Union Agenda Implemented Behind The Scenes

Monday, May 3, 2010 - 01:00

Glenn Spencer

Executive Director

Workforce Freedom Initiative

U.S. Chamber of Commerce

In the arena of labor policy, the overriding focus for the past year has been on the Employee Free Choice Act, also known as Card Check. This focus was well deserved, as Card Check would have dramatically altered labor law and stacked the deck in favor of unions during organizing drives and subsequent contract negotiations.

Yet with Card Check temporarily stalled in the Senate, it's time to take a look at the other items on the union wish list. And employers should make no mistake - the list is voluminous.

Aside from Card Check, a critical priority for organized labor has been to secure a staunchly pro-union majority on the National Labor Relations Board (NLRB). With President Obama's recess appointment of Craig Becker in March, this goal has been realized. While Becker failed to win a full five-year term after being rejected in a bi-partisan vote by the Senate, his ascension to the NLRB gives the pro-union forces a 3-1 majority on the Board. With this slanted majority, the NLRB will seek to overturn numerous decisions from past years such as Dana/Metaldyne , which established the primacy of the secret ballot over Card Check and Oakwood Healthcare , which clarified which workers could be considered supervisors.

The NLRB will not, however, simply sit back and wait for the appropriate cases to come its way. Current Chairwoman Wilma Liebman, a Democratic appointee, has made it clear that the Board will engage in active rulemaking for the first time in nearly 30 years. Rulemaking could change NLRB policy in a number of ways, most significantly by shortening the election window during union organizing campaigns from an average of approximately 38 days to as little as five or 10. The Board may also place additional limits on employer speech rights and attempt to give union organizers access to an employer's workplace. Finally, the NLRB could even issue rules requiring the recognition of non-majority "mini-unions" that represent only a fraction of a potential bargaining unit. Outside of rulemaking, the Board is also likely to make greater use of Gissel bargaining orders, essentially forcing employers to recognize a union even where it has failed to demonstrate majority support.

Unions also wanted a Department of Labor (DOL) that would be far more sympathetic to union interests, and in this they have not been disappointed. Aside from filling DOL's political ranks with appointees straight out of the labor movement, the Department has launched a number of anti-employer and pro-union initiatives.

First off, DOL has swelled the ranks of inspectors in agencies like OSHA and the Wage and Hour Division and is considering plans to outsource pieces of their enforcement responsibilities to "community" groups - like unions, for example. At the same time, the Department gutted the agency responsible for enforcing union transparency laws and scuttled regulations that would have provided union members with important financial information about how their unions are run. DOL is launching a new campaign to crack down on the use of independent contractors, and has even said they will penalize employers for their internship programs.

Finally, more than 90 new regulatory actions are listed on DOL's Web site. While this hostility to employers has made the unions happy, it hasn't done much to benefit workers. The unemployment rate is still close to 10 percent; the Wage and Hour division recovered fewer back wages for workers in 2009 than during almost any year of the Bush presidency; and after more than a year of responsibility for mine safety, the Department of Labor failed to uncover the conditions that led to the recent Upper Big Branch mine disaster.

The White House itself has gotten into the action with a series of pro-union Executive Orders signed in early 2009, which are now coming to fruition through the regulatory process. And a potential new Executive Order would impose much of the unions' sweeping social agenda on a wide swath of the economy by rigging the government contracting process. Referred to as the "High Road" contracting initiative, this new policy would give a bonus in contracting scores to companies that provide their employees with a "living wage" and offer employer-sponsored health and retirement benefits as well as paid sick leave. The catch is that these wages and benefits would have to be offered to every worker at a particular company - not just those working on the contract. This would effectively impose "living wage" requirements on more than 20 percent of the nation's workforce. The result would be decreased competition for government contracts and higher costs to the taxpayers.

Although Congress has yet to move on Card Check, they have moved forward with other legislation to pay back their union supporters. Numerous bills have been introduced to increase class action litigation against employers and expand the Family and Medical Leave Act. And the health care reform bill also included copious perks for organized labor. As Anna Burger of the SEIU explained, unions can "tak[e] advantage of elements in the health care bill to organize health care workers."

The fight over Card Check was a high-profile affair, full of drama and headlines. Yet much of the work to enact the union agenda has been going on behind the scenes, day in and day out in the trenches. America's job creators would do well to pay attention and get involved, because it is this attritional warfare that will determine organized labor's ultimate success or failure in fulfilling its goals.