Union in focus: is there a federal rescue plan under way?

 /
/

Private sector union density is now 7 percent, the lowest on record. Unions have steadily declined since their peak of 33 percent in 1953. Although unions win 69 percent of government- conducted, secret ballot elections, union election petitions are down and victories occur most often in units of less than 50 employees.
Organized labor blames the National Labor Relations Board’s secret ballot election process and employer opposition to union organizing but ignores the facts: Only 42 percent of the public view unions favorably; unionization negatively impacts a corporation’s market value by 10-15 percent and increases wage and benefit costs by 15-25 percent; union contracts restrict a company’s operating flexibility and globalization and technology have structurally changed the workplace.
Over the past decade, labor invested more than $644 million in national politics favoring Democrats. Within days of his inauguration, President Barack Obama signed executive orders calling for pro-labor regulations and appointed labor-friendly candidates to critical positions within the administration. As a result, even without its coveted “Employee Free Choice Act,” labor is getting its protectionism by executive order, regulation, legislation and adjudication.
• Executive order 13494 entitled “Economy in Government Contracting,” prohibits reimbursements to federal contractors for costs to persuade employees against unionization but allows reimbursement for labor-management committees and shop steward costs.
• Executive order 13495, “Nondisplacement of Qualified Workers Under Service Contracts,” requires contractors and subcontractors who replace other service contractors to guarantee a right of first refusal to the prior contractor’s employees. These orders favor unions by discouraging employer speech about unions and binding service contractors to the predecessor’s union agreement if a majority of the new work force comes from the outgoing contractor’s unit. • Executive order 13496, “Notification of Employee Rights Under Federal Labor Laws,” requires federal contractors to post notices of employee rights to join unions at their nonunion facilities where federal contract work is performed.
• Executive order 13502, “Use of Project Labor Agreements for Federal Construction Projects.” Project labor agreements are pre-hire agreements with one or more labor organizations setting terms and conditions of employment for a specific construction project. Now, large-scale, federal construction projects will be union-only.
Pro-labor regulatory activity under existing legislation is booming under the Obama administration.
The Department of Labor is in the midst of a massive effort to “update” regulations, add additional employer reporting and recordkeeping obligations, increase workplace safety inspections, increase fines for violations and post enforcement data on the Web. The new strategy, “plan/prevent/protect,” amounts to regulation by “shaming.”
The Wage and Hour Administration is updating recordkeeping requirements and has ceased providing opinion letters, which employers relied on to defend their pay practices. But, the Office of Labor-Management Standards is eliminating certain reporting requirements for unions regarding the disclosure of financial interests, income received and transactions engaged in. The reason given is to “lessen the reporting burden for union officials.”
On the legislative front, significant labor-friendly bills are pending in Congress: • The “Employee Free Choice Act” (S 560; HR 1409) would require employers to recognize unions based on signed cards rather than on secret ballot election results, increase penalties for employer unfair labor practice violations, and force interest arbitration if parties fail to reach a contract within 120 days.
• The “Create Jobs and Save Benefits Act” (S.3157) would rescue multiemployer/union pension plans as a result of employer bankruptcy by transferring the obligations to the Pension Benefit Guaranty Corporation and fund the plans with taxpayer dollars. More than 640 such plans are currently underfunded with liabilities totaling $165 billion.
The current National Labor Relations Board, the independent agency enforcing federal labor law, favors union organizing. It is anticipated that the board will shorten the time for elections from the current 42 days from the filing of an election petition to 14 or 21 days.
On Aug. 31, the board announced its intention to revisit two board decisions despised by unions – the Dana case providing employees a right to a secret-ballot election to challenge voluntary recognition and the MV Transportation case insulating successor employers from carryover union obligations.
Regardless of the upcoming November election results, much has been done and is under way to shore up and protect organized labor.
Employers are advised to avoid infractions resulting in Web notoriety, improve employee communications and engagement, and, if subject to a union contract, carefully prepare for the next round of contract negotiations. •


Andrew B. Prescott is a labor and employment partner in Nixon Peabody’s Providence office. John N. Raudabaugh is a Washington D.C.-based counsel for the firm.

No posts to display