The 2008 election cemented a Democratic congressional majority. Having helped elect Obama, labor had high expectations for the administration and hoped the new president (and Congress) would protect working-class Americans’ interests. It seemed a perfect opportunity to advance a progressive agenda, including strengthening participatory workplace democracy and raising the floor of social and economic rights for workers. This essay provides an overview of what was accomplished, what was not, and where the hope still lies.

Obama’s Key Appointments: Too Little, Too Late?

Obama initially made good on his promises to appoint experts committed to enforcing workers’ rights to key positions. California Representative Hilda Solis as Secretary of Labor and former Department of Labor (DOL) policy advisor Seth Harris as Deputy Secretary were popular with labor. Obama also appointed several DOL under-secretaries, including Congressional Senior Labor Policy Advisor for health and safety, Jordan Barab, as Deputy Assistant Secretary for OSHA and former Senior Policy Advisor to Senator Kennedy, Jane Oates, as Assistant Secretary for the Employment & Training Administration. Labor praised the appointment of former United Mine Workers safety official, Joe Main, as Assistant Secretary for the Mine Safety and Health Administration (MSHA).

Labor also praised Obama’s appointments to the National Labor Relations Board (NLRB)—former SEIU Associate General Counsel Craig Becker and union-friendly labor lawyer Mark G. Pearce. Obama designated former Bricklayers Labor Counsel, Wilma Liebman, as NLRB Chairman. This was the first time in nearly a decade that the Board was made up of those committed to enforcing the National Labor Relations Act (NLRA). These appointments remained in congressional limbo for fourteen months after Obama took office. The Board had operated without a quorum for twenty-seven months. When the Supreme Court, in New Process Steel, held that the NLRB was without authority to issue decisions on cases during those twenty-seven months, hundreds of decisions (and many more workers) were adversely affected.1 According to the NLRB’s website, as of February 2011, the Board had closed or otherwise resolved 346 of the over 550 affected cases.

Workplace Democracy

At the top of labor’s agenda was the expansion of workplace democracy. Labor strongly backed the Employee Free Choice Act (EFCA), seeking to amend the NLRA in three significant ways. First, EFCA sought to facilitate union organizing by eliminating an employer’s right to insist on a secret-ballot election and requiring the NLRB to certify unions when a majority of employees signed valid authorization cards. Second, EFCA would have facilitated agreement between the newly certified union and the employer on a first contract, by mandating binding arbitration upon failure to reach agreement after ninety days of bargaining and thirty days of compulsory mediation. Third, EFCA strengthened NLRA enforcement by requiring the NLRB to request injunctive relief against employers who act unlawfully in some instances; back-pay damages would have been tripled for employees discriminated against during an organizing campaign or first-contract drive.

These changes would have been profound because the NLRB’s election process is often misused to discourage workers from joining unions. Many employers use the approximately five weeks between filing a petition and election to present anti-union speeches to captive audiences. In one study, “[u]nion win rates declined dramatically as the number of [captive audience meetings] increased . . . .”2 Even if the union wins the election, employers often respond by refusing to bargain. In fiscal year 2008-2009, 52 percent of all charges against employers involved refusals to bargain.3 One MIT study found that only 56 percent of union-election wins result in agreement on a first contract.4 Those statistics, coupled with a weak remedial system, reveal that the NLRA is no longer meeting its primary objective of “encouraging the practice and procedure of collective bargaining . . . for the purpose of negotiating the terms and conditions of [workers’] employment . . . .” EFCA met fierce opposition from the business community, much of it hyperbolic and irrational. Former Home Depot CEO Bernie Marcus called EFCA “the demise of civilization.” “We like driving the car and we’re not going to give the steering wheel to anybody but us,” remarked former Wal-Mart CEO H. Lee Scott.5The Obama administration has done little to push for EFCA; President Obama himself has presented virtually no prepared remarks on EFCA during his first two years in office.6

The NLRA exempts a large portion of the workforce. Accordingly, a second way labor sought to expand workplace democracy was through the RESPECT Act. The RESPECT Act would have extended NLRA coverage to many more workers simply by narrowing the definition of “supervisor.” Business opposition to the RESPECT Act—which has failed to move since Obama assumed office—derives primarily from the faulty assumption that employers are entitled to the undivided loyalty of even the lowest-level supervisors.

