Legal Issues: Unions Continue Making Waves Across U.S.

Union issues are continuing to make headlines across the country whether it’s in Hollywood or in Colorado where public defenders unionized in 2022.

According to a press release from the U.S. Bureau of Labor Statistics, 10.1% of wage and salary workers were union members in 2022 which was the lowest on record. About 33% of public sector workers were in unions while 6% of private sector workers were. The release noted union membership was at 20.1% in 1983, the first year comparable union data was available. 

In Colorado, according to BLS, there were 178,000 members of a union or employee association similar to a union in 2022, which was up from 169,000 in 2012 but down from 281,000 in 2018. 

As all these issues continually unfold, Law Week Colorado caught up with multiple union legal experts to talk about what they are currently seeing.

Patrick Scully, a member at Sherman & Howard L.L.C.’s labor and employment law group, focuses primarily on traditional labor law working with employers. Scully also counsels clients on collective bargaining along with other issues.  

“We are further removed from a time when people had more knowledge about how the labor movement works and how labor relations works and how collective bargaining works,” Scully said. “We have a generation of people whose parents were probably not in labor unions and probably didn’t walk a picket line and didn’t engage in collective bargaining.”

Scully explained there’s currently a lot of nostalgia for the labor movement with a resurgence in enthusiasm, but there’s a disconnect from how that plays out. 

“There’s a lot of organizing activity, [but] what there isn’t so much of are new collective bargaining agreements, new relationships, because they’re even harder to form I think because the expectations that occur during organizing are difficult for unions to fulfill and of course employers have the right to say no in bargaining,” Scully said, citing the 1935 National Labor Relations Act, which covers private sector employees.

Scully’s noticed a lot more discussions about unions in Colorado, but one of the more significant things he’s noticed deals with public sector workers organizing. In 2022, the Colorado legislature approved a law allowing public employees of a county to unionize with some caveats. According to an article from Colorado Public Radio, county workers could only form a union if allowed to by voters or government leaders. The bill took effect July 1.

“Colorado has no native labor law, really. Typically what has been the rule in Colorado is that counties, cities, other political subdivisions, have the ability to decide whether or not they wanted to authorize collective bargaining and when they did that, then they would be organized and they’d reach contracts. It was really left to the political subdivisions,” Scully said. “There is a drive to go away from that.”

Scully, who practices nationally and in Colorado, said in different parts of the country and in Colorado, inflation, standard of living and housing costs have outpaced wage growth in some industries.

“That’s been a huge organizing issue,” Scully said, who added staffing and safety issues are another item he’s seen organizing around along with giving people a voice. “I think more than ever now, employers have to think about reaffirming that employees do have a voice.”

As for the future, Scully doesn’t see the labor movement growing in the U.S., adding he believes employers are much better in touch with how to take care of employees and comply with laws.

Jake Rubinstein, a member at Cozen O’Connor, is a labor and employment lawyer based in Colorado and also works nationally. Rubinstein represents employers and occasionally individual employees. 

Some of the major issues Rubinstein sees in Colorado in the private sector are similar to what he’s seeing on the national scale, “which is increased activity and an increased degree of prominence among unions.”

In August 2022 Gallup released a poll showing 71% of Americans approve of labor unions, which is the highest number since 1965.

“[The poll] aligns with what I see out there on the ground, which is a general sense of respect and support for labor unions,” Rubinstein said. “At the same time, the paradox is that while express support for labor unions has gone up dramatically since 2010, and is at a historic high, union membership has remained relatively static.”

Rubinstein said he sees something similar in Colorado when it comes to private sector employees and for public employees he said in recent years there’s been some large moves to expand collective bargaining.

Rubinstein noted public employee unionization first came about at the state level in 2007, as the result of an executive order by former Gov. Bill Ritter. Years later more developments continued and at the end of the 2023 legislative term, the legislature passed Senate Bill 23-111

According to the bill summary, the act granted many public employees the right to: “Discuss or express views regarding public employee representation or workplace issues; Engage in protected, concerted activity for the purpose of mutual aid or protection; Fully participate in the political process while off duty and not in uniform …; and Organize, form, join, or assist an employee organization or refrain from organizing, forming, joining, or assisting an employee organization.”

Rubinstein said for his practice in Colorado and nationally, he tends to see unions say they are bringing issues to the bargaining table related to more pay, better benefits and better working conditions.

“For a large portion of my career I negotiated collective bargaining agreements in economic conditions where inflation was very low. Now we’re negotiating collective bargaining agreements in economic conditions where inflation is high and, as you might expect, unions are seeking much larger pay increases so that wages keep pace with inflation,” Rubinstein said. 

Another change Rubinstein noted is a bigger focus by unions and employers on equity, diversity and inclusion, finding ways to incorporate contemporary concepts of EDI into labor contracts. 

Editor’s note: Law Week Colorado’s publisher and parent company Circuit Media has had a professional relationship with Patrick Scully in the past.  

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