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The Boston Globe

Labor Needs a New Survival Plan

Steve Early

Republican Scott Brown's Senate victory last week deprived President Obama and the Democrats of their filibuster-proof super-majority in the Senate and made Obama's health care plan a high-profile casualty. There was also collateral damage for already-frustrated union backers of the president. The White House staffers and congressional leaders who've been assuring them that labor law reform was next on Obama's agenda now can't prevent a filibuster of the Employee Free Choice Act.

The act was designed to boost aid worker organizing and bargaining in the private sector, where union membership dropped 10 percent last year, the largest decline in 25 years. But employee free choice set off a firestorm of business opposition, long before Obama backed the legislation as a candidate last year.

Corporate America does not want to risk heavier penalties for committing unfair labor practices, like firing union supporters. And management is particularly incensed about the bill's "card check'' provision. It would trigger collective bargaining wherever a majority of workers signed cards demonstrating their support for unionization.

During the health care reform process, some industry groups ended up allying themselves with the administration, in return for lucrative concessions. Even prior to last week's election, an informal Capitol Hill committee was cooking up a compromise on labor law reform to appease wavering Democrats.

In this "EFCA-lite'' version of the bill, employer recognition based on card check would remain voluntary. But the National Labor Relations Board - now one of the slowest moving federal agencies - would be directed to hold expedited elections, thereby reducing opportunities for unlawful tactics designed to thwart union representation.

This watering-down of proposed workers' rights protections and Obama's now fatal delay in bringing the Employee Free Choice Act to a vote late last year follows a familiar historical pattern. A version of the same thing happened under Jimmy Carter and then, in worse fashion, with Bill Clinton.

In 1977-'78, President Carter first pressured unions to go along with weaker amendments to the National Labor Relations Board than they originally wanted. Then, after being weakened itself during a Senate battle over the Panama Canal treaty, the White House failed to expend any remaining political capital on marshaling what was then a much larger pro-labor majority to overcome a GOP filibuster.

Fifteen years later, Bill Clinton didn't even introduce NLRA changes. Instead, he placated labor by appointing a presidential commission to study the topic. The panel frittered away the only two years during Clinton's presidency when Democrats controlled Congress. Its reform proposals were dead on arrival by 1994, after voters swept the GOP back into power in midterm elections.

Last June, top union leaders met with Obama and were told that health care legislation would come first and then the Free Choice Act. Since then, the administration has repeatedly dangled the carrot of labor law reform whenever labor made common cause with other critics of "ObamaCare.'' Unions were even pressured to accept things like a future tax on negotiated medical coverage because defeat of the president's plan would be a victory for the Republicans and, thus, the death-knell of the Act.

Now, in a true case of déjà vu all over again, Americans are seeing the latest opportunity to strengthen their workplace rights, as promised by the Democrats, simply vanish. In the president's State of the Union address Wednesday, the state of unions - and employee free choice - wasn't even mentioned.

In the wake of this latest rebuff, labor activists must return to the drawing board and quickly develop a fall-back strategy - for defending and extending collective bargaining - that doesn't hinge on amending federal law. It won't be easy.

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Steve Early, a labor journalist and lawyer, is author of “Embedded With Organized Labor.’’

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