By Alec MacGillis
Sunday, February 21, 2010; B03
The anniversary of the $787 billion economic stimulus act came and went last week with unemployment still holding stubbornly close to 10 percent. The Democrats' universal health-care legislation lies in limbo on Capitol Hill. Where in all of this are the unions -- the historic guardians of the Democrats' economic agenda? Sidelined, sort of.
Labor's top legislative priority, the Employee Free Choice Act, is languishing. Craig Becker, the union lawyer nominated by President Obama to a five-year term on the National Labor Relations Board, hasn't made it to his post. This month, he failed to win enough votes to prevent a filibuster on his nomination, and the president declined to make a recess appointment.
Becker's travails drew a brief flurry of attention to the issue of labor law reform. It might be tempting to dismiss this fraught realm with the old joke about academia -- that the politics are so vicious because the stakes are so low. But this would be wrong, as is so much that is said and written across the political spectrum about organized labor.1. Organized labor is in inexorable decline.
Not exactly. Organized labor isn't so much shrinking as shifting. The proportion of private-sector workers who are union members continues to drop, to 7.2 percent last year from 7.6 percent in 2008. But this decline was offset by the ongoing growth of public-sector unions -- 37.4 percent of public employees are now represented by unions. Today, there are more public employees in unions (7.9 million) than private-sector ones (7.4 million).
Even within the private sector, organized labor's decline isn't irreversible. Much of it is a result of larger economic forces such as the shrinkage of union-dominated manufacturing industries and the expansion of more transient, service and professional jobs where the workers are more difficult to organize.
But there are growing sectors in which unions are making inroads -- low-wage jobs in retail and in health care or elder care, for example. And they would be signing up more workers if the regulatory climate were more favorable. As manufacturing-heavy as the economy was in the early 20th century, it was only when President Franklin Roosevelt pushed through the pro-union reforms of the New Deal that membership surged, tripling from 12 percent of the workforce in 1930 to 36 percent in 1945.2. Unions are bad for economic growth.
Economists on the left and the right can debate this one for days. The pro-labor side has a strong argument: The period of highest union penetration, from the 1940s to the '70s, was also a period of sustained economic growth. The other side counters with examples of unions doing harm to their members and industries: The "jobs bank" that the United Auto Workers maintained for years, paying laid-off workers to do nothing, is a favorite. And labor's foes like to note that states in the South and the West with "right to work" laws restricting unions have successfully lured companies from the North or from abroad. But at least for now, the most heavily unionized regions -- the Northeast, the Midwest, the Northwest and California -- still hold most of the country's wealthiest states and its most dynamic metro areas.
The more pertinent claim against organized labor may be on the public-sector side, where unions put significant pressure on state budgets, particularly with pension obligations. A new study by the Pew Center on the States finds a $1 trillion gap between what the states have promised their workers and what they've set aside.3. Labor laws are not the issue -- economics are.
Far from it. Even lawyers who represent employers say the system is badly outdated. There has not been a major change to labor laws since the anti-union Taft-Hartley Act of 1947. With no progress on the legislative side, energies have focused on the five-member National Labor Relations Board, the panel of presidential appointees that rules on election disputes and labor complaints appealed by unions and employers. The NLRB is such a political football that it borders on the dysfunctional. For the past 26 months, only two of its five seats have been filled. This can mean long delays for cases awaiting judgment. While the Labor Department has far fewer union elections to oversee these days -- 1,343 last year, down from 7,773 in 1970 -- it must process about 25,000 unfair-labor-practice charges per year, including many that arise from nasty jurisdictional disputes between unions.
The two board members, a Democrat and a Republican, have managed to make rulings on 500 or so less-controversial cases, but the weightier disputes have been set aside. Sixty cases have been pending for two years or more, and of them, 24 go back more than four years. And the Supreme Court is considering whether the two-person board is even allowed to have made the rulings that it did.4. The Employee Free Choice Act would radically reshape the job market.
Not really. While the proposal would bring the biggest change in generations, it would leave some union challenges unaddressed. The bill as written would let workers form a union if a majority of them sign cards in favor of one, without having to hold a secret-ballot election at the workplace. Unions argue that such elections are unfairly influenced by employers. But even before Democrats lost their filibuster-proof Senate majority, they had all but jettisoned that part of the bill -- dubbed "card check" by opponents -- because it lacked support among conservative Democrats. Instead, the measure would now ease the process by shortening the window before elections, giving employers less time to sway workers, and by increasing the penalties for employer violations, both relatively incremental changes.
Arguably the more consequential part of the bill would be a new requirement: Employers and workers who do not reach a contract within several months after an election would need to submit to an outside mediator. As it now stands, more than a third of unions that win elections never secure a first contract. Employers ignore them, workers are afraid to strike in protest (strikes occur far less often than they used to), and the union eventually dissolves.
The legislation would not address what Wilma Liebman, the Democratic NLRB member, has argued is the unions' bigger problem. In a speech last week, she said the true challenge is in the economy's growing reliance on temporary and contingent workers and on undocumented immigrants, two categories that are difficult to organize.5. Unions have the Democrats in their pocket.
They wish. Despite their diminished numbers, unions still pack a powerful punch in national politics -- exit polls show that white, working-class union members in key swing states such as Pennsylvania, Ohio and Michigan vote for Democrats at far higher rates than white, working-class voters who are not in unions. And unions certainly have a seat at the table now after lacking one during the Bush years. Whereas then-AFL-CIO President John Sweeney was invited to the White House only once -- for the pope's visit in 2008 -- Service Employees International Union President Andy Stern is now among the most frequent visitors to 1600 Pennsylvania Ave.
But what do they have to show for it? Obama has held off on pushing the Employee Free Choice Act. Union leaders were told to wait until health-care reform was done, and now even the compromise labor bill may be doomed with the loss of the 60th Democratic vote in the Senate. Obama's and the Senate's preferred funding source for universal health care is a tax on high-cost health plans, opposed by the unions; the White House had agreed to labor-friendly revisions, but they are now in doubt.
And then there is Becker. Obama has indicated that he will not install him in a recess appointment, even though his predecessor, George W. Bush, used recess appointments to install seven of his eight NRLB nominees. The unions are grumbling: If this is how their hard work in 2008 is repaid, don't expect much from labor's foot soldiers this fall in Altoona, Akron or Fort Wayne.
Alec MacGillis is a reporter on the national staff of The Washington Post.