The Hill

Vaccine mandates put unions in a bind

Published in The Hill
November 27, 2021
F. Vincent Vernuccio,Senior Labor Policy Advisor for Workers for Opportunity and president of the Institute for the American Worker 
President Biden once proclaimed himself the “most pro-union president.” Now he’s looking less like a hero to union members who could lose their jobs because of his vaccine mandate.

A recent Kaiser Family Foundation poll found that one-third of unvaccinated workers would quit before submitting to vaccination. And, though the Occupational Safety and Health Administration (OSHA) suspended enforcement of the mandate after a federal court of appeals stay, unions and employers know the issue isn’t going away. Workers are pushing back, with unrest rattling the transportation sector in particular.

Disgruntled airline workers have formed the anti-mandate “U.S. Freedom Flyers,” a group that stages protests and applies public pressure for airlines to drop the vaccine mandate. United Airlines has fired more than 200 workers for non-compliance, and the American Federation of Government Employees says travel could be impacted because of Transportation Security Administration (TSA) shortages. Meanwhile, the Allied Pilots Association reports that even discussions about the vaccine mandate could pose risks. “We are seeing distractions in the flight deck,” the union’s safety committee explained in a memo, “that can create dangerous situations.”

The outlook for freight is also problematic. American Trucking Association leaders warned that the mandate could have “devastating impacts” on the supply chain and the economy, exacerbating existing trucker shortages. Some workers have been exempted but challenges remain for the industry, whose leaders initially suggested that one-third of their workers may quit.

Railroads and the ports also face turmoil. Norfolk Southern Railroad Co. is in court over worries of a strike by the International Association of Sheet Metal, Air, Rail and Transportation union. And as unloaded ships clutter the harbors amid record backlogs, ports have predicted that some workers will stay home rather than comply with the vaccine mandate. Pacific Maritime Association President James McKenna explained that, “Probably the worst thing that could happen to us is to have less bodies available to man these terminals.”

Amid labor shortages and supply chain backlogs, workers’ resignations or firings could have a domino effect, frustrating consumers and hamstringing communities all over the country. The upheaval could disrupt travel and stress the already strained supply chain.

The situation became more complex this month when the National Labor Relations Board announced that employers need to bargain with their unions over how they implement the vaccine mandate. Because employers can choose between requiring vaccination or conducting regular testing, they have “discretion in implementing certain [mandate] requirements.” That, according to the board’s general counsel, means that the vaccine mandate is fair game for union bargaining.

This puts employers between a rock and a hard place, giving unions a bludgeon to ask for concessions just so employers can comply with the law. And, while the National Labor Relations Board does not have jurisdiction over public sector and many transportation workers, the board’s decision underscores the deep dysfunction at play here. You have one part of the government saying employers must do something, while another part of the government says employee unions can bargain over it.

But perhaps one of the most curious elements of the whole messy situation is the unusual messaging union leaders are spouting these days.

Mandatory vaccinations “strip away our members’ right to choose,” Washington state’s International Association of Fire Fighters told Gov. Jay Inslee. The American Federation of Government Employees argued that “workers deserve to have a voice,” a sentiment echoed by AFL-CIO. And the Southwest Airline Pilots Association insisted that “it is each pilot’s right to choose.”

The topic of workers’ individual choices is a tricky one for unions. In nearly half of U.S. states, private-sector workers can still be fired or denied employment if they refuse to pay union fees. Public-sector employees can decide whether to pay, but it took a 2018 Supreme Court case, Janus v. AFSCME, to make that choice a reality in states without right-to-work laws.

There are no easy answers for employers — or unions — on the vaccine mandate. But there is another important question to consider. Do workers still support union leadership that backs an administration insisting on mandatory vaccination? Or is it time to opt out?

On this question, at least for public employees and for private employees in the 27 right-to-work states, workers do have a choice.
F. Vincent Vernuccio is senior labor policy adviser for Workers for Opportunity and president of the Institute for the American Worker