Labor’s third major legislative initiative was to close the NLRA’s “free-rider” problem. The NLRA’s Section 8(a)(3) permits employers and unions to enter into union-security clauses, mandating all bargaining-unit employees to become union members or pay union dues for union services as a condition of employment. The NLRA’s Section 14(b) limits this mandate by authorizing state-level “right-to-work” laws that prohibit employers and unions from agreeing to union-security clauses. Rightto-work laws present a free-rider problem because unions are bound by a duty of fair representation to represent non-members in their bargaining unit. Right-to-work laws also chip away at union solidarity. For these reasons, unions have sought to revoke states’ authority to enact right-to-work laws to eradicate the free-rider problem. This legislative initiative (H.R.6384) also died in committee.

There is some good news, however. First, the newly constituted Obama NLRB recently issued a proposed rule requiring every workplace to post a summary of employees’ labor rights.7 Given that many other important workers’ rights (such as those under the Fair Labor Standards Act, Title VII of the 1964 Civil Rights Act, the Occupational Health and Safety Act, the Family Medical Leave Act, and the Railway Labor Act) are posted by law, the NLRB’s proposed rule may be long overdue. Second, the National Mediation Board issued a rule democratizing union election procedures for railroad and aviation workers under the Railway Labor Act.8 Finally, in 2010, Labor Secretary Solis launched a “We Can Help” campaign to educate low-wage and vulnerable workers about their rights. The campaign, spearheaded by the DOL’s Wage and Hour Division, focuses on reaching workers in construction, janitorial work, hotel/motel services, food services, and home health care jobs.9

Protecting Workers on the Job

Labor’s platform for protecting workers on the job established several priorities.10 Labor successfully pushed for the appointment of experts committed to protecting workers’ rights to top OSHA and MSHA posts. Labor also sought tougher enforcement of existing regulations, adoption of higher workplace health and safety standards, expanded coverage of safety and health laws, and increased funding for agencies like NIOSH (National Institute for Occupational Safety and Health) to train safety and health care professionals, and engage in significant health and safety research. Recognizing the importance of reporting all work-related fatalities, injuries, and illnesses as vital for public-health enforcement, labor pushed for better public reporting mechanisms. Labor also advocated reforming workers’ compensation laws; eliminating higher rates of workplace fatalities, injuries, and illnesses among minorities and immigrants; and reducing widespread use of toxic chemicals. Finally, labor advocated greater worker participation in identifying and correcting workplace hazards, and protecting those workers from retaliation.

Bills touching upon these goals were introduced into Congress but none passed. The most comprehensive, and labor’s favorite, was the Protecting America’s Workers Act. It would have extended OSHA protections to employees not currently covered, increased penalties for violations, further involved employees and unions in citation settlements, and expanded whistleblower protection.

Other bills targeted specific health and safety issues. The Worker Protection Against Combustible Dust Explosions and Fires Act would have required OSHA to issue standards to help prevent explosions like the one at a sugar refinery in Georgia that killed thirteen workers, and critically injured many others, in 2008. The Popcorn Workers Lung Disease Prevention Act would have required OSHA to adopt standards on diacetyl, a food product often used in making artificial butter flavoring; diacetyl can cause serious lung disease in exposed factory workers. The Nurse and Patient Safety & Protection Act would have required OSHA to reinstate ergonomic regulations for the health care industry. The proposed amendments to mine safety legislation focused less on increasing standards and more on accountability, enforcement, and whistleblower protection. The Private Sector Whistleblower Protection Streamlining Act also would have expanded whistleblower protections (including a reinstatement remedy) for employees who report violations of federal laws, rules, or regulations; or of state or local implementation of a federal law governing working conditions and benefits.

