August 30, 2013
August 30, 2013
Unions are getting very creative when it comes to thinking up new ways to rebuild their membership. Whether some of these new strategies comport with federal law, however, is a question being asked by many labor law experts, including members of Congress.
As is widely known, unions have faced a steep decline in membership over the past 50 years. With just 11.3% of the workforce unionized, they are desperate to reverse that trend, and are willing to organize just about any workers they can — including those in the budding medical marijuana industry.
One emerging strategy is to use front groups with the innocuous-sounding name of “worker centers” to skirt federal laws that regulate union behavior and provide protections to both workers and employers.
Through these front groups, unions target workers in industries where they haven’t had much success organizing – such as restaurants, retail, fast-food, and other service sector employers — and use hardball tactics, including picketing at peoples’ houses, to disrupt businesses and make demands of employers.
A story in the Wall Street Journal highlights this growing phenomenon:
The community groups, called worker centers, are often backed by unions. But they aren’t considered “labor organizations” by law because they don’t have continuing bargaining relationships with employers. That gives them more freedom in their use of picketing and other tactics than unions, which are constrained by national labor laws….
Workers who are first organized by worker centers can be later organized by unions. That is what happened with nearly 200 carwash workers in Los Angeles and New York, organized by the Retail, Wholesale and Department Store Union and the United Steelworkers. The steelworkers union also is trying organize several hundred pizza factory workers in Wisconsin who joined a worker center.
“It’s the future of organized labor,” said Stefan Marculewicz, an attorney who represents companies in labor disputes. “A lot of companies are looking at this and saying ‘When am I next?’ “
Indeed, even the president of the AFL-CIO has made worker centers the centerpiece of his public strategy to turn around the union movement.
This AP story explains a little more about labor’s involvement with worker centers:
Unions are helping non-union fast food workers around the country hold strikes to protest low wages and poor working conditions. They are trying to organize home day care workers, university graduate students and even newly legalized marijuana dealers. Members of a “shadow union” at Wal-Mart hold regular protests at the giant retailer, which long has been resistant to organizing.
The only problem is, just because worker centers “don’t have collective bargaining relationships with employers” that does not mean labor laws don’t apply to them.
As a legal review article co-authored by Marculewicz points out, both the National Labor Relations Act (NLRA) and the Labor-Management Reporting and Disclosure Act (LMRDA) define the term “labor organization” (i.e., union) very broadly, and rightly so. These laws exist to protect workers as much as anything else, so unions, er, “worker centers” have to obey these laws if they exist, even just partly, to negotiate with employers, irrespective of whether they have a formal bargaining relationship.
The laws also protect employers by placing restrictions on the ability of labor organizations to engage in certain behavior like secondary boycotts, prolonged picketing and other disruptive tactics. Yet, because they claim to be exempt from these laws, worker centers believe themselves to be free of any restrictions. On top of that, worker centers claim to be charities, a claim that brings an element of credibility to their actions, and even makes them eligible for foundation grants.
While unions may believe they’re getting away with a fast one, the House of Representatives is investigating the worker center movement to determine whether some of these groups are in fact labor organizations subject to greater oversight and accountability. In a July 23 letter to newly-minted Labor Secretary Thomas Perez, the Chairman of the House Education and Workforce Committee and a subcommittee chairman asked the Labor Department to review worker centers’ status under the LMRDA.
Under that law, labor organizations are required to hold democratic elections and file annual financial disclosure forms with the Department of Labor, while under the NLRA a labor organization must persuade a majority of workers to vote for them in order to negotiate on their behalf — all things that worker centers do not do.
Thus, despite the law, worker centers continue to launch pressure campaigns against employers, attempt to negotiate on behalf of workers they don’t actually represent, and collect charitable contributions. A pretty nifty trick, but one that may prove short-lived. As Nelson Lichtenstein, a labor historian at the University of California, stated recently regarding union sponsorship of worker centers: “You pour in a lot of resources, saying, ‘Yes it does work,’ and a year later it disintegrates.”
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