How employers should prepare for a federal push to unionize workplaces

By Rick Bell

May. 4, 2021

As the Biden administration begins its push to strengthen unions and encourage workers to organize, employers should know what this could mean for their workforce.

Biden in late April announced through an Executive Order the formation of a pro-union task force to examine existing policies and provide recommendations on how they can “promote worker organizing and collective bargaining in the federal government” and recommend what new policies should be created. It’s unlikely that employers will see any concrete action in the near future given that there’s a 180-day window for the task force to report back, said Gerry Golden, a labor relations attorney with Neal Gerber.

Vice President Kamala Harris and Labor Secretary Marty Walsh will lead the task force.

It’s no secret that union membership has suffered a drastic decline. Just 10.8 percent of workers belonged to a union in 2020, compared to 20.1 percent in 1983. The numbers among private employers are bleaker. According to Gallup, over one-third of government employees (37 percent) belong to a union, versus just 6 percent of all private sector employees.

Also read: 10 simple rules for managing in an organized setting

Four labor law experts — Gerry Golden of Neal Gerber; Aimee Delaney of Hinshaw Culbertson; Anthony George of Bryan Cave Leighton Paisner LLP; and Amy Gaylord of Akerman LLP — offered their thoughts on Biden’s union push and what it could mean for employers now and into the future.

Workforce: We saw a failure of unionization at the Amazon warehouse in Alabama. Is there still an appetite on the part of workers to unionize? 

Gerry Golden: It’s very difficult to draw conclusions from one election or to extrapolate those results as indicating a general trend. From the union’s viewpoint, the Amazon employees were very dissatisfied over things like productivity pressures and inadequate measures to protect their health during the pandemic. While the union apparently had the support of at least half the employees when they filed their petition with the National Labor Relations Board, only about half the employees ended up voting and of those who voted, the union lost 2-1. One could speculate that at the end of the day, support for the union was dispelled by Amazon’s arguments, the generally favorable wages and benefits Amazon employees are paid and perhaps by fear that if the union won, Amazon might reduce or even move the operation. Those are just possible reasons and without more it’s impossible to know why the union lost so badly.

Gerry Golden, attorney at Neal Gerber

Aimee Delaney: Certain industries and categories of workers will always be prone to unionizing. Usually wages are a strong driver for employee interest, so when you see the movements like “fight for $15” and similar campaigns, you can see segments of workers who most definitely have an appetite to unionize.

Anthony George: (The appetite to unionize is not) nearly as great as in past decades. Union members are now barely 6 percent of the private sector workforce in the U.S., and that number has been declining steadily for many years. Unions may score an occasional high-profile success now and then, but the overall pattern is steady decline.

Amy Gaylord: While the loss at Amazon was obviously a huge disappointment to unions looking to make inroads into organizing some of the retail giants, I believe that this administration’s emphasis on union organizing, including this task force and its endorsement of the Protecting the Right to Organize Act, will reinvigorate workers and unions and lead to increased organizing efforts not just in sectors where we have traditionally seen unionization but in areas, such as the tech industry, where unionization efforts have been fairly rare up to this point.

Workforce: What sectors could see a push in unionization? Are Sun Belt states ripe for unionization pushes given the newly released population shifts?

Golden: Sun Belt states are unlikely to see significant shifts toward unionization in the foreseeable future. They are mostly states with low union representation now, many are right to work states, which makes it more challenging for unions to organize and politically and culturally they aren’t environments in which unions have support. As to sectors that might see greater organizing activity, I think it will continue to be in poorly paid jobs such as health care, warehousing and transportation. Keep in mind, many workers in the gig economy are likely open to unionization but they have many legal hurdles to overcome. So organizing among those groups won’t happen until some legal issues are changed or clarified.

Aimee Delaney, wage and hour violation
Aimee Delaney, attorney at Hinshaw Culbertson

Delaney: The South has generally been a region that is not ripe for significant labor movement. It is not impossible to think that if population trends were significant enough, that this could begin to chip away at the unfriendly climate. However, more likely trends would be based on the industry and job sectors. Sectors whose wage rate is tied closely to the minimum wage could see an increased push for unionization as those efforts to increase minimum wage continue. There are also stories popping up in sectors that have traditionally been less susceptible to unionizing, (i.e., the tech sector and professional services).

George: All aspects of the gig economy are at risk of unionization as federal, state and local governments attempt to force Uber drivers, independent web designers and other individual entrepreneurs into the “employee” mold.

Sun Belt states are also at risk as people migrate away from blue states into the red states of the Sun Belt. But even with those dynamics, I don’t see labor unions reversing their decades-long decline into oblivion — at least in the private sector.