However, comprehensive workplace safety and health legislation made little headway during Obama’s first two years. Still, the safety-and-health regulatory agenda has gained momentum, thanks in part to Obama’s early DOL appointments. In the spring of 2010, the DOL announced its Plan/Prevent/Protect initiative.11 The DOL designed this initiative so that “[e]mployers and [other regulated entities] ‘find and fix’ violations—that is, assure compliance—before a Labor Department investigator arrives at the workplace.” The purpose of this strategy is to change the prevalent catch-me-ifyou-can behavior in favor of the goal of “good jobs for everyone.”

As the name suggests, the DOL’s Plan/ Prevent/Protect initiative has three parts. Under the Plan aspect of this initiative, the DOL proposes to require employers to “create a plan for identifying and remediating risks of legal violations and other risks to workers—for example, a plan to search their workplaces for safety hazards that might injure or kill workers. The employer or other regulated entity would provide their employees with opportunities to participate in the creation of the plans.”

The DOL’s Plan/Prevent/Protect initiative is one of the boldest and most proactive workplace measures taken by any administration in recent memory. Plan/Prevent/ Protect’s emphasis on prevention and inclusive self-monitoring encourages all workers, supervisors, and managers to have some “say” in workplace safety decisions. Coupling Plan/ Prevent/Protect with a regulatory floor of rights could force workplace fatalities and serious injuries toward zero. However, Plan/Prevent/ Protect is not likely to accomplish anything unless bolstered by whistleblower protection and opportunities for workers’ voices that are not diluted or co-opted by management’s voice.

Job Security: Baby Steps Forward, Big Steps Backward

Labor’s agenda also included measures to create good, living-wage jobs with retirement security. Two bills that potentially touched on these themes died in committee. The Protecting Employees and Retirees in Business Bankruptcies Act would have amended federal bankruptcy law to protect workers’ and retirees’ wages and benefits.

The WARN Act currently obligates employers of a certain size to give sixty days notice of a mass economic dismissal or plant closing. The FOREWARN Act would have amended the WARN Act in five significant ways. It would have expanded coverage—by redefining the statutory terms “employer,” “plant closing,” and “mass layoff ”—and increased the notice period from sixty to ninety days. That notice would have included: (1) a statement of the number of affected employees; (2) the reason for the plant closing or mass layoff; (3) the availability of employment at other establishments owned by the employer; (4) a statement of each employee’s rights with respect to wages, severance, and employee benefits; and (5) a statement of the available employment and training services provided by the Department of Labor. The Act also would have required employers to provide information to affected employees regarding available benefits and services such as unemployment compensation and COBRA; employees would have been permitted reasonable on-site access to training and other services. Finally, the Act would have doubled back pay for each calendar-day violation.

While the bankruptcy amendments are potentially meaningful in the current recession, the FOREWARN Act, if passed, would only take a baby step toward job security. Of all actions Congress could have taken to give workers job security, advance notice of job loss is weak. A progressive Congress should be backing a bill promoting consultation or bargaining over mass economic dismissals, with a view toward reaching agreement on such important matters as saving jobs, the order of layoffs, and retraining. Unfortunately for American labor, such wide-sweeping changes have never even been on the legislative table—although such policies are par for the course in the European Union.

Along these lines, only one bill—the Patriot Employers Act—would have incentivized employers to cooperate with labor. That bill made “patriot employers” eligible for preferential tax treatment. Patriot employers are those who maintain headquarters in the United States, pay “at least 60 percent of each employee’s health care premiums,” remain neutral “in employee organizing drives,” maintain or increase “the number of full-time workers in the United States relative to the number of full-time workers outside the United States,” pay each employee a salary “not less than an amount equal to the Federal poverty level,” and provide a pension plan.

The Patriot Employers Act also died in committee. The chances of such a bill passing are exceedingly small until our government is willing to come to grips with the core conflict between such legislation and free trade. President Obama supported the recent U.S.- South Korea trade pact as a job creator that will promote faster economic recovery.12 According to AFL-CIO President Richard Trumka, that pact does little (except in the auto industry) to discourage “offshoring.”13

Employment Discrimination

In the area of employment discrimination, the Obama administration worked to overturn Supreme Court precedents that were adverse to workers’ rights. The first bill Obama signed into law was the Lilly Ledbetter Fair Pay Restoration Act, making it easier to sue for alleged pay discrimination. That law overturned the Supreme Court’s Ledbetter v. Goodyear Tire & Rubber Co. decision, which limited a worker’s right to sue for what labor contended were subsequent acts of pay discrimination. Given that employees must file EEOC charges within 180 or 300 days, depending on the jurisdiction, the practical impact of this holding was considerable. It often takes years for victims of discriminatory pay practices to discover the wage disparity. Making those practices unlawful each time the paycheck is issued preserves those claims.

