By Becky Brown and Kevin Haeberle
Is Labor still a formidable threat or have their recent efforts failed to secure their relevance for the future?
When labor unions, particularly the Service Employee International Union (SEIU), spent hundreds of millions during the last presidential election cycle - resulting in a labor-friendly Democratic Administration and Congressional majority for the first time in a decade - it appeared the labor movement was poised to make a swift resurgence. The situation was almost perfect – an Administration philosophically pro-union, a Democratic controlled Congress, and some very serious political IOU’s. Given the environment, unions like SEIU took advantage of the new political landscape, having its former president, Andrew Stern, earn the designation as the most frequent visitor to the White House during the new Administration’s first year. Despite the millions of dollars spent and a politically favorable environment, Big Labor failed to achieve significant inroads in turning around a declining membership trend and has yet to achieve its primary legislative agenda item, The Employee Free Choice Act.
What continues to hold labor back?
At the root of Big Labor’s dilemma lies the reality of politics (even in a Democratic Administration and Democratic control of both the House and the Senate). And at the center of Big Labor’s recent challenges over the past year we find the battle for health care reform, which aside from the nation’s economic crisis and dual wars overseas, consumed almost the entire political maneuvering, favors and trade offs for the first eighteen months of President Obama’s administration, leaving little political energy left over for labor law reform. Although the leaders of various unions voiced solidarity and pledged to work together towards common goals, the internal workings of the union movement continues to be inherently politically charged, power- based and, in many respects, petty.
Even Andrew Stern, the poster child for the new labor movement, recently ‘resigned’ after his internal power grab and politically-based focus was discredited to the point that his hand picked successor was not selected to take over.
While SEIU and other unions were dealing with internal changes, the Administration began to realize that even though the unions had been flush with cash and furnished volunteers essential for effective political campaigning, the deep pockets were not endless and the impatience was growing due to lack of legislative action. Further, polling revealed the majority of Americans are not supportive of granting unions “card check” recognition or giving them more power or influence outside of traditional NLRA channels. These realities leave the political environment with an interesting dilemma – how to retain the monetary campaign support and on-the-ground grass-roots organizing support without publically supporting and endorsing efforts to increase union power (i.e., increased union membership).
So how is the Administration dealing with this newly realized dilemma?
The Administration has changed tactics to respond to the roadblocks created by this political dilemma; it has shown the initial signs of using the regulatory power of various federal agencies to fundamentally change the rules without the need for congressional approval and public scrutiny. The fundamental goal continues to be to make it easier for unions to win elections by limiting the amount of counter-union information an employee is exposed to before voting or signing a card. The unions, not necessarily picky about how this fundamental goal is achieved, recognize that if employees are exposed only to the union rhetoric, the ‘sell’ of the union will be much easier, thereby accomplishing their number one goal of increased revenue through increased membership and resulting dues.
With the appointment of vocal union advocate and attorney, Wilma Liebmann, as Chair of the National Labor Relations Board (NLRB), and the recent recess appointments of two additional strongly pro-union members, Craig Becker (Associate General Counsel for both SEIU and the AFL-CIO) and Mark Pearce (career union attorney and Board of Director for the AFL-CIO’s Lawyers Coordinating Committee), to fill two of the NLRB’s three open seats (and leaving the third slot, traditionally reserved for the minority party, vacant), the Administration has created the most labor-friendly NLRB majority in decades. This new reality creates the very real opportunity for a rash of potentially swift and far reaching changes while circumventing the legislative process and the distractions and potential political barriers that come with it. At the top of the list of likely changes to current NLRB guidelines is a significant reduction of the election campaign period from the generally followed 42-day guideline to as few as five days or a couple of weeks on the high end. This change would serve to substantially curtail an employer’s ability to even provide information on the risks and consequences of unionization before employees would vote on whether to turn over their individual rights to a union.
Through its substantial rule-making authority, the NLRB is also poised to impose further restrictions on what is considered ‘employer free speech’ under the National Labor Relations Act (NLRA), expanding union access to employer premises for the purpose of organizing, imposing limitations on employers communications to employees during organizing campaigns, use of employer technology to promote union organizing, and supervisory issues relating to eligibility to unionize.
Further, evidence already exists in recent decisions as to the NLRB’s proclivity to re-define what are considered employer unfair labor practices. All of these changes are aimed at allowing unions almost unfettered and unchallenged access to employees. These are just a few examples demonstrating the significance of the political makeup of NLRB given the substantial rule-making authority afforded to the Board and its ability to shape labor law precedent and set guidelines for future organizing campaigns. While employers have been focusing their fear on potential legislation like the Employee Free Choice Act, the NLRB’s exercise of its rule-making authority could prove to be a powerful, expeditious approach in lieu of legislative action. Many fear that through its efforts, the new NLRB could easily wipe out business-supportive policy decisions of the Bush era and could move even further to the left, creating a polarizing labor bias not seen in decades.
It is not only the NLRB that is changing its perspective. In addition to significant changes to the NLRB, appointment of key labor leaders to influential Administration positions also signals a new climate of increased labor influence. A few of the numerous key administrative appointments include: SEIU Executive Vice President, Anna Burger’s and AFL-CIO Secretary-Treasurer, Richard Trumka’s appointments to the Economic Recovery Advisory Board, and Former SEIU Finance and Administration leader, Michael Kerr, appointed to Labor Department Assistant Secretary for Administration and Management. One prime example of this new direction can be seen in recent activities involving the Federal Railway Labor Act (FRLA). The FRLA, which also covers the airlines, has always had different rules than the NLRA ( including the inability to ever de-certify a union once it is voted in by the current employees), this leaves employees with only the option to change unions if they are dissatisfied with their union representation. Because of this particular rule, the FRLA requires that the union obtain a majority of everyone who is eligible to vote for the union, not a simple majority of those who actually vote, as required under the NLRA. This rule was changed in the spring of 2010, eliminating this higher requirement and almost immediately resulting in the unions going after one of the few remaining mostly union-free airlines – Delta Air Lines.
Further, Mary K. Henry’s rise to the Presidency of SEIU, on the heels of the unexpected retirement of Andrew Stern, likely signals an increased focus on grass-roots organizing given Henry’s claim that SEIU will increase its membership by 120,000 new union members by the end of the 2010 - a lofty goal.
It is too early to tell whether Henry will successfully balance this recommitment to organizing while also striving to build upon the political strength and focus built under Stern’s leadership, or whether she will forge her own path, but what is certain is that SEIU will continue to be a force to be reckoned with in healthcare organizing for the foreseeable future. Also on the rise is the new super RN union, National Nurses United (NNU), created by the California Nurses Association/National Nurses Organizing Committee and several other state nursing associations. While still a relatively new kid on the block, NNU recently flexed its strength at the University of Chicago, successfully winning an election to represent approximately 1,200 Registered Nurses previously represented by the Illinois Nurses Association.
When will employers feel the impact of these changes?
Many changes are already in process, but it is likely the most serious changes will not occur until after the November 2010 elections- keeping the Administration’s plan of attack under the political radar is important. The unions are not as willing to be patient. Over ten million dollars of union members’ money was spent in the Arkansas Senate Democratic primary alone for the purpose of ‘punishing’ a Senator who had not supported the union agenda. In some ways, labor’s only avenue is to take a negative approach, since the entire union structure is supported by the concept of ‘extortion’ and ‘attack’. The basis of striking is to harm the organization at a higher level than simply forcing the employer to give in to the union’s demands. It was with this mindset that the unions attacked one of their own Democratic party leaders, without the support of the White House and even counter-action by former President Bill Clinton.