United States: How Will Organized Labor Reorganize?

Last Updated: April 16 2018
Article by Bradford L. Livingston

Seyfarth Synopsis: Unions represent only 6.5% of all private sector employees. However, rather than focusing on the past and why its fortunes have declined, a more interesting question may be what organized labor is actively doing to reverse this trend.

Organized labor is facing tough times. In their heyday during the mid-1950's, labor unions represented over 35% of America's private sector workforce. Today, over sixty years later, unions represent only 6.5% of all private sector employees. And even where unions do represent workers, dues revenue — the lifeblood for a labor union — is likely to decline even further when employees opt out of union membership in the growing number of states that have enacted Right to Work laws, including traditionally-unionized, "rustbelt" manufacturing states such as Michigan, Wisconsin and Indiana. (With a pending US Supreme Court decision and some newer state laws, labor's current far greater density and influence in the public sector is also at risk.) How the mighty have fallen.

But to paraphrase Mark Twain, "the reports of organized labor's demise have been greatly exaggerated." And rather than focusing on the past and why its fortunes have declined, a more interesting question may be what organized labor is actively doing to reverse this trend. Here are just a few of the ways that unions are trying to change their fortunes:

The Four Tops Approach: "It's The Same, Old Song..."

Let's be clear from the outset: unions will not abandon their traditional methods of organizing new groups of workers. So there will continue to be the historical "bottom up" organizing, where union organizers meet with employees, they obtain enough employees' signatures on authorization cards to file petitions with the National Labor Relations Board, both unions and employers conduct campaigns to convince employees of their positions, and the Board conducts secret ballot elections. (And by the way, the so-called "quickie" election rules passed by the NLRB under the Obama Administration continue unchanged for now.) Whether opportunistic by finding a few dissatisfied workers at a potential site or more targeted in selecting a particular industry or location, unions will continue to use and try to improve upon their traditional organizing skills.

And there will also continue to be the somewhat more recent method of "top down" organizing, where unions engage in corporate campaigns against targeted companies. These campaigns attack a company in various and well thought out ways where it may be particularly vulnerable: adverse publicity, filings with government agencies, litigation, contacting suppliers and customers, shareholder resolutions, and more. The goal is to create enough pain for the company to eventually agree to "labor peace," usually including the employer's agreement to supply the union with employees' names and contact information, its pledge not to oppose unionization, and its agreement to recognize and bargain with the union if a majority of the employees simply sign authorization cards.

But these tried and supposedly true methods of organizing have existed for decades. And where unions once represented more than one in three private sector employees, they now represent fewer than one in fifteen. So in addition to conventional organizing, labor needs a few alternative approaches.

The Pragmatic Approach: If You Can't Beat 'Em, Join 'Em

Nobody disputes that technology has transformed the workplace and will continue to do so. While some labor unions have fought the trend, others have recognized that change is inevitable and have successfully adapted to it. Not that long ago, the International Longshoremen's Association (ILA) and International Longshore and Warehouse Union (ILWU) had a lock on the labor-intensive work of loading and unloading goods entering or leaving virtually every port in the United States. Over the past several decades, this work was transformed as containerized cargos, more efficient cranes, and computers made this work far easier, quicker, and less labor intensive. Rather than simply watching their influence wane, however, the ILA and ILWU successfully adapted by negotiating agreements preserving their members' exclusive rights to perform the "work," albeit now involving computers and mechanized equipment. Brains rather than brawn. And while there may be fewer longshoremen doing it, their continued jurisdiction over the work gives them significant bargaining leverage in contract negotiations (with the effective ability to shut down a port), and thus secure, good-paying jobs.

Unions are recognizing the need to adapt in other industries as well. Affecting the very core of its membership base, the International Brotherhood of Teamsters (IBT) understands the challenge it faces, as robotic, automated distribution centers are reducing the need for warehouse workers, and self-driving vehicles and delivery drones eventually may reduce the need for dues-paying truck drivers. (In fact, it may appear that every employer's ultimate dream to staff a factory with only a man and a dog is coming true: the man's job will be to feed the dog while the dog's job is to keep the man from touching anything inside the factory). Recognizing what is perhaps the inevitable, a San Francisco IBT local union recently announced that it will represent the employees building these robots. When life gives you lemons, make lemonade.

