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Battle-Tested Big Labor Has Some Cause for Optimism

By Allen Smith  8/29/2014
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Organized labor continues to be bruised by some fierce organizing battles, including a heavily reported organizing drive in Chattanooga, Tenn., which it lost even though the employer was neutral during the campaign. But so far it’s been “a good year for labor,” according to James Hays, an attorney with Sheppard Mullin in New York City.

“Albeit some goals and priorities have not moved as swiftly as I suspect some in labor had hoped, the activities at the NLRB [National Labor Relations Board] offer a bright ray of hope for labor to take into the remainder of 2014 and into 2015,” Hays said.

“Overall, you could say in many respects that labor has put the brakes on its membership declines and is in a stronger position to advance organizing—from neutrality/card check agreements with large employers to micro-bargaining units arising out of Specialty Healthcare to outreach activities directed at recent immigrants—the new organizing landscape has brightened for labor,” Hays remarked.

And at least one big issue for unions has been a resounding success so far this year, at least at the state level.

“The major issue for labor this year has been pushing for minimum wage increases. They have done a formidable job around the country of pushing this agenda,” said Michael Lotito, an attorney with Littler in San Francisco and former chair of the Society for Human Resource Management board. “Why? Because most union dues are tied to wages. The union dues may be twice the hourly rate per month. Occasionally, there may be an add-on in an amount like $1.00. As a result, when the minimum wage increases, the unions ‘get a raise.’”

Board Priorities

The NLRB has splashed out by expanding the statutory concept of “protected, concerted activity,” noted Brian Hayes, an attorney with Ogletree Deakins in Washington, D.C., and former NLRB member. “Just a few years ago, the NLRB had little impact on nonunion employers. Indeed, except for those very few employers that experience an actual union organizing campaign, the NLRB was of little, if any, practical consequence.

He observed “that reality has changed dramatically,” partly due to “its issuance of highly publicized and often controversial decisions involving employer handbook language and protected employee conduct.”

The board “has issued a number of decisions this year analyzing handbook provisions and policies and in most instances have found those provisions unlawful because they restrict employees’ Section 7 of the NLRA [National Labor Relations Act] rights. As a result, employers we represent are increasingly concerned about the language in their employee handbooks and are asking us to sanitize and rewrite provisions in them so they comply,” noted Howard Bloom, an attorney with Jackson Lewis in Boston.

“The NLRB expansion of employee rights under Section 7 concerted activity theories is truly breathtaking in its scope,” Lotito said. “Hitting a ‘like’ button for Facebook postings is now concerted activity. Further, an employee screaming and cursing at an owner in a confined space is acceptable behavior. This landscape does not provide employers with any clear guidance as to what their handbook policies should be.”

The NLRB is flexing its muscles in more traditional labor-related areas as well. Its priorities this year, Bloom and Hayes noted, include:

  • Reissuance of its “quickie” or “ambush” election rule, which will decrease the length of time for union campaigns, making it harder for employers to share their perspectives on unions with employees.
  • Overturning employer-friendly decisions, such as current law that lets employers bar employees from using company e-mail for union purposes.
  • Cleaning up the fallout from the Supreme Court’s ruling in Noel Canning, which in effect invalidates hundreds of board decisions by unconstitutional recess appointments.
  • Expanding the Speciality Healthcare decision.
  • Changing the joint employer standard to make corporate franchisors joint employers.

With quickie elections, “the NLRB is posed to make the most dramatic changes to the election process since 1959 when a statutory change mandated the result,” Lotito said. “This time it looks like it will be through rule-making.”

Big labor also has been returning to its roots by embracing grassroots efforts such as the calls for minimum wage increases at worker centers, noted Steve Bernstein, an attorney with Fisher & Phillips in Tampa, Fla. The worker centers are helping organized labor rebrand itself and distance itself from some of the corruption scandals of past decades.

Labor faces challenges though as some of the industries it traditionally has organized the most—such as manufacturing—are offshoring or becoming increasingly staffed by fewer employees as factories use more robots. And labor has, despite the Service Employees International Union, had a difficult time making its message resonate in the service industry, Bernstein added.

However, he said labor has shown itself to be savvier in social media than some employers and “more nimble to address hot-button issues, like the rising cost of medical care.” He said labor may exploit that more as an organizing tool.

Skeptical Millennials

A challenge for organized labor is finding messages that connect with Millennials, Hayes said.

“AFL-CIO President Richard Trumka perhaps said it best when he noted earlier this year that organized labor is experiencing a membership ‘crisis,’” Hayes remarked. “The demographics of union support are an ominous sign for organized labor. … Its support is weakest in the under-25 age band—individuals that represent an increasing percentage of the workforce. If organized labor cannot convince … younger workers that membership is a value proposition, then its private-sector membership levels are unlikely to reverse course.

“Big labor is unquestionably facing very heavy headwinds, but it would be a mistake for anyone to underestimate its resolve and resilience,” he concluded. “Organized labor prides itself on the notion that its ability to deal with adversity is engrained in its institutional DNA. On Labor Day of 2014, big labor may be on the verge of having that hypothesis tested.”

Allen Smith, J.D., is the manager of workplace law content for SHRM. Follow him @SHRMlegaleditor.

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