Gaylord: I think we are going to see increased unionization in new areas such as tech that have not traditionally been organized. I think cannabis is another industry where we will continue to see growth in union organizing efforts, as well as gig economy workers such as ridesharing and grocery delivery services like Instacart. Many of these workers were on the frontlines of the pandemic and may be seeking to enhance their safety as well as their job security and compensation. As to the Sun Belt, we just saw a nurses’ union win a historic election at a hospital in North Carolina. It was the first nurses’ union win in North Carolina and I believe the largest hospital union win in the South since 1975. I think that win can be directly tied to the issues I just mentioned — being on the frontlines of the pandemic and seeking enhanced safety measures and better working conditions. North Carolina has the second lowest percentage of union-represented workers in the country, just under 3.5 percent. Only South Carolina is lower. I think this union win is a portent of things to come and, while I have my doubts about the PRO Act ever making it past the Senate, I think that abolishing right to work laws in places like the Sun Belt will continue to be a primary objective of the Biden administration.

Workforce: Could the Biden task force have an effect on pay scales, or employers voluntarily increasing the minimum wage to avoid a union push?

Golden: Employers generally only adjust pay scales in response to market forces or, in some cases, in response to the threat of unionization. Interestingly, following its election victory, Amazon has already announced improvements. It’s hard to imagine how the Biden task force and the administration could have an impact on wages outside of its ability to mandate changes applicable to federal contractors.

Delaney: Because the task force appears to be focused on the federal sector, I think that is unlikely. The task force itself would not have any ability to directly affect pay scales. However, I do think the proactive efforts you are seeing from, for example, big box retailers and some fast food chains to increase their hourly wage rates is done with an eye toward heading off unionizing efforts, among other reasons prompting the increases.

Anthony George of Bryan Cave Leighton Paisner LLP

George: Yes. Both to avoid a union organizing effort and to attract and retain good workers who might otherwise be lured away by the higher wages available (by government mandate) from federal contractors.

Gaylord: I think that employers who want to remain union free would be wise to make sure they are paying competitive wages and benefits so that their employees will feel that a union is unnecessary. I believe that is one reason Amazon was able to prevail in Alabama. They were already paying extremely competitive wages and benefits. We have heard unions and this administration talk a lot about a $15 minimum wage. Most of the warehouse workers at the Amazon facility in Alabama were already earning $15 an hour or more. So, Amazon workers did not believe that a union was necessary and voted against union representation.

Workforce: What should employers do to remain compliant with current labor laws?

Golden: All employers should bear in mind that the National Labor Relations Act applies to virtually all employers regardless of whether their employees are represented by a union. As a result, all employers should be familiar with the protections the NLRA provides their employees including their right to obtain union representation and how that may occur.

Delaney: It is important for employers to understand the rights and obligations imposed by the National Labor Relations Act. Non-union employers often don’t realize that their employees have rights under the NLRA and that they can be subject to unfair labor practice charges, even though their workforce is not unionized. If an employer is faced with an organizing campaign, it is critical for the employer to understand what it can and cannot do in its campaign efforts and for the election. This is also a reason that it is important for employers to be aware of the Protecting the Right to Organize Act and potential changes this bill could bring if passed.

George: Pay attention, stay current, and speak with a labor lawyer. A president can do only so much by Executive Order, but both the National Labor Relations Board and the Department of Labor can and will make life easier for labor unions and harder for employers over the next few years. Changes are coming. Don’t get caught flat-footed.

Gaylord: Audit their existing policies now. Make sure they have the assistance of competent labor and employment counsel, whether internal or external. Things are going to be changing quickly and employers need to make sure they are being kept up to date on the latest developments.

Workforce: Do you see any long-term ramifications from this action? In your crystal ball, what does the labor movement look like in 2024-25?

Golden: Today’s workforce is changing rapidly due to technology and things like AI and robotics. More and more employees are comfortable confronting their employer over workplace issues. The future success of unions will depend on their ability to develop messages that address these issues, connect with diverse workforces and convince employees that a union can have a positive impact on their work lives.

Delaney: It’s safe to say that we will see a shift toward pro-labor policy under the current administration. I think the biggest issue that should be on the radar of private employers at this time is the proposed Protecting the Right to Organize Act. There are significant changes proposed by this bill that upend decades of precedent and practice in favor of tilting the scales toward organized labor. This will impact union and non-union employers alike as it impacts, for example, the actions an employer can take if faced with an organizing campaign.

Amy Gaylord of Akerman LLP

George: Long-term, no. Among other things, anything Biden does by Executive Order will simply be reversed by Executive Order when the next Republican president takes office. I think the private-sector labor movement in 2025 will look very much like the labor movement in 2020 — and 2015 and 2010. Slowly but inexorably dying.

Gaylord: This task force is one way that Biden hopes to deliver on his promise to be most pro-union president this country has ever seen. I think over the next few years we will see labor law shaped in a way that is more union and employee friendly, making it easier for unions to organize workers, sometimes without the protections of an NLRB conducted election, and extending the coverage of the National Labor Relations Act to more workers than ever before such as individuals that have previously been considered independent contractors or supervisors.

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Rick Bell is Workforce’s editorial director.

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