Jacobson: Moving to Plan B for Labor’s Pains

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Tuesday’s nomination hearing for National Labor Relations Board nominee Craig Becker officially marks a quiet but important pivot in the administration’s strategy to meet the agenda demands of its biggest donor base, organized labor. Visible, big-ticket items are now out. What’s in? Under-the-radar regulatory efforts.

The initial plan lasted 12 months before dying quietly. The White House and Congressional Democrats paid appropriate lip service to the Employee Free Choice Act, which was widely reputed to be Big Labor’s top political priority. The bill, though, is so unpopular that Virginia’s newly elected governor made his opposition to it a central part of his campaign. And Republicans across the country are using the issue to bludgeon their opponents.

Then there’s health care legislation, which couldn’t be resuscitated even with the jolt of a galling “Cadillac” tax exclusion for unions and public employees (who now make up the majority of all union members). There’s little evidence that — barring an unforeseen outbreak of bipartisanship ahead of November’s election — this issue that used to be No. 2 on labor’s agenda will get anything but a toe tag in 2010.

While both issues have always faced long odds, the stunning win by Massachusetts Sen.-elect Scott Brown (R) has made the future even dimmer for labor’s legislation.

Thus, we have today’s hearing for Becker, a longtime strategist and lawyer for organized labor. If they can’t get “card check” through a broad, participatory legislative process, they’ll push to grab a similar victory through the federal board’s ability to regulate without approval of the people’s Representatives.

As such, this hearing — demanded by Sen. John McCain (R-Ariz.), who is troubled by Becker’s blatantly anti-employer views — signals that we have officially hit plan B on the administration’s strategy for pandering to the organized labor lobby. This new course will focus on the quiet job-killer of regulation and card check by fiat.

It’s not just a fight over Becker, though; there are other regulatory efforts under way to ensure that some of labor’s largesse in political contributions finds a positive “return on investment.”

On Friday, the Occupational Safety and Health Administration released a notice of proposed rulemaking that would require employers to begin recording whether any injury fits into a new category of ill-defined problems known as musculoskeletal disorders. Employer groups worry these MSDs could be WMDs in a future fight over ergonomics, if any ache and pain (occurring from work or not) can be thrown into a conglomerated statistic implying a rash of new workplace injuries.

Combine that with the administration’s expected push to impose new restrictions on combustible dust, taking money from OSHA partner programs to funnel to enforcement activity and driving other efforts within the Department of Labor to close off transparency requirements on union officials.

At a fundamental level, this strategy — which is playing out as the administration also looks to back off climate legislation in favor of regulation through the Environmental Protection Agency — aims to move important fights from highly visible (highly accountable) debates among elected officials to obscured rulemaking by bureaucrats. The goal is to use leverage away from the eyes of the public, which clearly is not enamored of labor’s agenda.

The likely counterstrategy for employer groups is not terribly difficult to guess. Republicans and industry will have their success judged on the degree to which they can educate and motivate the public and, in particular, the small businesses that the White House often pats on the back with one hand while strangling with the other.

With the president’s aura of invincibility a distant memory, Democrats are abandoning a full-frontal attack to secure labor’s agenda. But the story line is set for the public, and for employers and Republicans blocking card check by fiat, and costly new OSHA interference is not as daunting as prognosticators would have suggested a year ago.

Union officials and some politicians have learned the hard way that they couldn’t achieve their agenda through direct confrontation. Perhaps that’s why the first rule of plan B is “you do not talk about plan B.”

Bret Jacobson is president of the research and communications firm Maverick Strategies.