Vorys on Labor : Labor Relations Lawyer & Attorney: Vorys, Sater, Seymour and Pease Law Firm: National Labor Relations

The Bureau of Labor Statistics released the results of its annual survey of union membership last Friday. According to the BLS, 12.3% of all wage and salary workers in the United States were members of a union, compared to 12.4% a year earlier. The number of wage and salary workers who were in a union declined by 771,000 to 15.3 million. The BLS release suggests this data reflects the decline in employment levels generally as a result of the recession.

The aggregate numbers include both private sector and public sector employees. In the private sector, the erosion of union membership has been more pronounced. In 2008, 7.6% of workers in private sector industry were members of unions. The BLS survey reports that number has fallen to 7.2%. In absolute terms, there are 834,000 fewer union members in 2009 than there were in 2008. Curious about the public sector? BLS reports that union membership grew from 36.8% to 37.4% of workers. As a result, the majority of workers in unions work in the public sector, not the private sector.

The practicing labor professional should understand these numbers in context. If the numbers are impacted, as the BLS release suggests, by the overall economy, they do not necessarily represent a shift of opinion away from unions. Indeed, expect unions to use this report, along with the wage data the BLS also reported, to argue in favor of EFCA's passage. It also suggests a potential coming increase in union organizing activity as unions work to reverse their declining numbers.

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Yesterday, in a much awaited case, the U.S. Supreme Court struck down a key part of the McCain/Feingold campaign finance reform bill. In Citizens United v. Federal Election Commission (a link to the decision is here), the Supreme Court held that the restrictions on certain corporate spending on political speech were unconstitutional.

The case dealt only with corporate spending, but union campaign spending is regulated in the same way under the law, so is likely to be equally impacted by the decision.The opinion focused on spending on political speech that supported or criticized a specific candidate. In this case, it was a 2008 documentary that was highly critical of Hilary Clinton.

The opinion leaves in place disclosure and disclaimer requirements on such speech, as well as limitations on both union and corporate contributions to the campaigns of specific candidates. Also untouched by the opinion are the regulations regarding "issue ads" that do not call for the election or defeat of a particular candidate.

The opinion doesn't have a significant impact on the day-to-day responsibilities of a labor professional. It is important, however, to note the potential for a significantly more robust spending effort on both sides of the union/management line, in the upcoming election cycle.

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On his first day in office, newly elected Governor of New Jersey, Chris Christie (R), signed a number of Executive Orders applicable to New Jersey state agencies. One of the Executive Orders extends the scope of New Jersey’s restrictions on the campaign contributions of those who contract with the state and other public entities. These rules are often referred to as "pay to play."

Under prior Executive Orders, labor unions were excluded from the definition of a "Business Entity," to whom the "pay to play" restrictions applied. Gov. Christie's order Executive Order No. 7, signed on January 20, 2010, amends previous Executive Orders to include labor unions, labor organizations, and any political committee formed by a labor union or organization, in the definition of "Business Entity." The full text of Executive Order No. 7 can be found here. This action makes labor unions with contracts with New Jersey public employers subject to the same laws as other businesses who have contracts with the state.

This is significant to the practicing labor professional for at least three reasons:
 

1. It is a recognition of the reality that unions are businesses and have interests that can be advanced through governmental action, just like other businesses.
2. It is a reminder that developments at the state level can have a significant impact on labor organizing. Executive orders in other states have opened up whole new arenas for organizing activity (see, e.g., Illinois and Ohio (EO 2008-02-S)). Indeed, these actions are also good examples of the first point.
3. It reminds us that executive orders at the federal level can also have an impact. For example, one of the first executive orders President Obama signed permits the use of project labor agreements between contractors and trades unions on construction projects with more than $25 million in federal government funding. President Bush had signed an order that prohibited such agreements.

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Scott Brown, a Republican, won a Massachusetts Senate seat in a special election on January 19. He heads to Washington, D.C. as the 41st Republican senator, taking away the "filibuster proof" majority of the Democratic Party in the Senate.

What does Brown’s election mean for EFCA and the development of labor law at the NLRB?

Senator-elect Brown's campaign website contains no specific mention of EFCA. We haven’t found any quotes attributable to Senator-elect Brown about his position on EFCA.. The closest are columns like this one that suggest he will vote against EFCA.

Certainly, the path to EFCA passage is substantially less clear today than it was 36 hours ago. But, EFCA could appear in a number of different contexts, including as part of a different bill. Also, as our post yesterday suggested, many of the goals of EFCA could be achieved through NLRB action. President Obama may renominate Craig Becker to the NLRB, and Mr. Becker is an attorney for SEIU and the AFL-CIO.

What then should you do? Keep focused on the big picture, including the overall approach to union-related issues and to compliance with the NLRA. Sooner or later, President Obama's nominees to the NLRB will be confirmed and when that happens, the likelihood of change coming to some Bush Board precedent is significant.

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On January 15, 2010, NLRB Chairman Wilma Liebman presented at a continuing legal education seminar sponsored by Cornell University. According to a published report, she discussed a number of items, including the history of the Bush Board's approach to interpreting the NLRA, the on-going dispute over the two-member NLRB, and pending labor law reforms.

Of particular note was Chairman Liebman's comments about labor law reform. She noted that, for fundamental change to come to the NLRB, Congressional action was necessary. She went on to say that EFCA, which is the bill everyone is talking about these days, was not the kind of fundamental reform she is talking about. Rather, she identified a number of topics that need to be addressed, including the exclusion of large numbers of people from the coverage of the NLRA, the task of organizing new workers into unions in a volatile economic climate of constantly changing business ownership, obstacles presented by the distinction between mandatory and permissive subjects of bargaining, and the role of domestic and international labor standards in a global economy.

Chairman Liebman's comments highlight that, while EFCA is certainly a potentially major change in labor law, it does not represent the only legislative action that is possible. Her comments serve as a counterweight to those who maintain that congressional action isn't necessary to achieve the change in the NLRB that some believe is necessary.

Finally, the comments are a reminder that, particularly when President Obama's nominees to the NLRB are confirmed, the Board could very well take a significantly more activist approach to the NLRA than did the Bush Board. Use this time to prepare.

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