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When Democrats gained control of Congress in 2008, it seemed possible the Employee Free Choice Act could pass. Labor and its allies in Congress worked hard to overcome the objections of some Democrats, like Blanche Lincoln, the no longer Senator from Wal-Mart, I mean Arkansas, who thought the law would give to much power to workers in the workplace.

Republican controlled Fox News demoagogued the issue, claiming that worker democracy in the workplace wasn't really democracy. They implied that boss-acracy was real democracy.

Anyway, the law couldn't' get passed filibuster, though it passed by a wide margin in the House.

Without a doubt, President Obama, who campaigned on its passage, would have signed it into law.

The NLRB, after being mired for most of the President's term in purgatory due to the fact that Republicans in the Senate have used archaic – and ironically undemocratic – procedures to block appointments by the President to the NLRB, got rolling again when the President recess appointed the vacancies.

This past week NLRB put forward some rules change proposals that would in some important ways work toward evening out the playing field. Here's some commentary by Jared Bernstein, former VP Biden adviser:

Something kind of progressive just happened that you might have missed: The National Labor Relations Board proposed a new idea to help level the playing field for workers who want to organize a union.

    A little background: under current law, once 50% of employees petition for union representation, the employer can voluntarily choose to waive a secret ballot election and recognize the union.  However, employers typically take advantage of their right to call for a secret ballot election.

    That’s where the problems can start.  Some employers use this time between the initial petition and the election to sway workers against joining the union.   That’s perfectly legal, but the structure of labor law gives employers far more access to and leverage over their workers than the union.

    For example, employers can require attendance at anti-union meetings, one-on-one sessions between workers and their immediate supervisors who stress anti-union messages, subtle offers of promotion and demotion (e.g., a move to a less desirable shift), and intensive, explicit surveillance to see if workers are talking to union organizers.

    Some of these tactics border on the illegal: the majority of unfair labor practice cases brought to the NLRB occurs during elections.  It is also worth noting that a highly visible consultancy practice has arisen to support employers that want to block the union and it’s not uncommon for these consultants to offer a money-back guarantee.  Getting these anti-union operations in place takes time, which is probably why win rates for the union are significantly and negatively correlated with time between petition and election.

This picture is familiar to us all. So what is the NLRB doing about it? Here's what Bernstein says:

These developments were the rationale for the Employee Free Choice Act, which gets around the problem described above by allowing petitioning workers, not the employer, to decide whether to hold a secret ballot or to just have workers sign a card if they want to organize (“card check”).

    That legislation ain’t going anywhere.  But the NLRB, the overseer of union elections, proposed a variety of ways to shorten the time between the initial petition and the election – the average now is about 60 days – mainly by streamlining procedures and preventing litigation from grinding things to a halt.  Shortening this time span would add some balance to the system.

When the proposals were announced the AFL-CIO responded thusly:


Although we are still reviewing the proposed new changes from the National Labor Relations Board (NLRB), they appear to represent a common sense approach to clean up an outdated system and help ensure that working women and men can make their own choice about whether to form a union.

    When workers want to vote on a union, they should get a fair chance to vote.  That's a basic right.  But our current system has become a broken, bureaucratic maze that stalls and stymies workers' choices.  And that diminishes the voice of working people, creates imbalance in our economy and shrinks the middle class.    

    With the proposal of these new standards, the Board is taking a modest step to remove roadblocks and reduce unnecessary and costly litigation—and that's good news for employers as well as employees. The proposed rule does not address many of the fundamental problems with our labor laws, but it will help bring critically needed fairness and balance to this part of the process.  

    Unfortunately, in today's poisonous political environment, any action by the Board may unleash a torrent of attacks from politicians and ideologues opposed to any protection of workers' rights. We call on leaders from both sides of the aisle to defend the independence of the NLRB. Political interference with any independent agency sets a dangerous precedent that should not be tolerated.

In addition to these rules changes, the Department of Labor recently announced it is toughening rules on consultants mainly used by business to run anti-union campaigns in the workplace.

So, simply put, the NLRB, an independent federal agency run by Obama appointees, in conjunction with the administration itself are are trying to level the playing field for workers to join or organize labor union, to collectively bargain with employers to improve their living standards, and to increase democracy and civic participation – all of which could mean greater organization and greater power for working-class people in a society dominated by the rich and the corporate.

These new rules are important elements of the EFCA, but because these changes about to go into effect are made at the executive branch level and not by Congress, they can always be changed with a single stroke of the pen. Indeed, if a Republican wins the White House you better believe they will be. I think the implications of that fact are obvious.

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