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Sunday, May 31, 2009
Does EFCA's Defeat Show the Death of Organized Labor as a Political Force?
While the bloggers here and elsewhere (including myself) are focused on the entertaining but practically irrelevant issue of Sotomayor’s nomination, the really big legal news has been largely ignored by law prawfs. Last week, the Employee Free Choice Act of 2009 (better known as the “card check” legislation) was pronounced dead. Labor could not rally enough Democrats and moderate Republicans to win cloture in the Senate. In particular, Arlen Spector and southern Democrats with lots of non-union businesses like Wal-Mart apparently refused to budge on the bill.
This is extraordinary news, given that EFCA was Labor’s most urgent agenda item. That Labor could not swing the Senate to cloture with an overwhelmingly popular Democratic President and a dilapidated Republican Party speaks volumes for – well, what? The spectacularly unresponsive procedures of the Senate? Or the remarkably marginal influence of labor in the modern American politics? Or both? As I have noted in an earlier post, I am genuinely ambivalent – indeed, schizophrenic -- about EFCA. Fostering a perhaps sentimental Arendtian attachment to participatory democracy, I like the idea of reviving workplace democracy from the clutches of employer coercion. I am not sure, however, that genuinely non-coercive democracy is possible in the economic sphere: There is a non-frivolous argument that the “card check” would substitute one form of (union) coercion for another (management) version.
But, regardless of what one thinks of EFCA, it is simply astounding news – far more significant than anything Sotomayor-esque -- that this Congress and President could not get Labor’s biggest agenda item through the Senate. If not now, when? After this labor debacle, I’d say the answer, for better or worse, is “never.” One is left with the sense that Labor remains politically moribund. But maybe there is a different story?
Posted by Rick Hills on May 31, 2009 at 05:19 PM in Current Affairs | Permalink
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Comments
JP:
I think we've identified where we agree and disagree. I'm not sure I understand your reference to law professors though -- is that a (humorous) stand-in for public employees? If so, I'll just say that while "government employees" in general aren't so popular, police, fire, and specific teachers often are. So the politics can go both ways.
As to "some times and places," heck, I've seen public sector union political pressure work and fail all over the country. In some parts of Texas (and the Carolinas, and much of the deep south) it works less well, as a generalization, than in some other places. But I'm not telling you anything you don't know.
Posted by: Joseph Slater | Jun 2, 2009 3:21:26 PM
Joseph: We are in agreement that public perception is what matters here. (I'll note that the perception you predict/hope for relies on people continuing to identify domestic autoworkers and, well, law professors, as ordinary "working men and women.")
I also think we may have reached our basic disagreement. When you say "artificial" you seem to mean market pressure. When I say "artificial" I mean government pressure.
[Out of curiosity, by "some times and places" do you mean everywhere but some parts of Texas?]
Posted by: JP | Jun 2, 2009 2:49:33 PM
JP: I agree that this particular economic downturn *might* result in less sympathy for unions, especially if the spin is "look at all the special deals that the UAW is getting," and/or "how come we have to spend all this money on pensions for teachers"? On the other hand, if the perception is "it's OK for working men and women to get some special consideration, after all look at all the Wall Street bonuses" people might feel differently.
As to public sector union numbers, the first half of what you suggest doesn't mean "artificially inflated" to me. In brief, the question is, "how do American workers feel about unions?" and the public sector density shows that unless management is aggressively anti-union, union density is pretty darn high.
Your point goes to why management is aggressively anti-union in the private sector. I could quibble as to whether the lack of global competition and monopolies are as strong factors as you suggest: public budgets have been under a lot of pressure for decades now, and public sector work is often subcontracted / outsourced to the private sector.
But I'm willing to assume that public employers generally have less "bottom line" pressure than private sector employers. That's why they are so aggressive, and that's why I would say they artificially reduce (deflate?) the numbers in the private sector from where they would be if they had more of a free choice (as they do in the public sector, where there is less employer coercion).
As to your second point -- public sector unions support politicians who then try to repay the favor -- that's certainly true in some times and places, but there are real-world constraints (anti-tax movements, notably) that limit that.
Posted by: Joseph Slater | Jun 2, 2009 1:23:18 PM
Thanks Joseph,
Taking your last paragraph first, the point of my speculation was that maybe during this recession, union support won't go up. I think the popular perception of the automaker bailouts will significantly affect those numbers. [By the way, I made confident assertions on this blog that Elena Kagan would be the next Justice. My predictions are generally worth what you pay for them.]
