Labor Initiative Gains Momentum

Labor Initiative Gains Momentum
Under New Administration
Issue 459 | May 15, 2009
By Alice Graves

"Everything old is new again" may be considered an appropriate catchphrase for the Obama administration's labor policy. During his first few weeks in office, President Obama voided three of President Bush's executive orders pertaining to labor, and more sweeping changes are on the horizon (Meckler, 2009).

At the signing ceremony for the executive orders, Vice President Joe Biden said with a smile to the 100-plus labor leaders in attendance: "It's good to see so many of our good friends in organized labor - welcome back to the White House!" (Jackson Lewis, 2009).

For labor unions and workers, this acceptance hearkens back to the 1970s, to the days before the 1981 air traffic controllers' strike, when then-President Ronald Reagan fired 11,350 air traffic controllers. This had a chilling effect that caused organized labor to lose much of its mojo (Pells, 1995). But now it looks like union influence in Washington could see a resurgence.

The first executive order from Obama voids one that Bush signed requiring federal contractors to post a notice telling non-union employees of certain rights, including the right not to join a union and the right to opt out of paying the portion of union dues that are unrelated to the administration of a collective bargaining agreement. Under the new executive order, beginning in May 2009, federal contractors will be required to post a notice advising employees of their rights to form and join a union and to bargain collectively (Jackson Lewis, 2009).

In a second executive order, federal contractors may no longer seek government reimbursement for costs incurred persuading employees not to exercise their right to unionize. Employers will have to pay their own bills for printing leaflets, consulting with legal counsel, and otherwise trying to influence worker votes (Jackson Lewis, 2009).

And the third executive order provides that federal contractors who take over an existing contract must offer the prior contractor's workers the right of first refusal for their jobs (Jackson Lewis, 2009).

Congress has also passed another pro-labor initiative: an expansion of the Davis-Bacon Act that requires contractors on certain federally funded projects to pay employees the local "prevailing wage" rather than the federal minimum wage, which is often lower. The Davis-Bacon Act was originally enacted in 1931, in response to contractors' recruiting workers in Alabama and bringing them to New Jersey to work on public works projects while continuing to pay them Alabama wages. The amendment will require contractors participating in wastewater-improvement work to conform to the bill, and "Democrats and labor unions are pushing to expand their reach to more kinds of projects that receive some form of federal assistance" (Conkey, 2009).

While these initiatives all affect a limited number of employers, Congress is considering legislation that some believe to be "the most sweeping rewrite of federal labor law in 70 years" (MacIver, 2009). The Employee Free Choice Act (EFCA), also known as the "card check" law, would amend the National Labor Relations Act by allowing the National Labor Relations Board to certify a union if a majority of the employees sign valid authorization cards or, once 30% sign, would allow unions to petition for secret ballot elections. Under the EFCA, parties unable to reach a first contract within 90 days would be referred to the Federal Mediation and Conciliation Service. If a contract still cannot be reached, the dispute would go to binding arbitration. The new law would also penalize employers for unlawful discrimination or retaliatory discharge for unionizing activities by providing for triple back pay to employees, as well as civil fines of up to $20,000 if employers repeatedly violate employees' rights to engage in collective bargaining activities (Amber, 2009).

The bill passed the House in 2007 but died in a Senate filibuster. Now the Democratic majority has given the bill new life, and it is receiving heightened attention from both sides - those who hate it and those who love it. There's just no one in between - except, perhaps, for the potentially deciding vote in preventing another filibuster, Senator Arlen Specter, whose recent defection to the Democratic Party may not be enough to reverse his stance opposing the bill (Specter, 2009).

There is heated debate over many issues in the bill. Proponents argue that the EFCA is part of the economic stimulus plan, ensuring living wages and health insurance to workers, as union members earn 30% more than non-union workers and are 59% more likely to have health insurance. They also allege that, under the current process, employers harass and intimidate workers involved in union organizing. Those opposed claim that employees would be coerced and intimidated by unions and that it would destroy small employers, who are the primary source for many jobs. The U.S. Chamber of Commerce's Workforce Freedom Initiative calls the EFCA an attack on employers' free speech, because the employer would be unaware of unionizing activity until the process is nearly complete (Amber, 2009).

The money is flowing freely. In 2008, the business group Center for Union Facts spent $20 million on ads opposing the bill, while labor-backed American Rights at Work spent $10 million to muster up support (Amber, 2009).

There appears to be a growing sense among both labor and management groups that the EFCA will pass this time around. We already saw a slight uptick in union membership in 2008, from 12.1% to 12.4%; this was expected due to an increase in the number of government employees, who are more likely to be represented by unions, and the shedding of private-sector jobs, where union membership is not as likely. It's possible that as workers continue to fear losing their jobs, unions will be able to take advantage of this insecurity to increase membership in 2009 with or without the EFCA, but it's difficult to tell yet whether this will be offset by the current difficulties being experienced by the highly unionized auto industry.

Documents used in the preparation of this TrendWatcher include the following:

Amber, M. (2009, January 12). With Congress poised to act, both sides are gearing up for major battle over EFCA. Human Resources Report, 27(1), 5-6.
Conkey, C. (2009, March 15). Labor-backed contract rules advance. Wall Street Journal.
Jackson Lewis. (2009, February 2). President Obama issues trio of pro-union executive orders; significant impact on federal contractors.
MacIver, D. (2009, May 10). Workers' rights threatened by Employee Free Choice Act. Inforum.
Meckler, L. (2009, January 30). Obama to reverse Bush labor policies. Wall Street Journal.
Pells, R. (1995). The pressures of PATCO: Strikes and stress in the 1980s. Essays in history. Corcoran Department of History, University of Virginia.
Specter, A. (2009, March 24). Senator Specter speaks on Employee Free Choice Act/card check


I don't have a link for this one, but it does give references...I got it from a friend. so much for transparency, he signed these in the first few weeks and we just find out now? What else is he doing? Holy Mackeral!