The administration claimed the Ledbetter Act as a victory for the working class, especially minorities and women, who are paid less than their white-male counterparts. But the victories ended there. Several employment discrimination bills went nowhere and the Democratic Congress failed to pass new civil rights legislation. The Paycheck Fairness Act would have amended the Equal Pay Act to enhance penalties for wage discrimination against women as well as facilitate enforcement of the Act by, for example, placing the burden on employers to prove that wage differentials were job-related, not gender-based, and consistent with business necessity. A Senate filibuster ended hopes for enactment.

The Civil Rights Act of 2008 died in committee. It would have overturned the Supreme Court’s 2001 Alexander v. Sandoval decision, in which the Court found that private parties did not have a right to sue to enforce disparateimpact regulations. The bill also would have broadened the Fair Labor Standards Act’s anti-retaliation provisions; limited employer defenses in some anti-discrimination cases; and expanded coverage for recouping attorney and expert witness fees under civil rights fee-shifting statutes—laws that compel losing defendants to pay plaintiffs’ attorney (and other) fees. The bill also sought to broaden remedies for equal pay violations and restored back pay (and other remedies) to undocumented workers victimized by unfair employment practices. The bill incorporated the Equal Remedies Act which would have removed damages caps (currently between $50,000 and $300,000) awarded under Title VII and the Americans with Disabilities Act.

There were also three bills, all of which died in committee, introduced to extend or enhance protection to workers facing discrimination on the basis of immigration status, sexual orientation, and religious beliefs. The Save America Comprehensive Immigration Act would have prohibited employment discrimination and retaliation against immigrants; the Employment Non-Discrimination Act sought to prohibit employers from discriminating against employees or job applicants because of the person’s actual or perceived sexual orientation or gender identity; the Workplace Religious Freedom Act would have nullified the Supreme Court’s 1977 Trans World Airlines, Inc. v. Hardison decision. In Trans World Airlines, the Court held that Title VII’s “undue hardship” requirement permitted employers to refuse to accommodate an employee’s religious practice when the accommodation placed more than a de minimis burden on the employer. For purposes of taking time off or wearing religious clothing or hairstyle, the Act would have redefined “undue hardship” to mean “only if the accommodation imposes a significant difficulty or expense on the conduct of the employer’s business . . .”

Finally, the Arbitration Fairness Act of 2009 would have reversed Circuit City Stores, Inc. v. Adams. In that case, decided in 2001, the Supreme Court held that employers, as a condition of employment, could lawfully mandate employees to enter into binding pre-dispute arbitration agreements requiring them to arbitrate employment and civil rights disputes. Significantly, Circuit City Stores allows employers to essentially remove workers’ rights to trial in employment discrimination cases simply by mandating that their employees enter into these agreements.

Under these circumstances of legislative inaction, the most effective action that Obama could take would be to diversify the judiciary by appointing judges who understand workplace discrimination, and educate all judges about workplace bias, perhaps by offering diversity training as a precondition of judicial appointments. However, even this course of action requires cooperation by the Senate, which has delayed many judicial appointments because of partisan politics.14

Missed Opportunities Punctuated by Success

The first two years of the Obama administration have been marked by missed opportunities for labor. Obama’s primary failure was his inability to stimulate congressional action on bills that would improve workers’ lives.

There were, however, some successes. The Obama NLRB has been proactive in proposing a rule requiring the posting of labor rights in all workplaces. The DOL has also set a proactive tone through its Plan/Prevent/Protect initiative and “We Can Help” campaign.

