The following article was written by Rob Green, Vice President of Government and Political Affairs for the National Retail Federation. (2011)
The Battle over Card Check
A Brief History and Lessons Learned
Retailers and their business allies have been engaged in a pitched battle in the halls of the U.S. Congress for the past three years in opposition to the misnamed “Employee Free Choice Act” (EFCA). The amazing fact that EFCA (H.R. 1409/S. 560), the top legislative priority of organized labor, is not the law of the land today, despite a large majority of “pro-labor” lawmakers in Congress, is a case study on how to fight and win against a well-funded, unwavering and politically powerful special interest.
EFCA is critically important to organized labor in large part because private sector union membership has declined from 34 percent of the workforce in 1953 to only 7.2 percent in 2009. Unions believe that secret ballot elections hinder their ability to organize workplaces, particularly retail establishments. Card check would give union organizers more power to intimidate and coerce workers into signing up for union representation. Instead of casting votes in private, retail workers would be forced to choose sides in front of union organizers, fellow employees and their employers. EFCA would also cut short negotiations on an employer’s first contract with a union after only 120 days and require a government panel of arbitrators to write the final contract terms.
The success of retailers in the card check battle is a testament to the power of a unified and motivated business community that devoted significant resources and grassroots advocacy energy toward defeating the legislation. The National Retail Federation and key allies such as the Ohio Council of Retail Merchants identified EFCA as a top industry threat immediately following the November 2006 elections (which gave the Democrats a strong majority in both the U.S. House and the Senate).
NRF helped create the Coalition for a Democratic Workplace (CDW), a single-issue organization comprising over 500 corporations and trade associations, which developed a sustained issue advocacy campaign designed to educate key members of Congress, urging their opposition to EFCA and holding them accountable for votes against worker privacy.
A key feature of the coalition’s strategy in the earliest stage of the debate was to conduct a series of national and state public opinion surveys which identified “eliminating a worker’s right to a secret ballot” as the most understandable (and objectionable) provision in the bill and the one which resonated deeply with both the general public and lawmakers on Capitol Hill. Armed with this information, CDW set out to educate lawmakers, employers and employees around the country, about the dangers posed by EFCA.
Another key aspect of CDW’s plan was to secure the full agreement of individual coalition members not to compromise on the fatally flawed proposal. The “no compromise” strategy ensured that lawmakers wouldn’t be able to play individual coalition members against each other (by negotiating side deals or carve-outs) and recognized the importance of maintaining unanimous opposition among Senate Republicans to ensure that EFCA could be filibustered in the Senate. In early 2007, the first skirmish occurred and the legislation was passed by the U.S. House but was successfully blocked by Republicans in the Senate (following a veto threat against the bill issued by the Bush Administration).
Fast forward to 2009, at which time recently-elected President Obama renewed the fight by urging lawmakers to pass EFCA, which he strongly supported during his campaign for President. NRF and CDW responded by implementing an aggressive advocacy and grassroots program targeting members of both the U.S. House and Senate with the goal of reducing support for the measure in the House and keeping at least 41 Senate votes aligned against the bill to ensure that it would be blocked. CDW also executed a successful outreach initiative focusing on moderate Democratic “Blue Dog” Members of Congress.
The legislative stalemate continued until mid-2009, when Senator Tom Harkin (D-IA), Chairman of the Senate Labor Committee, and Senator Sherrod Brown (D-OH) initiated a series of meetings with their Democratic colleagues aimed at crafting a new version of EFCA because proponents did not have 60 votes (cloture) to proceed on the original version of the legislation. These discussions were subsequently put on hold because of the protracted debate on health care legislation and were never restarted after the election of Senator Scott Brown (R-MA) in January 2010.
The retail industry is not out of the woods yet. Congress is expected to convene a “lame duck” session following the November midterm elections. As recently as August 4, President Obama vowed to keep pushing for passage of EFCA and received a standing ovation from the AFL-CIO Executive Council. His comments have been echoed by Chairman Harkin and Rich Trumka, the president of the AFL-CIO.
A more recent and troubling development is the agenda of the National Labor Relations Board (NLRB), with newly-appointed member Craig Becker (a former AFL-CIO Associate General Counsel). Recent decisions and announcements make it clear that the NLRB has become the instrument to enact EFCA-related provisions. The NLRB plans to embark on a sustained period of case adjudication and rulemaking on EFCA-related issues, a course of action which will circumvent the legislative process and will limit the opportunity for a full public debate on the merits of these highly controversial matters.
By remaining steadfast in opposition to EFCA, a united retail industry has successfully worked together to keep EFCA and its variations from receiving 60 votes in the Senate. NRF and its coalition allies will continue to focus resources on ensuring that lawmakers oppose EFCA if it is considered by Congress this year. In the longer term, we must continue our work to ensure that the NLRB is held accountable for any actions which favor the interests of labor unions at the expense of the rights of business owners and their employees around the country.
