Walker Draft

Comparative Analysis of Labor Law Reform under the Carter, Clinton, and Obama Administrations

Marquita Walker

Indiana University Purdue University at Indianapolis

Major labor law reform in the United States has not taken place since 1959 with the passage of the Landrum-Griffin Act. Two distinct opportunities for passage of major labor law reform took place in 1977 during the Carter Administration and in 1992 under the Clinton Administration. Each piece of legislation would have strengthened worker’s rights to collectively bargain against powerful employers, yet under a Democratically-controlled Congress and Senate, neither of these pieces of legislation was passed. There currently is another major piece of labor law legislation being debated on Capitol Hill known as the Employee Free Choice Act (EMFA). The fate of the EFCA lies in the hands of the Democratically-controlled 111th Congress and Democratic President, Barack Obama. This is an historic opportunity for organized labor and workers to once again strengthen worker’s ability to collectively bargain and arrive at a first contract. This paper is a comparative analysis of three opportunities and two subsequent failures since 1959 for labor law reform in the United States. To make this comparative analysis, I will focus on three components: presidential interest in labor law reform, the presidential relationship with the Congress, and the presidential relationship with the AFL-CIO and left-leaning unions. The merger of these three components impacts the success of labor law reform. I will suggest that if certain conditions exist in the upcoming 111th Congress, labor law reform, in the shape of the EFCA, has a good chance of becoming law.

Comparative Analysis of Labor Law Reform: The Carter Administration

Carter’s interest in labor law reform

Jimmy Carter came into office with the deck stacked against him. A Washington outsider, who really cared little for politics, Carter’s top priorities were a rapid reduction in unemployment, a curb on inflation without continued recession, more efficient budgeting, better coordination between fiscal and monetary policy, and more efficient and better government planning and management. Unemployment was at 8%, the country was coming out of a recession, and there were 7.5 million American unemployed with 1.4 million underemployed. 1 Carter’s plan to facilitate these priorities was to restore a sound economic and domestic policy which focused on job creation, but upon entering the Oval Office, Carter faced a recession, high energy prices and stagflation. Rising Middle East oil prices, double-digit inflation, and the hostage situation in Iran in which American hostages were taken by Moslem fundamentalists

1 “It was estimated that the economy operated at approximately $132 billion below its high employment potential. The country lost nearly $35 billion in Federal tax revenues and $10 billion in State and local revenues because of poor economic performance.” See Summary and Outline of First-Year domestic accomplishments at http://www.presidency.ucsb.edu/ws/index.php?pid=7030.

1

Walker Draft

dominated Carter’s agenda. Carter’s attempt at reform and social justice was to resuscitate a dying New Deal coalition, but his efforts faded in the face of Congressional power diffusion and sectionalism. One of Carter’s efforts, strongly encouraged by the AFL-CIO, was to pass some form of labor law legislation.2 There had been a 42 year lapse since the passage of the Wagner Act, and as Carter stated:

The purpose of this [proposed] legislation is to make the laws which govern labor-management relations work more efficiently, quickly and equitably and to ensure that our labor laws fulfill the promise made to employees and employers…that working men and women who wish to bargain collectively with their employers, in a fair way to both, shall have a reasonable and prompt chance to do so ("Action In Congress On 'Labor Reform' Proposals," 1978).

This major piece of labor law proposal took the form of H.R. 8410 3 and was sponsored by Representative Frank Thompson, Jr., a Democrat from New Jersey and Chairman of the House Subcommittee on Labor-Management Relations. The bill was introduced on July 19, 1977. An identical bill, S. 1883, was introduced in the Senate by Senators Harrison A. Williams, Democrat from New Jersey and Jacob R. Javits, Republican from New York. 4 The bill was reintroduced by Senators Williams and Javits in 1978 as S. 2467. 5 The full Committee on Education and Labor ordered H.R. 8410, as amended, reported favorably to the House of Representatives on September 22, 1977. After three more days of debate, the bill was passed by a 257-163 vote ("Action In Congress On 'Labor Reform' Proposals," 1978) 6. There were 36 Republicans who voted for the bill, and 59 Democrats who voted against the bill. 7 S. 2467 went down in defeat by two votes after a filibuster lead by Senator Orin Hatch, a new Republican Senator from Ohio and Senator Richard Lugar, a Republican from Indiana. 8

2 See Burno, R. 1998. Presidential Labor Regimes: Democrats from Roosevelt to Clinton.” Paper presented at the Industrial Relations Research Association. IRRA’s Proceedings of the Fiftieth Annual Meeting. “The AFL-CIO reluctantly endorsed Jimmy Carter as their bicentennial year candidate” (16). Democrats believed they could recreate the “liberal legislation that marked the Kennedy-Johnson years” (16). 3 H.R. 8410, 95th Congress, 1st Session. 123 CONG. REC. H7397.4 S.1883, 95th Congress, 1st Session, 123 CONG. REC. S12116 (daily ed. July 19, 1977). 5 S. 2467, 95th Congress, 2nd Session, 124 CONG. REC. S874 (daily ed. Jan. 31, 1978). 6 On July 25, 1977, the hearing before the subcommittee on Labor-Management Relations, chaired by Rep. Thompson, were opened. Secretary of Labor Ray F. Marshall testified in favor of H.R. 8410, while others testified both for and against the bill. See ("Action In Congress On 'Labor Reform' Proposals," 1978)7 See Dark, 1999. “All but six of the Democrats voting against the bill were from the South which leaves 221 Democrats (and 29 southern Democrats in the majority. This margin of victory was sufficiently large to ensure that the legislation would have passed even without a single Republican vote” (109). 8 Hatch mobilized the longest legislative filibuster in the Senate’s history, taking the act to a record six unsuccessful cloture votes (to end debate). Hatch killed the bill and earned a reputation as bold legislator. http://hatch.senate.gov/public/index.cfm?FuseAction=Biography.Timeline

2

Walker Draft

There were several complications which may have played a role or at least set the stage for the defeat of S.2467 on July 15, 1978. Carter and Senate Majority Robert Byrd delayed the vote on labor law reform in order to seek ratification on the Panama Canal Treaty. 9 Consequently, the business lobby had more time to mobilize it forces to defeat the bill. Plus the delayed timing of the labor law reform bill’s vote meant that Carter had spent some of his political capital with liberal voters on the Panama Canal bill. To complicate the picture, a major strike by the United Mine Workers began on December 6, 1977 and evolved into a national bituminous coal strike which lasted for 110 days. 10 In response to the job loss of the late 1970s, Herbert Humphrey, Democrat from Minnesota and Congressman Augustus Hawkins, Democrat from California, proposed the Full Employment and Balanced Growth Act. This legislation set specific goals and requirements for the federal government in the areas of employment, production growth, price stability, and balance in trade and budget. Carter signed the legislation into law on October 27, 1978. 11

There was some movement on labor law legislation during the first two years of the Carter administration. A bill to increase the minimum wage passed raising the minimum wage to $2. 65 per hour in 1978 with incremental increases for the next three years.12 Also a bill to legalize “common situs” picketing, which would have allowed striking construction workers to picket other subcontractors at the same construction site, was defeated in the House by a vote of 217 to 205. 13 Carter did support an extension of the Comprehensive Employment and Training Act (CETA).14 His most notable achievement was passage of the Mine Safety and Health 9 The Panama Canal Treaty gives up American control of the Panama Canal to Panama and guarantees its neutrality. It was signed on September 7, 1977 by Carter and Panamanian Chief of Government Omar Torrijos. http://www.state.gov/p/wha/rlnks/11936.htm 10 The right of local unions to strike was the cause of this work stoppage.

11 The Full Employment and Balanced Growth Act (Pub.L. 95-523, 92 Stat. 1887, enacted October 27, 1978, 15 U.S.C. § 3101–3152, Humphrey-Hawkins Full Employment Act), is an act of federal legislation by the United States government. The Act explicitly instructs the nation to strive toward four ultimate goals: full employment, growth in production, price stability, and balance of trade and budget. By explicitly setting requirements and goals for the federal government to attain, the Act is markedly stronger than its predecessor. {An alternate view is that the 1946 Act concentrated on employment, and Humphrey-Hawkins, by specifying four competing and possibly inconsistent goals, de-emphasized full employment as the sole primary national economic goal] (Full Employment and Balanced Growth Act of 1978. Public Law 95-523--Oct. 27, 1978.95th Congress

)

12 12 See (Eldor, 1978).The Fair Labor Standards Act was amended to raise the minimum wage to $2.65 per hour beginning Jan. 1, 1978 as a result of legislation signed into law by Carter on November 1, 1977. The rate rose to $2.90 as of Jan. 1, 1979 and to $3.10 on Jan. 1, 1980, and to $3.35 on Jan. 1, 1981. 13 HR 4250, 95th Cong., 123 CONG.REC. 5976 (1977).

14 As a part of comprehensive economic reform, the Carter administration redesigned the Comprehensive Employment and Training Act (CETA) which was born in 1973, and heir to the poverty programs of the 1960s. CETA replaced seventeen manpower programs which originated under the Johnson Administration (Peterson 1995). In its original form, CETA was a comprehensive manpower program to help the unemployed, the underemployed, and the disadvantaged train and find work. Under Carter and the control of the Department of Labor, CETA became a block grant to states which shifted its focus and its funding from training and education to public works projects.

