Volume 38, Issue 4, April 2003

LegalEase

United We Stand
Has the Decrease in Membership Changed Unions?
by David Barron

The Bureau of Labor Statistics reported in February 2003 that union membership fell 
by 280,000 members last year, cutting labor’s overall share of the workforce to 13.2 percent. That is a far cry from the heyday of the early 1980s when organized labor claimed more than 20 percent of the American workforce. What is worse is that the most recent statistics include employees of local, state and federal governments, virtually all of whom are union members. Without the public sector numbers to boost these statistics, union membership falls to well below 10 percent. 

Aggressive Rebuilding Efforts
Unions, however, continue to pursue new avenues to regain their strength. Yet they continue to have a difficult time convincing employees of the benefits of collective bargaining. The workplace is one of the most regulated areas of our lives and employees today enjoy protections from discrimination, have guaranteed time off and minimum-wage protections. Many employees, especially younger workers, believe that they can do just fine on their own and have grown up in a society in which if you are not happy, you turn to the courts—not a union. Whereas workers 20 years ago relied on organizing and collective bargaining to address workplace problems and make change, modern workers see litigation as the cure-all. 

Just think about what we have seen in the last few years—lawsuits for sexual harassment against a sitting president, lawsuits over election results, lawsuits against McDonald’s for selling hot coffee or fattening food and on and on. Every time someone slips and falls or is fired, the natural reaction is to file a lawsuit. And, as everyone knows, there are plenty of lawyers advertising on television who are more than happy to oblige. Lawsuits are where the action is at and the unions have jumped on the bandwagon.

Unions as Legal Advocates
Unions have gotten into the lawsuit business in a big way. Faced with the choice of seeking monetary gain for employees in the courtroom or at the negotiating table, many unions have chosen the courtroom. A professor at the University of Illinois noted recently that he thinks unions will evolve from workplace bargainers to special service legal providers. According to him “it may be easier to get $100,000 in court than a nickel-an-hour raise through collective bargaining.” 

The organizing attempts at Wal-Mart are a good example. More than 50 lawsuits have been filed against Wal-Mart for everything from non-payment of wages to labor law violations. These types of lawsuits serve two important purposes for the union. First, lawsuits unite employees behind the union for the shared purpose of putting money in everyone’s pocket. Second, the lawsuits put pressure on the employer to accept union representation as a means of avoiding costly litigation expenses. Employers who choose to fight it out can find themselves embroiled in a bitter corporate campaign. 

Unions are relying increasingly on environmental lawsuits, OSHA complaints and willing regulatory agencies to push their agenda on employers. Even for large companies like Wal-Mart, facing a full legal assault from a union can be a costly exercise, which is a drain on management, employees and sometimes even customers. After all, fighting a union is hard enough, but fighting the union, employee lawsuits and the federal or state government at the same time is a tall order for just about anyone.

What Does the Future Hold
The face of union organizing is clearly changing. Companies that are targets of union campaigns are now more likely to face a lawsuit than a picket line. Moreover, recent changes in our society have made certain industries prime targets for this new type of union organizing. A recent survey found that 70 percent of Hispanics polled would support a union at their workplace, while most other ethnic groups averaged around 50 percent. Not surprisingly, unions have shifted their efforts radically to focus on Hispanic workers. Also, with troubling economic times and the prospects of war and terrorism always present, there is a psychological need for support and strength in numbers. Simply, when times are bad, business is good for unions. 

The keys to avoiding the new techniques being used by unions are much the same as they have always been. First, communicate with employees and keep them involved, motivated and engaged in their job. Second, conduct an audit of your employment practices. The most common complaints raised by unions on behalf of employees include the incorrect payment of wages, inadequate safety and discriminatory treatment. Make sure these claims cannot be raised against your company. It is impossible to avoid these new-wave lawsuits altogether, but you can place your company in the best position to defend against them and weather the storms if they 
come. 

 
David Barron
is an attorney at Alaniz and Schraeder in Houston. He represents employers in employment-related matters.


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