Column: The retreat from union organizing.

Gary Chaison Published 10:48 p.m. ET Aug. 31, 2017.

In mid-August, when Richard Trumka, the head of the AFL-CIO, the main union federation, resigned from the White House’s Manufacturing Council to protest President Trump’s apparently bigoted comments, many observers thought the union movement would be jeopardizing its legitimacy. But the unions already gambled with and lost their legitimacy by retreating from organizing.

Unions are learning that you can’t have a labor movement that no longer moves; you cannot claim to be a voice for working families when you seem to be in disfavor with so many workers.

What is organizing? Unions organize workers by proving to employers that they have majority worker support, and by recruiting and forming workers into groups for collective bargaining. Labor unions have two other key roles: They serve as agents representing workers in negotiations, and they engage in political activities by supporting candidates who favor bargaining and organizing. But organizing is the heart of unionism.

Here’s a metaphor I use to suggest why unions must organize or collapse: Imagine “unions” on a treadmill at a fitness center. The faster the treadmill goes, the faster unions must run to stay in place. Suddenly, “globalization” walks by and turns up the speed. Rude! Now globalization, who already hurt unions’ friends by sending jobs overseas, forces unions to run even faster just to keep from falling off the machine. How can unions possibly pause to organize?

There is more than ample evidence of the decline of union organizing. First, studies of membership attrition show there must be at least one million new members each year for unions to gain 1 percent in the already low proportion of the workers organized. Second, government surveys show that, over the past 30 years, the number of workers in unions has fallen to 6.4 percent from 16.5 percent of private employment. Unions lost 6 million members. In addition, there is anecdotal evidence of major organizing drives lost by unions, such as the defeat of the once-powerful United Auto Workers at the Nissan plant in Mississippi this past year, where two-thirds of workers rejected unionism.

So what is the cure for a shrinking labor movement? Yes, there should just be a higher priority on organizing. But it costs about $1,500 to organize each worker and for enough new members to offset losses, the unions would have to devote about 30 percent of their budgets to organizing. They presently devote less than 10 percent.

Unions must take heroic action by devoting greater portion of their budgets to organizing.

Union relevancy was not lost when Trumka walked away from the Council on Manufacturing. It was lost when the unions decided it was too difficult to organize.

Gary Chaison is professor emeritus of industrial relations at Clark University.

D.C. Circuit Court Quashes the NLRB’s Extraordinary Expansion of Weingarten Rights
Epstein Becker Green – Adam C. Abrahms and Christina C. Rentz

USA August 25 2017

In Midwest Division-MMC, LLC, d/b/a/ Menorah Medical Center v. NLRB, the D.C. Circuit rejected the Board’s unprecedented application of Weingarten rights to voluntary meetings, by reversing the Board’s Decision that would have extended the right of employees to have union representation at meetings at which the employees’ attendance is not compelled.

Kansas state law requires hospitals to establish an internal mechanism to monitor the standard of care provided by nursing professionals. Pursuant to this law, Menorah Medical Center (“Menorah” or “Hospital”) established a Nursing Peer Review Committee (“Committee”) to investigate alleged violations of the prevailing standard of care. If substantiated, the Committee reports the violation to the state licensing agency, but the Committee itself does not impose discipline. If a violation is reported, the state, not the employer, may suspend or revoke a nurse’s license.

In May 2012, two nurses received letters alleging that they had engaged in unprofessional conduct. The letters advised that the nurses could address the Committee at a hearing “if you choose,” but also gave the nurses the option to submit a written statement in lieu of a personal appearance. Both nurses requested union representation at the Committee hearing, but the Hospital denied their requests. Their union subsequently filed an unfair labor practice charge alleging that the Hospital violated the National Labor Relations Act (“Act”) by denying the nurses’ requests for union representation at the hearing.

The D.C. Circuit Court Finds There Is No Right to Union Representation at Voluntary Meetings

The Board found that the Hospital’s denial violated the Act because employees have a right to union representation under Weingarten in “interviews where there is a reasonable belief that the employee will be disciplined,” regardless of whether the employees’ attendance is compulsory or voluntary. This was an overt expansion of employees’ Weingarten rights which only apply to a unionized employee’s right to representation at a mandatory meeting an employer requires them to answer potentially incriminating questions which may result in disciplinary action by the employer.

The D.C. Circuit Court, however, unanimously reversed the Board’s decision. The Circuit Court, quoting the Supreme Court’s Weingarten decision, held that an employee’s Weingarten rights are infringed only when an employer compels an employee’s attendance at an interview that might reasonably be expected to lead to discipline and denies his or her request for union representation. Specifically, the Supreme Court in Weingarten delineated the limited representation right as:

…the employee’s individual right to engage in concerted activity by seeking the assistance of his statutory representative if the employer denies the employee’s request and compels the employee to appear unassisted at an interview which may put his job security in jeopardy.

Here, the Hospital’s letters to the nurses clearly conveyed their attendance at the hearing was voluntary and even allowed them to submit a written statement as an alternative to attending. Accordingly, the right to union representation under Weingarten was not triggered.

The Court also rejected the Board’s finding that, after denying a request for union representation in these circumstances, the employer must discontinue the interview unless the employee voluntarily agrees to continue after the employer explains to the employee that he or she has a choice to continue the interview without a representative present or not have the interview at all. The Court explained that the letters sent to the nurses made it clear that their attendance was voluntary, and Weingarten “contains no suggestion that the NLRA requires an employer to renew advice to an employee that her attendance at a hearing is optional.” The Court distinguished the precedent relied upon by the Board on the ground that all the cases involved compulsory attendance at interviews.

The Concurrence Suggests Weingarten Rights Do Not Apply Outside Interviews Conducted by Employers

Notably, in a concurring opinion, Circuit Judge Kavanaugh emphasized that the majority’s opinion assumes arguendo that Weingarten rights could apply to peer review committees without deciding this threshold question. Judge Kavanaugh explained that, were the Court to decide this threshold question, he would hold Weingarten rights do not apply in peer review committee interviews. Rather, Weingarten rights exist “to redress the perceived imbalance of economic power between labor and management,” and therefore apply primarily in the context of disciplinary investigations conducted by the employer. When the interview is conducted by a state-mandated peer review committee that is not part of the employer’s disciplinary process, Weingarten rights do not apply.

This document has been provided for informational purposes only and is not intended and should not be construed to constitute legal advice. Please consult your attorneys in connection with any fact-specific situation under federal law and the applicable state or local laws that may impose additional obligations on you and your company. © 2016 Epstein Becker & Green, P.C.