After a brutal battering in the midterms, organized labor will conclude 2014 with the wind at its back — thanks to two out-of-the-way corners of the Obama administration whose default posture in recent memory has been paralysis.

The agencies in question are the National Labor Relations Board and the Labor Department’s Wage and Hour Division. Both spent the past decade largely crippled by congressional obstruction, first from Democratic majorities and then from Republican ones. Now freed from those obstacles — at least for the moment — and operating under Democratic leadership impatient to make up for lost time, these agencies are promoting workers’ and unions’ rights more aggressively than Washington has witnessed in a generation. The changes seem part of a more general shift for the Obama administration — extending diplomatic recognition to Cuba being another — toward more progressive policies as it heads into its final two years.


The NLRB, the main source of the action, operates independent of any direct White House influence, but President Barack Obama nominates three of its five board members, as well as its general counsel. In a chain of end-of-the-year rulemakings, filings and decisions, the NLRB is exercising more muscle on labor’s behalf than Obama achieved during his previous six years in office.

On Friday, NLRB General Counsel Richard Griffin, following through on a policy shift he announced in July, issued a consolidated complaint against McDonald’s. For the first time, the Oak Brook, Ill.-based corporation is being held jointly responsible for alleged labor-law violations committed by its franchisees — a clear victory for McDonald’s food workers and for the Service Employees International Union, which for more than two years has organized protests on their behalf.

The McDonald’s filing prompted swift cries of outrage from the business lobby. “Today’s action is just another in a line of decisions and initiatives by the board within the last two weeks that blatantly advance the union agenda,” said Randy Johnson, senior vice president for labor, immigration and employee benefits at the U.S. Chamber of Commerce.

The other decisions irking Johnson include a final rule issued Dec. 12 speeding up union elections that, according to labor groups, will deprive management of certain delay tactics it’s commonly used to keep unions out. Business groups have tagged it an “ ambush election” regulation that will deny workers the opportunity to educate themselves properly before they vote on whether their workplace should affiliate with a union.

The day before, an NLRB decision ruled that employers could no longer prevent organizers from using company email in off-hours to campaign on behalf of unionization. Labor groups touted this as a victory for organizing, while business groups deplored it as compromising companies’ free speech and property rights. And on Dec. 15, the NLRB ruled that it would impose a more rigorous standard in approving arbitration awards — another clear win for labor, since employment contracts often require workers to arbitrate any disputes with management.

“They work really hard,” said Larry Cohen, president of the Communications Workers of America. “They take pretty seriously the preamble,” Cohen added, referring to the opening words of the 1935 National Labor Relations Act, which task the NLRB with “encouraging the practice and procedure of collective bargaining.”

Meanwhile, over at the Labor Department, the Wage and Hour Division’s collection of back pay has risen by more than a third under Obama, and man-hours dedicated to enforcement are up by half. A misclassification initiative was launched in response to the 2010 finding by Vice President Joe Biden’s Task Force on the Middle Class that 10 percent to 30 percent of all workers are considered independent contractors to avoid providing benefits and protections required under federal law, even though the workers met the legal definition of employees.

Much of the impetus for these changes has come from David Weil, a Boston University economist who — first as a consultant to Wage and Hour (initially hired under President George W. Bush) and, since May, Wage and Hour administrator — pressed the division to target enforcement efforts on industry sectors where wage theft is most common: restaurants, hotels, construction, janitorial services, agriculture, retail and manufacturing. Now businesses are bracing themselves for a proposed rule due early next year that is expected to at least partly reverse a long-term decline in the percentage of U.S. workers to whom employers must pay time-and-a-half when they work more than 40 hours a week.

The new activism of the Wage and Hour Division and especially the NLRB may well turn out to be fleeting. Both agencies benefited from a Senate filibuster rule change enacted late last year — partly in response to union pressure — that ended filibusters against most executive branch nominees. Weil, whose nomination the International Franchise Association termed “ irresponsible and reckless,” was confirmed on a 51-42 party-line vote, and therefore couldn’t have taken office without the change. Weil became the first non-acting Wage and Hour administrator at the Labor Department in 10 years. Before that, confirming a permanent administrator was impossible, either because Senate Democrats deemed Bush’s choices too lenient on business or because Senate Republicans deemed Obama’s choices too strict.

The same dynamic hobbled the NLRB under Bush and Obama, with the added difficulty that during both administrations Senate partisans were able to deprive the NLRB of a three-person quorum. An attempted end run by Obama through recess appointments was frustrated when the courts challenged their constitutionality, culminating in June’s Supreme Court decision in Noel Canning v. NLRB. The filibuster rule change cleared the path for a five-person board with no Democratic appointments due to expire until summer 2016. The incoming GOP Senate majority, however, can be expected to attach appropriations riders to undo the NLRB’s more controversial actions, and quite possibly any overtime rule proposed by Wage and Hour. There will surely be court challenges as well.

Organized labor’s response to all these favorable developments has been somewhat muted. AFL-CIO President Richard Trumka termed the NLRB’s election rule “modest but important,” and Mary Kay Henry, president of the SEIU, said much the same. This may be strategic, lest labor inflame its Republican opponents in Congress. Partly, though, it reflects the certainty that any pro-labor action taken by the Obama administration will be challenged immediately in court and — even if it ultimately takes effect — won’t likely do so for several years.

In addition, the NLRB is in practice a weak enforcer. By statute it may not impose fines, or punitive or compensatory damages, on businesses (or unions) it finds to be in violation. It may only order reinstatement of dismissed or demoted employees and require payment of back wages.