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Analysis: Why card check provision is in danger of being cut from labor bill

This article first appeared in the St. Louis Beacon, July 17, 2009 - WASHINGTON - The decision by some pro-labor senators to seek to remove a key provision from a bill designed to help unions organize workers raises this question: With Democrats in control of the White House and Congress, why is labor in retreat on its top legislative priority?

The problems encountered by the Employee Free Choice Act also shed light on the thinking of the White House on economic and political issues.

Senate sources confirmed Friday that six senators are working on a compromise that could involve eliminating from the bill the "card-check" provision, under which workers could form a union simply by a majority signing a card calling for a union. Currently, workers who want to form a union have just one option -- voting in a secret-ballot election.

The card-check provision is something unions have vigorously fought for -- and business has just as vigorously opposed. Labor contends it would level the playing field by averting employer intimidation of workers during the lengthy election process, while business says the secret ballot prevents unions from putting undue pressure on workers.

Alison Omens, an AFL-CIO spokeswoman, sought Friday to put the best face on labor's prospects for still achieving legislative change that would help it organize new workers.

"We're completely confident there's going to be strong labor-law reform," Omens said, adding that there have been no decisions yet by senators on any changes. "There's been no agreement. Everything's still on the table. There are discussions."

But Bob Soutier, president of the 100,000-member St. Louis Labor Council, was angered by the development.

"My initial reaction was, once again workers lose, politicians playing politics win," he said Friday. "The card check was essential. Once again, the worker has to take it on the chin. Politicians come and ask us to vote for them, and they promise support, but when it comes crunch time, they won't stand with workers. This is the only thing the AFL-CIO wanted, and they can't get it."

Soutier added, "Workers ought to be outraged over this."

The spokeswoman for Sen. Thomas Carper, D-Del., declined to comment on the recent activity surrounding the bill beyond confirming that he is among the six seeking a compromise. She said part of the reason for her reticence is that the possible changes are "a moving target."

Along with Carper and Arlen Specter of Pennsylvania, the other four Democratic senators reportedly working on the compromise are Tom Harkin of Iowa, Sherrod Brown of Ohio, Mark Pryor of Arkansas and Chuck Schumer of New York.

The unions' high expectations...

Ever since the November election, the labor movement seemed to have much going for it in this legislative effort.

The most pro-labor administration is in place since that of Lyndon Johnson in the mid-1960s, and Democrats control the Senate and House. Furthermore, President Barack Obama owes much to labor leaders who helped him win key industrial states, such as Ohio and Pennsylvania, by urging blue-collar voters to be guided by their pocketbooks, not their fears, racial or otherwise.

The labor measure received House backing last year, but lacked the 60 Senate votes needed to overcome a Republican filibuster or a veto from then-President George W. Bush. Now the Democrats have 60 votes. And not only does Obama support the bill, as a senator from Illinois he was a co-sponsor.

On top of that, polls over the last couple of years have consistently shown that a majority of Americans feel the pendulum has swung too far to the corporate side, and that working and middle-class Americans need a break. And the struggling economy has focused attention on labor's key issues such as jobs, pensions, the decline in the manufacturing sector and the growing gulf between rich and poor.

Against this backdrop, union leaders have for months made clear their determination to have the Employee Free Choice Act passed this legislative session -- seeing it as their best chance to revitalize a movement that has been losing steam for years.

Declining union numbers -- gradual since the mid-1950s and precipitous since Ronald Reagan broke the air-traffic controllers union in the early 1980s -- have sparked an overall weakening of labor. Labor's drop over the past half-century from representing 35 percent of the workforce to 11 percent has meant that unions are less effective in negotiating good contracts, which makes it harder to convince workers to join unions. In addition, slimming union ranks make political action more of a challenge.

Labor leaders contend that the current election process allows many opportunities for employers to pressure or intimidate workers against supporting a union. Union leaders point to a $3 billion union-avoidance industry that has sprung up in recent years, advising companies on how to counter union drives in the workplace. Tens of thousands of workers are annually awarded back pay by the National Labor Relations Board because they were illegally fired or penalized by their employers for trying to form a union -- a practice that has the effect of discouraging other workers from making such an attempt.

The proposed legislation also would triple the fines against companies that violate workers' right to form a union, and it would provide for arbitration in cases where a company and a new union are unable to agree on a first contract.

... and sharp disappointment

So why -- given the importance of the measure to unions and given the factors that would appear to favor labor at this point -- is the Employee Free Choice Act encountering such obstacles?

Three factors appear to account for the difficulties.

  • Communications. Business beat labor out of the gate in terms of television ads and other efforts to sway public opinion by talking about "union bosses" seeking to "intimidate" workers. The ads, powerful and direct, have stated -- erroneously -- that the bill would abolish secret-ballot elections, thereby taking away workers' democratic rights. By reacting to the corporate claims rather than seizing the initiative, labor has missed the opportunity to provide the public with the broader context, which is that the United States has become the toughest industrial democracy in which to form a union because of employer aggressiveness combined with the complex election process. Absent such information, the bill is easily depicted by opponents as a union power grab following the election.
  • The economy. A struggling economy generally helps labor because it focuses attention on the bread-and-butter challenges faced by ordinary Americans. But this is no ordinary bad economy. The worst recession in decades has made labor's concerns seem almost like a luxury to some legislators. And Obama, while publicly voicing support for the bill, appears wary of going to bat for an issue sure to provoke a ferocious battle with the very corporate leaders whose help he needs on larger economic issues. Tom Donohue, president of the U.S. Chamber of Commerce, vows a "scorched-earth" response if Obama pushes hard for the Employee Free Choice Act.
  • Politics. Democrats have achieved their majorities in Congress partly through the addition of moderate legislators from states like Arkansas or converts like Specter of Pennsylvania who -- while often supportive of unions -- are wary of jumping fully on board with labor's goals. That makes compromises necessary to move controversial legislation like the Employee Free Choice Act. The substitution of faster elections to avert employer intimidation might allay some of the concerns of moderate legislators about changing the secret-ballot requirement.

The AFL-CIO's Omens denied that the card-check provision was the core of the bill, saying that labor's goal is to achieve more fairness in setting up unions, whatever the means.
"We believe a bill that stays true to the goals of the Employee Free Choice Act will be passed," she said. "This is the normal legislative process that's going on."

But Bob Bruno, director of the Labor Education Program at the University of Illinois, said Friday that tepid support from Obama, combined with the reticence of conservative Democrats, was hurting the bill's prospects.

Speaking of Democrats opposing the card-check provision, Bruno said, "Their political make-up is such that on economic issues they're very comfortable at times in voting with the Republicans. It doesn't appear that Democrats have the votes, and it isn't really clear that Barack Obama has expended any political capital for the Employee Free Choice Act. He said he would sign it, but everyone knows that it requires expending some political capital. He doesn't want to use his popularity, and it appears he doesn't want to use the pulpit."

Philip Dine, a Washington-based labor and national security reporter, is author of "State of the Unions: How Labor Can Strengthen the Middle Class, Improve Our Economy, and Regain Political Influence."