Legislation Through Regulation: Labor's Plan B Unfolds

Sunday, April 3, 2011 - 10:20

Organized labor's prospects looked bright at the start of the 111th Congress. The crown jewel of their agenda, the so-called Employee Free Choice Act (EFCA) looked primed for passage. But celebration soon turned to despair, as opposition to EFCA proved broad-based and bipartisan. Ultimately, the 2010 elections put a stake in the bill.

Unable to tilt the playing field in their favor through legislation, union leaders have now turned to "Plan B." The new strategy avoids the sunshine of the legislative process - where votes are recorded and members must stand for re-election - to the murky, opaque, unaccountable - and unelected - world of the regulators.

"One of Big Labor's priorities in Washington," wrote the Wall Street Journal in an editorial last fall, "is to place allies in key government jobs where they can overturn existing labor policy without battles in Congress." Shortly after the elections, Chris Lehane, a Democrat strategist, reaffirmed the Journal' s observation. "A big focus will be on regulatory policy," he said, "That is often an area that doesn't get the attention legislation does, but could potentially be as impactful."

For a look at just how impactful regulation can be, here are just a few elements of organized labor's "Plan B":

National Labor Relations Board: The NLRB is considering numerous ways to fulfill the core objectives of EFCA - making it easier for unions to organize and harder for employers and workers to resist. In the Specialty Health Care case, the NLRB seems poised to redefine the size and composition of bargaining units nationwide, which would allow unions to pick off small segments of workers at facilities where representation has been rejected in the past. Using Lamon's Gasket, the Board is expected to reverse Dana-Metaldyne, and put card check on the same plane as secret ballot elections. With the Roundy's decision, the Board determined that allowing charities to solicit funds on their private property means employers must give unions the privilege of harassing their customers in that same space (so much for Salvation Army and VFW fund drives at your local supermarket).

In addition, the NLRB is looking at issuing new rules and regulations. These may include items such as off-site electronic voting (i.e., taking workers out of the privacy of the voting booth), a shortened election window for union certifications (which would prevent workers from making an informed choice), "special remedies" designed to hamstring employers during organizing campaigns, union access to employer property, and (a legally dubious) requirement to post union rights - both physically and electronically. All of this can be done without Congressional approval.

The Department of Labor: In addition to hiring hundreds of additional enforcers, the Department is considering new regulations to require mandatory compliance plans from all employers. DOL has stated publicly that any employer who fails to submit these plans - even those with no history of any labor law violations - will be considered out of compliance with the law. The Department is also considering ways to collaborate with unions and other so-called community groups to "shame" employers. Through the recently announced "Access to Justice" program, the Wage and Hour Division will now help refer cases it doesn't find important enough to take up to trial lawyers - and will give those lawyers case information and other sensitive materials. Evidently, frivolous litigation is now a jobs program.

All of this will help soften up employers during organizing drives. But it's with revisions to the Persuader regulations that the Department is more directly attempting to give organized labor an advantage. Through a pending rule redefining the meaning of "advice," DOL will seek to dissuade employers from hiring lawyers or consultants to assist them during organizing drives. Any business that does seek such services will have to file financial disclosure forms that will be posted on the Internet. Such filings would wind up as propaganda tools for union organizers.

Executive Orders: Finally, the White House has already made liberal use of Executive Orders to advantage unions, and more may be on the way. "There are a lot of things we've been doing administratively," President Obama said in an interview with the Daily Labor Report last year, "to try to make sure that people just get the fair chance to organize."

But organized labor's new strategy is not about fairness. It is about tilting the playing field in their favor. Thwarted in their quest for EFCA, the ultimate thumb on the scale, they have now moved into the shadows of the regulatory agencies to gain advantage - and have found willing allies in positions of power. Congress has started paying attention, but must take advantage of every opportunity to shed some much-needed light on labor's surreptitious Plan B.

Glenn Spencer is the Executive Director, Workforce Freedom Initiative, U.S. Chamber of Commerce.

Please visit www.uschamber.com for more information.