Commentary: Corporate United Front Against EFCA Cracking


Cracks in the corporate front against the Employee Free Choice Act are spreading, according to a couple of recent articles in the typically pro-big business media.

First, after more than a year of insisting that the Employee Free Choice Act would eliminate the secret ballot process for certifying a union, the conservative Wall Street Journal editorial board finally admitted last week that '[t]he bill doesn’t remove the secret ballot option from the National Labor Relations Act....' Of course, the WSJ editorial went on to make up other things about the bill - but then no one believed that newspaper would ever be perfect.

Many Republican lawmakers hung their hats on this particular argument in their opposition to the bill and will now have reconsider why, or if, they still oppose it. It is likely that many Republicans, without reading the bill, simply accepted the word of anti-worker television entertainers like Lou Dobbs and Glenn Beck and a massive $200 million ad campaign by big business groups like the National Association Manufacturers that spread that falsehood about the Employee Free Choice Act.

Democratic lawmakers who support the bill and pro-worker media outlets repeatedly pointed out that the bill does not eliminate a secret ballot process but rather shifts the choice of how to certify a union from the boss to the workers. (Note: contrary to right-wing media claims, the bill also does not create an 'open ballot' process, either; that is pure fiction.)

In a second sign that corporate interests are diverging on the bill, a USA Today story this week reported that some major retailers are splitting with other big business opponents of the bill to support what they are calling a compromise measure. Starbucks, Costco Wholesale and Whole Foods, the article reported, are backing a plan to eliminate the employee choice for certification and another provision of the bill that would send first contracts to binding arbitration if either side refused to bargain in good faith.

Their proposal, however, would keep new penalties on employers who violated labor laws that are in the current bill. In addition, they would allow increase access for union organizers to workers.

The advocates of the power of big business at the National 'Right to Work' Committee, which opposes workers rights to form unions, denounced the compromise proposal as treasonous to big business owners everywhere.

Labor movement activists say this sort of compromise undermines the intent of the bill, which is to give workers a choice on how, when and which organizations they want to join. In addition, the arbitration component of the bill is necessary to prevent employers from running out the clock on unionization.

Currently, employers choose the secret ballot process for union certification because it gives them at least six weeks before a vote is scheduled to pressure employees to vote against the union. According to surveys, some 30 percent of employers simply fire pro-union employees, and about 90 percent of employers use high pressure tactics like one-on-one anti-union meetings with the supervisor and mandatory anti-union 'captive audience' meetings to push employees into voting against the union.

Does it makes sense that the employer, who already holds so much power over workers, also gets to decide which organizations they belong to?

Sometimes, despite these tactics, workers still vote to certify the union. In response, many employers delay recognition and negotiations with the union to run out the clock on certification. Often, they will stall, bargain in bad faith, pull negotiated agreements at the last minute to delay the process – at a huge cost to US taxpayers who fund the National Labor Relations Board to oversee this process. Their aim is to pressure workers to abandon the union idea or to push off a settlement for more than a year, at which time the union has to be re-certified, giving them a chance again to pressure workers into vote against joining the union.

The Employee Free Choice Act would limit the period of time during which either side can delay agreement on a first contract after the union is certified. If a settlement is not reached within this time frame, the negotiations are handed over to a neutral arbitrator who will bring both sides to a settlement.

Big business-authored compromises on the Employee Free Choice Act that eliminate these choice and arbitration provisions in the bill are not serious alternatives, advocates for the bill argue. Such proposals keep bosses and corporations in the 'driver seat,' as Wal-Mart CEO Lee Scott told reporters recently when asked about the his view of the Employee Free Choice Act. But the willingness to compromise is itself an interesting turn of events.

Why are these splits in corporate America's once united front against workers and the Employee Free Choice Act emerging now? One reason may be that a recent Gallup poll showed strong popular support for the bill and its provisions. Another likely cause is the widespread negative attention some major corporations like Citigroup and AIG have brought to the corporate world by using Wall Street bailout money to campaign against the bill.

Either way, these splits suggest that despite their gobs of cash and their pull in Washington, corporations are losing the upper hand on this issue. In fact, advocates for the bill told reporters recently that the quantity of money pro-big business groups threw behind the misinformation campaign that the Wall Street Journal just undermined with its recent editorial is itself a sign of desperation and weakness.

The strength behind the pro-Employee Free Choice Act movement comes from its breadth and depth. Labor isn't the only constituency supporting this bill. Environmentalists, faith-based groups and churches, the civil rights community, women's equality advocates, a coalition of LGBT equality groups, small business owners, and progressive bloggers have lined up in support of giving workers the right how, when and which organizations they want to join.

Democratic lawmakers, along with more than a few Republicans, will have to consider the enormous role of the labor movement and its allies in the last election when they make up their minds on the Employee Free Choice Act. In 2007, a large bipartisan majority passed the bill in the House, and only a Republican filibuster blocked it in the Senate. Pro-working families lawmakers should also consider what a positive force an expanded labor movement would be in future elections if the law passes.