Big Labor and NLRB Tactics Evolve
With total union membership at its lowest rate since 1916, Big Labor is desperate to organize non-union workers. Labor unions latest approach comes in the form of “worker centers” or “alternative labor organizations.”
The Federalist Society report, “Labor Organizations by Another Name” summarizes the composition of the groups:
“Typically, they are non-profit organizations funded by foundations, membership fees and other donations, that offer a variety of services to their members, including education, training, employment services and legal advice. They also advocate for worker rights generally through research, communication, lobbying and community organizing. Increasingly, however, worker centers are directly engaging employers or groups of employers to effectuate change in the wages, hours, and terms and conditions of employment for their members. Indeed, when it comes to such direct engagement, these worker centers act no differently than the traditional labor organization.”
The proliferation (estimated 200+ worker centers) and union funding of worker centers should not come as a surprise when the latter is exempt from the National Labor Relations Act and the Labor Management Reporting Disclosure Act, which, in part, instill transparency, democracy in unions and restrict certain union tactics.
Falling outside the purview of labor law allows worker centers to organize, collect dues and gain access to employees that traditional labor union’s cannot like immigrants or independent contractors.
Another crucial benefit of organizing through alt-labor groups is they can avoid the duty to fair representation of all members. Unlike labor unions, worker centers are allowed to engage in secondary boycotts against targeted employers. More troublesome, the LMRDA union democracy and financial transparency requirements do not cover alt-labor groups.
But Big Labor is not alone in feeling the squeeze of declining union membership. The National Labor Relations Board’s workload has dwindled in unison with deceasing union membership.
According to the NLRB, its caseload has dropped almost 9 percent in the last two years, with a 3 percent drop in FY2012 and a 5.9 percent drop in FY2011. Senate Republicans, in a letter on the NLRB’s budget, reports that over the last 20 years the Board’s:
“…annual representation caseload has dropped by 59 percent, the number of representation cases the Board decided has dropped by 72 percent, the number of unfair labor practice cases has dropped by 33 percent, the number of unfair labor practice cases the Board decided has dropped by 63 percent, the number of elections held has dropped by 57 percent (although the union win rate has increased), yet during the same period funding has increased more than 70 percent.”
Like unions, the Board is ratcheting up its intervention in non-union workplaces to remain relevant. To make inroads, the NLRB is expanding its enforcement of Section 7 of the NLRA rights of all workers.
Section 7 provides all employees the right to exercise what is called “concerted protected activity.” The NLRB website defines this as employees “right to act together to try to improve their pay and working conditions or fix job-related problems, even if they aren’t in a union.” This allows union and non-union workers alike to band together for mutual aid and protection.
Specifically, employer handbooks with provisions curtailing employees’ social media activities has caught the ire of the NLRB and given it an opportunity to increase Section 7 of the NLRA enforcement.
A string of reports released by the NLRB Office of General Counsel discusses what social media policies do and do not infringe on workers Section 7 rights. Unfortunately, more often than not Employers are impaired from stopping employees who choose to sully the reputation of their employer.
For example, the NLRB has determined a policy prohibiting employees from making “disparaging” remarks about the employer is unlawful and overly broad. The Board has decided employees are free to make critical comments about their employee because the Board takes an expansive view of what is “protected concerted activity.” Essentially, an employee can make critical comments about the employer regarding working conditions as long as other employees publically voice similar grievances. At that point the employees are considered to be exercising their right to organize for mutual protection, which the employer is forbidden from restricting.
Union membership decline and its impact on the NLRB’s workload will continue to push both labor organizations and the Board to grow beyond their once clearly-defined boundaries, an evolution painful to them – and disastrous for us.