Promises, Promises: Assessing the Obama Administration’s Record on Labor Reform

Roher/Sprague Partners

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...