The outlook for labor relations during President Barack Obama’s second term seems likely to feature both turmoil and the status quo, according to labor law experts who provide counsel to employers.
The November elections preserved party majorities in both houses of Congress, and that bodes “more gridlock on Capitol Hill,” said Robert Nagle, a lawyer who specializes in labor law and advises employers on how to comply with the National Labor Relations Act (NLRA) and the rulings of the National Labor Relations Board (NLRB).
As was the case in the first term of the Obama administration, Republicans hold a majority in the U.S. House of Representatives, and Democrats hold a majority in the U.S. Senate.
“Just based on that alone, Congress is not going to pass any significant legislation modifying the National Labor Relations Act,” said Nagle, who is with Saul Ewing LLC, a law firm in Philadelphia, Pa.
“Where we do see some legislative activity is at the state level,” Nagle said, noting that last December the Michigan Legislature passed right-to-work legislation.
Unions object to right-to-work, labor law experts point out, arguing that it is unfair because it requires them to represent employees that opt out of paying union dues. In effect, it bestows the benefits of a union-negotiated labor agreement on those employees for free, unions contend. That Michigan, a cradle of union power, has become a right-to-work state is “remarkable,” Nagle said.
Separately, and more recently, legal wrangling has injected some uncertainty into past rulings of the NLRB, as well as the legitimacy of some of its board members. The court battle has thrown the board into a kind of “legal limbo,” labor law experts said.
The D.C. Circuit Court of Appeals ruled on January 25 that President Obama’s recess appointments of three members to NLRB – made a year earlier, in January 2012 – were invalid. As a result, some 300 decisions made while those members served on the board could be voided.
The Obama administration is expected to appeal the court ruling, experts said, but no announcement had been made as of this writing.
What are the implications for employers?
That remains to be seen, according to Nagle and others. The NLRB over the past year issued some decisions that employers “really didn’t like,” Nagle said. These included a policy designed to restrict employers’ authority to limit off-duty employees’ access to the workplace. This, Nagle explained, would favor unions as it could allow off-duty employees access to the workplace to organize fellow workers. Another decision by the board limited employers’ ability to restrict what their employees said about them on Facebook and via other social media. Another worry for employers had to do with the possible shortening of election spans; such a development would hamper management efforts to campaign against a union organizing effort, management advocates said. In all, Nagle said, the ruling could nullify “some very significant decisions” by the board that “benefited employees and unions at the expense of employers. All of those decisions are now in legal limbo.”
But, Nagle warned, the court didn’t issue an order saying “everything the NLRB has done since January 2012 is unenforceable.” For that reason, Nagle advised, “Until further notice, employers should continue to comply with the board’s decisions from last year because they are still binding law.”
NLRB regional offices will continue to enforce those laws, Nagle added, and will continue to apply NLRB decisions from last year “unless and until they are ordered by a court not to.”
The board issued a statement after the federal appeals court ruling, saying that it would continue to function as usual. The disputed recess appointees were called upon to resign by some members of Congress. As of this writing they had not done so, nor responded to the demand.
Nagle said that most of the NLRB’s activity is not at the federal, but at the regional level, “and that’s not going to change at all” as a result of the federal appeals court ruling.
“If a bunch of employees decide they want to unionize and they file a petition for an election, the [relevant] regional office of the NLRB would still process that,” Nagle said.
Likewise, he said, if an employee anywhere were to file an unfair labor practices charge against their employer, the relevant regional office would handle it. “They would still receive that, they would still investigate,” Nagle said. “If they thought there was merit they would issue a complaint.” Administrative law judges continue to hearing cases, he added.
Steven Wheeless, a labor law expert, said that one possible repercussion for employers, resulting from the NLRB’s uncertain standing, is that the board “may accelerate its pace of issuing controversial, pro-union decisions to get them ‘on the table,’ and get the employer community desensitized to them before the Supreme Court potentially removes [the recess appointees] from their positions.”
Wheeless, a partner in the law firm Steptoe & Johnson, Phoenix, Ariz., represents unionized employers in collective bargaining, contract interpretation, and grievance/arbitration processing. “The ruling also means that the D.C. Circuit Court of Appeals will not enforce any of the board’s recent decisions,” Wheeless said. “However, other Circuit Courts may come to a different conclusion, and, of course, most employers do not have the financial wherewithal to appeal Board decisions, so they are stuck with what the Board does.”