With a Republican-led House, pro-worker legislation will languish for at least two years. That should not stop President Obama from strongly advocating pro-worker legislation and appointing fair judges to the federal bench. The best hope for positive change now resides in the DOL and other federal agencies charged with administering labor statutes. Labor must also neutralize a renewed anti-labor strategy that uses the language of blame to divide and conquer our workforce and pits union workers against non-union workers. In reality, union workers who have freely bargained for protections have lost fewer jobs during the recession than the biggest losers in this economy—their non-union brothers and sisters. Progress in protecting and advancing the livelihood, health, and safety of America’s workers will not be achieved unless the Obama administration and the labor movement work together to advance their common interests.

 

Notes:

1. New Process Steel, L.P. v. NLRB, 130 S. Ct. 2635, 2644-45 (2010).
2. Kate L. Bronfenbrenner, “Employer Behavior in Certification Elections and First-Contract Campaigns: Implications for Labor Law Reform,” in Sheldon Friedman et al., eds., Restoring the Promise of American Labor Law (Ithaca, NY: ILR Press, 1994).
3. National Labor Relations Board, “74th Annual Report” (FY 2009), available at www.nlrb.gov/sites/default/files/documents/119/nlrb2009.pdf.
4. John-Paul Ferguson and Thomas A. Kochan, Sequential Failures in Workers’ Right to Organize, March 2008, available at www.americanrightsatwork.org/ dmdocuments/sequential_failures_in_ workers_right_to_organize_3_25_2008. pdf.
5. Thomas Frank, “It’s Time to Give Voters the Liberalism They Want,” Wall Street Journal (online), November 19, 2008, available at http://online.wsj.com/article/ SB122705706314639537.html.
6. Mike Elk, “Abandoning EFCA Is Obama’s Political Suicide: Lessons from Three Presidents on Workers’ Rights,” Huffington Post, January 7, 2010, available at www.huffingtonpost.com/mike-elk/abandoning-efca-is-obamas_b_414209.html.
7. National Labor Relations Board, “Proposed Rules Governing Notification of Employee Rights Under the National Labor Relations Act,” 75 Federal Register 245, 80410 (December 22, 2010), available at http://edocket.access.gpo.gov/2010/ pdf/2010-32019.pdf.
8. National Mediation Board, “Representation Election Procedure,” 75 Federal Register 26062 (May 11, 2010), available at http://edocket.access.gpo.gov/2010/ pdf/2010-11026.pdf.
9. Department of Labor, U.S. Labor Secretary Sends Message to America’s Under-Paid and Under-Protected: “We Can Help!,” news release, April 1, 2010, available at www.dol.gov/opa/media/ press/whd/WHD20100411.htm.
10. For an example of such a platform, see American Public Health Association & National Council for Occupational Safety & Health, Protecting Workers on the Job (2009), available at http://masscosh.org/ files/Protecting_Workers_on_the_Job_ Jan_2009_0.pdf.
11. Department of Labor, “Department-Wide Regulatory and Enforcement Strategies—‘Plan/Prevent/Protect’ and Openness and Transparency” (Spring 2010), available at www.dol.gov/ regulations/2010RegNarrative.htm (accessed on January 9, 2011).
12. The White House, Office of the Press Secretary, “Statement by the President Announcing the U.S.-Korea Trade Agreement” (and attached fact sheets), December 3, 2010, available at www. whitehouse.gove/the-pressoffice/2010/12/03/statement-presidentannouncing-us-korea-trade-agreement.
13. Statement of AFL-CIO President Richard Trumka, recorded in “AFL-CIO Opposes South Korea Trade Agreement,” Huffington Post, December 9, 2010, available at www.huffingtonpost. com/2010/12/09/afl-cio-south-koreatrade_n_794529.html.
14. There are many studies showing that gender and race make a difference in judicial voting behavior. See, for example, Pat K. Chew & Robert E. Kelley, “Myth of the Color-Blind Judge: An Empirical Analysis of Racial Harassment Cases,” 86 Wash. Univ. L. Rev. 1117 (2009); Jennifer L. Peresie, “Female Judges Matter: Gender and Collegial Decisionmaking in the Federal Appellate Courts,” 114 Yale L. J. 1759 (2005).