3

Walker Draft

Amendments Act of 1977 and House Bill 4544, the Black Lung Benefits Act of 1977. 15 But Carter’s efforts to create jobs, balance the budget, and cut government spending had disastrous results with increases in inflation and the loss of 1.8 million jobs (Bruno, 1998).

The question looms large as to why a Democratically-controlled House and Senate under a Democratic President were not able to marshal enough votes to pass labor law reform. I suggest there were two distinct reasons for the failure of this labor law reform: the ideological make up of the Democratic majorities and the political and economic environment in which the legislation was proposed. I deal with each of these reasons more explicitly by placing each in context. First I’ll suggest that Carter’s interest in moving this legislation forward was weak because of his leadership style and the organizational structure he adopted; and secondly, I’ll discuss the ideological makeup of the Democratic majorities in the Carter administration and show how, from the 1960s to the Carter administration, Democrats tended to become more conservative and less aligned with Carter. Lastly, I’ll explore the relationship Carter had with the AFL-CIO and how that strained relationship contributed to the defeat of labor law reform.

Carter’s leadership style and organizational structure tempered his interest in labor law reform

Carter, a nuclear engineer before becoming governor of Georgia, was a reserved president who practiced moderation in everything. As an engineer and man of science, he approached problems with rationality and therefore, took minimal risks. The tone and direction of his administration was inferred by a paragraph in his inaugural speech in which he states: “We cannot afford to do everything, nor can we afford to lack the boldness as we meet the future” (Campagna, 1995, p. 34). This rather negative statement hinted at the pragmatic approach Carter would utilize in his administration. His approach to dealing with people and organizations was pragmatic as well. Carter wished to do things differently than the previous Nixon and Ford administrations, so he gravitated toward a less hierarchical organizational structure in his administration. He surrounded himself with loyal Georgians, sometimes known as the Georgia Mafia, who may not have had the expertise necessary to carry out their duties. Carter either failed to recognize or chose to discount the fact that Democratic Party unity was shaky and the makeup of the Congress had changed from a more cohesive unit under the Johnson administration to a more contentious group under his administration. Carter’s lack of interest or Congressional Democrats liked the idea of being able to bring monies into their communities through public sector unemployment which reached at least 6 percent. By 1978, CETA “provided jobs for more than a million unemployed persons and job training and work experience for thousands more” (Peterson, 1995). One of CETA’s goals was to give control over to local authorities who would know better how to deal with workers on a local level. But this decentralization created many different smaller programs which were prone to abuse, fraud, and interested in their own political agendas. The success or failure of CETA is difficult to access because of the decentralization. The program dissolved during the Reagan administration. (Campanga, 1995, p. 59)

15 This legislation provided for a new trust fund to be supported by an excise tax on coal to pay for black lung benefits and is a comprehensive federal effort to reduce the human and social costs to our growing dependence on coal (Peters, 1977).

4

Walker Draft

inability to build relationships, make concessions, and/or appease members of Congress proved detrimental to many of Carter’s proposals.

On July 19, 1977, H.R. 8410, or the Labor Reform Act of 1977, was proposed in the House. H.R. 8410 dealt with the rules governing an employee’s right to organize or join a union and ended with the majority’s decision to be represented and reach first contract or to remain unorganized. The bill addressed administrative delays in labor disputes, bargaining unit recognition, and reaching a first contract. The bill would also provide penalties for employers who unjustly discipline employees for attempting to organize and sanction unfair labor practices which involve delay tactics in organizing. The bill’s most important provisions are 1) Expediting Procedures and Representative Elections: Summary affirmation by the NLRB of decisions made by administrative law judges in unfair-labor practice cases; 2) Accelerating Court Appeals: Speedier enforcement of board decisions by permitting the NLRB routinely to seek court orders enforcing its decision if no appeals to them are filed within thirty days; 3) Expansion of Board Membership: expansion of the board from five to seven members and the Board’s terms from five to seven years; 4) Equal Access to Employees: unions should have access to employees during working hours; 5) Additional Cases Receiving Priority Treatment by the Board: preliminary injunction power; 6) increased penalties for violations; 7) Compensation Provision: compensation for refusal to bargain; and 8) Withholding Government Contracts: a ban on federal contracts ("Unions go all out to push labor-law reform through the Senate," 1978).

Ideological makeup of Carter’s Democratic majorities

Carter had heavy Congressional majorities in the House and Senate in the 95th and the 96th Congress which were very similar to the Democratic majorities in the 89th Congress under Lyndon Johnson. See Table 1.

Table 1. Congressional Members by Year

Congress and Year Senate House89th Congress: 1965-66 68-32 295-14095th Congress: 1977-78 61-38 289-14696th Congress: 1979-80 58-42 277-158102nd Congress: 1992-93 57-43 270-165111th Congress: 2009-10 58-41 255-178

To understand the trajectory taken by the Democratic Party which resulted in the inability of a Democratic majority to pass labor law reform during the Carter administration, we herald back to the Lyndon Johnson administration and the 89th Congress in the 1960s. Johnson had huge majorities in the House and Senate. His rise to power after the assassination of John Kennedy propelled him into a spotlight in which he felt he had to compete with the ever-popular JFK. Johnson was also in competition with the legacy of FDR and took on ambitious domestic

5

Walker Draft

programs as a way to distract the American public from the war in Vietnam, a war he inherited and felt compelled to finish. His Great Society saw huge strides made in domestic policy through the War on Poverty, passage of the Civil Rights Act of 1965, and the creation of Social Security, Medicaid, and Medicare programs. 16

It has been asserted that the weakening of the party system and the decline in presidential authority and influence began in the latter years of the Johnson administration. Johnson believed in institutions and the integrity of the modern presidency. Johnson, who came of age during the New Deal era, acted like a power broker. Milkis (1995) writes that LBJ unwittingly encouraged the rise of an administrative politics that extensively circumscribed the power of the presidency (185). Yet, during the sixties and seventies, the courts began dismantling the discretionary power of the presidency, and there was a move toward participatory democracy. Selection of the president by party leaders was replaced with primary elections and political caucuses thus stripping away from presidents a secure political base. Congressional members no longer owed allegiance to a particular president for their positions. This undermined the unquestioned authority of the presidency and tempered the power Johnson wielded for the vision of his Great Society programs which concerned economic growth and justice for all races.

There was, in Carter’s 95th Congress, a large Democratic majority: 289 to 146. 17 Many of these Democratic congressmen were elected from Republican districts strongly affected by the Watergate scandal. Unlike the 89th Congress during the Johnson administration, though, there existed in the 95th Congress a voting alliance between the Southern Democrats and the Republicans. This alliance proved difficult for Carter to deal with and resulted in the rebirth of a conservative coalition. 18 The size of this voting alliance was problematic for Carter because many of these Democrats were geographically from southern or republican leaning districts and were not elected on the coattails of Carter. Their allegiance to Carter was weak because their ability to be reelected in two years did not depend upon decisions made by the Carter administration, but more on their ability to bring visible benefits home to their constituent districts. New congressional members particularly felt their performance would not be associated with Carter’s performance. As Carter’s poll numbers dropped during 1977-78, Democrats continued to move away from a Carter association and party loyalty.19 Carter had to work extremely hard to keep Northern Democrats from moving into the coalition. Davis (1979)

16In 1963, Congress passed 80 of Johnson’s proposals and denied him three. Other important legislation passed in the 89th included The Elementary and Secondary Education Act, The Air Pollution Control Act, the creation of the

Department of Transportation, and the Department of Housing and Urban Development. See (Milkis, 1993)

17 The 95th Congress was very similar to the 89th Congress under the Johnson Administration in 1964.

18 For information on this conservative coalition see Manely, J.F. The Conservative Coalition in Congress. American Behavioral Scientist, XVII, 1973, 223-47.19 The 96th congress was referred to as “a Republican congress, full of Democrats” and “the most conservative Congress since Harry Truman’s time” (Wall Street Journal, “The Dwindling Band of Liberals, 15 January 1979, p. 20.

6

Walker Draft

contends the defection of Northern Democrats was not so much a repudiation of the Carter White House but a general conservative trend among new congressmen and the general public toward issues such as “redistributive tax reform, national health insurance, reducing energy consumption rather than increasing production, and increasing government regulation of business” (477).

The assumption existed during 1977 that a larger Democratic majority in the House would translate into a more liberal voting record among House members. This was not the case in the 95th Congress. Voting records actually reflect a more conservative approach to issues such as voting against tax rebates for citizens, common-site picketing, public works programs to stimulate the economy, widespread use of class action suits in anti-trust cases, and for deregulation of natural gas prices, greater defense budget spending, budget cuts in health, education, and old age pensions, and subminimum wage for teenagers. 20

President Carter’s Relationship with the Congress

James Madison, in Federalist No. 48 talked about Congress and its relationship with the president when he wrote,

Its constitutional powers being at once more extensive, and less susceptible of precise limits, it can, with the greater facility, mask, under complicated and indirect measures, the encroachments which it makes on the coordinate departments (Schlesinger, 1965, p. 707).

Congress has, since World War II, gradually done just as Madison suggested it would—gradually increase its powers through appropriations and investigation thereby diluting the powers of the President. This power shifting has been troublesome for presidents pushing an agenda at variance with Congress.

