The following article was published in Proletarian Revolution No. 82 (Winter 2010)

EFCA: A Trap for Workers

The statement below was posted on this site in June 2009. It opposes the Employee Free Choice Act on the grounds that its provision for binding arbitration over first contracts would be used to hinder workers’ struggles, especially once resistance to the stepped-up attacks in the current economic crisis heats up. EFCA by now may well be dead in Congress, but the arguments in our statement are still relevant.

Since then, there has been further evidence against the use of arbitration. In New York City, the leaders of the public transit union, TWU Local 100, had agreed to binding arbitration of the union’s contract with management, the Metropolitan Transit Authority. Along with givebacks, the arbitrator granted the workers a total wage increase of 11 percent over three years, less than other city unions had gained in recent contracts. Nevertheless, the MTA and the city’s mayor deemed the cost excessive, so they refused to pay and went to court to reverse the supposedly “binding” decision. (See our TWU bulletin, Revolutionary Transit Worker No. 45.) The court has rejected the MTA’s appeal, and Local 100 members will probably get their raise and retroactive pay eventually.

Nevertheless, arbitration under government auspices is a trap for workers. Even though the court sided with the TWU this time, no union should rely on the courts of the capitalist state – their power lies in mass action. The MTA’s maneuver makes clear that the bosses think arbitration is binding on the workers only, not themselves. All the more reason why workers should oppose “binding arbitration.”

The Employee Free Choice Act (EFCA) has long been the top legislative priority of the U.S. trade union bureaucracy. But it is dying a slow death in Congress, after running into heavy opposition from businesses interests. Its poor prospects are another slap in the face for a labor leadership desperate to get something to show for its constant groveling to capitalist politicians.

This development comes at a time when the U.S. working class is facing the most severe economic crisis in generations and levels of organization and struggle are at an all-time low. The unions are, with few exceptions, the only mass organizations that workers can turn to for solidarity against the capitalists’ attacks. But decades of defeats have seen the percentage of workers organized by unions decline to levels not seen since before the last Great Depression: in the private sector, it is a measly 7.8 percent.

Moreover, the bosses and their politicians are making a concerted effort to force the working class to pay for their system’s crisis. Our class needs a massive fightback to defend its jobs and living standards. Instead, the labor tops spent almost half a billion dollars and countless hours of staff and rank and file effort to elect Barack Obama and other Democrats. They regard EFCA as the ripe fruit of the electoral victory that was ready to be picked.

In our view, not only is the EFCA campaign a diversion from the class struggle. It is a typical Democratic Party swindle, offering workers gains with one hand while taking away more with the other. Although EFCA would make it somewhat easier to organize unions (see below), it contains a binding arbitration clause governing first contracts. This would mean that an employer could deny newly organized workers the right to vote on their contract or to strike to win a better deal. It would therefore hamstring the potential resistance against the mounting attacks. We conclude that EFCA in its present form should be opposed in the best interests of the working class.

Democrats Defect

Under today’s conditions, when there are few strikes, it may seem picky to worry about workers’ losing the right to strike for first contracts. The predominant capitalist opposition to EFCA shows that most bosses don’t think that they need to make any concessions in exchange for new legal weapons against unions.

With a Democratic president and congress, the capitalist opponents of EFCA and their Republican allies launched an aggressive campaign of advertising and lobbying to defeat it. Then key Democrats began to disown it as well. One example is Arkansas Representative Marion Berry. He had supported EFCA when it was originally raised, but at a meeting of EFCA opponents, an official of the Arkansas State Chamber of Commerce “informed the group that Berry had told him that he thought the bill was a piece of junk and that he only voted for it because he knew then-President Bush would veto it.”

The Obama administration has also sent signals that EFCA is not a priority. This provided further cover for hesitant Democrats to let EFCA wither on the vine. To be sure, there are liberal Democrats who are pushing for EFCA; they are returning a favor to the bureaucrats for their electoral efforts, and also sense that EFCA is not the enemy of capitalist interests that its conservative opponents make it out to be.

Bureaucracy’s Betrayals

Working-class activists, and above all revolutionaries, should understand that conditions can change, especially in the face of the economic catastrophe. As the crisis continues, and workers learn that they can only rely on their own class power to defend and advance their interests, there will be opportunities for a new wave of class struggles in this country. Therefore it is useful to examine the union bureaucracy’s initial proposal of EFCA, its inability to get the bill passed, and how so many of this country’s “left-wing” and even “socialist” union militants have gone along with the bureaucracy’s disastrous strategy.

