Too little too late? Labor movement ‘in crisis’ turning to desperate measures

by John T. Neighbours

In 2000, John Sweeney, then-president of the AFL-CIO, declared that unions were going to “organize, organize, organize.” A few years later, a group of unions led by the Service Employees International Union (SEIU) and its president, Andy Stern, split off from the AFL-CIO to form an organization called “Change to Win,” whose declared purpose was to organize unorganized workers. 

Despite those aspirations for organized labor to recapture members, union membership has continued to trend downward. At present, less than seven percent of the private-sector workforce is unionized, and even when public employees are included in the count, only 11 percent of all workers are unionized. In other words, nearly 90 percent of American workers choose to be union-free.

Recently, USA Today reported that current AFL-CIO President Richard Trumka stated that the labor movement is “in crisis” and that he will push for far-reaching changes. His changes include forging closer partnerships with―and even accepting as members―such outside groups as the Sierra Club and the NAACP. The newspaper also reports that these measures “are part of a strategy aimed at reviving the labor movement’s falling clout and recasting it as a champion of American workers generally, not just for the declining ranks of dues-paying union members.”

Down but not out?
USA Today’s report about Trumka’s view of the union movement should be considered in context with the U.S. Chamber of Commerce’s concerns about “significant initiatives that may issue from both the [National Labor Relations Board (NLRB)] and [the U.S. Department of Labor (DOL)].” For example, the Chamber warns of:

• Union manipulation of bargaining units by the “Obama” NLRB that could make it easier for unions to divide employees into smaller bargaining units for organizing purposes and then organize them;

• Ambush election regulations that would allow union representation elections to occur in as little as 14 days from the filing of a representation petition (compared to the 42 days that have been the norm for the last several years);

• Nonemployee union access to employer property―real or electronic―by union agents seeking to organize workers;

• Restricting management’s abilities to enforce certain types of workplace conduct policies, particularly ones related to employee criticism of the company, its policies, or its management; and

• Proposed DOL regulations that effectively would limit employers’ ability to retain their own counsel during union organizing drives.

The Chamber of Commerce’s concerns stem from the president’s appointment of a newly constituted NLRB, a majority of which has an organized labor background, and a new secretary of labor who is perceived as being willing to pursue labor’s agenda through the DOL. In the latter regard, the Chamber reports that the DOL is pursuing its proposed rule to require attorneys and consultants who are hired by employers to advise them during union organizing drives to disclose certain financial information that is so encompassing that many law firms that have traditionally advised employers in these respects no longer will be willing to do so. That, in turn, will cause union-free companies that are subject to union organizing to no longer be able to rely on their lawyers.

So what’s going on? Organized labor is worried about its inability to organize―and rightfully so. Yet the business community is worried that the federal government is tilting the playing field in labor’s favor to make it easier for unions to organize. The reality is organized labor has been ineffective in many―although not all―areas in regard to organizing rank-and-file American workers, and if unions can’t turn it around soon, their influence in the American workplace will disappear. One needs to look no further than the steel and automotive industries to see what has already occurred.

Impact on employers
What does all this mean from an employer’s perspective? If you’re nonunion, you’re likely happy that organized labor is less effective, but you should be wary that organized labor may, with the assistance of the federal government, renew its efforts to organize. Union watchers predict that the newly appointed NLRB will do everything within its power to resuscitate organized labor.

Unionized companies also should feel encouraged that they have newfound bargaining strength because organized labor desperately needs to hold on to the bargaining relationships it currently has, particularly because its ability to do so in Indiana has, over the long term, been eroded by the 2012 passage of the right-to-work law.

Despite organized labor’s professed desire to do things differently and despite the Chamber of Commerce’s concerns about newly appointed members of the NLRB, the question remains, is it too late for organized labor? There are two fundamental facts your editors believe may suggest it is.

First, the vast percentage of Americans now truly believe that no matter what labor says or does, they don’t want to be in a union. Second, organized labor presently doesn’t have the talent on board to organize. Admittedly, the SEIU and a few others have some effective organizers who have been able to organize home healthcare workers and janitorial employees. But those successes don’t seem to translate to victories with more mainstream-type employers.

Bottom line
The belief in industrial America from 1935 to 1985 was that it was in the best interest of industrial, transportation, and construction workers to be unionized. The culture has changed, and the employees in those industries―as well as in all of the healthcare and high-tech industries that have provided so many jobs in recent years―now believe it’s in their best interest to remain union-free.

Accordingly, AFL-CIO President Trumka’s challenge isn’t simply to declare that those industries are in crisis and need more union members. His challenge is to reverse a culture that has replaced the culture that sustained the union movement throughout much of the 20th century. It’s now the 21st century, and it’s likely to be a time far less friendly to organized labor despite the politics of Washington.

John Neighbours is a partner with Faegre Baker Daniels and practices in the Indianapolis, Indiana office. He may be contacted at john.neighbours@FaegreBD.com