With regard to public sector unions, you ignored the obvious possibility that public sector membership is artificially inflated. Public officials don't have to maximize shareholder value; they don't face global competition; government agencies are generally monopolies, so strikes--when they were legal (or, later, illegal ones)--effectively shut down the provision of necessary public goods. Last but not least, of course, public sector unions are big campaign spenders. A politician supported by public sector unions gets a lot of votes and money. In return she creates more public sector jobs, or raises wages, resulting in more union membership, and more money that can be spent on political campaigns.
It's also worth pointing out that quite a few States are effectively bankrupt right now. I doubt this will effect public sector unions (for the reasons above), but if this recession tends to cause the public to associate Unions and Bankruptcy, private sector unions will become further marginalized.
Posted by: JP | Jun 2, 2009 12:46:31 PM
JP:
A fair answer to my annoying multiple posts. As you seem to know, there are numerous polls which show support for unions in the U.S. to be quite high, but I would agree with you that it's hard to get a read on what exactly that means, and the way one words a poll would make all the difference.
Relevant to this thread, one might infer that something like EFCA is needed to ensure employee free choice about unions in the private sector, given the much greater union density in the public sector. As you must know, public sector unions have fewer legal rights than those in the private sector, yet public sector density is around 40% while private sector density is under 10%. So, we either must come to the unlikely conclusion that cops, firefighters, teachers, and white-colllar government employees are all much, much more enthusiastic about unions than private sector workers as a whole, or we must conclude that something is artificially repressing the numbers in the private sector.
Finally, I'm a former union attorney, and I agree with you on the partisan Dem / partisan Republican point. But I also think unions stand -- in the minds of many people who aren't public workers or here with me in the rust belt -- for some generic sense of working class rights. When the economy is doing worse, traditionally, poll numbers for unions go up. Althoug, as you say, you can take those numbers with a grain of salt.
Posted by: Joseph Slater | Jun 2, 2009 11:45:52 AM
Joseph: Nope, that was purely armchair punditry. The closest I can offer is this: http://www.gallup.com/poll/1597/Confidence-Institutions.aspx. [20% have a great deal or quite a lot of confidence in organized labor; 30% have very little or none. Note also the steep decline between 2004 and 2007. I'm guessing it isn't going to look better next time they ask.]
I'm not sure that I've ever seen an opinion poll about organized labor that is very useful. Most are too broad to be relevant. ~60% support labor unions. (I'm a management attorney, and I support labor unions. I would definitely vote against a law that banned them! [I just don't want to join one, or bargain with one, or loan or invest money in an industry dominated by them.]) If they are about actual policy initiatives, the language is almost definitely going to influence the vote. [75% support card check and 75% oppose card check, depending on how you ask.]
My guess--and to be clear, I'm back to pure speculation here--is that organized labor is an abstract issue for most people. It matters to government employees and people who live in the rust belt. Otherwise, you support it if you're a partisan Democrat, and oppose it if you're a partisan Republican, but for the most part, the issue follows the identity, and not the other way around.
Posted by: JP | Jun 1, 2009 6:51:34 PM
Whoops, got a couple of posts mixed up. JP: Do you have some cites and sources supporting your claim? I ask, because I've read a number of polls of Americans that show broad support for unions, so I would be interested if you have any actual data to the contrary.
Posted by: Joseph Slater | Jun 1, 2009 4:11:35 PM
"actual data," obviously.
Posted by: Joseph Slater | Jun 1, 2009 4:09:50 PM
JP:
I'm curious: what are your cites and sources for that claim? I've read a number of polls of public feelings about unions that indicate fairly broad support, and I would be interested in any atual data to the contrary.
Posted by: Joseph Slater | Jun 1, 2009 4:08:50 PM
In the public mind, modern organized Labor is associated with domestic automakers, airlines, and state bureaucracies. In the best of times, it has to be tough to convince voters that more workplaces should imitate those three. Right now: impossible.
Posted by: JP | Jun 1, 2009 3:07:32 PM
One more substantive post about EFCA (sorry for not making it in the previous post). If one is truly concerned about union coercion in the card check process, what about the fact that under current law (and the way the law has always been under the NLRA and even prior to it), employers are ALLOWED to recognize unions based on a majority card showing. And such recognitions can and do happen. All EFCA would do would be to REQUIRE employers to recognize based on card check, as opposed to giving employers the option.
