Republican-led Washington is mulling the most far-reaching changes to federal labor policy in seven decades in ways that could strengthen businesses and individual workers while weakening unions' labor power as well as political strength.
The effort goes beyond rewriting parts of workplace law. The Supreme Court, the White House, leaders in Congress, and even state legislatures are all fundamentally rethinking its underlying principles: who it is meant to protect, and how and what the government's role in that should be.
The move to reshift the balance of power is being led by conservatives and libertarians and has been building for years. It focuses on empowering individual workers by making it easier for them to dissent from their union or to resist joining one, something generally not considered when the National Labor Relations Act, which became law in 1935, was drafted. Unions in effect would be turned into voluntary associations that workers drop in or out of. Unions, therefore, would have to work harder to keep members.
The push includes measures such as expanding the principle of right-to-work, which allows workers to refuse to join or otherwise financially support a union. Other changes would ensure all workplace organizing elections use a secret ballot and requiring unions to periodically be subject to recertification votes to ensure they still have their members' backing.
That would significantly shift the way the NLRA works. The law, for the most part, assumes that the unions' and workers' interests are always the same and leaves little room for dissent. That legal framework is a major source of union power, financially and otherwise, since it allows them to compel workers' support.
"This is about giving individual workers a voice. If a union is doing a good job, it shouldn't have to worry about getting recertified. It should be easy," said Rep. Phil Roe, R-Tenn., author of the Employee Rights Act, one of the main bills congressional Republicans are backing. "Nothing about what we are talking about would make it harder for workers to organize, if that is what they want to do."
But it would make it harder for unions to raise funds. Organized labor is a major source of campaign funding for the Democratic Party, giving more than $59 million in the 2016 election cycle alone, according to the Center for Responsive Politics. Conservative groups put the total unions give to Democrats, liberal activist groups, and political action committees between 2012 and 2016 at $765 million.
Labor and its allies are pushing back, fighting to preserve changes to workplace regulations made during former President Barack Obama's administration and advancing their own changes to the law. Sens. Elizabeth Warren, D-Mass., and Sherrod Brown, D-Ohio, have introduced legislation to eliminate right-to-work altogether. But labor's allies lack the support in Congress, the White House and in courts to preserve or expand union-friendly aspects of the law.
Union leaders are bracing for the shift. "Clearly, on the business-conservative side, there is a sense that this is a moment of change for them. ... Some of them have been working for years on this," said Andrew Stern, former president of the Service Employees International Union.
Expanding the rights of individual workers
Individual worker rights were not generally envisioned when the National Labor Relations Act was created in 1935. The law takes it as a given that the interests of a union are the same as the interests of the workers it represents. That makes sense in theory since unions are supposed to be the collective voice of their workers. In reality, though, a union is a legal entity of its own that exists separate from the workers it represents. No current Ford factory workers, for example, voted to be represented the United Auto Workers, which was last certified as their union in 1941.
Amendments and court rulings have given individual workers more rights, but they still tend to be limited. In 1947, Congress allowed states to adopt right-to-work laws. The Supreme Court's 1988 Beck decision said workers could object to union dues money being spent on nonunion activity, though the burden is on the worker.
Those rights could expand dramatically under the current climate in Washington. The biggest shift is likely to come from the Supreme Court. In September, it said it would take up the case of Janus v. American Federation of State, County and Municipal Employees. The case asks whether an Illinois state employee can be forced to pay a regular fee to a union as a condition of employment. The case could overturn a longstanding precedent, Abood v. Detroit Board of Education, that allows public-sector unions to demand payment. The court's conservative wing in the past indicated that it didn't support such precedents. Justice Samuel Alito wrote in the majority opinion for 2012's Knox v. SEIU that compulsory union fees "constitute a form of compelled speech and association that imposes a significant impingement on First Amendment rights."
The justices took up a similar case, Friedrichs v. California Teachers Association, last year and split 4-4, leaving the Abood precedent in place. It is widely believed that Justice Antonin Scalia's death prevented the court from having a majority to overturn Abood. Janus represents a second chance for the court to do that now that Justice Neil Gorsuch has replaced him.
On Capitol Hill, the Employee Rights Act has 111 co-sponsors in the House and 21 in the Senate, and Roe expects they will top last year's number, 137 co-sponsors. In addition to requiring all workplace organizing elections to have a federally monitored secret ballot, the bill would require the union to win a majority of all workers, not just a majority of the votes cast, and require it to submit to recertification votes whenever there is more than 50 percent turnover in the workplace. Workers would be allowed to tell their employers not to give their personal contact information to the union, whereas under current law workers have no say. Unions also would be required to obtain in writing the workers' permission to spend dues funds on activities not related to collective bargaining.
Other bills, such as the Save Local Business Act, by Rep. Bradley Byrne, R-Ala., would rein in the National Labor Relations Board, the main federal labor law enforcement agency, by prohibiting it from pursuing cases based on an expanded definition of "joint employer." The board has argued that any time a business can be said to have "indirect control" over another business' workforce it can be held liable for any workplace law violations there. GOP lawmakers argue that that is far too broad and the board should return to the role of "neutral umpire." Byrne's bill would amend the NLRA to say that joint employer applies only where there is "direct control," the prior standard. It was marked up by the House Education and the Workforce Committee in early October.