The President’s relationship with Congress has been described as one of the most important relationships in existence. Carter’s relationship with the 95th and 96th Congress was contentious. These problems existed because of changes to the presidential-congressional relationship as a result of the Watergate scandal and Nixon’s resignation in 1974. In 1975 a “flattening” of the organizational structure of the Congressional committees occurred from one in which power was diffused from the hands of the committee chairman to “subcommittee chairmen and the Democratic caucus as a whole” (Davis, Oct., 1979, p. 467). 21 This diffusion of power was made possible in part because of the high legislative turnover from 1972-1978 (Davis, 1979) in which many Congressmen had fewer than six years of experience thus resulting

20 Congressional Quarterly Almanac, 1966, p. 1011 and Congressional Quarterly Weekly Report, 7 January 1978, p. 4 and 16 December 1978, p. 3442. 21 These changes in the rules were to reduce differing influence among House members. The Senate, with fewer members, suffered from less disparity. Polsby. N.W. Goodbye to the Inner Club. In Polsby, ed., Congressional Behavior, New York: Random House, 1971, pp. 105-10.

7

Walker Draft

in less Congressional institutional memory. 22 The House Democratic caucus, made up of newer, less experienced Congressmen, directed this rule diffusion change in order to “reduce the disparities in influence among members of the House” (Davis, 1979, pg. 466). 1 This move toward a lateral organization was known as the Congressional Principal of Seniority. Prior to this diffusion of power, committee chairmen were very powerful. Presidents need only convince the committee chairmen of the favorability of their legislation, and the committee chairman would marshal the legislation to a favorable House vote. 2 After the diffusion of power, the committee chairman was elected by the Democratic caucus and could be removed by his colleagues if not responsive to the committee. Further, new rules required standing subcommittees and limits on a chairman’s ability to control the committee through proxy votes were established. Finally, the powerful House Ways and Means Committee increased from twenty-five to thirty-seven members and was no longer able to control the Committee-on-Committee, a committee responsible for nominating leadership to each of the party’s committee.

Committees then, for the President, became more difficult with which to deal. No longer could a president simply convince committee chairmen of the validity of a proposal. Now presidents had to build coalitions between all members of the House. 23 Fenno (1973) described this diffusion of power:

Influence was seen as being distributed very unevenly, and only a relatively small number of positions were perceived as offering their holders any measurable degree of influence….[congressmen] having decided to spread power out over a much larger number of positions. At the same time, however, the amount of influence available to the holder of any one position is correspondingly less. Because there are fewer members who can influence large numbers of their colleagues, the number of points at which presidents must attempt to influence the Congress is…that much more (477).

Carter had to engage House members to support his proposals of labor law reform, and this was made more difficult because of the new decentralized power structure in the House. This diffusion of power altered the relationship between the President and the Congress. Pre -1975, Congress viewed the office of the presidency as a partner through which they could orchestrate good public policy as well as ride presidential coattails to reelection. Post 1975, Congress viewed the President as an antagonist, and each worked to proclaim their own victories. In this

22 Davis (1997) calls these “vanishing marginals” (p. 470).

23 Before 1975, Committee chairmen were picked by virtue of seniority and reported to neither the committee members nor the House. Wilbur Mills, Chairman of the House Ways and Means Committee, is a striking example of a committee chairman who wielded unlimited power. Legislation from the Mill’s committee was the work of Mills with no amendments. But, Presidents who did reach compromise with Mills on a proposal were assured that Mills would report the proposal out of the house. See. John F. Manley, 1970. The Politics of Finance: The House Committee on Ways and Means. Boston, Mass.: Little Brown; Marmor, T.R. The Politics of Medicare. Chicago: Aldine.

8

Walker Draft

adversarial environment, Carter had substantial hurdles to jump when convincing the Congress of the positive attributes of labor law reform.

Congressional members place an emphasis on the probability of their reelection because of their ability to cater to their constituents and keep in contact with their districts through Congressional privileges such as franking and enlarged staffs. This means that incumbents return to office in greater numbers, thereby shrinking the number of marginal districts.24 Congressional members have become liaisons between the president and their home turf. This means that congressional members are less worried about voting with the President than about pleasing their constituents. This Congressional attitude makes it more difficult for a President to curry favor with a particular Congressman for whom he cannot produce some visible benefit the Congressman can take to his/her constituents. The President is left with the choice of convincing the Congressman on the merits of an issue or producing some tangible benefit for the Congressman’s constituency.

During this pre-reform period (pre 1976), many committee chairmen were from the South, therefore, Democratic presidents had to compromise their proposals in order to gain Congressional support. This was extremely important in bartering deals between Democrats from Republican-learning districts, who are less loyal to their party, and the Democrats from solidly Democratic districts. Davis writes, “A Democratic president will have his programs defeated by the conservative coalition, the voting alliance of Southern Democrats and Republicans” (1979, p. 467).

Carter’s failure to pass labor law reform was also rooted in sectionalism, a division between Northern and Southern Democratic factions whose roots hail from the New Deal era. Sectionalism was rooted in the division of labor between the wage earning, wheat growing, economically advanced North and the slave-owning, cotton-growing, economically disadvantaged South. Bensel (1984) describes this sectionalism competition as beginning after World War II over restrictive economic controls, agricultural supports and controls during the 1950s, and civil rights. After the passage of the Civil Rights Act in 1965, the competition over problems such as energy and the decline in manufacturing continued as workforces and industry moved to the South where cheaper labor could be secured.25

Carter’s relationship with the AFL-CIO

Carter’s relationship with the AFL-CIO went from lukewarm to cold. The AFL-CIO’s president, George Meany, had high hopes for a Democratic president after the Nixon-Ford years.

24

25 Bensel constructs this analytical framework by using roll call behavior in the House of Representatives and dividing the nation into regional trade areas consisting of urban and rural areas. He places congressional representatives within these regional trade areas and assigns “sectional stress scores” to their roll call votes during each of the ten decades between 1880-1990.

9

Walker Draft

Brody (1980) suggests “labor waged a comprehensive campaign to return a Democrat to the White House and cautiously believed that electoral victories in November would generate a ‘resurgence of the kind of liberal legislation that marked the Kennedy-Johnson years” (244). But the political campaign by labor to return a Democrat to the White House was waged in a very different fashion than previous campaigns. Prior to 1976, the President of the AFL-CIO and other national union leaders directly influenced the selection of a Democratic candidate through a system of reciprocity. Organized labor would endorse one Democratic presidential candidate, support that candidate with funding, and promise to turn out labor’s vote for the candidate. Beginning in the 1960s, a set of rules existed which regulated delegate selection to the national presidential convention. Most states used caucuses or conventions to select delegates, and these delegates usually chose their candidate based upon direction from and loyalty to the Democratic Party. This gave a select few power leaders the ability to determine who the presidential candidate would be. Because party leaders and union leaders helped each other, candidate selections included only candidates favorable to organized labor. This selection process was often a deal orchestrated in a back room, was not transparent, was very secretive, and gave union leaders the ability to remain autonomous from publically endorsing presidential candidates and to distance themselves from those choices of the rank and file.

The tumultuous decade of the sixties and the undercurrents of the Vietnam War brought to light the non-representative methods for choosing presidential candidates. This revelation was followed by changes in the rules for presidential candidate selection which allowed Democratic voters to choose candidates through primary and caucus systems in their states. 26 The shifting of power from a few elitists who belonged to the “good ole boy’s club” to the voting populous among the rank and file meant that union power brokers would actually have to ensure the rank and file were active in the political process of primaries and caucuses in order to influence decisions about presidential candidate selection (Taylor Dark, 1996).

The diffusion of power from the power brokers to the rank and file intensified divisions between the AFL-CIO and some national unions who wanted to be directly involved in the political process of candidate selection. The national and local unions responded by endorsing and supporting various candidates. Though this increased participation among the unions, it fragmented labor’s support for one candidate; therefore, union endorsements became less important in selecting a presidential candidate. By 1975, Carter had support from many national unions, but the AFL-CIO was less enthusiastic. The diffusion of bargaining power had fragmented organized labor into conservative camps embodied in the AFL-CIO and liberal

26 Dark, 1996, p. 506. As an immense literature has shown, the Commission on Party Structure and Delegate Selection, later known as the McGovern-Fraser Commission, approved a series of reforms I the delegate selection process that transformed the dynamics of political bargaining in the presidential nominating process. First, the commission voted to require affirmative action in delegate selection for blacks, women, and young people—groups that had been underrepresented among the delegates at previous conventions. Second, and ultimately more important, the Commission specified that starting in 1972, delegates would have to be selected either through primary elections—which had been used in only sixteen states in 1968—or though a system of public meetings or caucuses, at which anyone who was a member of the party could attend. In response to the Commission’s new guidelines, most states chose to move toward primaries, rather than participatory caucuses, as the main means to select delegates. The Commission thus succeeded to a greater degree than most had foreseen in forcing a major change in the nominating system.

10

Walker Draft

camps embodied in some national unions. 27 Regardless, Carter secured the Democratic nomination at the Convention by connecting with the rank and file via the media and tried to reach out to the AFL-CIO knowing he would need their support and their resources in the general election. Once in the White House, Carter’s ties to national union leaders were stronger than his ties to Meany and the AFL-CIO (Taylor Dark, 1996).