The unions are controlled by bureaucrats whose acceptance of the capitalist system is encouraged by the privileged positions they enjoy within it as brokers between the workers and bosses. The bureaucrats avoid mobilizing workers in struggle for fear of threatening the capitalists’ interests. They also fear that a rank and file more clearly aware of their interests and emboldened by a sense of their own power will produce new leaders from its ranks who will challenge them for control. Thus the leadership has followed a general strategy for decades of promoting support for capitalist (mostly Democratic) politicians instead of organizing protests and strikes by workers themselves to win their demands.

The result of this strategy of betrayal has been the steady erosion of jobs, wages and working conditions for workers previously won by mammoth class battles, along with a weakening of the unions. These setbacks have come to threaten the bureaucrats themselves, as they have less and less leverage with which to bargain with employers and politicians. Their response has been a further commitment to electoralism, hoping that passive strategies for organizing workers would offset the decline in their base of dues-paying members. Strikes have been few and far between, while unions like the SEIU specialize in reaching sweetheart organizing agreements with employers. But employers have by and large rejected such overtures and made ample use of the machinery of labor law to successfully suppress organizing efforts time after time.

EFCA was conceived as a way to address such problems in one legislative package. It holds out the promise of making it easier to sign up unorganized workers. But it does so with the perspective of not waging serious fights against the bosses, like mass strikes and plant occupations during either an organizing drive or a contract fight. It also serves to justify the enormous attention and resources devoted to the “electoral process.”

The three main provisions of EFCA reflect these priorities:

The Card Check Option

Much of the debate over EFCA has concerned its card check provision. Such a process would allow many workers who want a union to more easily sign up for one. EFCA would end the bosses’ right to insist on highly undemocratically organized workplace elections. It is clear that millions of workers would readily join unions but are intimidated by the very real threat of employer reprisals, and so card check would often provide a safer way to register support for unionization. But card check is only one factor: it alone does not guarantee a significant increase in unionization rates. According to an article in Labor Studies journal in 2007, the Canadian provinces of Saskatchewan and Quebec have card-check and first-contract arbitration clauses, but union density and bargaining coverage are falling nevertheless.

The reality is that biggest obstacle to union organizing is not the federal labor law, anti-worker though it is. The chief problem is the sorry record of the union bureaucracy in defending their own members, much less fighting for new ones. The bureaucrats fear strikes and mass action like the plague. That is why, for example, the United Automobile Workers, once the powerhouse of American labor, has succeeded in organizing not a single foreign-owned auto plant in the U.S. The top bureaucrats of the UAW and other unions have no intention of mobilizing workers to defend their jobs, which have been hit hard by the Obama administration’s “rescue” plans for Chrysler and General Motors.

The bureaucrats have high hopes for organizing on the cheap with EFCA. They envision quick card-check campaigns leading to arbitrated two-year contracts with a dues check-off provision, under which the company deducts dues from the paycheck and forwards them to the union. The two years would give them time to set up their machinery and train local union officials in the typical ways of business unionism.

Binding Arbitration

While the card-check provision would be a moderate gain for workers’ rights, in the long run it is more than outweighed by EFCA’s binding arbitration rule for first contracts. This rule appears to apply to all initial contracts, whether union representation is won by card check, by election or even by striking.

For the union bureaucrats, first-contract arbitration is key to EFCA working at all. Currently nearly half of newly recognized unions fail to get a first contract through bargaining, and then after a contract-free year the company can demand a new election. In the union tops’ vision of organizing dues-payers without struggle, card check means little without binding arbitration.

Working-class revolutionists have traditionally been hostile to arbitration that can be imposed by the boss or by the state, since it denies the workers the right to reject a bad contract, encourages illusions in the supposed independence of government appointed arbitrators and sets the precedent for the banning of strikes and other independent actions by workers. As Leon Trotsky, the exiled leader of the Bolshevik revolution, wrote in the Transitional Program that he drafted for his followers in 1938:

The Bolshevik-Leninist ... takes active part in mass trade unions for the purpose of strengthening them and raising their spirit of militancy. He fights uncompromisingly against any attempt to subordinate the unions to the bourgeois state and bind the proletariat to “compulsory arbitration” and every other form of police guardianship – not only fascist but also “democratic.”

Binding arbitration was also opposed by the unions in their more militant periods. When the United States was preparing to enter the Second World War, the government brought increasing pressure on the unions, especially the newly formed CIO, to accept arbitration of disputes in the place of strikes. In response, in 1941 the CIO issued a widely distributed pamphlet, The Right to Strike – Keystone of Liberty, which denounced imposed arbitration as a step toward slavery!

