Be Careful What You Wish For

by | Aug 26, 2021 | AFL-CIO, Labor Relations Insight, Legal, NLRB, Unions

Be careful what you wish for

Tomorrow the NLRB will officially flip to a Democrat majority, with former SEIU in-house counsel David Prouty replacing William Emanuel. The Republican majority was in place for just over four years, one of the shortest runs of Republican control in the history of the NLRB. The new Board majority appears ready to reverse most of what its predecessor Board accomplished, especially if new General Counsel Abruzzo has anything to say about it (and she does).

Labor unions have finally gotten nearly everything they’ve wished for (setting the PRO Act aside for a minute). In fact, General Counsel Jennifer Abruzzo recently issued the standard “submissions to advice” memo that every GC issues to regions upon their arrival to the job, outlining her own wish list.

The first section of the memo covers cases where the Trump-era Board overturned precedent (although much of that “precedent” had been set just a few years earlier by the Obama-era Board overturning longstanding precedents of its own). The key doctrine listed in this section include:

  1. Employer handbook rules (they’ll argue to overturn Boeing and its progeny).
  2. Confidentiality rules during investigations and separation agreements (bye, bye).
  3. Protected “concerted” activity (basically any complaint is about to become protected).
  4. Union access (there will be more of it).
  5. Independent contractor status (there will be less of it).

Section two is where things get really interesting. The highlights of this section include:

  1. Weingarten rights – I never understood how this didn’t change during the Obama board, but I fully expect this Board to reinstate the Epilepsy Foundation rule that gave employees a Weingarten right to a witness in non-union settings.
  2. Reinstating the Joy Silk doctrine (essentially granting bargaining orders without an election – i.e., card check recognition – in cases where the employer cannot prove why it doubts majority status or where the employer has committed an unfair labor practice). I’ve got more to say about this below.
  3. Overruling Ex-Cello and essentially adopting penalties (of course, they’re not called that since unless the PRO Act passes, those are illegal) in failure to bargain cases.

There is other stuff in the memo as well and every labor pro should read it. But the bottom line is something that should have been crystal clear by now – this General Counsel and this Board are arriving on a mission. I know many employers aren’t showing a lot of concern about the PRO Act because they know it doesn’t have nearly enough votes in the Senate and they don’t think the filibuster is going away. That all may be true. But the PRO Act is coming in spite of this. It’s coming in the form of agency decisions and actions.

Another era that recently began is Liz Shuler’s rein at the AFL-CIO, after Richard Trumka’s unexpected death earlier this month (may he rest in peace). Shuler has the unenviable job of continuing to navigate the union movement through a pandemic and a massive shift in the labor market, all while preparing her official run for the presidency next year.

Most observers believe Shuler will continue very much in the vein of Trumka, focusing heavily on policy and politics, although she bristles at the idea that the AFL-CIO can’t “walk and chew gum at the same time” by both organizing and pushing legislation. Since union membership has continued its free-fall during the Trumka-Shuler rule, there’s not much evidence the AFL-CIO can either walk or chew gum. But time will tell.

One of the things I’ve argued a long time is that organized labor’s problem is their model. The basic argument is they must shift away from a lodge model (organizing and bargaining shop by shop) and instead embrace an association model (think an AARP or NRA for working people). This is why I think all of the praise being heaped on stuff like the Joy Silk, Ex-Cell-O and even the PRO Act being the keys to saving the labor movement are really misplaced.

As much as unions bellyache about the unfairness of employer conduct in elections and bargaining, the truth is unions mostly do a terrible job of organizing (by promising to deliver things like dignity, respect, and even a voice that they flat out can’t and don’t deliver) and then do an even worse job servicing the members they do have.

Even Magner’s own article on Joy Silk includes a chart from Brian Petruska’s law review article that shows ULPs against employers have dropped by nearly half at the same time union petitions have dropped. This issue isn’t employer resistance. The issue is unions are selling a product nobody really wants, and then providing awful customer service after the sale. That’s why so many of their new customers get buyer’s remorse when they figure out the product wasn’t nearly as good as the sales pitch.

Making it easier for unions to organize through card check just moves the checkout line faster – if the purchase ultimately stinks it just makes the problem worse. Imposing penalties and even contracts on employers still doesn’t change the fundamental problem – unions by and large do a terrible job of servicing members in the lodge model. In most cases union leaders see members as a nuisance to deal with. And no amount of thumb-on-the-scale is going to fix that fundamental problem.

The ironic thing about all this is that what unions really are good at and what they’ve been successful with over the years is lobbying and politics, something they could deliver even more effectively under the association model. I conservatively think they could collect billions more than they do today and at the same time actually offer great services to working people. Now that is something they may want to add to their wish list.


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