Meany’s position as labor leader and conduit of information between organized labor and the White House was diminished when Carter chose as Secretary of Labor, Ray Marshall, a liberal labor economist, without consulting Meany. This selection suggested to Meany some alliance with the left-leaning national unions who had supported Carter in the nomination process and a repudiation of the old school relationship between Democratic presidents and the AFL-CIO. Meany also took affront to Carter’s philosophy of equating organized labor with special interest groups. Meany believed organized labor was a “genuine representative body that deserved to be consulted” because of its “genuinely representative character” (Taylor Dark, 1996, p. 105).

Meany believed that Carter’s agenda placed labor issues in a secondary position. Set in the context of national political reform and limited bargaining power as well as internal conflict within the labor movement, a conflictual relationship between Carter and George Meany grew, and toward the end of the Carter administration, they did not even speak to each other. 28

Summary of labor law reform in the Carter administration

Labor law reform did not pass during the Carter administration because Carter was not skillful at building necessary coalitions among Congressional Democrats whose votes he needed to push the legislation through, the strong sectionalism that existed in the Congress between the northern Democrats and the southern Democrats, the lack of loyalty from Congressional Democrats who did not need to ride on the President’s coattails in order to be reelected by their constituents, and the use of the filibuster by Senate Republicans to derail labor law legislation.

Comparative Analysis of Labor Law Reform: The Clinton Administration

Clinton’s interest in passing labor law reform

Labor law reform was not at the top of Clinton’s legislative initiatives as organized labor had hoped it would be. Though Clinton had campaigned on the promise to support legislation which would permanently ban the replacement of striking economic workers and repeal Section 14(b) of Taft-Hartley (right-to-work laws), Clinton’s narrow win against George Herbert Walker

27 See Dark, 1999, p. 100. During the nominating process, “a coalition of nine unions formed in order to coordinate their involvement …Dubbed the ‘Labor Coalition Clearinghouse’, it included the Communication Workers of America; the Unit4d Auto Workers; the International Association of Machinists; Graphic Arts International Union; the American Federation of State, county, and Municipal Employees; the International Union of Electrical, Radio, and Machine Workers; the Oil, Chemical, and Atomic Workers; the United Mine Workers, and the National Education Association.

28 See Dark, 1999. Meany gave Carter a grade of C- when asked by a reporter what grade the President should have for his first year in office.

11

Walker Draft

Bush in 1992 did not garner him great political capital which he might expend for labor law reform which had little chance of passage. Clinton’s background as a five-time governor of a right-to work state in which the percentage of unionized workers was low may have forecasted his lukewarm approach to labor law reform.

There were many issues dear to organized labor, and the hope existed that a Clinton presidency would usher in a new era of legislation favorable to the labor movement. The result was a mixed bag. Clinton’s concerns for free trade, health care reform and a revitalized economic program would benefit organized labor, so labor felt good about a Clinton administration. Clinton was instrumental in passing legislation in 1993 such as the National Voting Registration Act (NVRA), also known as the “motor voter” law, which allowed citizens to register to vote at non-traditional places, 29 The Family Medical Leave Act (FMLA), which provided job-protected leave time for workers faced with serious health conditions or to care for a newborn or sick child, spouse or parent, 30 and a revision of the Hatch Act, 31 which eased restrictions on political capabilities of federal employees. Other major pieces of legislation for which the labor movement held out hope were dashed such as health care reform and defeat of the NAFTA.

There existed a problem within the community of organized labor about which issues were most important for the presidential agenda, and thus there developed two camps of thought about how best to pursue labor law reform. The first camp believed that the goal of labor law reform should be to protect the interests of the already existing labor unions (known as the business model of unionism) and this could be achieved by defeating free trade agreements, eliminating permanent economic striker replacements, and repealing Section 14(b) of Taft-Hartley. Logan (2007) writes, “This meant pushing for limited reforms such as striker replacement legislation, favorable NLRB appointments, OSHA reform, and improved worker training” (p. 612-13).

The second camp advocated that meaningful reform must include expanding organizing rights and sighted the steep decline in union density as the reason significant changes in mobilizing new members must occur. Under the current statutory laws, little or no progress was being made in organizing, and this continued descent would spell the end for labor unions. This meant pursuing reforms such as “card check off, mandatory arbitration for first contracts, stronger sanctions for employer violations, strict time limits for the certification process, and expanding collective bargaining rights to cover independent contractors, leased and temporary employees, and public employees” (Logan, 2007, p. 615).

This division among organized labor meant that the AFL-CIO had to carefully develop a strategy which would placate both camps. To do this, they first addressed the administrative and procedural reform in NLRA enforcement. Clinton, in 1993, had appointed as chairman of the 29 The “motor-voter law” required states to offer voter registration to citizens at the same time they apply or renew their drivers’ license, at all offices that provide public assistance and state-funded programs, or to mail in voter registration forms (http://www.usdoj.gov/crt/voting/nvra/activ_nvra.php).

30 http://www.dol.gov/esa/whd/fmla/

31 5 U.S.C. §§ 7321-7326

12

Walker Draft

NLRB Board, a Stanford law professor, William Gould, who favored strengthening labor law. Under Gould, fewer delays occurred in the certification process; more workers fired for organizing and first-contract campaigns were reinstated through injunctive relief; 32 and the case load of administrative law judges was accelerated33 Next, the AFL-CIO addressed the issue of workers’ rights. Most case law pertaining to workers’ rights for the past several decades had been decided in management’s favor, 34 so the AFL-CIO pushed for legislative changes in the arena of card check recognition, penalties for unfair management practices, and first contract arbitration.

The AFL-CIO knew the fight ahead would be tough. A senate filibuster had doomed the economic striker replacement legislation in 1992 and 1994 and the previous attempt at labor law reform under the Carter administration. Labor knew that the filibuster was not being used as it was originally intended, as a last resort to oppose extraordinary legislation, but was rather being used as a hammer to squelch legislation for which Republicans could not garner enough oppositional votes. 35 A nonpartisan pressure group known as “Action, Not Gridlock,” supported by several unions, was formed in 1994 to protest the extreme use of the filibuster. The group gave scores to lawmakers who overused the tactic and used the scores against the lawmakers in political campaigns. 36 A proposal to use the filibuster in only an extreme circumstance was defeated in the Senate and, as a result the group, “Action, Not Gridlock” “made little difference in targeting swing legislators” (Logan, 2007, p. 618).

Clinton, in March, 1993, took a different approach to labor law reform than did his predecessors. He initially formed a special presidential commission known as the Commission on the Future of Worker-Management Relations which was charged with examining and suggesting revisions to the NLRA, the nation’s statutory labor law by:

1) Exploring if new methods or institutions should be created to enhance workplace productivity through labor-management co-operation and employee participation?

2) What changes should be made in the present legal framework and practices of collective bargaining to enhance co-operative behavior, improve productivity, and reduce conflict and delay?

32 See Brody, 2001. Gould resurrected the 10(j) injunction, by which the NLRB can provide a quick remedy in egregious unfair labor practices cases. But, according to Gould, the lack of aggressiveness within the bureaucracy leads to slow responses, and by 1999, 10(j) injunctions were used less.

33 Gould make have done some good in this area, but the NLRB, according to Gould, was “impervious to procedural reform” (Brody, 2001). Therefore, the number of cases before the NLRB was twice as high as before his appointment.

34 Employer free speech, union access to the workplace, employer’s right to demand an election, and captive audience meetings are a few of them.

35 Labor was concerned that the filibuster’s overuse had forced union compromises resulting in a “diluting affect” in which pro-union legislation becomes “weaker after as series of compromises are reached to secure one more vote for cloture” (Logan, 2007, p. 617).

36 Legislation was proposed by Elliot L Richardson, a member of Action, Not Gridlock, in the Senate in January, 1995. The proposal, designed to slow legislation, not stop majority rule, was defeated 79-19.

13

Walker Draft

3) What should be done to increase the extent to which workplace problems are directly resolved by the parties themselves, rather than through recourse to state and federal courts and government regulatory bodies? (James, 1995)

Clinton appointed to the committee John Dunlop and nine other members consisting of former labor secretaries, former cabinet appointees, professors, labor leaders, and business leaders. The committee became known as the Dunlop Commission. 37 Many people were dissatisfied with the makeup of the Commission believing it to be pro-union. Logan (2007) writes:

To counteract organized labor’s proposals (and the recommendations of its allies on the Commission), a coalition of trade and professional associations, corporate organizations and business groups formed the “Voice for the American Workplace” (VAW), whose “sole purpose” was to “monitor the activities of the Dunlop Commission and publicize its deliberations and finding to the American public. Leading members of the VAW included the National Federation of Independent Business, Associated Builders and Contractors, and Printing Industrial of America (621).

The VAW’s alarm was apparent. They felt chances for labor law reform during the Clinton administration were strong, so they encouraged employers to submit testimony to the Commission stressing how the Commission’s findings would lead to the anti-capitalist legislation. Big business marshaled the forces against the Dunlop Commission through newsletters and seminars.