Industrial Warfare

EFCA’s arbitration clause has also drawn hostility from the bill’s capitalist opponents. Recognizing the current union leaders’ weakness, big employers today are confident that they could defeat newly organized unions’ contract demands. They fear that the unions’ similar right to call for an arbitrated contract would cheat them of a victory won “on the battlefield.”

The capitalists’ confidence in being able to defeat workers’ struggles in the short term blinds them from seeing the need to set up more elaborate legal traps for sharper class struggle in the future. But some representatives of the ruling class already foresee circumstances where the workers will be on the offensive. Consider the remarks of the very anti-worker chairman of the NLRB, Robert J. Battista, at a Conference on Labor held at New York University in 2005. He spoke to the concerns of bosses who felt that they would always have the upper hand against labor and didn’t see the need for additional methods of state intervention that could dampen workers’ momentum.

Pardon the military analogy, but in the interest of long-term industrial stability there are rules of engagement to which each side must comply. Some of those who argue that the NLRB no longer is relevant are openly seeking a return to the “law of the jungle,” where there are no rules of engagement and all weapons of industrial warfare can be used to accomplish one’s objective. This is not only irresponsible, it is short-sighted. History shows that the balance of power in industrial warfare can shift quickly and dramatically. Those who see themselves in a position of power today may find themselves powerless in the future. At that point, the NLRB not only will be relevant, it will be their protector. (

Battista wasn’t speaking about EFCA specifically, but such considerations will be especially important for capitalists in the coming period, when the disastrous economy will compel workers to fight back and demand union rights, despite the obstructions of the union bureaucrats. Indeed the experience of the last Great Depression and every other economic collapse shows us that while workers may at first be stunned by the outbreak of the crisis, they inevitably turn to mass protests, strikes and rebellions when they realize that they can only rely on their own power in struggle to defend themselves against the capitalists’ attacks.

Revolutionists support reforms that represent genuine concessions to mass needs and anger. EFCA, however, would be a concession to the conservative labor leadership, not militant workers; it would aid unionization relatively little while ensuring that any gains will occur in the context of greater state control and suppression of militant rank and file initiatives. So it is not a reform we can support.

Leftists for EFCA

Despite the real dangers of binding arbitration, most commentators on the far left have come out in favor of the bill. As nominal socialists or revolutionaries, they make their support seem more militant than the groveling of the openly reformist labor leadership. So it is no wonder that they have downplayed the arbitration provision or simply ignored it.

For example, Steve Early, a long-time union organizer and labor journalist, wrote on December 8 on the Counterpunch website about Obama’s backing away from EFCA. But while touting EFCA as “an economic fix that would work,” he neglected to mention the anti-worker arbitration problem. He did point to the arbitration clause in an earlier article, where he painted it as a pro-union provision:

Unresolved first contract negotiations could, at union request, become the subject of binding arbitration leading to imposed contract terms. This would make it harder for employers to use bad faith bargaining as their second line of defense against unionization – as many do after losing a contested representation election. (Znet, Oct.12, 2008.)

What this conceals is that binding arbitration could also come at the bosses’ request. Early isn’t alone in presenting this distorted view. The AFL-CIO’s “Turn America Around” website offers a fact sheet on EFCA that says the act would “giv[e] workers the right to request mediation and arbitration.” The monthly magazine Labor Notes did note that “either side could request mediation” and thus arbitration, but stressed only that this means that “companies may not drag out first-contract bargaining indefinitely” – not that the bosses could use it to deprive workers of the right to vote on their contract or strike.(May 2009.) Labor Notes, supported by the social-democratic group Solidarity, is part of the left labor milieu that avoids fundamental criticisms of the labor bureaucrats in principle.

Further cover for the bureaucracy was supplied by the International Socialist Organization’s Lee Sustar, whose analysis of EFCA for Socialist Worker on November 21 found no room in 35 paragraphs to even mention the arbitration clause. He did take time to praise the president-elect for his “explicit and emphatic support” for EFCA in a way that a typical trade union legislative director would appreciate:

Obama’s speech practically invites organized labor to revive a slogan used in the early days of Franklin Roosevelt’s administration: “Your president wants you to join a union.”

This is a falsification of both present-day politics and history. Any socialist should know that Obama is no friend of the working class. Nor should socialists look back at the Roosevelt years through rose-colored glasses. While it is true that many workers were encouraged to join unions by organizers’ emphasizing Roosevelt’s support, the New Deal’s National Recovery Administration law was ineffective. What actually won gains was the wave of general strikes in 1934 in Toledo, Minneapolis and San Francisco, plus the powerful sit-down strikes a few years later. Union organizers today should also remember that Roosevelt and Democratic state governors used the National Guard to violently break strikes. He was no true friend of working-class militancy.

