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Is the NLRB Helping or Hurting Unions?

Volume 2, Issue 6
March 31st, 2014
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It may seem counterintuitive, but veteran labor attorney Harold P. Coxson of the law firm of Ogletree Deakins believes the National Labor Relations Board is not really helping unions organize nonumion employers with its barrage of pro-union decisions and rulemakings.

NLRBUnions will need more than just some organizing campaign regulations written in their favor to reverse their decades-long decline in dues- paying members, he contends.

“In the end, perhaps the best way for a union to gain members is not by contested election at all — but rather by the employer that voluntarily recognizes a union based solely on authorization cards and public pressure,” Coxson said in a recent communication to his clients.

Increasing union membership in certified or recognized bargaining units will be harder to achieve than the NLRB seems to think, Coxson said, although he agrees the ambush election rules, micro-bargaining unit decision and impending persuader will help unions. It just won’t be enough for them to dig out of the hole they’re in, he says.

Coxson said: “The most effective organizing methods – ‘corporate campaigns,’ global pressures on employers to voluntarily recognize unions and other new media meta-tactics — may well lie beyond the reach of today’s proposed rules.”

In spite of six years of a sympathetic, union-friendly administration in Washington, DC, and a pro-union majority on the NLRB doing its best to promote union organizing, total union membership remained static in 2013, which saw a slight decline in public sector members and a slight increase in private sector membership.

Last year, unions represented 35.3% (7,210,000) of public sector workers, while private sector union density increased ever so slightly to 6.7% (up from 6.6% in 2012) with 7,318,000 members.

Overall, unions represented 11.3% of U.S. workers – the same as in 2012. Compare those numbers to union density and membership in 1983, which was 16.5% in the private sector and 20.1% overall.

More recently, when the United Auto Workers tried to organize the workers at a Volkswagen plant in Tennessee, the headlines were about the union’s embarrassing inability to win the vote. (On the other hand, Tennessee was the state with the fastest rate of union membership growth in 2013).

But make no doubt about it, Coxson warned, the NLRB changes are helping the unions. Currently, unions win an overwhelming majority of representation elections – 65.2% of the 643 private sector elections held in the first six months of 2013, compared with 62.6% of 709 elections in the same period in 2012.

The changes unions sought from the NLRB impose are helping them win more elections, Coxson admitted. But he believes their decline has been so serious that even the board’s help can’t significantly improve their shrunken role in overall economy.

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