The Commission’s report suggested incremental changes to labor law such as speedier elections, broadened access to workers by organizers, and strengthened injunctions against unfair labor practices, fewer restrictions on who are supervisory employees, and stronger procedures for arriving at a first contract (James, 1995). The Commission’s final report was a disappointment to management and labor alike. The AFL-CIO claimed the suggestions were too weak, and the business community claimed the suggestions only strengthened trade unions and did nothing for employer-employee relations. The final recommendations did not include any suggestions for alternative forms of labor-management relationships such as employee involvement groups or work councils (James, 1995). When the final recommendations were made, the 1994 elections had returned a Republican majority to the Congress and Senate, so the Dunlop Commission’s findings were disregarded.38

37 The Commission held 21 public hearing (including 11 national hearings) and heard testimony from 411 witnesses with transcripts totally 4681 pages. See James, 1995, p. 44.

38 The Dunlop Commission did attempt to influence one change in the NLRA toward company unions. The Commission called for clarification on company-dominated forms of representation so as not to discourage “nonunion employee participation programs [which] are not found to be unlawful simply because they involve discussion of terms and conditions of work or compensation where such discussion is incidental to the broad purposes of these programs.” The suggested new language said “the law should continue to make it illegal to set up or operate company-dominated forms of representation.” This language, after the Republican take-over in 1994, was used to propose legislation known as the Teamwork for Employees, and Managers (TEAM) Act designed to give management the right to establish employee organization to discuss workplace issues—including wage, hours, and working condition—outside of union settings. The bill passed the House and Senate, but was vetoed by President Clinton. See Dark, 1999, p. 174.

14

Walker Draft

Clinton’s relationship with Congress

The election of Clinton and a Democratic Congress and Senate after twelve years of Republican rule was thought to be a slam dunk for executive and congressional relationships. After all, the assumption existed that a new Democratic president should be able to rely on his elected party counterparts to support his agenda. But being elected under the same party banner does not ensure a shared ideology as Clinton was soon to find. Factors such as Congressional members’ own values and biases, popularity with their constituents, and presidential popularity all affect Congressional members’ voting habits. Consequently, Clinton did not enjoy the allegiance from the Democratic Congress and Senate for which he had hoped.

Dark (1999) writes that:

The Democratic Party in the House of Representatives was by the early 1990s more unified and centrally led than it had been in decades. In the Senate, however, the traditional decentralization of power and the special authority granted to minorities through the filibuster still threatened to derail labor’s agenda. Under these conditions, the best hope for enacting progressive legislation remained in effective presidential leadership (158).

Clinton, a skilled and activist president, at the beginning of his first term, was working with a more unified Congress than did Carter during his administration. House Speaker, Tom Foley, and Democratic Whip, David Bonior held pro union sentiments as did many other Congressional Democrats. But there still existed a core of pro-corporate southern Democrats who voted with northern Republicans, a hold-over from the 1960s, in opposition to any labor law reform. 39 These pro-corporate Democrats, who joined with Republicans, to defeat the legislation which would stop the replacement of economic strikers, were the harbinger of what would come of future labor law legislation. Logan (2007) posits the Republicans displayed tight party unity and discipline while the Democrats showed a lack of discipline.

Clinton had used a great deal of his political acumen when asking for support for passage of the NAFTA. Reminiscent of Carter in 1978 who spent great political capital on the passage of the Panama Canal Treaty legislation and then had difficulty trying to garner enough votes to pass labor law reform, Clinton had fewer political favors to call in when seeking support for labor law reform.

Clinton’s relationship with the AFL-CIO

In 1992 the AFL-CIO, under Lane Kirkland, threw support behind presidential nominee, Bill Clinton, Democratic Governor from Arkansas, even though Clinton did not have a long-standing relationship with organized labor. The AFL-CIO felt it was important to support an

39 Marcus Widenor, associate professor at the Labor Education and Research Center of the University of Oregon, believes that Democrats, in general, have drifted to the right and no longer view labor issues are high on their agenda.

15

Walker Draft

electable candidate who was willing to support labor on most of its key issues. Unions were able to register new voters and get them to the polls in record numbers. So when Clinton won the Presidency in 1992, he owed financial, electoral, and organizational debts to organized labor.

The Clinton administration’s relationship with the AFL-CIO was more cordial than that of the Carter Administration. Not only did top union leaders like Gerald McEntee, President of AFSCME, and Robert McGlotten, chief Washington lobbyist for the AFL-CIO, enjoy increased access to Clinton, Lane Kirkland “had regular lunch meetings with presidential advisor George Stephanopolous, and they were sometimes joined by Secretary of the Treasury Robert Rubin” (Dark, 1999, p. 163). Organized labor was apprehensive about the appointment of Robert Reich, a lecturer from Harvard’s John F. Kennedy’s School of Government and a college roommate of Clinton at Oxford, as Secretary of Labor. Lane Kirkland, president of the AFL-CO was apprehensive about Reich’s appointment because of his lack of experience with organized labor, but these fears were unfounded and Reich proved to be a staunch defender of labor unions (Taylor Dark, 1999). 40

Reich believed that American firms would be able to compete more effectively in a globalized economy if they had some form of labor-management committee to handle working relations though he wasn’t convinced that collective bargaining agreements were the only method by which to facilitate this. Reich thought that moving in the direction of work councils and away from adversarial relationships in the form of collective bargaining agreements was the better way, which became known as the “operative principle.” Logan (2007) writes that Reich believed, “Only then would US firms develop cooperate workplace relations, invest adequately in training and develop human resource strategies that take full advantage of workers’ skills, empower front-line workers, embrace “win-win’ strategies, and create and maintain high-skill, high-wage jobs.” (p. 612).

One major hope the AFL-CIO had when Clinton took office was to overturn legislation prohibiting the use of permanent replacements for striking economic workers. Labor unions viewed this legislation as disruptive to the labor-management balance and sought to have it overturned. 41 Employers could permanently hire replacement workers for workers who participated in an economic strike. These workers cannot be fired, but they must wait for a job vacancy to occur before they can go back to work. This bill, known as the Workplace Fairness Act of 1991, was proposed by Congressman William Clay, a Democrat from Missouri and Senator Howard Metzenbaum, a Democrat from Ohio. Known as House Resolution 5, the bill passed in the House with 241 votes but was defeated in the Senate with only 51 Senators voting for its passage (Taylor Dark, 2009).42

40 On February 14, 1993, during a meeting in Miami, FL, Reich, Kirkland, and Tony Donahue, Kirkland’s assistant, discuss Clinton’s plans for replacing striking economic workers and the NAFTA. Reich assures Kirkland that Clinton is on board with overturning the practice of replacing striking economic workers but cannot assure Kirkland Clinton will oppose the NAFTA. Actually Reich favors passage of the NAFTA believing the real problem is not free trade, but that U.S. workers need to upgrade skills to train for jobs of the future instead of [re]training for obsolete jobs (Reich, 1997, p. 68). 41 Labor Board v. Mackay Radio & Telegraph Co., 304 U.S. 333 (1938).

42 The Striker Replacement Bill was important to organized labor because it would prevent employers from hiring permanent replacement workers for economic strikers, a right which was granted to employers in The Labor Board

16

Walker Draft

A similar bill was defeated in 1994 “ (by a vote of 53-46)” (Logan, 2007, p. 610). Dark (1999) explains these defeats followed the same patterns as had previous labor law defeats during the Clinton administration when the southern conservative coalition of Democrats voted against labor law reform.43

Health care reform has been a contentious piece of legislation for decades. Attempts to pass some form of nationalized health care were attempted by Johnson, Nixon, and Carter. Long burdened with rising health care costs passed on to its members by employers, unions rallied behind Clinton’s health care reforms. A coordinated effort saw increased organizers throughout the United States, massive telephone banks from which thousands of calls to Congress were made, and intense direct mail efforts. But these endeavors were not sufficient to counter the expensive mobilization of special interests such as the Health Insurance Association of America and the National Federation of Independent Businesses, who opposed health care reform (Oberlander, 2007). There was also some disunity within the ranks of organized labor. Large unions which had impressive health care plans from employers wished to be exempted from a national plan. This opposition combined with the energy already expended in efforts to squelch efforts to pass the North American Free Trade Agreement (NAFTA) spelled disaster for any health care imitative. The health care imitative may have been doomed from the start. Legislation of this magnitude was last passed during the Johnson administration in the form of Medicare, and Medicare only passed with huge Democratic majorities in Congress, exceptional economic growth, and a landslide election for a skillful President Johnson (Taylor Dark, 1999). Since Clinton was elected by a slim majority in less than stellar economic times, the chances for passage of health care reform legislation were minimal.

The issue of free trade agreements has always been controversial for organized labor especially for those unions in import-sensitive industries. The tension generated between Clinton and the AFL-CIO was demonstrated in the barbs Clinton expressed when detailing how organized labor was pressuring Congressional members to vote against the NAFTA’s passage. 44 Unions threatened to withhold campaign contributions from Democrats who voted for NAFTA’s passage and did stop sending funds to the Democratic National Committee for three months, more of a symbolic gesture than anything else. Lane Kirkland remarked that “The President has clearly abdicated his role as the leader of the Democratic Party”(Taylor Dark, 1996, 1999, p. 171), but later reconciled with the President. The repercussions levied by the AFL-CIO for Democrats who voted pro-NAFTA were not serious for several reasons. The AFL-CIO knew

vs. Mackey Radio 1938 Supreme Court decision. Unions believe that replacing striking economic workers is no different than firing striking economic workers which is at odds with the 1935 National Labor Relations Act and undermines collective bargaining by undercutting workers’ right to strike.