More recently, the ISO has mentioned EFCA’s arbitration clause – in order to endorse it. In a June 3 Socialist Worker article, Adam Turl includes the idea of dropping arbitration of first contracts as an example of proposals to “defang” EFCA and make it less threatening to the bosses. Revolutionaries (and serious militants) should understand that the “fang” of binding arbitration is a weapon that will be used by the bosses against workers more dangerously than the other way around.

“Trotskyists” Versus Trotsky

It is no surprise that Labor Notes and the ISO endorse EFCA. These outfits habitually cast themselves as supporters of “rank-and-filism” in the unions, in counterposition to revolutionary leadership – inevitably a set-up for propping up elements of the bureaucracy. A more curious member of the pro-EFCA left is the Spartacist League, which endorsed EFCA in a somewhat critical fashion that simultaneously acknowledged and prettified the arbitration clause. Referring to the three months of negotiation and 30 days of mediation in EFCA, they wrote:

We oppose the arbitration provision because it is a form of government intervention into the unions’ disputes with the bosses. While the purpose of such a provision is to curtail class struggle, there are no legal prohibitions in the EFCA to prevent strike action during this four-month period. (Workers Vanguard, Jan. 30.)

This shows a remarkably trusting attitude towards bourgeois legal technicalities, as if mediation before binding arbitration allows legal room for strikes. In reality, “self help” actions – strikes by workers and lockouts by bosses – before bargaining has reached an impasse are considered illegal “unfair labor practices.” And years ago the U.S. Supreme Court spelled out what is obvious in bourgeois law: “A no-strike obligation, express or implied, is the quid pro quo for an undertaking by the employer to submit grievance disputes to the process of arbitration.” (Boys Markets, Inc. v. Retail Clerks Union Local 770; 1970.)

Of course, even the most stringent legal provision against strikes can be swept away by a solid mass struggle – the history of labor militancy in this country proves that. But a central purpose of EFCA is to further empower the bureaucracy to substitute arbitration in place of struggle. As fake Trotskyists, the Spartacists clearly do not accept Trotsky’s description of compulsory arbitration as “police guardianship.”

There are others on the left who do not support EFCA. The Internationalist Group, a Spartacist split-off, has called the SL on its capitulation to EFCA. But the IG errs in the opposite direction and opposes card check itself.

Genuine Marxists (i.e., Trotskyists) oppose any mechanisms of government control of labor, whether by card check or NLRB-supervised “elections.” A real union organizing drive would rest on mobilizing the workers’ strength in action, including possible strike action. Given the balance of forces and the need for unions to function in the capitalist legal framework, it may be necessary to make use of or participate in such procedures. But the tactical issue of how to deal with mechanisms for government certification once they are law is very different from calling for passing a law that slightly modifies but maintains those mechanisms. (The Internationalist, March-April 2009.)

That is, the IG says that it is unprincipled to support any legislation dealing with government intervention in the unions, even if it is a modification that gives workers additional rights under the law and the capitalists fewer. Since EFCA’s card check provision that “modifies but maintains” the state’s intervention in the unions, the IG is saying in effect that if card check were up for a vote independent of the objectionable arbitration provision, they would be against it.

This line is no temporary loss of perspective on the IG’s part. After all, this group opposed the immigrant rights movement’s legitimate demand for amnesty – on the grounds that it meant admitting that undocumented immigrants were in the U.S. illegally. (The Internationalist, July 2006.) The IG’s political method flies in the face of Bolshevik tradition and logic. Winning amnesty for illegal immigrants would be a victory, and winning card check unencumbered by management-imposed binding arbitration would be a modest gain for the working class. It is no endorsement of an anti-working class law to fight for amendments that lessen the burden on workers.

The IG’s stance is no more a guide to working-class action than that of the leftists supporting the labor bureaucracy’s alternative to mass action. Moreover, the political puritanism displayed by the IG can easily flip over into overt adaptation to reformism when the class struggle heats up. To paraphrase Trotsky, such sectarianism is opportunism in fear of itself.

The capitulations of so many nominal socialists show that their real hopes lie in accommodation with the union bureaucracy. But the bureaucrats are actively engaged in class betrayal. Any workers’ leader worthy of the name would respond to the deepening economic crisis by organizing and leading mass actions against the widespread cuts to social services and for jobs and health care for all. The working class needs to fight to make the bosses pay for the crisis that capitalism has created. Through these fights it will build the revolutionary leadership that looks forward to the only possible solution, workers’ socialist revolution.