As in 2014, union leaders last year directed much of their energies toward maximizing political and legal advantage. And they scored tangible victories. President Barack Obama, now in his last year in office, is without question the best White House friend of organized labor in decades. Among other things, unions won major cases before the National Labor Relations Board (NLRB), with its built-in 3-2 Democratic Party majority. And the Teamsters achieved its long-sought goal of release from federal control established following a 1989 civil racketeering settlement. Yet organized labor also experienced its share of setbacks, especially in the courts. And they received lots of unwanted exposure for embezzlement and fraud. As far as rank and file members are concerned, the most pressing problem is the growing possibility that their pension plans will be depleted.
When the United Auto Workers in April 2014 gave up on its bid to unionize hourly workers at the Volkswagen assembly plant in Chattanooga two months after its ballot defeat, then-President Bob King intimated the union would be back. It's a lot more than an intimation now. On December 4, maintenance workers at the facility voted 108-44 in favor of UAW representation. The National Labor Relations Board a week earlier had approved a union request for an election. Unlike the last time, VW is not with the union. Even before the vote, the German-based automaker had announced its intent to appeal the NLRB ruling. Its plans have not changed. If the election stands, the union victory would be limited – maintenance workers are but a fraction of all employees – but it would be a victory all the same.
“Card Check: The Sequel” has arrived. No, it’s not a movie. It’s a congressional bill. And labor unions are counting on a happy ending this time. On October 6, Sen. Bernie Sanders, I-Vt., and Rep. Mark Pocan, D-Wisc., unveiled the Workplace Democracy Act (S.2142, H.R. 3690). The measure would force nonunion private-sector employers to recognize a union as a bargaining agent if it obtains signed pledge cards from over half of all potentially affected workers. This organizing tactic, known as a “card check,” is legal. And unions often use it as a prelude to, or a substitute for, a secret ballot representation election. The bill’s name is misleading. It’s no more about democracy than its almost identical forerunner, the Employee Free Choice Act, was about freedom of choice. And its economic effects are not likely to be salutary.
The National Labor Relations Board has provided unions with a variety of favorable rulings during the Obama years, but perhaps none as dramatic as one last Thursday. On August 27, the NLRB, in a 3-2 vote, concluded that Browning-Ferris Industries (BFI) of California Inc. qualifies as a “joint employer” alongside another firm, Leadpoint Business Services, with which it had contracted to handle labor operations at a Bay Area recycling plant. As such, both companies must negotiate with a Teamsters affiliate should the results of a representation vote last spring reveal a union victory. The ruling could force many large employers to the bargaining table over labor issues which they have little or no direct control, while sharply raising business costs for contractors, franchisees and temp agencies. And it isn’t just the Teamsters who are rejoicing.
By now it is settled judicial opinion: A private-sector union can’t force nonunion employees under contract to pay dues for purposes beyond those related to collective bargaining. The Supreme Court cogently expressed this view in its landmark 1988 ruling, Communications Workers of America v. Beck. Yet it is almost as if the decision never happened. A new law journal article by prominent Right to Work attorney Raymond LaJeunesse, Jr. explains why. He points a finger not only at the unions, who at least act out of recognizable self-interest, but more importantly, at the ostensibly nonpartisan National Labor Relations Board. The NLRB, he argues, using a variety of tactics, over the years has acted more as a de facto advocate for unionism than as a guardian of the public trust. And the situation has gotten worse under President Obama.
Some would call it punting. Others would call it common sense. Both summations might apply. On Monday, August 17, the National Labor Relations Board unanimously ruled that scholarship football players at Northwestern University cannot form a union. In overturning a March 2014 regional NLRB decision, the board concluded that allowing union organizing at one campus, but not at others, would be disruptive. The ruling read: “Our decision is primarily premised on a finding that because of the nature of sports leagues…it would not promote stability in labor relations to assert jurisdiction in this case.” While the decision is a rebuke to the players’ request, its scope is narrow. By declining to rule on whether student-athletes qualify as “employees,” the board has kept the door open for similar cases.
Two and a half years ago, the International Longshoremen's Association was digging in for a strike that could have crippled shipping along the Atlantic and Gulf Coasts. The strike didn't happen. Yet the union power that led to the impasse remains. The Manhattan Institute has some ideas about how to avert future such showdowns. Last month it published a paper, “Held Hostage: U.S. Ports, Labor Unrest, and the Threat to National Commerce,” arguing that strikes and slowdowns, or the threat of them, impose high costs. Written by Institute Senior Fellow Diana Furchtgott-Roth, the report cites federal labor law as the main culprit, concluding Congress should shift responsibility for collective bargaining oversight from the National Labor Relations Board to the National Mediation Board.
If the year 2014 had a main theme, it was, as in 2013, the unions' pursuit of legal advantage. The results were mixed. Unions scored victories at the National Labor Relations Board, but they tasted defeat in the courts, most notably in their effort to unionize private home care providers in Illinois and overturn a Wisconsin law reining in public-sector costs. In another bitter pill, the United Auto Workers last February lost a representation election at the Volkswagen plant in Chattanooga. As for dipping their hands in tills, national union leaders generally behaved themselves, but many local bosses, office employees and business agents did not.
The National Labor Relations Board lately appears to believe that if an aspect of labor law isn't broke, fix it anyway. Unions certainly are comfortable with that. On December 15, the NLRB published a final rule that would dramatically shorten the duration between a union's filing of a petition to represent workers and the holding of a vote. This 'ambush' or 'quickie' election rule, under the guise of promoting fairness and efficiency, would throw roadblocks in front of an employer seeking to respond to union organizer arguments. The board issued its preliminary rule last February after a Washington, D.C. federal court in May 2012 had struck down a similar mandate on procedural grounds. Last Monday, January 5, a coalition of trade groups filed suit to block the rule, set to take effect on April 14. As before, at stake is the right of workers to choose whether to belong to a union.
The National Labor Relations Board has changed in size and composition several times during the Obama administration, but one thing has remained constant: its pro-union majority. Labor officials lately are feeling pretty glad about that. On December 11, the NLRB ruled 3-2 that employees with access to an employer e-mail system can use that system for union organizing during "nonworking time." The ruling, Purple Communications Inc., overturns a 2007 NLRB decision, Register Guard, which held that a company has the discretion to ban non-business-related e-mail interactions among workers, including union-related ones. The board insists the impact of its newest ruling is "limited." Yet unions, especially the Communications Workers of America, see a clear victory along with an expansion of organizing opportunities. And they're probably right.