43 “Six southern Democrats, including Dale Bumpers and David Pryor of Arkansas, Ernest F. Hollings of South Carolina, Harlan Mathews of Tennessee, and Sam Nunn of Georgia, joined border-state Democrat David Boren of Oklahoma to vote with forty Republicans against labor. The three GOP votes for cloture came from Alfonse D’Amato of New York, Arlen Specter of Pennsylvania, and Mark Hatfield of Oregon” (Dark, 1999, p. 175). 44 See Dark, 1999, p. 170. “President Clinton attributed his difficulty in gaining support for the agreement to ‘the vociferous, organized opposition of most of the unions telling these [House] members in private they’ll never give them any money again, they’ll get them opponents in the primaries, you know, the real roughshod, musclebound tactics.”

17

Walker Draft

Clinton was a “free trader” when they supported him in the primary. They relied on Richard Gephardt, House Majority Leader and David Bonier, Democratic Whip, who opposed the NAFTA, to generate enough support against the free trade legislation to counterbalance Bill Clinton’s power. Actually, Democrats against the NAFTA responded strongly voting 156-102 for its defeat. The Democrats who did vote for its passage were from the South and backed the treaty 53-32. There were even 27 Democrats in the Senate who voted for the NAFTA’s defeat.

The relationship between Clinton and the AFL-CIO was not solely based on Clinton’s ability to pass the wish list of organized labor. Certainly, labor was disappointed in the passage of the NAFTA, but with any relationship, there have to be tradeoffs. There are public sector unions which are not affected by the NAFTA at all, and both a Democratic president and the AFL-CIO need each other.

Clinton, with support of the AFL-CIO and congressional Democrats, was able to pass minimum wage legislation in 1996 despite a Republican takeover of Congress in 1994. There was considerable coordination between the labor movement, the Democratic Party, and Congress in promoting this rise in the minimum wage with Robert Reich personally lobbying Congressional members for its passage (Taylor Dark, 1999).

Summary of labor law reform in the Clinton Administration

Labor law reform failed in the Clinton administration because public opinion did not favor labor law reform, Congressional Democrats from the South continued to vote against labor law reform, and Clinton did not push labor law reform as he did other legislation such as health care and free trade.

Labor Law Reform in the Obama Administration

Obama’s interest in passing labor law reform

In 2006, a Democratic House of Representatives and Senate were elected in the wake of dismal Republican-led congressional and presidential efforts to lead the country. A quagmire war in Iraq, a sagging economy, a meltdown in the housing market, increased unemployment, and rocketing health-care costs energized Americans to search for new leadership in the executive and legislative branches of government. Over the next eighteen months, Barack Obama emerged as the leading Democratic contender and was voted into the office of the President of the United States in November, 2008. In a video address to the AFL-CIO, President Obama said:

We need to level the playing field for workers and the unions that represent their interests, because we know that you cannot have a strong middle class without a strong labor movement. When workers are prospering, they buy products that make business prosper. We can be competitive and lean and mean and still create a situation where workers are thriving in this country (AFL-CIO, 2009).

President Obama made significant strides toward labor law legislation reform when he signed into law on January 29, The Lilly Ledbetter Fair Pay Act of 2009. This legislation was a result of a 2007 Supreme Court discrimination suit brought against the Good Year Tire and Rubber

18

Walker Draft

Corporation by a former nineteen year employee, Lilly Ledbetter. 45 In this suit, Ledbetter charged the Good Year Tire and Rubber Corporation with pay discrimination by paying her significantly less than her male counterparts over her course of employment. The original law only allowed for compensation if the suit for pay discrimination was brought within 180 days of receiving the first unfair paycheck. Ledbetter did not find out about the pay discrepancy until years after the first occurrence of unequal pay. The new law rectifies the time issue by allowing suit to be brought within 180 days of their most recent paycheck thus elongating the timeframe for a suit to be brought. 46

Other measures Obama has taken to promote labor law reform since being sworn into office are four Executive Orders: 1) Notification of Employee Rights under Federal Labor Laws, which revokes Executive Order 13201, the Beck Notice Requirements, and requires federal contractors to post a notice advising employees of their rights to bargain collectively and engage in union activity (Secretary, 2009c); 2) Nondisplacement of Qualified Workers Under Service Contracts, which revokes Executive Order 13204, and reimposes the obligation for successor service contract employers to hire their predecessor’s employees. This ensures that qualified workers keep their jobs even when a federal contract changes hands (Secretary, 2009b); 3) Economy in Government Contracting, which makes union avoidance costs “disallowed expenses.” This Executive Order prohibits contractors from charging for the cost of persuading employees to join or not join a union (Secretary, 2009a); and 4) Use of Project Labor Agreements (PLAs) for Federal Construction Projects, lifts the ban on pre-hire agreements meant to ensure fair wages, benefits, work rules, and methods for settling grievances on large federal or federally funded multi-contractor construction projects (Secretary, 2009d).

President Obama has also appointed his Vice President, Joe Biden, to chair a White House Task Force on Middle Class Working Families. This task force, with Dr. Jared Bernstein as its executive director, will propose changes to laws, policies, and executive orders focusing on issues like expanding education and lifelong training opportunities, improving work and family balance, restoring labor standards and protecting retirement security, and helping to protect middle class and working family incomes. 47

Obama spent some time, during his campaign, talking about workers and their plight. He endorsed the Employee Free Choice Act (EFCA), legislation which makes it easier for workers to join labor unions, bargain to a first contract, and which provides stiffer penalties against employers who violate workers’ rights in the election process. The Center for Economic and Policy Research (CEPR) “estimates that one in five workers involved in an organizing drive can expect to be fired for union activity” (Baker, 2008). Though this is a clear violation of the law, the penalties for firms who engage in this behavior are minor, so there is a continued escalation of violations. Obama promised to sign the legislation when it is presented to him. Obama had been a staunch supporter of the EFCA while a Senator from Illinois in the 110th Congress and was one of the cosponsors of S.1041. The EFCA has gained momentum as the current recession worsens. 45 http://www4.law.cornell.edu/supct/html/05-1074.ZO.html

46 http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=111_cong_bills&docid=f:s181enr.txt.pdf 47 www.AStrongMiddleClass.gov

19

Walker Draft

The EFCA came to a vote in the House in 2007 as a practice run for 2009 in the form of H.R. 1696 and S.842. Unions pushed hard for this trial run as a precursor for the 2009 legislation which they deem more critical than ever for the survival of organized labor. The bill, bipartisan legislation introduced by Sens. Edward Kennedy, Democrat from Massachusetts, and Representatives George Miller, Democrat from California and Peter King, Republican Representation from New York, passed the House of Representatives, 241-185 on March 1, 2007, gained support in the Senate, but was blocked by a Republican filibuster on June, 26, 2007. Using the past legislative failures of labor law reform under Carter and Clinton as fodder, unions devised a strategy of educating and informing its membership of the advantages of the EFCA and its interconnectedness with other progressive causes such as pensions, national health care, and Social Security. The housing crisis also has connections with the EFCA. When workers’ rights are suppressed, they are unable to acquire their share of productivity growth. According to Baker, Co-Director for the Center of Economic and Policy Research, (2008), “Restoring a wage-driven growth path will provide workers and businesses with much more stability than the current bubble economy.” 48

Obama’s challenge is to stay faithful to his campaign promise to sign the EFCA into law when it comes across his desk. The other challenge for organized labor is to “hold to the fire” the feet of the Congressmen and Senators they helped elect to office based on their support of the EFCA. During the severe economic recession the U.S. is experiencing, Obama and Democratic Congressmen and Senators alike will be facing heavy pressure from corporate lobbyists to suppress their vote for the EFCA, and Obama, faced with so many challenges right after his inauguration, may not be “looking for a fight” with the business world. The weight of passage of the EFCA falls to those workers who firmly believe their voices should and can be heard in a world of labor law reform. These workers, who have the power of the vote, must continue to petition their elected representatives to vote for the EFCA. Coordinated efforts of the AFL-CIO, the national unions, and the rank and file must continue until labor law reform in the United States is complete. “The failure to engage public opinion on the issue of labor law reform was a critical one, for as Tom Kochan has pointed out, “only when the American public is ready to demand change and drive the process are we likely to be successful in achieving a breakthrough in national labor policy” (Kochan 1995, p. 3.)

The EFCA was introduced into the 111th Congress on March 10, 2009 under H.R. 1409 and S. 560. H.R. 1409 was introduced by Representative George Miller, Democrat from California, and the bill was assigned to the House Committee on Education and Labor and has 224 cosponsors to date.49 Senator Edward Kennedy, Democrat from Massachusetts, introduced the bill in the Senate on the same day. The bill was assigned to the Committee on Health, Labor, Education, and Pensions and has thirty-nine cosponsors to date. 50 The crux of the bill contains three critical provisions which, if passed, would fundamentally alter labor-management relations in the United States. First, the legislation would allow unions to be certified by obtaining signed authorization cards from a majority of employees in a proposed bargaining unit. Second, the 48 http://www.aflcio.org/mediacenter/speakout/dean_baker.cfm 49 http://thomas.loc.gov/cgi-bin/bdquery/z?d111:HR01409:|/bss/111search.html

50 http://thomas.loc.gov/cgi-bin/bdquery/D?d111:1:./temp/~bd5vzH:@@@X|/bss/111search.html

20

Walker Draft

legislation would provide mandatory interest arbitration to ensure employers and unions actually reach a first contract; and third, the legislation would provide sanctions in the form of fines and penalties for employers who commit unfair labor practices (ULPs) during organizing campaigns. The EFCA would make the process of organizing and joining unions easier for millions of workers who may now wish to join unions, but find that process sluggish and burdensome.