Are we to believe that under the current system, employers, in exercising the choice of whether to recognize a union based on a card showing, are primarily concerned with preventing undue union coercion and ensuring employee free choice? If you do believe that, I have a bridge over the Maumee river I would like to sell you.
Posted by: Joseph Slater | Jun 1, 2009 10:08:02 AM
You can find the study here (apologies that I don't know how to imbed links when I make comments, as opposed to when I make posts):
http://www.aflcio.org/joinaunion/voiceatwork/efca/upload/multistate_efca051409.pdf.
And yeah, I tend to think that the power to fire, discipline, or otherwise make the terms and conditions of a job worse are more effective means of coercion than co-workers not sitting next to someone at lunch. More seriously, while there will always be pressures from both sides (and more so than in voting for President) I think the historical and current evidence shows that at least generally speaking, the type of pro-union pressure co-workers can and do exert is different not just in extent but also in kind to the type of anti-union pressure employers can and routinely do exert.
To circle back to your original point, though, sure, card check is controversial, rightly or wrongly. But could labor have gotten an EFCA passed without the card check portion? After all, EFCA contains two other, entirely severable sections: one on increased damages/remedies for certain employer unfair labor practices, the other mandating arbitration to resolve bargaining impasses in certain cases involving first contracts. I'm saying it still would have been a struggle, and that fact is not evidence that labor is weaker than it used to be.
Don't get me wrong: labor may well be weaker, at least in some ways, but "inability to amend the NLRA in a pro-labor way" isn't anything new.
Posted by: Joseph Slater | Jun 1, 2009 9:54:30 AM
Thanks, Joseph: Very helpful.
I'd like the cite to the recent study on card check in public employee elections. The difficulty with all claims that certain procedures lead or do not lead to "coercion" is that the dependent variable is essentially undefined: Is it, for instance, "coercive" if the pro-union teachers will not sit with the anti-union teacher during the lunch break? Is social pressure "coercive"? Hard to imagine how any study would operationalize the variable of "coerciveness."
My guess is that employers' tactics will always be more "coercive" than the likely tactics of most unions, just because our under-theorized (but intuitively correct) notions of coercion treat threats of economic retaliation as more "coercive" than social pressure from peers. This seems right to me, by the way. Therefore, in asserting that card check might lead to union "coercion," I do not mean to claim that the likely pressure from union advocates is just as "coercive" as the existing pressure from employers: I mean only to claim that a "coercion"-free system of workplace democracy might be a pipe dream.
The normative conclusion that one draws from this position is entirely up for grabs: One might simply chose the less coercive of two procedures and opt for card check and give up on the notion that voting for a union will be as free from material/social pressures as voting for the President of the United States.
Posted by: Rick Hills | Jun 1, 2009 8:44:48 AM
I could respond about the merits of EFCA, specifically the claim that there is a "non-frivolous argument" that card-check would substitute union coercion for management coercion. A number of states have mandatory card check recognition rules in their public sector labor laws and, as a recent study shows, there is no evidence of any problems with union coercion in those jurisdictions.
But that's not your main point, so I'll respond to the "death of organized labor as a political force" idea. If EFCA is truly dead and no compromise will be reached, that will certainly be disappointing for labor and labor's friends. But that wouldn't really be anything new.
As I suggested on this very blog some time ago, the NLRA is VERY hard to amend, and labor has (almost) NEVER been able to amend it in labor's favor. The two main amendments to the NLRA came in 1947 and 1959, and in both cases labor opposed pretty much all of what was added/changed in the law.
The only union-backed change to the NLRA that has been enacted was extending coverage to certain health care institutions in the 1970s. Labor tried -- hard -- to reform the NLRA under both Carter and Clinton, and failed both times.
This is not evidence that labor is now as strong as it ever was, but it is evidence that we can't conclude that labor's political power has diminished solely because it may be unable to amend the NLRA now. The NLRA is extremely hard to amend and amendments happen very rarely, despite efforts on both sides (although labor tries more often, and although employers have had more success in earlier decades).
This is because the employer side cares passionately about this, and thus Republicans would be sure filibuster any significant pro-union changes. So the Dems need at least 60 Senate seats, and probably more, because the business community will put full-court pressure on any Dem. who might be vulnerable.
Posted by: Joseph Slater | Jun 1, 2009 8:29:09 AM
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