In advising how employers should conduct themselves in the meantime, both Wheeless and Nagle employed sports metaphors. Wheeless said that, long before they are ever confronted with a union organizing campaign, employers should be taking steps to foil it. Employers should play “offense and defense,” he said.
On defense, “it boils down to inoculating the workforce and controlling union access to employees,” Wheeless said. By “inoculating,” Wheeless said, he meant “educating.”
“The conventional wisdom is, if I talk about unions to my employees they’ll want to run off and join a union,” Wheeless said. “The exact opposite is true.”
Non-union workers need to know “what unions are, and they need to know how unions drive a wedge between them and their management team,” Wheeless said. Unions drive their own agenda – oftentimes to the detriment of the workforce, he said. For instance, instead of individual employees advancing based on skill and ability, Wheeless said, the union model means “having to wait around year after year to advance based on seniority.”
Employers should make that point and others in a meeting with employees, Wheeless said, recommending an initial orientation meeting and annual 30-minute refresher sessions. The financial impact of unions on employers is another key point to make to employees, Wheeless advised.
“Employees need to know what’s going on when a union shows up and starts promising them a dollar-an-hour increase, plus a defined pension benefit plan, plus guaranteed job security and guaranteed hours and guaranteed overtime,” Wheeless said.
If employees have not been educated in these matters, Wheeless said, “they are susceptible to that pie-in-the-sky message that unions will market to employees for weeks or sometimes even months before the employer even knows that the union is trying to organize the workforce.” At that point employers have a tough challenge to persuade employees that unionizing is against their best interests, Wheeless said.
On offense employers must focus on “beating the union at their own game,” Wheeless said, “which is to engage the workforce in a positive, proactive manner so that they feel an affiliation with management and a part of a team environment, a team mindset, rather than an 'us-versus-them' mindset.”
Nagle said, “The basic dynamics of maintaining a union-free environment are still the same. I call them the basic blocking and tackling of employer-employee relations.” Nagle said they include: providing a positive working environment; soliciting and responding to employee concerns in the workplace; and “generally avoiding creating the conditions that would lead people to think that they need a union to represent them.” He added, “It’s sort of an article of faith among management consultants that the only businesses that get unionized are the ones that deserve to be.”
What makes a business deserving, Nagle said, includes: an abusive supervisor, issues of discrimination and harassment; and wages and benefits that are “grossly substandard.” Another mark against an employer is if employees feel that they don’t have a voice, that management doesn’t care about their concerns, Nagle said. “Those are the circumstances that lead employees to reach out to unions for help.”
Union membership rate dropped in 2012
The percent of wage and salary workers who were members of a union in 2012 was 11.3 percent, down from 11.8 percent in 2011, the U.S. Bureau of Labor Statistics reported.
The number of wage and salary workers belonging to unions, at 14.4 million, also declined over the year. In 1983, the first year for which comparable union data are available, the union membership rate was 20.1 percent, and there were 17.7 million union workers.
The data on union membership were collected as part of the Current Population Survey (CPS), a monthly sample survey of about 60,000 households that obtains information on employment and unemployment among the nation's civilian non-institutional population ages 16 and over.
Here are some highlights from the 2012 data:
Public-sector workers had a union membership rate (35.9 percent) more than five times higher than that of private-sector workers (6.6 percent).
Among states, New York continued to have the highest union membership rate (23.2 percent), and North Carolina again had the lowest rate (2.9 percent).
In 2012, 7.3 million employees in the public sector belonged to a union, compared with 7.0 million union workers in the private sector.
Private-sector industries with high unionization rates included transportation and utilities (20.6 percent) and construction (13.2 percent).
By age, the union membership rate was highest among workers ages 55 to 64 (14.9 percent). The lowest union membership rate occurred among those ages 16 to 24 (4.2 percent).
Full-time workers were about twice as likely as part-time workers to be union members, 12.5 percent compared with 6.0 percent.
In 2012, 15.9 million wage and salary workers were represented by a union. This group includes both union members (14.4 million) and workers who report no union affiliation, but whose jobs are covered by a union contract (1.6 million). Private-sector employees comprised about half (814,000) of the 1.6 million workers who were covered by a union contract, but were not members of a union.