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Published online by Cambridge University Press: 31 October 2011
In the August 8, 2008, edition of the Wall Street Journal, an editorial denounced the Employee Free Choice Act (EFCA), organized labor's most recent effort to reform US labor law, as a measure that would lead to worker intimidation and the end of free and fair workplace representation elections. That the nation's leading business journal carried an editorial outlining the familiar EFCA opponent's trope of worker intimidation by unions was not surprising. That the author's identity was former South Dakota senator George McGovern—that aging icon of American liberalism and a self-described “longtime friend of labor unions”—foreshadowed the uphill battle and ultimate defeat labor and its allies would face in enacting the measure.
1. McGovern, George S., “My Party Should Respect Secret Union Ballots,” Wall Street Journal, August 8, 2008Google Scholar. McGovern followed up on his editorial with a television advertisement produced by the Employee Freedom Action Committee (previously the Center for Union Facts), an organization run by lobbyist and former US Chamber of Commerce labor law director Richard Berman. In the ad, McGovern explained that EFCA “cannot be justified.” “Working families deserve a voice and a private vote.” Employee Freedom Action Committee, “George McGovern on the Employee Free Choice Act,” YouTube video, 1:02, reproduction of a television commercial, posted by “EmployeeFreedom,” October 6, 2008, http://www.youtube.com/watch?v=afjp4Cx-3W0.
2. McGovern wrote a 1953 dissertation at Northwestern University on the Colorado coal strike and Ludlow massacre of 1914. George Stanley McGovern, “The Colorado Coal Strike, 1913–1914,” Ph.D. dissertation, Northwestern University, 1953. That dissertation provided the basis for a book published decades later: McGovern, George S. and Guttridge, Leonard F., The Great Coalfield War (Niwot, CO, 1996)Google Scholar.
3. William B. Gould, who had chaired the National Labor Relations Board during the Clinton years, was another critic of the bill. Gould agreed with EFCA critics who argued that the bill's card check provisions would effectively do away with union elections. Since card checks would be a more favorable avenue to win representation, he argued, “there will be no elections where unions or employees file a petition for representation.” He called on President-elect Obama to change the bill significantly. See Gould, William B. IV, “The Employee Free Choice Act of 2009, Labor Law Reform, and What Can Be Done About the Broken System of Labor-Management Relations Law in the United States,” University of San Francisco Law Review 43 (2008): 1–58Google Scholar.
4. Brody, David, “Moving Past EFCA,” Labor: Studies in the Working-Class History of the Americas 7:3 (2010): 25–28CrossRefGoogle Scholar.
5. Draper, Alan, A Rope of Sand: The AFL-CIO Committee on Political Action, 1955–1967 (New York, 1989), 119–22Google Scholar; Dark, Taylor, The Unions and the Democrats: An Enduring Alliance (Ithaca, NY, 1999), 61Google Scholar; Fink, Gary M., “Labor Law Revision and the End of the Postwar Labor Law Accord,” in Organized Labor and American Politics, 1894–1994: The Labor-Liberal Alliance, Boyle, Kevin M, ed., (Albany, 1998), 239–58Google Scholar; Halpern, Martin, Unions, Radicals, and Democratic Presidents: Seeking Social Change in the Twentieth Century (Westport, CT, 2003), 147–77Google Scholar.
6. Historians in particular played a large role in promoting EFCA. The Labor and Working Class History Association (LAWCHA) strongly supported the legislation, launching an initiative called “Telling Labor's Story” in an effort to explain the need for reform, and creating a formal liaison with the AFL-CIO to coordinate opinion pieces, articles, and press availabilities promoting the act. Honey, Mike, “Telling Labor's Story,” LAWCHA Newsletter (Fall 2007), 3Google Scholar; Hower, Joseph E., “Telling Labor's Story: Exposing the Anti-Union NLRB,” LAWCHA Newsletter (Spring 2008), 3Google Scholar. In the aftermath of its defeat, they have debated its significance in several forums. See the “Up for Debate” symposium on the defeat of EFCA with contributions by Arnesen, Eric, Adams, Roy J., Cobble, Dorothy Sue, Brody, David, and Lichtenstein, Nelson, Labor: Studies in Working-Class History of the Americas 7:3 (2010): 7–32CrossRefGoogle Scholar. For an activist's take, see Early, Steve, “The Poison Pill In ‘ObamaCare’ That Helped Kill Labor Law Reform,” WorkingUSA 13:3 (2010): 405–23CrossRefGoogle Scholar.
