A former member of President Barack Obama’s National Labor Relations Board (NLRB) warned policymakers Wednesday that unions and Obama’s labor appointees could undermine the principles of worker choice by transforming U.S. labor law.
Brian Hayes, who served as a GOP NLRB appointee from 2010 to 2012, said during an event at the Chamber of Commerce that the "long-term viability of traditional labor organizations" will depend on spreading outside the traditional bounds of labor law.
"The inability to achieve majority status" that is needed to unionize a workplace has not deterred unions from attempting to appeal to ideological allies within companies to form "members only" unions, Hayes said.
"Converting this pool into the reality of dues-paying membership is the ultimate solution," Hayes told an audience at the Chamber of Commerce. "It does so without majority support."
Current U.S. labor law mandates that unions enjoy exclusive bargaining rights for all employees through a majoritarian union election. All workers, regardless of how they voted, must join the union and pay dues for representation.
However, some legal scholars have argued that federal law should recognize members-only unionization, in which labor groups can be recognized so long as any employee opts to pay union dues. The NLRB unanimously rejected this approach in 2011, but Hayes noted that his three Democratic colleagues at the time "refused to shut the door" on such unionization.
"It is theoretically still alive," said Hayes, who is now an attorney at Ogletree, Deakins, Nash, Smoak, & Stewart. He pointed to the NLRB’s Specialty Healthcare decision that allows for micro-unions, which allow individual departments of businesses to unionize if the whole store cannot be organized.
"Even a single employee can … engage in activity with precisely the same result" of majority-rule unionization under this model, Hayes said.
The minority-based approach to union organization is embodied in the rise of worker centers, union front groups organized as non-profits, that critics say skirt labor law.
"Worker centers are found at the heart of new labor strategy and concerted activity," Hayes said. "Both models have and will become fixtures in the future labor management landscape."
Worker centers are not bound by the restrictions that federal labor law places on unions during organizing campaigns and strikes—such as 30-day limits on demonstrations and bans on secondary strikes.
These groups are beginning to draw scrutiny from federal regulators. The NLRB approved a complaint in March against the United Food and Commercial Workers (UFCW) union for the actions of OUR Walmart, a UFCW subsidiary and worker center, during a Michigan protest.
"It remains to be seen as the board and reviewing courts will [rule] … and to what extent the orchestrating hand of OUR Walmart will bear on the result," Hayes said.
Stefan Marculewicz, a lawyer at Littler Mendelson, said at the Wednesday event that the front groups could upend the American labor system.
Worker centers succeed when they find several vocal employees or ideological backers to pick up the Big Labor banner even without the support of most employees. He pointed to disruptive Black Friday protests at Walmart and recent fast food protests as examples of union-backed action where "perhaps no workers are actually involved."
"This is a completely different model than how our system works," Marculewicz said. "Worker centers have become vehicles and tools of established labor unions ... don’t believe they are who they say they are."
George Washington University professor Jarol Manheim said that the labor movement needs the worker centers to succeed if they are going to reverse a decades-long decline.
"This is another set of strategies that labor unions are hoping will stem the decline of private sector union membership," he said, saying that worker centers are part of Big Labor’s new goal of building political capital by expanding beyond the traditional union model to build campaign infrastructure.
The non-profit realm allows labor front groups to partner with multi-billion dollar liberal foundations to advance their agenda. Worker centers, such as the Restaurant Opportunities Center United (ROC), a pressure group against fast food chains and other service restaurants, have pocketed millions of dollars from major philanthropy groups, such as the Ford Foundation, according to Manheim.
"These are activist kinds of grants," Manheim said. "Traditional labor unions are economic organizations with political objectives; worker centers are political organizations with economic objectives."
Public relations expert Joe Kefauver, a managing partner at Parquet Public Affairs, said that worker centers have helped to create a better narrative for union campaigns.
The general public increasingly distrusts traditional labor unions with 37 percent of people saying they had very little or no trust in unions, according to a 2011 Gallup poll. Only 21 percent said they had a great deal of trust. Kefauver said the public recognizes that unions have vested financial and political interests tied to membership, rather than just the interests of employees.
"Everyone knows what unions are about," he said. Worker centers have "put a very different, a credible face … on what representation means."