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Despite recent NLRB action, union membership continues decline

Arnstein & Lehr attorney Jesse Dill

Jesse R. Dill

Last week, the Bureau of Labor Statistics released its annual figures on the state of union membership in the United States. Union membership continued its now-typical trend of declining rolls in 2012. The percent of workers who were union members in 2012 was 11.3%, compared to 11.8% in 2011. The overall number of those belonging to a number likewise decline, from 14.8 million in 2011 to 14.4 million in 2012.

Labor law observers might be surprised by this trend considering the NLRB’s recent efforts to increase awareness of Section 7 rights and overturn long-standing precedent in favor of more union-friendly positions. However, these efforts have been counterbalanced at the state level through such developments as Wisconsin’s Act 10 legislation. Many of the developments with the NLRB may also be considered long-term focused, such as the recent WKYC-TV, Inc. decision. In WKYC-TV, Inc., the NLRB held that an employer may no longer unilaterally terminate dues-checkoff following the expiration of a collective bargaining agreement. In the short-term, this decision means employers lose a valuable economic weapon in bargaining; but there are also long-term consequences. In time, Union coffers will increase beyond what they otherwise would have grown, and unions will be able to focus more time and attention on organizational activities.

Further still, not all of the attention-grabbing headlines coming from the NLRB are directly related to increasing union membership. For example, the NLRB cases on social media (see here and here) largely do not involve organized workforces. Rather, employers are discovering the NLRB is flexing its muscle to find social media policies and terminations based on social media activity are unlawful even though employees are not represented by a union.

Although the BLS statistics show a decrease in union membership, the NLRB still gives employers much to consider and cause for concern. Another four years of President Obama’s NLRB is likely to continue taking pro-Labor steps designed to increase those membership rates. Additionally, there is still a tangled web of regulatory decisions that employers must navigate to avoid the NLRB’s wrath.