Unions – Fighting to stay relevant
The Department of Labor (DOL) reported that in 2021, 10.3% of the national workforce, or approximately 14 million workers, were unionized. That number drops to 6.1% for 2021. These are the lowest percentages since the National Labor Relations Act (NLRA) was passed in 1935, which governs the relationship between unions and employers. It is enforced by the National Labor Relations Board (NLRB or Board), a federal agency headed by a 5-member board appointed by the president.
At their peak in the 1950s, unions accounted for about a third of all workers. Union membership has steadily declined since then, with numbers falling seriously from the early 1980s. Unions failed to organize even a single establishment of one of the two largest retailers in the world, Wal-Mart and Amazon, despite years of effort. Unions have also in recent years lost high-profile campaigns to organize a major Boeing aircraft assembly plant in South Carolina and Volkswagen and Nissan plants in Tennessee.
Unions have had some success in organizing technology employees at several media-related companies and most recently at two Starbucks stores, and announced planned elections at 15 other Starbucks locations in several states. Unions also successfully organized a handful of fast food franchises, mostly on the East Coast. Unfortunately, these small victories did little to reverse the deterioration of their membership lists.
One of the main ways the Biden administration is accomplishing its goal of helping resurrect unions is by appointing staff to the NLRB. President Biden has appointed former union lawyers to the majority of council positions. As general counsel and chief enforcement officer, he appointed another longtime labor lawyer, Jennifer Abruzzo.
The staunchly pro-union board has already begun rolling back many of the pro-employer rules and rulings passed by the Trump-appointed board. Ms Abruzzo is currently challenging more than a dozen precedents. The Commission will almost certainly reinstate the so-called “quick election” rules that allow an election to be held as quickly as 10 days after a union files its election petition.
This prevents employers from mounting an effective campaign to inform employees of what unionization could mean for their workplace. The Council is also considering a case that could overturn a precedent limiting the ability of unions to create and organize small groups, called “micro-units”, such as a single department, instead of the traditional unit comprising an entire establishment.
In addition, the Council is looking closely at union electoral losses for reasons that could invalidate the results. The board overruled a recent union loss in the high-profile Amazon warehouse election in Bessemer, Alabama, and ordered a new election based on what it determined was employer misconduct. Employers should expect other pro-union measures such as those that would allow greater union access to workplaces and more restrictions on employer responses to organizing campaigns.
Legislative action is another avenue available to the Biden administration to try to turn the union around. Unions have argued for years that labor law, particularly the NLRA, favors employers. Past efforts to pass pro-union legislation have consistently failed. For example, under the Clinton administration, unions sought to pass the Fair Workplace Act, which would have designated acts of hiring or threatening to hire replacements for economic strikers as a labor practice. unfair.
It was blocked by a filibuster threat from the Senate. In 2009, Senate Republicans also blocked the Employee Free Choice Act, commonly referred to as “card verification,” which would, among other things, have abolished secret ballot elections and replaced them with a process that only required signature cards. The Law on Protection of the Right to Organize (PRO Law) is the current attempt at legislative action.
President Biden widely touted it during his campaign as a rewrite of federal labor law making it easier to organize unions. This would tip the scales in favor of unions by eliminating right-to-work laws, banning meetings where employers speak out against unionization (“captive audience” meetings), imposing fines for employers’ unfair labor practices, imposing personal fines on corporate executives who interfere in elections, forcing arbitration in case of inability to agree on the terms of a first contract, allowing secondary boycotts and redefining the term “independent contractor” to make more “employee” workers subject to unionization, among other changes.
The Democratic-controlled House passed the PRO law in 2020, but the Senate never took it up. It is unlikely that it will ever become law. However, to hedge their bets, Democrats were able to include PRO law monetary penalties in the “Build Back Better” reconciliation bill. This measure has also been blocked in the Senate, at least for the moment.
While the AFL-CIO, the umbrella organization for most unions, recently touted a 2021 Gallup poll that showed 68% of respondents supported unions, their declining numbers tell a different story. It seems that in the case of most employees, agreement in principle with the concept of unions does not translate into a willingness to vote for a union in their workplaces.
Until unions succeed in bridging the gap between general perceptions and personal acceptance, unions’ slide into irrelevance is likely to continue.
Rick Alaniz, JD, of Alaniz Associates, has been at the forefront of labor and employment law for over forty years. He began his legal career as General Counsel with the U.S. Department of Labor, served on the Presidential Cost of Living Board during the Nixon administration, and also held senior positions on the National Labor Relations Board. , first in Washington D.C. and later in Minneapolis where he coordinated NLRB law enforcement actions in the five-state Midwest region.