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  • January 24, 2017

Unions Not Making Headway, NLRB Stats Show

The NLRB’s “quickie election rule” (QER) is not having its desired or expected effect of energizing union organizing. According to NLRB statistics, fewer “RC” petitions (seeking union representation) were filed in FY 2016 than in FY 2015 — 2,029 vs. 2,198. (The NLRB’s fiscal year is October 1 through September 30. FY 2016 stats covered nine months of the QER.) Fewer RC elections were held in FY 2016, as well — 1,396 vs. 1,574. Although the percentage of union victories in RC elections rose in FY 2016, from 71.2% to 72.6%, these are misleading figures since petitions often were dismissed or withdrawn and no election was held. More eye-opening is this: in FY 2016, unions prevailed in only 49.9% of the instances in which they filed petitions (702 of the petitions were dismissed or withdrawn); in FY 2015, they won 51% of the time (648 of the petitions were dismissed or withdrawn).

Triple Whammy for Union Coffers?

Unions may be facing a triple whammy: reduced membership, elimination of agency fees in the public sector, and more state and local right-to-work laws.

  1. Organizing new members and retaining existing members may be threatened by President Donald Trump’s election. The SEIU will reduce its budget by 30 percent by the end of 2017.
  2. Unions representing public-sector employees should worry that a nine-justice Supreme Court will decide they cannot require non-members to pay agency service fees. The eight-justice court split on this issue in 2016.
  3. Right-to-work laws exist in 27 states and several counties — more are pending in states such as Illinois, Missouri, New Hampshire, and New Jersey. In right-to-work states, unions cannot require employees they represent to pay the union an agency fee.

Will unions allocate their shrinking budgets toward political activities such as the Fight for $15, or toward the interests of the employees they represent?

Unions Not Using Electronic Signatures for Showing of Interest

Unions are not taking advantage of NLRB General Counsel Richard Griffin’s 2015 decision to allow them to use various forms of electronic employee “signatures” to support the filing of a representation petition, according to a limited survey involving two NLRB Regions. Use of electronic signatures was expected to be embraced by unions because it would make it easier for them to surreptitiously gain employee support — an employee can be proselytized and “sign” in the comfort of his home without worry that his supervisor might discover him. One explanation for the hesitation? Obtaining employee signatures the old fashioned way, through face-to-face interaction, makes the union more confident in an employee’s commitment to the union.

Organization Helps Local Governments Enact “Right to Work” Measures

My Check My Choice (mycheckmychoice.org) is spreading the word that “right to work” laws are good for business and economic development and can be implemented at the county and municipal level — and MCMC can help. MCMC provides model legislation, legal, informational, and political support, and coordination to help employees, employers, and others make the case for a local right to work law. Last November, a federal appeals court held that a Taft-Hartley provision permitting a “state” to enact a right to work law also authorizes a political subdivision of a state —  such as a county and municipality — to do the same. Local governments in Kentucky and Illinois have enacted right to work ordinances.

Please contact a Jackson Lewis attorney with any questions about these and other workplace issues.

©2017 Jackson Lewis P.C. This material is provided for informational purposes only. It is not intended to constitute legal advice nor does it create a client-lawyer relationship between Jackson Lewis and any recipient. Recipients should consult with counsel before taking any actions based on the information contained within this material. This material may be considered attorney advertising in some jurisdictions. Prior results do not guarantee a similar outcome.

Reproduction of this material in whole or in part is prohibited without the express prior written consent of Jackson Lewis P.C., a law firm with more than 900 attorneys in major cities nationwide serving clients across a wide range of practices and industries. Having built its reputation on providing premier workplace law representation to management, the firm has grown to include leading practices in the areas of government relations, healthcare and sports law. For more information, visit www.jacksonlewis.com.

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