More That’s New in Labor Law

Darrell VanDeusen
Darrell VanDeusen

It has been a big last few weeks in labor law circles. 

First, Amazon got unionized in New York by a little-known independent union that didn’t even exist 18 months ago.  President Biden expressed support for the unionizing of Amazon workers saying “Amazon, here we come” in a recent speech.   The President, of course, has been and continues to be a strong supporter of unions.

But, as reported in the New York Times, “organized labor has begun to ask itself an increasingly pressing question: Does the labor movement need to get more disorganized?”  The Amazon Labor Union did not rely on professional union organizers or go with a traditional union.  It used a GoFundMe site to raise money for campaign financing.  And it worked.   

This is not surprising news for those of us in the trenches.  Private sector union membership is down to 6.1%.  It’s been on a steady downhill run since 1985 and hasn’t really grown since the 1950’s.  (The public sector is a different story with 34% of the workforce organized, but that’s a state specific sort of thing).  Moreover, there are now 28 “right to work” states where the inability to require unionized employees to pay dues or fees, and which makes traditional union organizing less financially attractive to organized labor.

At the same time, according to a Gallup poll from January 2022, 68% of those asked approved of unions.  So, there appears to be a growing appetite to organize out there.  And newly created “home-grown” labor organizations don’t have the fiscally demanding infrastructure that traditional unions have or, for that matter, the sometimes unseemly history of less than perfect leadership (see, e.g., the recent UAW corruption scandal in Detroit).   A cavernous disconnect may be growing between “your father’s union” and the next generation of those who want to organize workers but not through traditional means. 

Second, the NLRB has seen an increase in new cases over the past six months. Union election petitions were up by 57% in the first half of fiscal year 2021 compared to the previous six months, according to the NLRB.  Unfair labor practice charges increased by 14% during that period.   So, extra work for folks at the Board.  Nearly 10 years of flat funding for the NLRB has resulted in a decline in staff, with a total personnel drop of more than 25%  between 2010 and  2019, according to a GAO report released last year.  

Although Democrats gained majority control (3-2) of the Board six months ago, the NLRB has not yet issued a precedential decision.  This slow start is quite different from the Board’s actions at the start of the prior administration.  In its fiscal year 2023 spending plan, announced last month, the White House seeks a 16% boost to the NLRB’s budget.  Stay tuned.

Third, just because there’s no more money available to the Board than in the past doesn’t mean it’s been totally quiet there.  As reported by my friend and partner Eric Paltell in his blog here last Friday, the NLRB’s General Counsel, Jennifer Abruzzo, announced in an April 7 memo to the Board’s Regional Directors that she intends to ask the Board to ban mandatory anti-union meetings in the workplace. 

As Eric explained in his post, “captive audience” meetings are a common practice when an employer is facing a union organizing drive.  They typically involve required attendance at a company meeting where the perceived upside or downside of unionization is presented.  Ok, it’s true, more often than not the downside is what’s discussed.  The NLRB approved of these meetings nearly 75 years ago in Babcock & Wilcox Co., 77 NLRB 577 (1948). 

It is true that precedent means little at the NLRB, as positions swing back and forth, depending on whether a Democrat or a Republican is in the White House.  Perhaps the most dizzying swing has involved the Board’s views on the organizing of graduate students.   Yet, despite politically different alignments in Board membership over the decades, this Board precedent has remained unchanged.

“Captive audience” meetings have been contentious in the recent Amazon organizing drives, resulting in ULP charges in New York.  The Retail, Wholesale, and Department Store Union, which is trying to organize Amazon workers in Alabama (where the election result will be determined by about 400 challenged ballots) heaped praise on GC Arbuzzo’s announcement.

The RWDSU president said in a statement that these meetings are “a major weapon employers use to spread disinformation, intimidate workers and interfere with their choice as to whether they want union representation.  The question of whether workers want a union should be the workers’ choice – not the employers’ – free of intimidation and interference.”  Of course, luckily for employees, unions never spread disinformation or intimidate workers (note my sarcastic tone here).

So, there’s no time like the present for the NLRB to strike while the iron is hot.  Not that you likely would, but if for some reason you think that the Board is less politicized than it was in the past, you should think again. Recall that, apropos of nothing, perhaps, GC Abruzzo (who has worked at the NLRB for 20 plus years) was confirmed by the Senate on a 51-50 vote, with Vice President Harris breaking the tie in favor of confirmation.

What’s the take-away?  In an interview last year, GC Abruzzo told a reporter in The New Republic that she does not believe labor laws are designed to be neutral on the question of whether the NLRB should work to increase union representation.  In the coming months, employers should be prepared to address changes in union organizing that they haven’t seen for a generation or more.  



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