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Labor Issues

Legislative Issue Update - January 2008

[updated and expanded January 2008]

During the 12 years that Republicans controlled Congress, Organized Labor’s legislative priorities got little attention; none were signed into law and few even seriously considered. Frustrated with that situation, the two competing labor organizations – the AFL-CIO and the Change to Win Coalition – agreed to put their differences aside and dedicate their considerable muscle and money to the election of a Democrat majority for the 110th Congress.

Labor’s effort is credited as a key element in restoring Democrats to power in 2006, and as a result their legislative agenda was moved to the front burner in Congress. While they did not achieve all their legislative objectives, they did accomplish their mission: they did their homework, got their bills introduced, and set the stage for 2008. Their legislative priorities may well see floor action in Congress this year, and they are to expanding their majorities in both Houses of Congress in the 2008 elections to set the stage for legislative victories in 2009.

Minimum Wage:

Enactment of an increase in the minimum wage was one of Labor’s key legislative priorities for 2007, and was the top issue on Speaker Nancy Pelosi’s (D-CA) legislative agenda. Moreover, the proposed increase – the first in more than 10 years – had significant Republican support and only mixed opposition from the business community. It should therefore have been an easy first-out-of-the-box accomplishment for the new Majority, and in fact was passed by the House in the second week of the Session. But the legislation got caught up in seemingly endless debate and negotiations over tax incentives, revenue offsets, and special provisions to help restaurants and small retailers. Congress did finally manage to pass the minimum wage increase, but only by making it part of a large Iraq war spending bill and it took them until the end of May to get it done. The wage will now increase from $5.15 to $7.25 per hour over two years.

Employee Free Choice Act:

While the minimum wage increase was the first Labor-backed bill to be taken up in Congress last year, their top legislative priority was then and remains the mis-named “Employee Free Choice Act” (EFCA), or “card check” legislation. Union membership has been on the decline in the U.S. workplace for years – down to 7.4% of the private sector workforce today. Card check legislation is organized labor’s response to that decline.

Under current law, a union attempting to organize a workplace must first obtain the signatures of 30% of the workers on authorization cards indicating their support for union representation. Presented with the signed cards, the employer may recognize the union, but it may also request an NLRB-supervised secret ballot election so the workers may vote in private on whether they wish to accept union representation. If the workers do vote to accept union representation, the employer and union begin negotiating a collective bargaining agreement with no deadline for reaching agreement as long as both sides are negotiating in good faith.

Under the proposed card check system, a union conducting an organizing drive would be immediately and automatically recognized as the certified collective bargaining agent if it is able to persuade 50% plus one of the employees in a workplace to sign authorization cards. Workers who decline to sign an authorization card – which they would have to be willing to do in the presence of union organizers – would be denied any voice or vote in the process and compelled to accept the union as their bargaining agent.

Moreover, once the union is recognized, if the employer and union fail to reach an agreement within 120 days, the union can demand that the negotiations be referred to “interest” arbitration in which a third-party arbitrator – with no responsibility for the economic health and profitability of the business – will decide the terms of the agreement. And that agreement would be binding on the employer for two years.

It is noteworthy that both small and large employers are threatened by this legislation. Under a card check system, small businesses would become prime targets because the low cost of a card check campaign would make it economically practical for unions to target small workforces.

Labor and its allies in Congress moved very quickly on card check legislation last year. The bill was introduced in the House in early February and within a month had been approved by a subcommittee, the full Labor Committee and then by the full House in each case by party-line votes. It is rare for legislation of this magnitude to be rushed through the legislature so quickly and with so little deliberation.

The Senate bill was introduced in March, but action on it was delayed until June, when organized labor held a major rally in support of card check in Washington, D.C. and across the country. Clearly coordinating his actions with the labor rally, Senate Majority Leader Harry Reid (D-NV) attempted to move to proceed to the card check bill on the same day.

Senate Republicans successfully filibustered the bill, and on June 26th, the Senate voted NOT to invoke cloture on H.R. 800 by a vote of 51 to 48, falling 9 votes short of the 60 votes necessary to invoke cloture. On this almost straight party line vote (Senator Arlen Specter of Pennsylvania was the only Republican voting “yes”), card check legislation was shelved for the rest of the year.

But the vote that killed card check for 2007 was only the beginning skirmish. Organized labor leaders are fully committed to a long-term fight for card check, and believe the 2008 elections will provide the means to their ultimate success. They have publicly committed to spending hundreds of millions of dollars to elect Members of Congress who will vote for it and a President who will sign it into law – and every Democrat presidential candidate has promised to do so. The AFL-CIO calls the Employee Free Choice Act its “number 1 priority,” and an official with the Service Employees International Union said last year, “We want to send a strong message to the country; we’ll be back with the next president to get it done.”

NAW is on the Management and Steering Committees of the Coalition for a Democratic Workplace, a business coalition which was organized to oppose the card check bill. The Coalition is strengthening its lobbying organization and building its resources in anticipation of an even larger paid media and communications effort later this year and in 2009. But whatever resources the Coalition brings to the effort to defeat card check will be dwarfed by the promised labor campaign for its enactment. Business will need to be actively involved in the effort to defeat this dangerous legislation.

Other labor issues:

While “card check” is labor’s top priority, they have not limited their legislative initiatives to that big prize. In addition to the expansion of the Family and Medical Leave Act which is covered in a separate staff report, there are numerous other labor issues being considered in Congress of which business should be aware. Among them:

• “Ledbetter Fair Pay Act” which would reverse a Supreme Court decision and effectively eliminate the statue of limitations on pay discrimination lawsuits (passed the House of Representatives);

• Legislation to “clarify” the definition of “supervisor” under the National Labor Relations Act (NLRA) to make it more difficult for employers to classify employees as supervisors so that more employees remain targets of organizing campaigns (passed a House committee);

• Efforts to impose new OSHA ergonomics regulations (at least one bill has been introduced in the House);

• Significant expansion of the Equal Pay Act (House has held hearings);

• “Americans with Disabilities Restoration Act” which would expand coverage to simple, even temporary ‘impairment” and eliminate from the definition of “disability” the requirement that the impairment substantially limit the employee’s activity (introduced in the Senate);

• “Healthy Families Act” which would require that employers of more than 15 employees provide minimum paid sick leave and allow that leave to be used for family as well as personal medical needs (introduced in House and Senate); and

• Davis Bacon Act expansion and extension (more than 30 separate measures have been introduced and numerous provisions have been added to other bills).