The fate of the Employee Free Choice Act will eventually lie in the hands of a few Senators who are up for reelection in 2010. There are actually two votes which could take place over the EFCA. The first likely scenario is a Republican filibuster which would require 60 votes for cloture. If 60 Senators vote for cloture, then a 50 vote majority would be needed to pass the bill. So, in essence, a vote for cloture is a vote for the EFCA. This parlance has some Senators who must win reelection in 2010 splitting hairs as to how they will vote on the EFCA. Some who originally cosponsored the bill in 2007 are not sponsoring the current bill, and some Senators in key tossup states like Connecticut, Florida, Illinois, Kentucky, Missouri, Louisiana, New Hampshire, and Ohio are taking a wait and see approach before committing to a yes vote.

Obama’s relationship with Congress

Obama’s relationship with the 111th Congress is very young, but there can be some comparisons made with past presidential-congressional relationships. Obama brought twenty house members and five senators to Washington on his coattails. 51 This number is not astounding when one considers these gains are less than most new presidents received when upsetting the political order.52 The Senate seats picked up resulted in less than the 60 vote filibuster-proof majority needed, but the numbers came very close with 56 Democratic Senate seats, two Independent seats who generally vote with Democrats, and one seat waiting on the outcome of the Minnesota Senate race which Al Franken is expected to win. The House seat count is currently 254-178 with three unfilled vacancies. Neither house ensures a slam dunk for Obama’s proposed agenda, but the Democratic majorities in both houses does make the possibility of that agenda’s passage more likely.

Obama’s relationship with the 111th Congress could be compared to Roosevelt’s relationship with the 74th Congress in 1935. Lichtenstein (2007) writes: “From the moment President Roosevelt signed the Wagner Act in June 1935, that law faced fierce and sustained resistance from the DuPont-General Motors-Bethlehem Steel funded and dominated Liberty League, which declared the new labor law ‘a serious threat to our freedom…whether we stand as employers or as employees’” (p.12). Continued resistance to the new law took the form of “judicial resistance, corporate subterfuge, and even violence” (p. 13) because corporations and courts were very much against restrictions on employer’ abilities to manage their firms. Animosity from corporations and many courts for shifting the balance of power away from corporations toward labor unions is still strong today, and these corporations fund powerful 51 Lightman, David. 2008. “Obama’s relationship with new Congress will be complicated.” McClatchy Washington Bureau. 11.06.2008.

52 When Reagan came to power in 1980, he gained 33 Republican House seats and 12 Republican Senate seats. FDR gained 97 Democratic House seats and 12 Democratic Senate seats. Johnson picked up 38 Democratic House seats and 2 Democratic Senate seats. Clinton, on the other hand, lost nine Democratic House seats and gained only one Democratic Senate seat.

21

Walker Draft

Congressional lobbies which often threaten to withhold campaign funds if Congressional votes do not go their way.

Past Democratic presidents have utilized different tactics when seeking congressional support. John Kennedy had difficulty in getting his agenda passed because he had an unproductive relationship with Congress. According to Schlesinger (1965) Kennedy “had run behind the Democratic candidates for Congress (p. 708) so the Congress, which did not ride in on his coattails, 53 did not feel as if they owed Kennedy anything. Though the Democrats controlled both the House and the Senate, 64-36 in the Senate and 263-174 in the House, many members were from the anti-New Deal coalition of southern Democrats and Republicans and have voted conservatively for years. The twenty Democratic seats lost in the 1960 election were Northern Democratic seats and were lost over religious issues. This made Kennedy dependent on southern votes to pass any meaningful legislation. Further complicating this relationship was the fact that many of the old confederate Democrats held, by virtue of seniority, many critical committee chairmanships, so they held sway over legislation (Schlesinger, 1965).

Kennedy’s method to passing legislation took an incremental approach. He knew he would never be able to commandeer enough votes to pass Medicare in the early 1960s, but he knew that by sending bills to Capitol Hill, they would be introduced and initially debated thus changing the conversation and, perhaps eventually, the minds of some congressmen.

Kennedy, a very popular president, had narrowly won a victory in 1960 over Republican Richard Nixon. Younger, more intellectual, and more elegant than most of those in the Senate, he came to Congress as a young, rich man who spoke and dressed differently than his counterparts; consequently, he was never part of the “good ole boys” group. Some senators may have felt some discomfort in dealing with a “junior” as their president. Kennedy, most noted for his avoidance of nuclear war in the Cuban Missile Crisis, was forced to push for civil rights legislation after his brother, Attorney General, Robert Kennedy, allied himself with Martin Luther King, Jr. in the segregation battles in the South. In order to increase presidential influence on Capitol Hill, Kennedy hired a congressional liaison staff to have daily contact with Congressmen. Headed by Larry O’Brien, the liaison staff was efficient, but Kennedy was never the strong henchmen needed to marshal through legislation.

Kennedy’s wish list of programs in the Great Frontier, civil rights reform, federal aid for education, and tax cuts, were stalled by an oppositional Congress. One of the major platforms on which he had run was education, and he expected to pass some type of educational assistance which spoke to “overcrowded schools, underpaid teachers, and decaying facilities” (Burns, 2007, p. 55). A comprehensive educational package was sent to and approved by the Senate in 1961, but the bill stalled in the Rules Committee of the House where a battle ensued over lack of funding for church schools. Catholic leaders wanted the funding, and Protestant leaders did not want the funding. Both Catholic and Protestant leaders learned they could defy the president without serious repercussions, and the bill died in committee.

53 Kennedy actually lost 20 seats in the Democratic House and 2 seats in the Democratic Congress in 1960. See Congressional quarterly Graphic: Judy Treible.

22

Walker Draft

Kennedy fared no better on health care. Kennedy tried to take his case to the people in a televised speech on Medicare, but the reception was lukewarm with those favoring private healthcare countering that doctors should provide healthcare, not government (Burns, 2006, p. 58). His inability to deal with committee chairmen and his reluctance to strong arm Congressmen was the death knell for much of his Great Frontier legislation. Kennedy seemed to lose his passion for dealing with Congress and by 1963 was resigned to preparing for his reelection and hopes of passing significant legislation in his second term.

President Johnson, who visited Capitol Hill frequently said, “There is but one way for a president to deal with the Congress, and that is continuously, incessantly and without interruption. If it’s really going to work, the relationship between the president and the Congress has got to be almost incestuous. He’s got to know them even better than they know themselves” (Burns, 2007, p. 79). Johnson’s close and personal relationship with Congress allowed him to pass Civil Rights legislation in 1965. Johnson knew he could not count of the support of Southern Democratic senators to vote for Civil Rights legislation, so he instead turned his attention to Republican senators such as Everett Dirksen of Illinois. Through a campaign of flattery, giving Dirksen small victories against the White House, and asking his advice on appointments, Johnson was able to persuade Dirksen to vote favorably for The Civil Rights Act of 1964. Johnson utilized this way of dealing with others as well in passing Medicare and the Food Stamp program. He masterfully built and dismantled ad hoc coalitions and made Congressmen look good at home (Pinkus, 2006). This approach allowed Johnson to pass major pieces of legislation with Congressional approval.

Complications arise within the Democratic majorities when looking at the conservative bent of some congressional members who formed and belong to a group of Democrats known as the “Blue Dog” Coalition.54 This policy-oriented group formed in 1995 during the 104th Congress as a way to give moderate and conservative House Democrats a way to embrace a centrist position on financial policy. This group’s middle-of-the-road stanch allows for common sense, conservative compassion, and has proved beneficial in working on bipartisan legislation. Because the focus of this group is reigning in spending and balancing the budget, there may be some tension between their fiscally-conservative approach and Obama’s expansive programs for education, energy, and health care.

Another area of concern is the Republicans in both Houses who believe they lost seats because they did not stick to their very conservative roots of party reform. These Republicans will be attempting to reposition themselves by instilling more party discipline and countering what they perceive as a left-leaning socialist bent toward government take-over. Obama, who has offered the hand of bipartisanship to Republicans more than any other president on record, really has little to gain by continuing to focus on bipartisanship. Votes on the recent Stimulus package have doggedly followed party lines, thus providing evidence that Republicans, trying to regain their footing, will kowtow to the party line in efforts to dismantle Obama’s proposed agenda and regain Congressional and Senate seats in 2010.

54 The Blue Dog Coalition took its name from a longtime southern description of a Democratic Party loyalist who would vote for a “yellow dog” rather than a Republican. The Blue Dog Coalition changed the color of the dog because they felt they were being “choked blue” by their own party in recent years.

