ... If a union is what you want, then a union is what you should get." President Obama has also reiterated his support for the principles in the bill, saying, "What I think we have to do is to find ways in which the core idea of the Employee Free Choice Act is preserved."

THE POSSIBLE ALTERNATIVES: In place of majority sign up -- which "probably won't" be in the final bill, according to EFCA's chief sponsor, Sen. Tom Harkin (D-IA) -- a few alternatives have emerged. One would involve a sped-up election process, which advocates hope would blunt employers' ability to intimidate workers from organizing. Sen. Dianne Feinstein (D-CA) has floated another proposal "that would use mail-in elections." Under the plan, "if a majority mailed the ballots to the National Labor Relations Board, the NLRB would recognize the union." Both of these aim to address one of the core problems with the current system for forming a union: the employers have nearly unlimited access to intimidate -- and ultimately fire -- workers who want to organize, while facing little in terms of penalties. In fact, a study released today found that "employers threatened to close plants in 57 percent of [union] campaigns and threatened to cut wages and benefits in 47 percent," while firing workers in 34 percent of campaigns. The business lobby, meanwhile, has already committed itself to opposing any compromise. "Let us be clear and frank on this matter; there can be no acceptable 'compromise' on any issue of labor law reform due to the very real threat posed by EFCA," wrote the Coalition for a Democratic Workforce, a front group composed of the Chamber of Commerce and the National Association of Manufacturers, among others. As the Washington Post Editorial Board wrote, "That hardly sounds like bargaining in good faith."

THE CASE FOR ARBITRATION: Aside from reforming how a union is organized, EFCA would also alter the manner in which collective bargaining takes place. Currently, only 38 percent of organizing drives that win an election end in the successful negotiation of a first contract in the first year, due to the myriad delay tactics that employers use. It actually took meat cutters at a Texas Wal-Mart nine years after they voted to form a union to begin negotiating with the company. As Cornell University organizing expert Kate Bronfenbrenner pointed out, "There is no penalty. ... You can have an employer that refuses to meet and talk and the worst penalty is another piece of paper saying, 'Shame on you.'" To remedy this, EFCA would stipulate that if there is no contract agreement after 120 days, mediators would be brought in to aid the negotiations, and an arbitrator would work through any final sticking points. Of course, business is fighting to derail what it calls the "job-killing binding interest arbitration provision," even when companies consistently use arbitration in other matters. For instance, businesses consistently put mandatory arbitration clauses in contracts with consumers, so that they can avoid class action lawsuits. In fact, companies include mandatory arbitration clauses in 75 percent of consumer agreements.

SPECTER AND THE DEMOCRATS: Sen. Arlen Specter's (D-PA) switch to the Democratic party last month reinvigorated hopes for labor law reform. Specter is reportedly working with Harkin on a compromise bill. "He's willing to negotiate," Harkin said, adding, "Things are being done both at the staff level and at the member level." Specter said last week that the "prospects are pretty good" for legislation coming together. However, other Democrats are hoping to avoid the issue altogether, due to pressure from the business community. "Sen. Harkin may be further along the path than I realize, but purely from my perspective, I wouldn't say we're even in a 'working group' stage yet," Sen. Mark Pryor (D-AR) said. "I'd say the earliest we could [address this] would be the next work period, but I don't know if that's realistic." "[I]f somebody wants to bring labor and management together to come up with a compromise that they can both agree on, I'm certainly willing to look at that. But I don't think that's what's happening," added Sen. Blanche Lincoln (D-AR). Politico reported today that Harkin "is holding daily, closed-door conversations with interested lawmakers, business groups and labor unions," and remains optimistic about finding a compromise. "I remain confident that we can address these issues without compromising the core provisions of the bill," he said.

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"[T]hat question was not asked of Khalid Shaikh Mohammed. That question was not asked of Abu Zubaydah."
-- MSNBC's Joe Scarborough, 5/19/09, on whether the terror suspects were asked of an Iraq-Al Qaeda connection

VERSUS

"Senior intelligence officials yesterday acknowledged that two al-Qaeda operatives, Abu Zubaida and Khalid Sheik Mohammed, had been questioned about alleged links between al-Qaeda and Iraq when the two men underwent CIA interrogation in 2002 and 2003."
-- The Washington Post, 5/16/09