Hunton Employment & Labor Law Perspectives : Employment Lawyers & Attorneys : Hunton & Williams Law Firm : Labor Law Legislative Updates

We know from NLRB numbers over the last ten years that union win rates in these elections have increased from just over 50% in the first half of the decade to about 55% or more in each of the years of the second half.  So, let's see what those numbers tell us when compared to the rhetoric over EFCA.  

Union membership continues to decline and that's why unions say that EFCA or something like it should be made law. In 2009, as in previous years, unions initiated far fewer elections even though statistics show they win more than half of the ones in which they participate.  But absent passage of EFCA, unions can't win new members if they don't organize and hold elections.  Their strategy for passage of the EFCA free ride appears to amount to a self fulfilling prophecy.  That is, if unions refuse to engage in the election process, their numbers will continue to dwindle, which to some creates a problem in need of EFCA as the solution.  And the Obama administration seems to be making the same argument.  On January 22nd Hilda Solis, Secretary of Labor, said the membership numbers make "clear why the Administration supports the Employee Free Choice Act. "     

The Secretary's adherence to this stance in the face of statistics to the contrary is grounded in her sincere belief that employees are better off with a union.  However, with  a 55% win rate, why don't unions use the election mechanism available to them? The  unions say the deck is stacked against them and they can't win. The numbers reported for the last decade or more refute that claim. They also say that top down, corporate campaigns work better. The continuing drop in membership casts doubt on that assumption as well. But one certainly can believe that, if an employer can be forced  into a card check and neutrality agreement through a corporate campaign  publicly attacking its corporate image, the union win rate should vault into the 80 to 90% range.  EFCA in either its current or modified form will accomplish nearly the same thing.

As has been said from the outset, this proposition is not about better workplace democracy… it is about pre-ordaining union victory irrespective of free choice.

The Occupational Safety and Health Administration (“OSHA” or the “Agency”) recently announced its intent to reinstate the “musculoskeletal disorder” column on its injury and illness 300 Form.  The Agency is also developing a proposed rule to add a definition of musculoskeletal disorders to the Occupational Safety and Health Act (the “Act”).  A notice of the proposed rule-making and opportunity for public comment will be issued in January 2010.

Ergonomic-related regulations were implemented in 2000, but were revoked in 2001.  The Bush Administration also repealed the Ergonomics Standard in 2001.  Since then, OSHA has evaluated ergonomic issues by using the General Duty Clause of the Act.  Elimination of the musculoskeletal disorder checkbox on the 300 Form resulted in part from a 2001 settlement agreement between OSHA, the National Association of Manufacturers, and the U.S. Chamber of Commerce, which resolved an industry challenge to the Agency’s recordkeeping requirements.

It does not appear that the new regulations will fully reinstate all the provisions that were repealed in 2001, particularly the recordkeeping provisions, which if fully reinstated likely would be challenged in court.  Although Secretary of Labor Hilda Solis said the Agency does not intend to propose new ergonomics regulations at this time, employers should not conclude that ergonomics is not on the agenda for Obama’s Department of Labor.  The Obama Administration is under heavy pressure from the unions to move forward during this term.  The AFL-CIO, the largest federation of labor unions, pressed for new recordkeeping requirements at its annual convention in September as well as in documents it provided to President Obama’s transition team, and it has been relentless in its pressure regarding new ergonomics rules.

Several officials within OSHA have made statements suggesting that new regulations may be coming.  For example, the current Deputy Assistant Secretary of Labor for OSHA, Jordan Barab (who also headed the ergonomics issue during the Clinton Administration), spoke about ergonomics at a May 2009 legislative conference of union nurses held in Washington, D.C.  In that speech, Barab pledged that the Obama Administration was committed to bringing back regulation in the area of ergonomics.  The new Assistant Secretary of Labor for OSHA, Dr. David Michaels, also has spoken in favor of instituting new ergonomic standards.  In the past, he has conducted epidemiologic studies examining the repetitive motion hazards facing printers, construction workers, bus drivers and other groups of workers.

In light of all these factors, it seems clear that regulation of ergonomics is coming soon.  It will be very interesting to see how any new regulations compare with those previously enacted and rescinded.  Regulations that are substantially similar to those put in place during the Clinton Administration would require specific authorizing legislation by Congress.  Stay tuned for additional developments in this area.