Labor Day 2021 – The State of Unionization in the U.S. - American Society of Employers - Michael Burns

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Labor Day 2021 – The State of Unionization in the U.S.

Labor DayIn 1894 Labor Day was formally established as a national American holiday to celebrate workers. Labor Day also marks the unofficial close of summer and the start of school.

Though the true founder of Labor Day is unknown, some credit a co-founder of the American Federation of Labor, Peter McGuire, while labor historians give more credit to Matthew Maguire who was Secretary of the Central Labor Union as first proposing this as labor’s day. It is historically celebrated with parades, the first of which was a march from New York’s city hall to Union Square on September 5, 1882 – before the day was officially set by law.

Organized labor has long claimed this day. Media will likely publish articles focusing on where the labor movement is today in America. It is nowhere near its pinnacle of membership strength achieved in the late 1950’s when union members neared 50% of all employees across the country. As of 2020, union membership now sits at just above 11%.

There are 7.1 million union members in the private sector or just 6.3% of the total jobs out there. Union membership in the public sector is at 34.8% of those employed by governments around the country. The combined union membership rate in both the public and private sector came in at 10.8% last year. In 2020, official statistics still show union membership decreasing overall. Though the number of union members as percentage of total workforce shows a slight increase over 2019, the Bureau of Labor Statistics cautions that overall union membership rates may be lower due to the impact of the pandemic on the total number of workers (mostly non-union) being down considerably; thereby, inflating the percentage of union held jobs. In other words, union membership continues to drop.

In Michigan, membership in a labor union or employee association comprises 15.2% of employed workers in the State. Over 16% of total jobs in Michigan are claimed to be union represented according to the latest Bureau of Labor Statistics numbers on unions.

Inverted, the above numbers mean that over 89% of U.S. workers remained non-union as of 2020.

The current administration in Washington wants to change that. President Biden is a true believer in organized labor. Regardless of whether workers want to or not, the President and his administration as well as the Democratic majority in Congress have a very pro-labor agenda that includes overhauling the National Labor Relations Act.

House and Senate Democrats introduced the Protecting the Right to Organize Act (PRO) February 4, 2021. This is touted as a law to “restore fairness” to the labor landscape, but in reality, if passed, makes significant changes to worker and employer rights that currently exist. It will strip away state Right to Work laws giving workers a choice about whether to join a union and pay dues in the form of wages each month for an organization that may have a radically different political agenda then their own members do. There are currently 28 states, including Michigan, that are Right to Work.

Currently, if workers go on strike, they can be replaced in order to maintain operations. Under the PRO Act employers will no longer be able to offer the jobs vacated by striking union workers to other workers. Further, this new law allows for intermittent, partial, and other types of “wildcat” strikes that even the union may not sanction. Thus, giving organized labor a decisive advantage during contract negotiations. Unions would be able to call short or partial strikes during negotiations as an employer harassment tactic without risking the loss of the job while doing so.

The PRO Act would also allow for “secondary” strikes, boycotts, and picketing. What are secondary strikes? A secondary strike, currently illegal under the NLRA, allows the union to strike against a third party (neutral) employer and contractor that they want to draw into the strike against the primary employer. An employer suffering a secondary strike would presumably pressure the primary employer to give in to the union demands.

The PRO Act also goes after supervisors as currently defined and limited from coverage under the National Labor Relations Act (NLRA).

The PRO Act would adopt the strictest definition of independent contractor increasing the number of workers that, due to their previous status as independent contractors, could be excluded from the bargaining unit. 

The PRO Act also extends its influence over employers and who can be organized by re-defining what an employer is under the NLRA. Franchisors and contractors would become responsible for the employment actions of their franchisees and subcontractors This would, in many cases, turn an entire area of established corporate law intended to promote business development on its head. Goodbye, gig economy.

Delving further into this radical labor legislation, the PRO Act would eliminate mandatory arbitration agreements between non-union employers and employees.

Further, Labor organizations would have to be given the right to use an employer’s communications system (email) for union organizing activities.

Quickie or ambush election procedures, where the timetable for employer to respond to an organizing drive, is limited to just 20 days before the election would be held – tough timeline given most organizing drives are “underground” until the union files for an election. The employer’s timeline to make their case and correct erroneous or misleading information becomes very short. Further, an employer better have their stories straight while combatting a union drive because union organizers will be watching for any unfair labor practices as an employer tries to navigate the often arcane labor law of employer do’s and don’ts.

The list of pro-labor policy, law, and regulation changes lining up under the current Administration will put non-union employers at an incredible disadvantage going forward. So, in the coming days as the media gins up its position, generally favoring unions and union organizing, and points to new and “needed” legislation such as the PRO Act, know that this is a law that will turn a reasonably balanced labor landscape against employers and toward a union movement that for over 50 years has not been able to convince workers about the benefits of union membership. They now want to take away any control from the non-union worker and the employer that provides the job.

Employers will have to become much more sophisticated in the ways of union avoidance.

Since its inception ASE has offered employers resources to remain union free. These are compensation and benefits data to set fair pay, development classes to teach supervisors and managers how to lead workers effectively and fairly, and tools to both listen to and communicate with workers to maintain a positive employer-employee relationship. Thereby making the case to workers that a fair employer keeps workers pay in their pockets versus having it go toward compulsory union dues every month for questionable service.

ASE’s services and resources are in place to provide employers what they need to make third party intervention difficult, if not impossible.




U.S. Department of Labor, History of Labor Day

Union affiliation of employed wage and salary workers by state (Table 5) Bureau of Labor Statistics

The National Law Review: Labor Law Reform on the Horizon: Ten Things to Watch Under the PRO Act. (2/16/2021)


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