A day before Senate Republicans blocked a bill aimed at addressing male-female wage disparities, President Obama signed an executive order targeting the same issue by prohibiting government contractors from retaliating against workers who discuss their pay.
Both defenders and critics of the administration say going around Congress is a technique the Obama administration is using with greater frequency as it attempts to bolster organized labor and make workplaces safer and fairer.
“Early on, the administration had other things on their plate,” said Jeffrey Hirsch, a professor at the University of North Carolina School of Law and a former lawyer with the National Labor Relations Board, citing the financial collapse and the stimulus. “From a labor perspective, there was too much of a relaxed attitude.”
Labor unions and their allies were hopeful when Obama was sworn in that he would press their agenda. First up was the Employee Free Choice Act, which would have allowed unions to organize without a secret ballot and would have required binding arbitration between employers who fail to recognize an organizing drive soon after it is completed.
Obama had supported the bill during the 2008 campaign, but it appeared to not have the votes to clear a filibuster in the Senate. Then Pennsylvania Sen. Arlen Specter switched from the Republican to the Democratic side of the aisle, and labor groups were convinced that one of their top priority agenda items would become law. But conservative Democratic senators still blanched and the White House did not push the matter.
Since then, observers of labor policy say the White House has followed a path parallel to one it has pursued in other areas, largely bypassing Capitol Hill to achieve its objectives. In the president’s 2014 State of the Union address—in which he reminded Congress that “I’ve got a pen and I’ve got a phone” and that he would act unilaterally without help from the Hill—he pledged to raise the minimum wage of federal contract workers to $10.10 an hour to partially remedy a GOP block on a minimum wage bill that would apply to all workers.
But a number of measures have failed to generate those kinds of headlines. In March, Obama directed the Department of Labor to change the way overtime is calculated, making some salaried workers eligible for bonus pay in the way that hourly workers are. And throughout his second term and the last half of his first term, the White House has aggressively staffed the Department of Labor and the National Labor Relations Board, beefing up rules and creating a robust enforcement arm.
“From our perspective, he has staffed the DOL and the NLRB with the best people in anybody’s memory,” said Bill Samuel, government affairs director for the AFL-CIO. “He has appointed enforcement-minded individuals throughout the government. Many come from the union side, from law firms that represent unions or from the unions themselves. They understand what workers are up against and what is necessary to protect their rights.”
Currently before the NLRB is a case concerning the right of workers at the luxury New York boutique Bergdorf Goodman to organize. In most situations, all workers at a given place of business are treated as one class who vote up or down on the decision to form a union; at Bergdorf, women’s shoe sellers are attempting to form a “micro-union.” The regional NLRB approved the decision, but business interests say upholding the decision would mean union leaders are able to gerrymander their organizing drives around units favorable to their cause, which ultimately forces even workers who are opposed into joining the union so that they do not lose out on the benefits their co-workers are receiving.
Earlier this year, the NLRB resurrected a rule that would shorten the time frame workers have to decide on whether they want to form a union, after a federal judge threw out an earlier version of the rule. Opponents call the technique “ambush elections” and say the rules do not leave enough time for management to make its case. The NLRB also has decided that unions can charge non-members fees to conduct their political and lobbying work, and it overturned a long-standing rule that kept workplace complaints confidential from union leaders.
“To a large degree, whatever the unions want, they have been given,” said James Sherk, a senior policy analyst in labor economics at the conservative Heritage Foundation. “It is not so much unions being in favor of what is happening at the NLRB or the Labor Department. It is unions being given the whole shop. The White House has stacked the deck.”
The moves come, however, as public sector unions are under assault around the country, with Republican governors rolling back some collective bargaining rights and even Democrats driving a hard bargain during contract time. And private sector unions have continued to lose ground in the Obama era, with membership continuing a 30-year decline.
“It would be hard to say things are going great,” said Samuel. “If you look at the scorecard for the last six years, we are still falling behind.”
Indeed, even though many progressives are disappointed with various parts of Obama’s tenure, those affiliated with organized labor say they remain strong supporters of the president’s. And he needs them to be. In 2012, labor made a show of force organizing around the president’s re-election bid to push back against Republican efforts to roll back some collective bargaining rights nationwide.
And now, as the 2014 midterms approach, union leaders say they are aware of the need to back a president who has backed them.
“We are certainly gearing up for a campaign effort every bit as intense as 2012 was,” said Samuel. “We were very excited about the election in 2012. We were all in. Like everybody, we are anxious about 2014, but I think that by the time we get there, you will see a full-scale mobilization effort. We will not be lacking for enthusiasm.”