In the face of a losing battle on the Employee Free Choice Act front, U.S. President Barack Obama’s administration has turned to a more subtle, but no less effective strategy to move American labour policy to the left.
It is no secret the current U.S. administration seeks a restored and more influential role for the American trade union movement. To this end, it is pursuing, with the full and active support of trade unions and their academic and political allies, a strategy focused on fundamental legislative change.
The strategy’s central plank, the EFCA, which was the subject of our comments in the June 2009 InHouse, has stalled in the Senate for the second time since 2007 despite heightened lobbying by the union movement. Its passage will not be helped by Congress’ current preoccupation with other initiatives such as health-care reform and the upcoming mid-term elections. It seems unlikely EFCA will receive significant political attention any time soon.
Rather than raising a white flag on labour reform, the Obama administration has instead evolved its strategy. Canadian business should pay attention. There is little doubt that trends in U.S. labour and employment law and policy influence the behaviour of trade unions and plaintiff’s counsel north of the border.
On March 27, Obama used recess appointments to seat Craig Becker and Mark Pearce on the National Labor Relations Board in the face of opposition in the Senate, where both appointees’ nominations had languished unconfirmed since April 2009. The five-member board is now comprised of three Democrats, one of whom is now its chairwoman, and one Republican. One seat remains vacant. This clears the deadlock that has existed at the board which, prior to the appointments, was stalemated with one Democrat and one Republican member.
Of the roughly 220 cases now pending before the National Labor Relations Board, almost half are delayed because the board considered the issues too significant to adjudicate without a larger complement of decision-makers. Another 60 remain undecided because the two sitting members failed to reach agreement on a ruling. Many of these cases deal with controversial and important issues including the scope of lawful union organizing tactics, the rights of supervisors to union protection, expanded union picketing rights, and increased restrictions on certain employer policy-making.
The pronounced shift to the left at the board will be exaggerated if, as expected, Obama seeks to appoint a pro-reform candidate to the powerful position of board general counsel. The current Republican general counsel, Ronald Meisburg, completes his term in August. While less permanent in nature, a more active pro-union board and general counsel’s office have the potential to influence labour relations on a magnitude that approaches legislative change.
This administrative approach to reshaping labour law can also be seen in the changing methods used by the U.S. Department of Labor under Secretary Hilda Solis. Since her appointment, Solis has publicly pursued more active enforcement of existing labour laws. In late March, for example, she initiated a high-profile campaign called “We Can Help” that encourages workers in an array of industries to report workplace violations to the Department of Labor. Further, the department recently hired 250 investigators in its wage and hour division — increasing the division’s enforcement staff by one third — in an attempt to strengthen its ability to enforce laws and regulations that are already in effect.
Changing the rules of work through policy and regulation rather than legislative change is in lockstep with the president’s broader approach to “rebalancing” relations between employees, unions, employers, and government in the U.S. economy.
An especially vivid example of this shift is the recent high-profile appointment of Ron Bloom as the administration’s manufacturing “czar.” Bloom, a former investment banker and special adviser to United Steelworkers president Leo Gerard, formerly occupied a senior leadership position on the Treasury Department’s automotive industry restructuring task force. He emerged as an important voice on industrial and manufacturing policy within the White House and has played a key role in bridging the gap between management and labour in discussions over the restructuring of the American auto industry.
Bloom’s appointment is a sign that the interests and opinions of the American labour movement are becoming increasingly relevant in the formulation of industrial and manufacturing policy in the U.S.
Henry Dinsdale and Jeff Goodman are labour and employment law partners with Heenan Blaikie LLP in Toronto.