To that end, on April 26, the House Subcommittee on Health, Employment, Labor, and Pensions discussed legislative options to strengthen the rights of workers to choose whether or not to join a union and what is the proper legal status for worker centers. Below I will discuss some of the legislative solutions brought up at the hearing to improve labor-management relation laws.
Lawmakers and witnesses lamented the fact that once a union is certified as the exclusive representative of a workplace, they maintain that status in perpetuity. In other words, most workers never get the chance to vote on union representation, but rather inherit their union.
As I previously wrote:
Most unions organized workplaces decades ago, when most of the current workers did not work there, which means current workers never got to vote on the union that represents them. Only seven percent of unionized workers actually voted on the union that currently represents them, according to data from the Bureau of Labor Statistics and National Labor Relations Board.
A bill has been introduced to remedy this injustice. The Employee Rights Act (H.R. 2723) would institute union recertification elections. This provision of the bill would call for a secret-ballot election every few years or when the workforce has turned over by more than 50 percent since the last union election. This ensures workers are presented with the opportunity to voice their opinion on whether they desire union representation, and do not simply inherit a union chosen by previous workers. Unions that generate value for workers and the company have little to fear from regularly held elections. On the other hand, unions that take workers for granted and no longer represent their interests will likely, and rightfully, lose their monopoly status over workers. See previous posts on other pro-worker provisions of the Employee Rights Act here, here, and here.
Members-Only Unions/Workers Choice
Providing for members-only unions is potentially the most impactful step Congress could take to increase worker choice. Moreover, the reform addresses concerns from both labor unions and workers. Regrettably, this reform measure received only a passing reference.
Under current labor relations law, once a union wins a union election they are certified as an exclusive representative for a bargaining unit. This grants the union monopoly status—no other union can represent these workers and workers cannot represent themselves or negotiate their own work terms and conditions. Tethered to this monopoly status is a “duty of fair representation,” which means the union must treat members and non-union members equally. A union cannot negotiate a pay raise for union members but not for non-members.
Neither workers nor unions are completely satisfied with this arrangement. In right to work states where non-members are not forced to pay union dues as a condition of employment, unions contend it is unfair that they must provide services for free to non-members. Workers, though not forced to pay dues, are still forced to work under a union contract they do not necessarily want. In non-right to work states, workers are forced to pay and receive union representation they do not desire.
A members-only union or “workers choice” policy resolves this friction because unions do not obtain exclusive representation status and are relieved of their duty of fair representation. Unions would only represent and receive dues payments from workers that are members. Non-members are then free to negotiate their own terms and conditions with the employer. This is certainly a better way forward than the current one-size-fits-all collective bargaining system.
Another item discussed at the hearing was the proper legal status of what are known as “worker centers.” There has been a proliferation of worker centers over the past few decades.
Historically, as recounted at the hearing, worker centers have been nonprofit organizations that engage employees to provide education, training, and translation services. More recently, the activities of many worker centers have changed. Instead of engaging employees, worker centers deal with employers and seek to hold them accountable to workers.
This change in tactics arguably puts workers centers under the coverage of the Labor Management Reporting and Disclosure Act (LMRDA) and the National Labor Relations Act (NLRA). These laws prohibit certain union activity related to strikes, promote democracy within unions, require union financial transparency and seek to hold unions accountable to members.
Section 3(j) of the LMRDA defines a union as an organization that is “engaged in an industry affecting commerce and includes any organization… which employees participate and which exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours, or other terms or conditions of employment”
A recent analysis produced by the U.S. Chamber of Commerce provides examples of several worker centers that deal with employers in areas concerning employee wages, hours, and workplace terms and conditions. Worker centers that perform these actions meet the LMRDA definition of a union, and should comply with the organizational accountability standards imposed by the law.
Since the LMRDA and NLRA do not currently apply to worker centers, they may engage in secondary boycotts, which are illegal for unions to conduct, avoid accountability to members, and fail to exhibit financial transparency. To paraphrase Stefan Marculewicz, a witness at the hearing and shareholder with Littler Mendelson P.C., no matter how laudable the goals of an organization is, none are above the law. Further, if the main goal of worker centers is to ensure employers comply with the law, it is not unreasonable for the centers themselves to do the same.
Fortunately, the issue of how worker centers are defined resides in the jurisdiction of the Department of Labor, not Congress. Unfortunately, the Office of Labor Management Standards (OLMS) is charged with making such determinations and, so far, the Trump administration has failed to install a director at the subagency. While Democrats can be blamed for some of the administration’s troubles in confirming key personnel, the director of OLMS does not need Senate approval.