September 24th, 2007
Spoiling for Another Labor Battle in Senate
Now that the House Education and Labor Committee has approved a bill that would change the definition of “supervisor” in federal law, it is almost certain to gain House approval as soon it is put on the calendar for a floor vote.
Under House rules, the majority gets pretty much anything it wants. The party in power can limit the number of amendments that can be considered and can shape the floor proceedings at will. The Republicans did it for 12 years, and the Democrats have been doing it since they took over Congress in January.
So, there’s really no suspense in the House over the bill, which would strike the words “assign” and “responsibility to direct” from the definition of supervisor in the National Labor Relations Act. It also would insert language that states that an employee must be in a supervisory role at least 50 percent of the time.
The measure is a response by the Democratic majorities to a National Labor Relations Board decision last fall in a collection of cases known as “Kentucky River.” The board said that charge nurses are supervisors because they assign work, direct other employees and exercise independent judgment. An employee could be classified as a supervisor if he or she worked in that capacity as little as 10 percent to 15 percent of the time.
Organized labor is pushing back hard. They assert that the Republican-majority board is trying to undermine unions by limiting the number of people who can join them. Anyone in a supervisory position is prohibited from organizing.
The House has started the process with this bill, but, as occurred with legislation that would facilitate unionization, the real fireworks will occur in the Senate. The unionization bill, called the Employee Free Choice Act, received a hearing before the Senate Health, Education, Labor and Pensions Committee.
But then Sen. Edward Kennedy, D-Massachusetts and chairman of the committee, along with Senate Majority Leader Harry Reid, D-Nevada, decided to send the bill straight to the floor without a vote in the committee. Republicans cried foul, saying that Kennedy and Reid were truncating the legislative process in order to score political points with Democratic labor constituencies.
The Employee Free Choice Act was stopped by a Senate filibuster, with almost the entire Republican minority holding together in opposition. Now it looks as if another contentious labor law bill, this one focusing on overturning a Supreme Court decision on the statute of limitations in pay discrimination, has been placed on the Senate floor calendar without committee action.
The same fate may await the supervisor bill. I covered a Senate press conference on a separate issue the same day as the supervisor measure passed the House committee. Afterward, I had a chance to ask Kennedy about the prospects for the supervisor bill.
“I’m a very strong supporter of that legislation,” Kennedy said. “I would hope that we would hold that at the desk and address it.”
Kennedy may have been using Senate speak—“hold that at the desk”—to indicate that the House supervisor bill will go straight to the Senate floor and bypass committee action.
The Republicans likely will howl and try to stop it in its tracks. The filibuster strategy can be effective but it also comes with risks. Essentially, the GOP would be preventing an up-or-down vote on the bill.
Rep. Robert Andrews, D-New Jersey and author of the House bill, accepts Republican opposition but questions their tactics. “It must be hard to go home and explain to somebody why something didn’t come up for a vote,” Andrews said.
Republicans likely will argue that they’re stopping legislation that would dramatically change labor relations and is being rammed through by Democrats to pay back their union allies for financial and grass-roots help in winning the House and Senate last fall.
Both sides tend to overreach—or understate—when it comes to labor law bills. The Democrats say they are writing narrow legislation that corrects misguided court decisions. But they are also rewriting labor law that has been on the books for decades.
Republicans say that Democrats are acting on behalf of big labor bosses who trying to bolster declining union numbers. But there likely are millions of rank-and-file workers worried about their job prospects in a global economy who would like the kind of protection a union can afford and are concerned about the NLRB and Supreme Court decisions.
The two sides likely will never agree. What I don’t understand is why Democrats don’t try harder to enlist corporate support for their positions on labor law. Many companies allow a union to form when 50 percent of employees sign cards authorizing one—the so-called card-check process enshrined in the Employee Free Choice Act.
Instead of demonstrating that some businesses are on their side, they insist on duking it out with the Republicans on the floor of the Senate. It seems that more progress would be made by getting traditional GOP constituencies—big business—speaking out in favor of the labor law changes the Democrats are pushing.
Of course, the Republicans and allies like the Chamber of Commerce likely would trot out dozens of companies prepared to denounce the Democratic bills. It’s Washington, after all, where everyone is spoiling for a fight.
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