The White House, meanwhile, is steadily rolling back changes to the workplace rules instituted by Obama. Most notably, the Labor Department has reopened a rule that would vastly expand the number of workers covered by overtime, delayed implementation of the so-called "fiduciary" rule-making retirement investment brokers legally required to put their customers' interests ahead of their own, and rolled back the department adoption of the NLRB's joint employer rule. Trump also has given the NLRB is first GOP majority since President George. W. Bush's administration.
Obama's policies prompt push against pro-labor laws
For a long time, labor policy was an obscure field even for Washington political junkies. Only 10.7 percent of the workforce, about 14 million people, are members of a union, according to Labor Department data. The assumption for many was that labor unions were no longer relevant.
That changed during Obama's administration. Arguably the most pro-labor president since Harry Truman, Obama tried to help unions bolster their numbers in numerous ways with his appointments to the Labor Department and the NLRB. He also embraced labor's crusade for "card check" legislation.
Card check would have eliminated the ability of businesses to call for a federally monitored secret ballot election when unions say they have the support of a majority of workers.
Despite several tries in Congress from 2008 through 2012, card check never passed. Business groups such as the Chamber of Commerce argued the system would allow rampant fraud and abuse. Even moderate Democrats resisted the idea. But it did have one effect: Fighting card check made many on the Right focus on labor policy.
Aggressive actions by the NLRB such as pursuing a case in 2011 arguing that Boeing's plan to open a new plant in a right-to-work state amounted to retaliation against workers in a Washington state union sparked an outcry and caught lawmakers' attention as well.
"People who were previously never interested in what we were doing were calling us up and asking, 'What the heck is the labor movement doing?" recalled Mark Mix, president of the conservative National Right to Work Foundation, which is representing Janus before the Supreme Court.
Roe argues the catalyst was Democratic National Committee Chairman Tom Perez, who served as Obama's labor secretary. "He was an incredible activist. He changed stuff that had been the settled law for decades. It got a lot of people's attention. It certainly got mine," he said.
Concerns were rumbling outside of Washington, too. In 2011, Republican Wisconsin Gov. Scott Walker signed a law that rewrote the state's public-sector union rules to effectively put state government employees under right-to-work rules. A major union-led effort to roll back the law and oust Walker failed. His move inspired other GOP governors to follow suit.
The following year, Indiana adopted a private-sector right-to-work law. Then Michigan, Wisconsin, West Virginia and Kentucky jumped on board, bringing the total number to 27. Another state, Missouri, will have it on the ballot next year, and right-to-work efforts are underway in states such as Ohio, too.
Rep. Virginia Foxx, R-N.C., chairwoman of the Education and the Workforce Committee, notes that right-to-work laws used to be confined to the South. "The issues are spreading far beyond that. They're timely and timeless," she said.
Unions have struggled to respond. "You never say right-to-work in the union movement because it is a great example of naming something. Pretty often you cannot even explain right-to-work to union members without them thinking it sounds like a pretty good idea," Ben Johnson, former head of United Professions AFT Vermont, the union's state umbrella organization, told the Washington Examiner in September.
Brown illustrated the point in an email response to the Washington Examiner regarding his legislation to eliminate right-to-work: "At a time when Americans are working harder and earning less for the time they put in, we should be making it easier for workers to raise their voices and bargain for better wages and safer working conditions."
Rick Berman, president of the conservative Center for Union Facts, is a key architect of the Employee Rights Act, having been pushing for it since 2012. He takes the long view — his public relations firm Berman and Company is celebrating its 30th anniversary this year — a tactic he learned from the Left, he says.
The Employee Rights Act is a direct reaction to the card check push, Berman said. The fight was the first time many lawmakers even discussed the NLRA, he said. "Sen. Orrin Hatch, to his credit, said how about we go on offense? How about we change the law so that it is pro-employee?" Berman recalled.
This is the third consecutive Congress where the Employee Rights Act has been introduced. Support has built each time.
"You have to stick with an idea until it is normalized. The Left understands this. They never say they have lost — they say they haven't won yet. It's attitudinal," Berman said.
It helps that the rhetorical case for the legislation is easy to make, he says. Critics slam it as pro-business and pro-corporate because they don't want to get caught up in arguing the details. Who disputes the need for fair elections? "There is no narrative against the ERA," Berman said.
A point of agreement
All of the activity would have been unthinkable just a decade ago, Stern notes. Labor had more support among Republicans, which prevented measures such as right-to-work from ever getting off the ground.
"The labor movement is much weaker than it used to be. In the past, the building trades used to be a bulwark since they had good relations with Republicans. ... After Scott Walker, Republicans became emboldened," Stern said.
But even a union man like Stern concedes that the NLRA, an 80-year-old law written for the industrial era needs some updating. If states are going to adopt right-to-work laws, he says, they should release unions from the responsibility of representing non-members in collective bargaining. "If you are not a member of something, you shouldn't get the benefits," he said.
Roe agrees. He notes that most other membership groups operate that way. "I belong to a lot of groups that I don't always agree with, like the American Medical Association. But I have the right to belong or not to belong," he said.
That Roe and Stern can come to the same conclusion suggests that the two sides may not be that far apart. National Right To Work's Mix argues that unions will survive the change and maybe even thrive. Leaders would be forced to pay closer attention to their members and be more responsive to their needs if the workers can opt out.
"End compulsory dues, and unions will have to change their economic model. I'll be intrigued to see what they come up with. They'll have to find a way to sell their product," Mix said.