Last Thursday, the AFL-CIO officially endorsed Barack Obama, throwing its weight behind the presidential hopeful by continuing its $53.4 million campaign called Working Families Vote 2008 against the presumptive Republican nominee John McCain.
Yet partisan politics will not significantly affect plummeting union membership, wrote Professors Jeffrey and Barry Hirsch, co-authors of the Florida State University Law Review article “The Rise and Fall of Private Sector Unionism: What Next for the NLRA?”
Union membership is likely to continue its steady decline, and chances for a revival of previous membership rates, even with a Democrat in the White House, is unpromising, the authors wrote.
They assert that Republican administrations in the 1980s did little to adversely affect union density, and the pro-union policies of the Clinton administration in the 1990s failed to halt the declining rate of membership.
In 2006 only one in about thirteen workers enrolled in a traditional union, according to the law review. This is a sharp contrast from the 1970s when one in five workers were members of a union, and in the 1950s when one in three workers were members.
The Hirsch professors believe the downward trend is reason to call into question the relevancy of the National Labor Relations Act (NLRA) of 1935 (last seriously amended in 1947).
They expressed an urgent desire to bring the seemingly obsolete NLRA into the 21st Century because “The NLRA has not evolved in tandem with changes in the workplace,” said Professor Barry Hirsch in a panel discussion at the Heritage Foundation.
The NLRA can be salvaged from irrelevancy, the professors argue, in part by easing restrictions found in the Company Union Prohibition, which attempts to “limits employers’ ability to lawfully establish work groups that may provide welfare-enhancing employee voice and participation.”
The Hirsches propose legal remedies to “reduce the number and types of groups that fall under the company union ban,” such as narrowing section 2(5) under section 8(a)(2), which defines what constitutes a “labor organization.”
“The [National Labor Relations Board] has broadly interpreted this definition to cover entities with no formal structure, even if they have no elected officers, bylaws, regular meetings, or dues and do not engage in anything close to collective bargaining,” wrote the authors. “Any employer support or control over such an organization—for instance, creating the group or running its meetings—violates section 8(a)(2).”
Unfair labor practice violation accusations are too prevalent and often unwarranted due to the expansive definition, according to former NLRB member and current partner at McGuireWoods LLP, J. Robert Brame.
“If everybody’s happy, do you have an unfair labor practice?” he asked. “Very likely, because if the union comes in or one person or even somebody down the street doesn’t like it, they can file an unfair labor practice.”
Tightening the interpretation of “labor organization” could also allow for more choices in ways employers and employees can legally negotiate, according to the Professor Hirsches. Currently there are two options for employees: to be in a formal traditional union that participates in collective bargaining, or no union at all. Alternative avenues, such as German-style works councils or work groups, could gain popularity in the workplace.
“Employees who have little prospect for seeing formal collective bargaining in their workplace would have the option to take part in a group that provides some outlet for voice while enjoying NLRA protection for their participation,” wrote the Hirsches.
They also added, “although unions are concerned that employer-supported work groups might replace them, it is also possible that the process of electing worker representatives or exercising voice in nonunion companies would complement the organization of traditional unions.”