Déjà vu all over again
1977 labor bill forerunner of EFCA

Ron Ennis, American Postal Workers, #268
Editor, Lehigh Valley Labor Council

Senator Arlen Specter’s announcement last month that he will not support the Employee Free Choice Act was disappointing to Pennsylvania workers. Adding to their dismay was the irony that he had supported identical legislation two years earlier.

But for long time union leaders and students of labor history, the ongoing controversy surrounding the organizing bill is eerily reminiscent of a similar congressional struggle over 30 years ago. Echoes of the Labor Reform Act of 1977 resonate three decades later.

The outcome of the Reform Act HR8410 forewarned the Reagan Revolution and the subsequent years of legislative setbacks for workers. Moreover, the battle for its passage serves as an omen for union activists should enactment of the Employee Free Choice Act fail. (see Chart #1)

Both legislative initiatives proposed expedited union representation elections and stiffened penalties against employers. The 1977 measure awarded double back pay for workers illegally fired, while the 2007 version trebled the award.

Two provisions were dropped during congressional negotiations over the Labor Reform Act. One proposal, similar to the chief article in the Free Choice Act, was to certify a union as the bargaining agent when 55 percent of the workers to be represented signed union recognition cards. This was dropped when supporters decided that expedited elections would achieve the same result.

The other discarded measure sought repeal of Section 14(b) of the Taft-Hartley Act, the right-to-work provision. In 1977, 20 states had laws banning union shop contracts and labor leaders had long sought its repeal since its passage in 1947. But after gauging congressional opinion on Section 14(b), labor-friendly lawmakers removed the proposal and planned to re-introduce the repeal in a separate bill later in the year.

Like today’s Free Choice bill, lobbying against the Labor Reform Act was ferocious long before its report from the House Education and Labor Committee in September 1977. When the bill passed the House on October 6 by a margin of 257-163, business leaders intensified their determination to defeat the measure in the Senate.

To gain the 60 votes necessary to end a certain Republican-led filibuster, senate sponsors of the Reform Act offered compromises in an attempt to satisfy their fence-sitting colleagues and business groups. But labor leaders, knowing that their opponents wouldn’t even accept a watered down bill, avoided major concessions to win over undecided senators.

In a replay of the 2007 Free Choice Act, movement on HR8410 was obstructed for five tumultuous weeks before coming to a vote.

Twenty days of intense debate on the Senate floor and six attempts to overcome the filibuster could not move the legislation forward. Workers came closest to victory on June 14, 1978 when the Senate fell two votes shy, 58-41, of ending debate. “The death of the bill,” wrote the Congressional Quarterly afterward, “was the most stinging humiliation for the unions in (the 95th) Congress…”

“Business groups were particularly effective in bringing out small business representatives,” the Congressional Quarterly added. “Senators were impressed when small business men who seldom lobbied for anything came to Washington to express their concerns.”

In addition to the fierce opposition to the Labor Reform Act from business groups and conservative politicians, union organizations suspected that President Carter’s endorsement of the issue was tepid. The relationship between the rank-and-file and the Democratic administration had chilled prior to the Senate vote when Carter had invoked the Taft-Hartley’s emergency powers provision to crush the United Mine Workers national coal strike in March 1978.

Amid the parallels between the two legislative struggles, two points underscore the prospects for the Employee Free Choice Act. The 1977 labor bill died in a filibuster-proof Senate at a time when twice the percentage of the nation’s workforce was unionized. The lessons of that epic event over 30 years ago may be a signal to union activists that they will have to escalate efforts to pass their long awaited bill.

Chart #1

1977 2009
President Jimmy Carter(D) Barack Obama(D)

Congress 95th 111th

House Democrats (292) Democrats (254)
Republicans (143) Republicans (178)
There are three vacant House seats in the 111th.

Senate Democrats (61) Democrats (58)
Republicans (39) Republicans (41)
The 95th Congress was the last session where a party had a filibuster-proof majority. The current session is still undeclared in the Minnesota senate race.

