Time & Attendance
By Max Mihelich
Nov. 8, 2013
The landscape of organized labor is changing.
Union membership has been declining for decades, in part because of the decrease in U.S. manufacturing jobs and expensive membership dues. Today only 6.6 percent of the private-sector workforce belongs to a labor union.
But another reason for the shift in organized labor is the rise of worker centers.
Traditionally, worker centers have been organized by ethnicity or nationality, and many focus on helping new immigrants find jobs and acclimate to their community. Worker centers typically attract workers in jobs that are not covered under the National Labor Relations Act, such as fast-food or farming jobs. They are registered nonprofits and receive funding through charitable donations.
By operating as a nonprofit, a worker center is not subject to federal laws such as the NLRA and the Labor-Management Reporting and Disclosure Act, or LMRDA. But the way centers such as the Korean Immigrant Workers Advocates in Los Angeles and the Restaurant Opportunities Center of New York operate has led some to question whether such groups should fall under the jurisdiction of those laws.
“I think there’s a pretty good argument that they are covered. And it really has to do with meeting the definition of labor organization,” said Tom Davis, co-chair of law firm Ogletree, Deakins, Nash, Smoak & Stewart’s Traditional Labor Relations practice group in Nashville.
In 1992 there were only five known worker centers in the United States; today there are more than 200 with more planned.
The first worker centers appeared in Southern states during the late 1970s and early 1980s. Operating in states where labor unions held little sway during the downturn of U.S. manufacturing, worker centers sought to educate workers on their rights and combat deeply rooted racism in Southern industry.
During the past 30 years, worker centers have grown in power and number. In 1992 there were only five known worker centers in the United States; today there are more than 200 with more planned.
While most centers aren’t dedicated to a specific skilled trade and the economic welfare of those who practice it like labor unions, some centers help their members receive better wages, benefits or working conditions. The Korean Immigrant Workers Advocates and the Restaurant Opportunities Center are two examples.
According to the LMRDA, a labor organization is defined as an organization “engaged in an industry affecting commerce and includes any organization of any kind, any agency, or employee representation committee, group, association or plan so engaged in which employees participate and which exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours, or other terms or conditions of employment.”
By not being limited by federal labor union laws, worker centers can engage in activities labor unions cannot. For example, a worker center can legally stage a secondary boycott — when one of the bigger customers of a targeted company is picketed — to pressure an employer to acquiesce to employee demands for better wages, benefits or working conditions.
‘There’s a five-part definition to what a labor organization is. Clearly these worker centers meet the majority of those factors. The real question is whether they exist to deal with workplace issues.’ —Tom Davis, co-chair at Ogletree Deakins
In July a bipartisan group of congressional representatives sent a letter to Secretary of Labor Thomas Perez asking the U.S. Labor Department to check into the status of six large worker centers across the U.S. Perez’s office responded to the request by addressing two of the six groups named by the representatives, explaining the Labor Department had studied the status of those groups three separate times: twice for the Restaurant Opportunities Center, in 2006 and 2008; and once for Washington, D.C.-based Organization United for Respect at Walmart in early 2013. In all three instances, the Labor Department found both groups did not meet the standard of labor union as per section 3(i) of the LMRDA.
“There’s a five-part definition to what a labor organization is. Clearly these worker centers meet the majority of those factors. The real question is whether they exist to deal with workplace issues,” Davis said.
ROC and OUR Walmart aren’t labor unions because they exist as public advocates for improving the working conditions of their members; they do not exist to deal directly with employers, according to the Labor Department.
Those who disagree with the Labor Department say the only thing that makes worker centers and labor unions different is simply that worker centers aren’t governed by the NLRA and LMRDA, which some believe puts worker center members and their employers at risk.
Testifying before the Education and Workforce House Committee on Sept. 23, Stefan Marculewicz, a shareholder in the Washington law office of Littler Mendelson, said, “[T]hese laws were intended to protect worker self-choice, to ensure a balance between labor and management interests, and to ensure the free flow of commerce. The burden of compliance with those laws is not so severe when considered within the context of the benefits afforded to workers and the economy in general.”
Although worker centers are growing in number, their influence seems unlikely to surpass that of labor unions.
“To me it’s about membership, which equates to income, which equates to power and influence — political power or otherwise. The jury’s out on whether they’ll be successful in that regard,” Davis said.
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