7. For a sampling of this discussion, see Brody, David, “Labor Rights as Human Rights: A Reality Check,” British Journal of Industrial Relations 39:4 (2001): 601–5Google Scholar; Lichtenstein, Nelson, “The Rights Revolution,” New Labor Forum 12:1 (2003): 60–73Google Scholar; McCartin, Joseph A., “Democratizing the Demand for Workers' Rights: Toward a Re-Framing of Labor's Argument”; and “Reply to Lance Compa and Sheldon Friedman,” Dissent (Winter 2005): 61–66, 70–71Google Scholar; Compa, Lance, “Labor's New Opening to International Human Rights Standards,” Working USA: The Journal of Labor and Society 11:1 (2008): 99–123CrossRefGoogle Scholar; Savage, Larry, “Workers' Rights as Human Rights: Organized Labor and Rights Discourse in Canada,” Labor Studies Journal 34:1 (2009), 8–20CrossRefGoogle Scholar.
8. Human Rights Watch, Unfair Advantage: Workers' Freedom of Association in the United States Under International Human Rights Standards (Ithaca, NY, 2000)Google Scholar; Human Rights, Labor Rights and International Trade, Compa, Lance A. and Diamond, Stephen F., eds. (Philadelphia, 1996)Google Scholar; Workers' Rights as Human Rights, Gross, James A., ed. (Ithaca, NY, 2003)Google Scholar.
9. Statement of Wilma B. Liebman, Member, National Labor Relations Board before the Subcommittee on Employment and Workplace Safety, Committee on Health, Employment, Labor and Pensions, United States Senate and the Subcommittee on Health, Employment, Labor and Pensions, Committee on Education and Labor United States House of Representatives on “The National Labor Relations Board: Recent Decisions and Their Impact on Workers' Rights,” December 13, 2007, http://edlabor.house.gov/hearings/2007/12/the-national-labor-relations-b.shtml (accessed Nov. 17, 2010).
10. Compa's study is called Blood, Sweat, And Fear: Workers' Rights in U.S. Meat and Poultry Plants (New York, 2004)Google Scholar; on Soros, see Washington Post, September 12, 2010; recent scholarship includes: Seidman, Gay W., Beyond the Boycott: Labor Rights, Human Rights, and Transnational Activism (New York, 2007)Google Scholar; Human Rights in Labor and Employment Relations: International and Domestic Perspectives, Gross, James A. and Compa, Lance, eds. (Champaign, IL, 2009)Google Scholar; Gross, James A., A Shameful Business: The Case for Human Rights in the American Workplace (Ithaca, NY, 2010)Google Scholar.
11. Lichtenstein, Nelson, “The Rights Revolution,” New Labor Forum 1:1 (2003): 60–73Google Scholar.
12. Lichtenstein, Nelson, State of the Union: A Century of American Labor (Princeton, 2002), 178Google Scholar.
13. Youngdahl, Jay, “Solidarity First: Labor Rights Are Not the Same as Human Rights” and “Youngdahl Replies,” New Labor Forum 18:1 (2009): 31–37, 46–47 (quote from p. 31)Google Scholar; Compa, Lance, “Solidarity and Human Rights: A Response to Youngdahl,” New Labor Forum 18:1 (2009): 38–45 (quote from p. 39)Google Scholar.
14. Such legislators included Ben Nelson, who in the fight to pass health care reform showed that he was not above putting his principles aside to engage in some old-fashioned horse trading.
15. Blanche Lincoln, for example, refused to back EFCA and easily defeated a union-supported primary challenge by Arkansas lieutenant governor Bill Halter. “Blanche Lincoln Comes Out Against EFCA,” Arkansas Democrat Gazette, April 6, 2010. Seth Blomley and Matthew S.L. Cate, “‘I Can't Support Union Bill,’ Lincoln Says,” Arkansas Democrat-Gazette, April 7, 2009.
16. Brody, David, “Labor Rights as Human Rights: A Reality Check,” British Journal of Industrial Relations 39:4 (2001), 603Google Scholar. On the general problem of conflicting rights claims, see Glendon, Mary Ann, Rights Talk: The Impoverishment of Political Discourse (New York, 1991)Google Scholar.
17. McGovern, George S., “The ‘Free Choice’ Act is Anything But,” Wall Street Journal, May 7, 2009Google Scholar.
18. This is an aspect of US labor history that is still no doubt underestimated by labor historians. Only recently have historians such as David Witwer and Andrew Wender Cohen begun to probe the history of “labor racketeering” with the same care that scholars have devoted to more salutary aspects of US labor's historical narrative. See Witwer, David, Corruption and Reform in the Teamsters Union (Urbana, IL, 2003)Google Scholar and Shadow of the Racketeer: Scandal in Organized Labor (Urbana, IL, 2009)Google Scholar; Cohen, Andrew Wender, The Racketeer's Progress: Chicago and the Struggle for the Modern American Economy, 1900–1940 (New York, 2004)Google Scholar.
19. Nelson Lichtenstein, “Misunderstanding the Anti-Union Narrative,” Chronicle of Higher Education, January 17, 2010.
21. Adams, Roy, “EFCA is not the Answer,” Labor: Studies in the Working-Class History of the Americas 7:3 (2010), 11CrossRefGoogle Scholar.