The Dale Carnegie Approach: How To Win Friends And Influence People

Organized labor has a successful track record of promoting many social justice issues, including the eight-hour workday, forty hour workweek, and anti-discrimination laws. And as we have witnessed, over the past several years different community activist groups across the country have ostensibly led the fight to increase pay for low-wage employees by conducting demonstrations, sit-ins, sick-outs, and other events. Under the names "Fight for Fifteen" (dollars per hour), "Fast Food Forward," or others, they have actively promoted higher pay — successfully in many cities, counties, and states — for what are often short-term jobs among younger workers. And behind many of these groups are different labor unions, such as the Service Employees International Union (SEIU) or United Food and Commercial Workers (UFCW), which eventually hope to succeed in organizing the employees at these establishments. Get them while they're young and perhaps they'll stick with you as they move on in their careers. And despite what is often a relatively small number of employees (and, thus, potential dues-paying union members) at any individual location, jobs at these brick and mortar businesses — retail stores, fast food/fast casual restaurants, and coffee shops — cannot effectively be outsourced abroad.

This trend will likely continue regarding other social issues. The past several months have seen a dramatic shift in the visibility and recognition of the need to eliminate workplace sexual harassment. With universal agreement that things must change, some union officials have identified the #MeToo movement as an opportunity to attract female members by showing that unions are protectors of women's rights in the workplace. A potential hurdle, however, is labor's lengthy track record of protecting male union members when they are accused of being the harassers. For just a few examples, see Robbins Co., 233 NLRB 549 (1977); Gloversville Embossing Corp., 297 NLRB 182 (1989); Calliope Designs, 297 NLRB 510 (1989); Nickell Moulding, 317 NLRB 826 (1995); and Fresenius Manufacturing, Inc., 362 NLRB No. 130 (2015). Just recently, a female legislator introduced a resolution in Illinois' legislature asking both the EEOC and NLRB to investigate the United Auto Workers' responsibility for sexual harassment at a Chicago-area auto plant. After all, it continues to be the International Brotherhood of Teamsters and International Brotherhood of Electrical Workers, not the Sisterhood.

Time will tell whether this particular initiative succeeds or it is actually #MeTooExceptWhenUs. But the real point is that organized labor will continue to seek out social issues that generate popular support, and use its resources to pursue those causes with the hope of expanding its membership base.

The Beatles Approach: I Get By With A Little Help From My Friends (In Government)

Almost a decade ago, the big push from organized labor was for the so-called Employee Free Choice Act (EFCA), which would have provided for "card check" union recognition, eliminated employee secret ballot elections in choosing whether or not to unionize, and provided binding arbitration to secure the terms in first collective bargaining agreements. And despite what was then a democratic President, U.S. Senate, and U.S. House, this federal bill was never enacted.

Perhaps learning from that experience, unions have been far more active in getting a little help from their friends in local government. It's a fairly simple strategy: you scratch my back, and I'll scratch yours. More union members means more money for political donations. Focusing opportunistically on the "blue" cities and states rather than the "red," labor has succeeded with and will continue to promote these local initiatives. For example, New York City, Los Angeles, San Francisco, Washington, D.C., and many other jurisdictions now require the purchaser of buildings employing janitors or service workers, hotels, or retail grocery stores to hire its predecessor's employees for what is usually at least 60 days, thereby ensuring that an incumbent union will continue to represent those employees and adopt the terms of the preexisting collective bargaining agreement. Under federal labor law, the new employer would typically have had the right to set its own initial terms of employment and make largely independent decisions regarding whom it wished to hire.

In other ways, local governments have given labor a boost in organizing by providing incentives for employers to embrace unions in their facilities. In addition to the widespread use of project labor agreements requiring the payment of prevailing (union) wages for employers contracting for publicly-funded works, just a few examples of laws affecting purely private employment include:

  • A New York City ordinance requiring non-union car washes to post a $150,000 surety bond to ensure wage payments to employees, but making the bond for unionized car washes far lower;
  • Ordinances in Chicago and elsewhere requiring paid sick leave for all employees (40 hours per year in Chicago), except those covered by a labor agreement that waives this requirement;
  • Local laws in multiple cities across the country providing employees with a higher minimum wage, except where a collective bargaining waives this requirement; and
  • A California law requiring sellers of recreational marijuana to have signed a "labor peace" (neutrality in the face of union organizing) agreement.

These laws are often subject to legal challenge (the New York City car wash ordinance is on appeal after having been struck down by a federal judge), but legislation like this will continue to sprout and take root in various cities. And when enacted in one location, it is likely to spread to others. Unions have learned that it is far easier to gain successes at the local level.

The Charles Darwin Approach: The Survival Of The Species

While organized labor undoubtedly faces challenges, it is actively working to meet them. Some approaches will be more successful, and others less so. Successful strategies will be replicated, and others abandoned. Change is inevitable, but anybody who chooses to write off unions is making a big mistake. The question is not whether organized labor can reorganize, but instead how it will adapt to do so.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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