Analyzing Government Support and Low Membership Rates in the US Private Sector

by | Apr 18, 2023 | Employee Rights Act, Labor Relations Ink, NLRB, Politics, Pro Act

We have been writing about the government’s support of unions and their organizing activities for some time now. However, it is important to note that despite this support, only 6% of private sector workers in the United States are members of a union.

Despite the low membership numbers, it is evident that the government is responding to political pressure from powerful labor unions and their allies. Unions have traditionally been a potent political force, and politicians who rely on their support tend to support favorable policies toward unions.

The Biden administration has taken an all-out approach to tip the scales in favor of organized labor as a favor to unions for their political support. Democrats failed to pass the Protecting the Right to Organize Act (PRO Act) in the 117th Congress. Still, the current administration, particularly the National Labor Relations Board (NLRB), seeks to implement its provisions by executive fiat.

Recent news stories highlight several actions taken by the government in support of unions. The NLRB is reviewing whether to award financial penalties in failure to bargain cases, and stronger refusal-to-bargain remedies are waiting for the perfect case. This suggests that the NLRB is taking a tougher stance on employers facing pressure from unions.

The Department of Justice is using antitrust law to boost union organizing, which provides unions with more tools to overcome obstacles to their organizing efforts. Unions have also received additional funding from the government, such as the $438 million allocated to the New York Teamsters Pension

Additionally, the NLRB has issued several memos providing guidance on various issues, including severance agreements and non-disparagement, some of which may be viewed as overly protective of union interests. General Counsel Abruzzo even declared almost all severance agreements retroactively obsolete, which is sure to face a legal challenge. Lawmakers and unions are pushing for a tax code change to advance the labor agenda, which may raise concerns about government intervention to benefit unions.

However, not everything has been well received, as when the NLRB’s opposition to captive audience meetings was challenged in court, arguing that it violates employer free speech.

In other news, the United Auto Workers union membership rose 3% in 2022 to 383,000, which could be seen as a result of government support. The Amazon case at the labor board could topple multiple precedents and be seen as an example of the government bending the rules in favor of unions. Chipotle is facing shareholder pressure over labor rights, which indicates that unions are receiving substantial support from other parties besides the government.

The NLRB has launched a “Know Your Rights” card series and has been working to improve transparency about its agenda. However, critics have called into question the use of mail ballots and claim that much of Abruzzo’s agenda is anti-worker and unconstitutional.

In the Midwest, Right-to-Work opponents see growing opportunity in former union stronghold states like Michigan, which just repealed its right-to-work law, and Wisconsin, which could become the next state to do so, especially if the now liberal-leaning state Supreme Court rewrites election maps in the state in favor of Democrats.

Republican legislators have their own plan to amend labor law in the United States, which they will reintroduce in the House later this week. It is called the Employee Rights Act, which is a bill to provide protections for workers with respect to their right to select or refrain from selecting representation by a labor organization.

Like the PRO Act, it’s unlikely to become law but sets a policy bar and talking points for the 2024 election. We will have more on this in the coming weeks, but its clear labor policy will remain a key focus in Washington, D.C., in the months ahead.

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