22. Conservatives have closely monitored labor's efforts to utilize human rights arguments. See Muggeridge, Matthew C., “Organized Labor's International Law Project? Transforming Workplace Rights into Human Rights,” Engage 9:1 (2008): 98–108Google Scholar.
23. The Alliance for Worker Freedom can be found at http://www.workerfreedom.org. The card check game is found at http://www.whatiscardcheck.com/ (accessed Nov. 11, 2010).
24. Alliance for Worker Freedom 2009 Index of Worker Freedom, http://www.workerfreedom.org/index-of-worker-freedom (accessed Nov. 11, 2010).
25. See Merritt, Walter Gordon, The Struggle for Industrial Liberty (New York, 1922)Google Scholar. The definitive historical treatment of Merritt and other forefathers of the present-day right-to-work movement is Ernst, Daniel, Lawyers Against Labor: From Individual Rights to Corporate Liberalism (Urbana, IL, 1995)Google Scholar.
26. “Favorable Ratings of Labor Unions Fall Sharply,” The Pew Research Center for the People and the Press, Feb. 23, 2010, http://people-press.org/report/591/ (accessed Nov. 17, 2010). While it is difficult to understand the precise reasons for the recent slide in public approval of unions, it is clear that the attacks on unions for “opposing the secret ballot” did not improve public perceptions of labor.
27. Virginia Young, “Missouri's next Senate leader to push right-to-work Republicans select Rob Mayer of Dexter as president pro tem, passing up Farmington's Kevin Engler,” St. Louis Post-Dispatch, Nov. 5, 2010; AFL-CIO State Defensive Battles Update, Nov. 12, 2010, copy in the author's possession.
28. http://www.bls.gov/news.release/union2.nr0.htm (accessed Jan. 22, 2011).
29. There were exceptions to this trend, including Ezra Klein, who described McGovern's worries about free elections as “a fair concern. But not a relevant one.” Klein distinguished between secret ballot general elections and union elections supervised by the National Labor Relations Board, which, given the employer's power over the worker's livelihood are anything but free and fair. See Ezra Klein, “George McGovern and the Employee Free Choice Act,” http://www.prospect.org/csnc/blogs/ezraklein_archive?month=10&year=2008&base_name=george_mcgovern_and_the_employ (accessed on Nov. 9, 2010).
30. Matt Yglesias, “McGovern,” October 14, 2008, http://yglesias.thinkprogress.org/2008/10/22978/?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+matthewyglesias+%28Matthew+Yglesias%29 (accessed Nov. 9, 2010).
31. Ian Welsh, “Wal-Mart Lover George McGovern Throws Unions Under the Bus for His Lobbyist Friend, Rick Berman,” August 11, 2008, http://firedoglake.com/2008/08/11/wal-mart-lover-george-mcgovern-throws-unions-under-the-bus-for-his-lobbyist-friend-rick-berman/ (accessed Nov. 9, 2010). See also, “Tell ‘The Progressive’ to drop George McGovern from 100th Anniversary Event” http://www.facebook.com/group.php?gid=65420322975 (accessed Nov. 9, 2010).
32. Gerstle, Gary, “The Protean Character of American Liberalism,” American Historical Review 99:4 (1994): 1043–74 (quotations from p. 1045)CrossRefGoogle Scholar.
33. On labor's role in the reconstruction of liberalism, see Orren, Karen, Belated Feudalism: Labor, the Law, and Liberal Development in the United States (New York, 1992)Google Scholar; Schneirov, Richard, Labor and Urban Politics: Class Conflict and the Origins of Modern Liberalism in Chicago, 1864–97 (Urbana, IL, 1998)Google Scholar.
34. Walsh quoted in McCartin, Joseph A., Labor's Great War: The Struggle for Industrial Democracy and the Origins of Modern American Labor Relations (Chapel Hill, NC, 1997), 8Google Scholar.
35. McCartin, “Democratizing the Demand for Workers' Rights,” 61–66.
35. Human rights arguments might have their greatest value in the international context. See Atleson, James B., “The Voyage of the Neptune Jade: The Perils and Promises of Transnational Labor Solidarity,” 52:1 Buffalo Law Review (2004): 85–184Google Scholar; and Atleson, , “‘An Injury to One . . .’: Transnational Labor Solidarity and the Role of Domestic Law,” in Workers' Rights as Human Rights Gross, James A., ed., 160–182 (Ithaca, NY, 2003)Google Scholar; Rittich, “Kerry, “Transnationalizing the Values and Assumptions of American Labor Law,” Buffalo Law Review 57:3 (2009): 803–9Google Scholar; Seidman, Gay, Beyond the Boycott: Labor Rights, Human Rights and Transnational Activism (New York, 2007)Google Scholar.