Union density 24.1 percent 12.4 percent
(nationwide)

Bill # HR8410 HR1409
S2467 S560

Bill name Labor Reform Act Employee Free Choice Act

House action Passed 257-163 pending

October 6, 1977
The 110th House passed EFCA (HR800) 241-185 on March 1, 2007. With a larger Democratic majority in the current House, it’s expected that EFCA will pass again.

Senate action Filibustered 58-41 pending
June 14, 1978

Blueprint for EFCA
Arguments for Free Choice Act made 30 years ago

Shortly after Jimmy Carter became president in 1977, labor groups negotiated with the White House and leading congressional supporters to develop an agenda for revising the nation’s labor laws. The outcome of these talks resulted, in part, in the Labor Reform Act of 1977.

Ray Marshall, Secretary of Labor under Carter, held a press conference on July 18 to formally endorse the measure. His statement, issued over three decades ago, is exceptionally relevant to the debate over today’s Employee Free Choice Act.

[For a full text of the Labor Reform Act and Marshall’s press conference, visit http://www.library.cmu.edu/Research/ Archives/Heinz/HJH_Bio.html. Scroll down the bottom of the page and click onto H. John Heinz III archives.]

“As you know, the President will send legislation to Congress today on labor law reform. This is an important step because it marks the first comprehensive effort to reform our basic labor laws in thirty years.

It is also a bill that I care about deeply, and I think it will be one of the major domestic accomplishments of the Carter Administration.

This legislation will have three major goals. It will strengthen the remedies available to the National Labor Relations Board to enforce existing labor laws; it will improve the operations of the National Labor Relations Board to make it more efficient, equitable and predictable regulatory agency; it will strengthen the collective bargaining rights of the American workers.

It is no secret that the NLRB has not been working effectively. The basic problem is the statute rather than the administration of the Board.

The NLRB has been hamstrung be a series of procedural difficulties that have caused long delays in settling the cases that come before it. Since passage of the Wagner Act of 1935, it has been the policy of the United States Government that American workers have the right to bargain collectively. This is a fundamentally important right. But it is a right that has little tangible meaning if it can be eroded by long protracted delays before the NLRB.

One should not have to pay thousands of dollars in legal fees and wait many months to exercise a basic right like the right to collective bargaining.

Legal delays always favor the side that can afford better and more expensive lawyers.

We don’t believe in interfering directly in collective bargaining, but we do believe in making the process as equitable as possible for both sides. This is one of the major goals of labor law legislation.

Many people will call this a labor bill. I don’t think that is a totally accurate statement. Business also suffers from long delays while the NLRB decides its cases, and business as well as labor will benefit from the reforms that will lead to a more smoothly functioning NLRB.

It is important to remember that the NLRB is a regulatory agency, and one of the priorities of the Carter Administration is to make all our regulatory agencies work as quickly and as fairly as possible.

This labor law reform package must also be seen as part of the Carter Administration’s commitment to regulatory reform. Nothing in this bill will make union membership mandatory for anyone. But it is vital that American workers have the choice of whether they want to belong to a union.

The delays and the weaknesses of the NLRB’s enforcement powers have, in effect, denied this right to thousands of American workers.

This is an inequitable situation. And this is one of the reasons why I consider labor law reform to be such an important issue.

The Carter Administration does not regard today’s message as the last word in labor law reform. This is a complex area and more changes may very well be needed. We intend to keep exploring other ways to make our laws work better for both labor and management.

We intend to work closely with Congress in the months ahead on these and other possible changes. We also intend to consult as widely as possible with both labor and management groups on the shape of other possible reforms.

I recognize that these labor law reforms will not be popular with everyone. Industrial relations have been an area of continuing controversy for more than a century, and I don’t expect these passions to disappear overnight. But our message today is clear: We think this is a good bill. It is a bill we will be able to look back on with pride.”

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EDITOR’S NOTE: Article reprinted from the April edition of the Lehigh Valley Labor Council newsletter.