23

Walker Draft

Obama has inherited huge challenges and problems. Reckless and unfettered capitalism promoted by eight years of Bush policies has plummeted the economy into recession, and the war in Iraq has drained our economic resources. The severity of these problems will, and should be, addressed first. Following these measures, Obama will also need to address health care and energy policies. Labor law reform may not be at the top of his agenda in the first 100 days of his administration, but the direct and indirect cost of dealing with labor law reform sometime in the upcoming year would have gradual and monumental affects for labor-management relations.

Obama’s relationship with the AFL-CIO

The AFL-CIO and its accompanying fifty-six unions endorsed Barack Obama for President in June, 2008. President John Sweeney said, “Barack Obama has proven from his days as an organizer, to his time in the Senate and his historic run for the presidency, that he’s leading the fight to turn around America” (Michaels). The AFL-CIO pledged $53.4 million for their entire voting campaign.55 They also promised a massive effort among their thirteen million members in twenty-four priority states, the largest mobilization of members ever. One pro-active tactic used by a core group belonging to the AFL-CIO is the “Million Member” campaign in which major unions pooled their resources in attempts to reach 15 percent of their membership and run a coordinated field campaign in targeted states to elect labor-friendly congressional candidates and to support Obama. 56 Once elected, “Obama continued to ensure union members they would have a “seat at the table” (AFL-CIO, 2009) in his administration.

The strong support provided by the AFL-CIO for the Obama campaign emerged from the strong desire to facilitate a resurgence of the labor movement. The corporate agenda under the Bush administration had weakened labor’s already frail position within the labor-management relationship through deregulation, privatization, and deunionization. The AFL-CIO, emboldened by public sentiment which reflected that 80 percent of the public believed the country to be headed in the wrong direction, supported Obama for his stances on shoring up working families, a national health care plan, fair trade and taxes, retirement security, and labor law reform (Sweeney, 2008). Another important aspect of labor’s support was the appointee power of the future president to appoint three new judges to the National Labor Relations Board (NLRB). The NLRB, established as an agency to administer the National Labor Relations Act (NLRA), had gradually become a corporate tool with which to defy and eviscerate workers’ rights. With the election of a Democratic president, the possibility existed of bringing to the Board three new pro-labor NLRB judges who could reverse the flow of negative anti-worker decisions for which the Board had become known.

Summary of Labor Law Reform in the Obama Administration

Certainly a definitive summation of labor law in the Obama administration is premature at this early date. But I believe we can draw some general conclusions about Obama’s actions concerning labor law to date as well as some future predictions about what is likely to happen in

55 http://blogs.suntimes.com/sweet/2008/06/aflcio_obama_endorsement_to_co.html. 56 There is an effort to acquire 15% of CWA’s membership to sign EFCA cards and display them in the Capital during Congress’ swearing-in ceremonies (Early, 2008).

24

Walker Draft

the future. Obama’s willingness to sign into law The Lilly Ledbetter Fair Pay Act of 2009, four executive orders reinstating the rights of workers in federal construction, and the appointment of the White House Task Force on Middle Class Working Families indicates his desire for a shift in the balance of the labor-management relationship toward labor. The true test will rest in Obama’s ability to build relationships with and convince Republican and Blue Dog Democrats that passage of the EFCA is a win-win for labor and management. Obama’s skills in reaching across the aisle will be challenged as they were in the controversy over the Stimulus Bill in which three moderate Republicans joined Democrats in voting for its passage (Hitt, 2009). The fight for the passage of the EFCA will continue to ratchet up as the 2010 elections near. There will not be movement on the legislation until Al Franken, Democrat for Minnesota, takes his senate seat which could happen as early as May, 2009. 57

Because the 2010 elections loom in the not so distant future, several key votes for passage of the EFCA are likely to be in jeopardy. The key to passing the EFCA will boil down to grassroots activism in convincing key legislators who are “on the fence” to vote in favor of the bill. There are thirty-four senators up for reelection in 2010. Nineteen of these seats are held by Republicans and seventeen are held by Democrats. Senators retiring and not running for reelection are Republicans Sam Brownback, Kansas; Mel Martinez, Florida; Kit Bond, Missouri; Judd Gregg, New Hampshire; and George Voinovich, Ohio. Ted Kaufman, Democrat from Delaware is also retiring. Their votes for or against the EFCA would not harm any reelection bids. Projected safe seats for Republicans total seven. 58 Projected safe seats for Democrats total 4.59 Senators who say they are considering the bill are Landrieu, Democrat from Louisiana and Pryor, Democrat from Arkansas. Specter, Republican from Pennsylvania, has pulled his support for the bill. A concerted grassroots effort by labor and its friends will need to be levied against those Senators on the fence. At this time, the prospects for labor law reform remain positive.

References:

Action In Congress On 'Labor Reform' Proposals (1978). Congressional Digest, 57(1), 6.AFL-CIO (Producer). (2009, April 6, 2009) Obama: Bush Government Tried to Undermine Unions. Podcast

retrieved from http://www.reuters.com/article/domesticNews/idUSTRE5230AG20090304 Baker, D. (2008). The Recession and the Freedom to Organize Retrieved December 9, 2008, from

httpL//www.alfcio.org/mediacenter/speakout/dean_baker.cfm Bruno, R. (1998). Presidential Labor Regies: Democrats from Roosevelt to Clinton. Unpublished IRRA's

Proceedings of the Fiftieth Annual Meeting. University of Illinois: .Burns, J. M. (2007). Running Alon. New York: Perseus Publishing

57 Minnesota’s law allows for contested elections to be appealed to the state Supreme Court. If the Minnesota Supreme Court denies Norm Coleman’s appeal, the Court will then order Minnesota Governor, Tim Pawlenty to certify Franklin’s election. Coleman may try to bar Pawlenty from certifying the election, but that is doubtful. It is also unlikely that Coleman can file a new suit in federal court because there is no process for relitigating a case in federal court that has already been tried by a state court. Coleman could appeal to the U.S. Supreme Court, but it is unlikely they would hear the case.

58 Projected safe seats for Republican are Crapo, Idaho; Bennett, Utah; Shelby, Alabama; Coburn, Oklahoma; Grassley, Iowa; DeMint, South Carolina; and Murkowski, Alaska. 59 Projected Democratic safe seats are Leahy, Vermont; Schumer, New York; Dodd, Connecticut; and Mikulski, Maryland.

25

Walker Draft

Campagna, A. S. (1995). Economic Policy in the Carter Administration: Greenwood Press.Dark, T. (1996). Organized Labor and Party REform: A Reassessment. Polity, 28(4), 497-520.Dark, T. (1999). The Unions and the Democrats: An Enduring Alliance. Ithaca: Cornell University Press.Dark, T. (2009). Prospects for Labor Law Reform. Perspective on Work, Summer 2008/Winter 2009.Davis, E. L. (Oct., 1979). Legislative Reform and the Decline of Presidential Influence on Capitol Hill.

British Journal of Political Science Vol. 9(No. 4), 465-479.Eldor, P. (1978). The 1977 Amendments to the Federal Minimum Wage Law. Monthly Labor Review, 101,

9-11.Full Employment and Balanced Growth Act of 1978. Public Law 95-523--Oct. 27, 1978.95th CongressUnpublished manuscript.Hitt, G. (2009). Senate Nears Vote on Stimulus Bill. The Wall Street Journal. Retrieved from

http://online.wsj.com/article/SB123412571754261087.htmlJames, P. (1995). US Labour Law Reform: A Note on the Dunlop Debate. Employee Relations, 17(6), 43-

51.Logan, J. (2007). The Clinton Administration and Labor Law: Was Comprehensive Reform Ever a Realistic

Possibility? [Symposium Public Policy: Choice, Influence, Evaluation]. Journal of Labor Resolution, 28, 609-628.

Michaels, S. April 7). AFL-CIO Endorses Obama, Launches ‘Meet Barack Obama’ http://blog.aflcio.org/2008/06/26/afl-cio-endorses-obama-launches-meet-barack-obama/.Milkis, S. M. (1993). The President and the Parties: The Transformation of the American Party System

Since the New Deal

Oxford University Press US

Oberlander, J. (2007). Learning From Failure in Health Care Reform. Perspective, Volume 357(17), 1677-1679.Peters, J. T. W. a. G. (Producer). (1977, 11.12.2008) The American Presidency Project. Podcast retrieved

from http://www.presidency.ucsb.edu/ws/index.php?pid=30433.Pinkus, S. a. S., Bruce (2006). Lyndon B.Johnson and American Liberalism: A Brief Biography with

Document (2nd ed.): MPSISBN-13: 9780312416331.Schlesinger, A., Jr. (1965). A Thousand Days: John F. Kennedy in the White House. Boston: Houghton

Mifflin Secretary, O. o. t. P. (2009a). Executive Order: Economy in Government Contracting Secretary, O. o. t. P. (2009b). Executive Order: Nondisplacement of Qualified Workers Under Service

Contracts Secretary, O. o. t. P. (2009c). Executive Order: Notification of Employee Rights under Federal Labor Laws.

The White House.Secretary, O. o. t. P. (2009d). Revokes Ban on Project Labor Agreements.Sweeney, J. (2008, April 7). Why the AFL-CIO Endorses Barack Obama.

http://www.aflcio.org/aboutus/thisistheaflcio/outfront/obamaendorsement.cfm.Unions go all out to push labor-law reform through the Senate (1978). American Bar Association Journal,

64(3), 307.

26

1

2