As employers try to maintain their competitive posture, the balance of power within the government will likely affect how employment policy develops. Obama's first term was plagued by partisan gridlock, and he starts his second term still flanked by a divided Congress. For at least the next two years, until the midterm elections, management-side lawyers anticipate that any big changes to workplace policy will be made by federal agencies.
And that means employers may not get off easy. On December 21, the Office of Management and Budget published its Unified Agenda of Federal Regulatory and Deregulatory Actions, a semiannual compilation of agency intentions for the coming year. Released two months late, Lotito says, "The finally published regulatory agenda confirms that the regulatory agencies will aggressively attempt to significantly remake the law of the workplace in a variety of ways."
At the NLJ conference, Littler's Schuman asked the audience rhetorically, "Who needs Congress?" Take, for example, the Employee Free Choice Act (EFCA). It was supposed to facilitate union organizing, but it was never enacted. So the NLRB has tried to accomplish "bit by bit" many of the act's same objectives, she said. Rules speeding up elections and requiring posting of National Labor Relations Act rights, taken together with a decision to recognize small bargaining units within a business, could do just that.
These actions are occurring against a backdrop of continued difficulties for organized labor. According to the U.S. Bureau of Labor Statistics, just under 12 percent of American workers belonged to unions in 2011. In 1983, the first year for which federal data is available, union membership was 20 percent. Today most unionized workers are found in the public sector, 37 percent. Less than 7 percent of private-sector employees are part of a union.
Experts on both sides of the issue agree that labor's traditional role of obtaining majority representation and negotiating and enforcing collective bargaining agreements is changing. Richard Hurd, a labor relations professor at Cornell University, says that if unions are going to increase their membership, they'll need to appeal to a younger and more diverse workforce. "And so far," he says, "they haven't been able to do that so well."
Groups like OUR Walmart could come as a breath of fresh air for organized labor. Formally named the Organization United for Respect at Walmart, the group is pushing for better working conditions and higher pay, just like a union would. But although the group is funded by the United Food Commercial Workers Association International Union, says Hurd, its members haven't yet sought to form a union. If OUR Walmart has some success through its public campaign, Hurd suggests the group might provide a model for what labor scholars call "minority unionism."
Through this method, employees form unions without the majority vote of members of a bargaining unit. Minority unions represent only those employees in the workplace who decide to join. The NLRB doesn't require employers to engage in collective bargaining with minority unions, but that level of recognition has been proposed in recent years.
New ways of organizing can't come too soon for unions. On the state level, "right-to-work" laws continue to flourish and are in effect in nearly half the country. In December, Michigan—the birthplace of the organized labor movement—became the nation's 24th right-to-work state. Few would have predicted the shift that occurred in Michigan, at least not before both Wisconsin and Indiana adopted similar legislation. Similar shake-ups could soon be in store in other states, including Missouri and Montana.
Throughout his 40-year career, Lotito has seen the influence of unions decline. For much of that period, he says, people have been predicting the end of the organized movement. "I would say that organized labor is sick," says Lotito, "but it certainly ain't dead." In light of recent events, Lotito does think that labor could use a shot in the arm. "And about the only people prepared to give it to them," he says, "are those on the labor board."
If labor is having trouble, it isn't because of a hostile federal government. Help from the NLRB has been threefold: expedited representation elections and the notice-posting rule—both of which have been held up by the courts—and a 2011 decision allowing "micro-bargaining units."
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