Big Labor is co-opting worker centers to avoid federal law

Two weeks ago, in a sharply worded decision, a California state judge ordered one of the nation’s largest unions and a worker center to stop trespassing inside Walmart stores. The union is the United Food and Commercial International Workers Union (UFCW), and the worker center is OurWalmart, described by the UFCW in federal filings as a “subsidiary.”

According to the judge, Walmart made “every reasonable effort to settle any legally cognizable labor dispute in question with the defendants.” Nevertheless, the defendants summoned “flash mobs” by text and e-mail, and stormed the Walmart stores, blowing air horns, screaming, and blocking aisles and exits. 

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Worker centers are not something new; but their current use by unions is.  They provide unions with a vehicle to organize without the restrictions imposed by federal labor law, long considered by Big Labor an impediment to union organizing.

Originally, worker centers were community-based non-profits that advocated for workers’ rights – funded by foundations, membership fees, and other donations. Although the structure and function of these centers varied widely, they all provided members a variety of services, such as job training, employment services, English-as-a-second-language and legal advice.

But many worker centers have expanded their activities into areas historically occupied by unions, and beginning in or about 2006, some have affiliated with unions. 

That year, in response to the continuing decline of union membership – which recently dipped to 6.6 percent in the private sector – the American Federation of Labor and Congress of Industrial Organizations (AFL-CIO) announced a new policy of “extending affiliations to worker centers across the country.” Labor’s asserted aim? To create “new models of worker representation.” [Remarks of AFL-CIO President Richard Trumka, Conference on New Models for Worker Representation, Chicago 2013]  The result is that if you scratch below the surface of many worker centers today you are likely to find a labor union. 

Unions are increasingly outsourcing their organizing activities to worker center affiliates which engage in aggressive organizing campaigns to effect changes in the workplace, but consider themselves exempt from the labor laws that bind traditional unions, protect workers’ rights, and balance the interests of labor and management.  

The key law is the National Labor Relations Act (NLRA), which gave workers the right to organize and collectively bargain. At first, the act freed employees from the “duress of their employer.” But in 1947, it was amended “to free workers from the duress of the union as well.” [S. Report No. 106, Legislative History of the Labor Management Reporting and Disclosure Act of 1947, p. 456] Among its many provisions, the amended law created and defined unfair union labor practices for the first time, prohibited secondary boycotts that vastly expand the scope of industrial conflicts and prohibited  prolonged picketing of employers to gain recognition.

This was followed by the Labor Management Reporting and Disclosure Act (LMRDA) which sought to remedy a “monumental record of wrongdoing on the part of certain labor unions and their officers.” [“The Labor Reform Law,” Bureau of National Affairs: Washington, D.C. (1959)]. That wrongdoing included embezzlement, misuse of funds and threatening dissenters to maintain control. The LMRDA made the union accountable to its members by imposing financial reporting requirements and by giving workers a voice in the internal affairs of the union including the rights to elect union officers, to attend union meetings and participate in union deliberations, and be protected against increases in union dues without majority approval.  

The leading union-affiliated worker centers— such as, OurWalmart (UFCW), Fast Food Forward (Service Employees International Union), Restaurant Opportunities Center, ROC (UNITE-HERE) and the Retail Action Project, RAP (UFCW) – thumb their noses at these laws because they are not formally constituted as unions. This is an indefensible position. Their activities make them “labor organizations” – an organization in which employees participate that exists to deal with employers concerning conditions of employment – as defined in each statute and subject them to each law’s regulatory requirements.  

After all, worker centers are just as vulnerable to the abuses that plagued the unions and that motivated Congress to pass remedial legislation in 1947 and again in 1959. By ignoring these laws worker centers are able to remain unaccountable to their members, operate autocratically without meaningful membership participation and subject employers to economically destructive coercive organizing tactics prohibited by federal law.

Nevertheless, two early indications suggest that the Obama Administration will be less than enthusiastic about bringing worker centers into compliance with these labor laws. For example, in response to a July 23, 2013 letter from the Chairman of the House Committee on Education and the Workforce, the Secretary of Labor stepped to the side and ignored the implicit question at the heart of the Chairman’s letter: whether a worker center that operates like a union is a labor organization subject to federal labor laws. And despite their notoriety for engaging in intimidating organizing tactics, the Department of Health and Human Services is reported to have made monetary grants to two union-affiliated worker centers – ROC and RAP – enabling them to act as “navigators” for consumers needing assistance with their healthcare options. [“Obamacare’s Unsavory Navigators,” The Daily Caller (October 16, 2013)] This gives them an open invitation to expand their reach and solicit support for their activities from hundreds of thousands of consumers. 

What is at stake is the integrity of the labor movement. One of the laudable goals of unions and worker centers is to require that employers comply with the laws that protect workers’ rights.  Unions and their worker center affiliates should do the same without waiting for the courts to order it.        

Schaumber is a former chairman of the National Labor Relations Board appointed by President George W. Bush.