Labor Relations Insight by Phil Wilson

I’m a big Neil Young fan. I’ve been listening to him since I got my first “sound system” – one of those 1980’s all-in-one turntable, cassette tape, radio deals. The speakers were terrible, but in a weird way that probably made Neil Young and Crazy Horse sound even better. I’ve seen him live several times and whether he is playing a screaming guitar solo (I’m looking at you Cinnamon Girl) or an acoustic ballad, he never disappoints.

At some point I got a bootleg cassette tape of Young playing a solo show in the mid-70s (it’s got my favorite rendition of “Baby Mellow My Mind”). In between songs he’d usually make some quick quip about the song he’d just played or the one coming up. As soon as he finished a song the crowd would start yelling out popular songs they wanted to hear. You could tell, even at this relatively early point in his career, that being a human jukebox was just not his thing. At one point he muttered one of the more important philosophical statements I’ve ever heard: “What keeps you alive kills you in the end.”

Labor unions suffer the same problem today. What’s kept them alive for decades is a combination of historical bargaining units, government monopoly, and political allies that have all realigned in fundamental ways. And that’s causing major problems for unions.

Many see signs that unions are entering a renaissance period, and maybe they are. They’re more popular than they’ve been in decades. They are in the news constantly. You’ve got the most pro-labor President ever (and at this point that’s not a Biden brag, I’d say it’s a fact). And I do believe there has been a general shift in the perception of unions – they are somehow cool again.

But this doesn’t alter the fundamental problems unions face. The vast majority of union dues income still comes from manufacturing, construction, logistics and similar jobs. Even most service sector jobs are in this same demographic swath. But at the top, labor unions are getting further and further afield of the priorities and day to day concerns of their rank and file. In many ways unions are completely out of step with their members, the people who fund them and in a real sense keep them alive.

In an interesting article by Mill McMorris, he outlines the major problem. Union leaders generally lean much further left than the members they rely on for dues. And because of their alignment with a political class who has also shifted left, this creates a fracture. It’s killing union membership. McMorris writes:

Oren Cass, president of American Compass, a pro-union conservative group, also links the rise of political activism to plummeting membership. Cass argues the decline of union preeminence in the workforce has led the movement to turn to politics for salvation, in the process becoming “a functioning arm of the Democratic Party.”   “Traditionally, labor’s primary pathway to power was the labor market,” Cass says. “As unions have less and less to do with the economy, they’ve had more and more to do with politics.”…   … “If labor’s view is that the number one priority is to have Democrats in office because they get better policies, then everything will be subservient to that,” Cass says. “Increasingly, organizing is not what unions do — a lot of what is done under the heading of labor is just color-by-numbers left-wing activism.”   Unions for their part are certainly making efforts to turn their attention to grow membership that is more aligned with the progressive ideals of their leaders and political allies. That’s a smart move, if it works. But until then they must come to terms with the fact that the bulk of their current members do not support their political priorities.

Nowhere was that more pronounced than in the last two presidential elections. Union members voted against the wishes of their union leaders in huge numbers. In that last election Biden – remember he’s the most pro-union president ever – won union households only 6% more than non-union ones.

One answer unions pray for is the PRO Act, and Joe Biden has made it one of his top legislative priorities. It is reportedly being included in the $3.5 trillion infrastructure bill being pushed through the reconciliation process. The Senate HELP committee is holding a hearing on it today.

But the PRO Act, while providing additional government support to unions, would also alienate millions of people who are currently represented by unions. The PRO Act eliminates right to work laws across the country. However, millions of union-represented employees choose not to pay dues, presumably because they don’t see the value of their representation. Instead of doing the hard work of justifying the dues investment, unions instead will use their government monopoly power to force payments from these workers. My guess is this will cause a wave of decertification elections across right to work states, further hobbling unions as they scramble to replace these members.

Unions are doing all they can to appeal to a new audience of today’s workers, and if they could wave a magic wand I’m sure they’d swap their current membership with workers better aligned with their political priorities. However, they cannot afford to alienate the audience that got them where they are today. Or what has kept them alive could kill them in the end.

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Union Bailout Update

President Biden has announced his nomination for the National Labor Relations Board seat soon to be vacated by William Emmanual. David Prouty is currently general counsel for SEIU 32BJ.

Jennifer Abruzzo, whom Biden nominated to fill the seat of general counsel to the NLRB, has refused to commit to the Senate hearing that she would recuse herself from any cases involving the Communication Workers (CWA) or any of its affiliates. As one of the top lawyers for her former employer it would be reasonable to expect her to do so, but she appears to be assuming the same defense used by former board member Craig Becker. The former AFL-CIO and SEIU lawyer argued that the affiliates were separate entities from the national union. It also appears Abruzzo outright lied to the committee when asked about her role on the NLRB transition team in the firing of former general counsel Peter Robb. She declared that she was “one of about 25 members” of said team, when documents secured by a Freedom of Information Act request show that she was actually half of a two-person team.

The Senate recently voted 50-48 to advance Abruzzo’s confirmation to a full vote.

The Senate also confirmed worker rights attorney Julie Su as Deputy Secretary of the Department of Labor by a 50-47 vote.

The House released its version of the funding bill for the DOL, asking for $2.2 billion beyond the fiscal year 2021 budget, and $400 million more than Bidens budget request. Congress will likely default to a continuing resolution to prevent a shutdown when the money runs out on September 30th.

When a farm worker died from the extreme heat in Oregon at the end of June, the Oregon OSHA moved to enact an emergency rule to expand requirements for employers to provide shade, rest time and cool water for workers during high and extreme heat events.

More employers are open to hiring remote workers, but this expression of the modern workplace comes with a few unforeseen landmines. Case in point, a job-posting requirement resulting from a new Colorado equal pay law. The state's Equal Pay for Equal Work Act requires a pay rate to be included in any new job posting. This also applies to any company in any state outside of Colorado who may accept an applicant working remotely from Colorado. The law is not without teeth, with penalties per occurrence ranging up to $10,000. Some companies are tip-toeing around the law by adding an “except Colorado” exclusion to where they would accept remote applicants from, or including a very broad salary range with a list of qualifiers.

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PCA and Covid-19

What constitutes protected concerted activity in the era of Covid-19 is a challenging question. It is likely that the new administration’s NLRB will take a very liberal view, but this recent advice memo indicates that not all Covid-19 related issues will provide fodder for unfair labor practice complaints.

The June 15th advice memo relates to a case in Illinois where a bartender was fired for complaining about the bar allowing patrons into the inside seating area rather than restricting them to the patio, and not requiring them to wear masks. When the employee informed a supervisor that he would only feel comfortable returning to work if the employer changed their policies, he was fired based on this unwillingness. The employee filed a ULP, which the NLRB regional offices kicked to the Board General Counsel’s Division of Advice.

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AI, Technology, and Labor

“Can leaders realistically take care of their employees while tapping into the efficiencies of automation?”

That’s the question Forbes tries to answer in this interview with Kevin Roose, author of the book “Futureproof: 9 Rules for Humans in the Age of Automation.” In it, Roose provides four key ways to responsibly scale AI-driven organizations. Definitely worth a read for anyone whose industry is seeing the effects of technology on its workforce now or in the future.