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

The most recent numbers are in, and they are not pretty for organized labor in the United States.  The Bureau of Labor Statistics (BLS) recently released its annual survey of union membership.  The survey revealed not only a decline in the number of union members, but yet another decline in the percentage of the work force that is organized. 

Here are some interesting data points from the survey:

• Only 11.9% of American employees are in a labor union, down from 12.3% last year.
• Unions lost 612,000 members in 2010, bringing total union membership to 14.7 million.
• The percentage of private sector employees who are union members fell to 6.9%, down from 7.3% last year.
• Unions lost 339,000 members in the private sector.
• Unions representing employees in government even took a hit, losing over 270,000 members and bringing the percentage of public sector employees who are union members down to 36.2%
• Private industry sectors that lost union members (and numbers lost):  manufacturing (52,000); retail (83,000); construction (157,000); and health care and social assistance (70,000).
• Private industry sectors that gained union members (and numbers gained):  utilities (20,000); radio and television broadcasting and cable subscription programming (4,000); insurance (3,000); and real estate and rental and leasing (20,000).
• State with highest unionization rate was New York (24.2%); state with the lowest unionization rate was North Carolina (3.2%).  Ohio came in at 13.7%,

While this information is certainly interesting, for the labor professional it suggests a hidden danger.  With declining membership numbers, and with the squeeze on public sector unionization rates likely to be felt as states continue their efforts to balance their budgets, unions will need to pursue more aggressively the recruitment of new members.  Indeed, the BLS data demonstrates that, at least in a few industries, unions have increased their membership numbers.

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In late 2009, SERB published its rules regarding the use of mail ballots in public employer labor elections.  The rules were effective in early 2010.  Accompanying the rules was a procedural summary describing how SERB intended to implement its mail ballot rule.  Mail ballots were a new procedure for SERB at the time, but one that had been used before by the NLRB in the private sector.

Part of the procedure SERB has followed since the rule became effective involved sending a "mail ballot kit" to eligible voters in an election.  The kit contained the ballot and a means to return it to SERB.  The kit was mailed at least three days before the polling period began.  The polling period could run for a number of days.

Now that SERB has conducted some mail ballot elections pursuant to its procedures, it has announced a change to its procedure.  Specifically, effective February 1, 2011, ballots mailed back to SERB before the polling period begins will be valid and counted.  Those returned after the polling period ends will not be valid and not counted.  The new procedure is already posted on SERB's website, with the modification being shown in paragraph 7.

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Previously, Vorys on Labor reported on several state ballot initiatives that advanced amendments to state constitutions.  The amendments purported to protect the right to a secret ballot in any election, including a labor election.  These amendments passed by substantial margins in Utah, South Dakota, South Carolina, and Arizona -- everywhere they were on the ballot.

As the prior post discussed, the state constitutional amendments raised a question about whether they were preempted by the NLRA.  The NLRB recently concluded that they were, and has formally notified the Attorney General of each of the four states of its position.  The NLRB reasons that federal law permits employees to organize either by secret ballot or by "voluntary recognition [by an employer] based on other convincing evidence of majority support" (i.e., union authorization cards or card check).  Because the state amendments limit one of these rights, and because federal law is supreme under the U.S. Constitution, the state amendment is preempted, and unconstitutional.

The Acting General Counsel of the NLRB wrote each state's Attorney General explaining this position.  The letters demand that the state respond within 14 days of the letter or else a lawsuit attacking the amendments will be filed.

The NLRB's action is certainly an aggressive one.  It has not decided to wait for a case in which the state amendment was invoked to reach the question of its constitutionality.  Rather, it is affirmatively threatening a lawsuit in order to have the amendments publicly declared to be unconstitutional.  This push towards litigation relatively soon after the election results is certainly consistent with the NLRB's, and its Acting General Counsel's, recent pursuit of stronger remedial measures for violations of the NLRA (see here, for example).

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In a notice (pdf) to be published today, the Department of Labor is soliciting comments on electronic voting in union officer elections.  The law requires that unions elect officers based on a secret ballot vote.  According to the notice, labor unions and other interested parties have requested guidance on the use of electronic voting mechanisms in union officer elections.  The litany of questions on which the DOL seeks input can be found at the end of the notice.

Labor professionals should note the following points about this development:

• First, it does not apply to union representation elections conducted by the NLRB.  Instead, it applies to elections unions conduct internally to determine their officers.
• Second, if guidance is issued, it may have an effect on the NLRB.  Last year, the NLRB requested information on how it could implement electronic voting in union representation elections.  If the DOL issues guidance on the issue, the NLRB may follow suit.  After all, the NLRB's recent proposed rulemaking on employer notice followed DOL regulations requiring federal government contractors to do the same thing.

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The NLRB has functioned with only four members and without a General Counsel for a number of months.  Yesterday, President Obama announced his nominations for those key remaining vacanices at the NLRB.

For General Counsel, the President nominated Lafe Solomon.  Readers of this blog know Mr. Solomon as the NLRB's current Acting General Counsel, and the author of memoranda detailing new, and not very employer friendly, enforcement procedures.  Mr. Solomon joined the NLRB in the 1970's.

For the remaining vacancy among the members of the NLRB, the President nominated Terence F. Flynn.  Mr. Flynn is presently the Chief Counsel for Member Hayes (R) and previously served as Chief Counsel for Member Schaumber (R).  Before joining the NLRB, Mr. Flynn was a labor and employment lawyer in private practice.

The NLRB's press release with additional information about the appointments is available here.

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