At the beginning of 2010, conventional wisdom held that the labor movement had taken the offensive and was on the brink of pushing through the Congress wholesale changes that would give unions unprecedented leverage in organizing and in collective bargaining. The election results of last year, however, beginning with the election of Republican Senator Scott Brown in Massachusetts, denied supporters of the Employee Free Choice Act the 60 Senate votes effectively necessary for passage. This not only halted the pro-labor agenda, but actually reversed the dynamic, putting the labor movement on the defensive regarding its legislative efforts. Indeed, just over the past few weeks, several new legislative labor initiatives have been introduced in Congress and in the states which would significantly restrain union growth and power.

For example, last week Senator James DeMint (R-SC) introduced S. 504, the “National Right To Work Law.” If enacted, the statute would amend Section 14(b) of the National Labor Relations Act (“the Act”) to prohibit “union security” agreements (i.e., contract provisions between unions and employers making membership or payment of union dues or fees a mandatory condition of employment) in the private sector. Presently, unless prohibited by state law, a union security agreement generally is a permissible exception to the Act’s prohibition against discrimination based on union membership or support. Senator DeMint’s bill is likely to stall in the Senate (and, in any event, be vetoed by President Obama were it to pass). However, 22 states currently have so-called “right to work” laws, and a number of other states (including Indiana, Maine, and Missouri) are considering similar legislation, so it is possible that by the end of 2011, a majority of states will prohibit union security provisions. Moreover, Kansas, which already is a right to work state, has pending legislation which would prohibit dues being deducted for union political action committees even if employees have voluntarily authorized the deduction.

Additionally, last week Congressman Phil Roe (R- Tenn.) introduced H.R. 972, the “Secret Ballot Protection Act,” which would amend the Act by ensuring the right of employees to a secret ballot election conducted by the National Labor Relations Board (“NLRB”); and, therefore, eliminate the use of card checks. Passage of this bill would moot similar state initiatives which have been challenged by NLRB Acting General Counsel Lafe Solomon as preempted by the Act.

Also, several states recently have passed or are considering other legislation which would curtail union growth and strength in the private sector. For example, this month Idaho became the seventh state to prohibit project labor agreements (“PLA”), and similar legislation is or will be pending in other states. A PLA is a pre-hire collective bargaining agreement with one or more labor organizations that establishes the terms and conditions of employment for a specific construction project and which, as a result, guarantees the use of union labor.

Furthermore, as has been the subject of a great deal of recent attention, a number of states have passed or have under consideration legislation limiting collective bargaining or other union rights of public sector employees. Such limitations will have long-term consequences in the private sector as well. The legislation passed in Wisconsin and pending in other states such as Ohio and Iowa creates “right to work” requirements for state employees (i.e. union dues deduction would be voluntary and not mandatory). Because unions, such as the SEIU, represent employees in both the public and the private sector, such legislation will eventually limit the resources available to the unions for political purposes as well as private sector organizing efforts. By way of example, before Indiana implemented similar right to work requirements in 2005, approximately 66% (16,408) of eligible employees paid union dues. After passage, union membership plummeted to 7% (1,409) of eligible employees. Therefore, as other states implement such requirements, unions could lose thousands of dues-paying members and a primary source of income.

Notwithstanding these legislative developments, it is important to remember that the federal regulatory agencies are administered by union-friendly appointees, who have a wide berth to carry out their mandates in a pro-labor manner. There has been no hint that they intend to limit or decelerate their agendas in any way.