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Union support will grow during Biden administration
01/03/2021
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Trump Protest March, Figueroa Street Downtown Los Angeles, November 12, 2016

By Philip M Berkowitz

Dramatic social unrest in the United States during the Trump administration around racial, socioeconomic, and political issues has resulted in increased union activism in the United States.

Over the past several decades, union membership in the US steadily declined.  Following the Trump Administration and the lack of stability caused by covid-19, however, unions’ favourability ratings are at an all-time high.

The United States Department of Labor, Bureau of Labor Statistics, recently reported that in 2020, 10.8% of wage and salary workers were members of unions, up by 0.5 percentage points from 2019.

In 2020, the unionisation rate for private-sector workers increased by 0.1 percentage points to 6.3% from 2019, and the percentage of workers represented by a union increased by 0.5 percentage points to 12.1%.

President Biden has promised to be “the most pro-union president you’ve ever seen,” and we can expect unions to capitalise on issues of social unrest to garner interest from employees in new and different ways.

First, from a traditional, legislative perspective, we can expect that President Biden will sign the Protecting the Right to Organize (PRO) Act. This Act would reverse years of legislation aimed at weakening unions. Among other things, if passed by Congress, the Act would define gig-economy independent contractors as regular employees, permitting them to organise in labour unions. The Act would also dramatically expand the definition of joint employer, and categorise many independent companies as joint employers.

The PRO Act would also mandate that employees be allowed to use an employer’s email and other technology to organise unions or engage in other protected concerted activity.

Post-pandemic workplaces

In addition to these issues, following the pandemic, workplaces may never go back to the way they were. Many employees will continue to work remotely. High-tech companies are leading the way in embracing the remote workplace.

As the gig economy continues to expand, labour rights issues will be a continuing focus, with increasing pressure to treat gig workers more like traditional employees.

We are already seeing an uptick in collective action among younger, highly educated and tech-savvy employees, particularly within the high-tech sector, a work environment not traditionally associated with union representation and collective action.

Growth of “minority unions”

Traditional unions typically enrol a majority of a workforce and petition a state or federal labour board like the National Labor Relations Board (NLRB) to hold an election. If they win the vote, they can bargain with their employer on a contract.

A minority union, in contrast, allows employees to organise without first winning a formal vote before the NLRB.

Minority unions are made up of groups of individuals (including traditional employees, temporary employees, and even contractors) who seek to advocate for worker’s rights and social justice issues. These unions often seek to organise employees who are relatively well paid and comfortable with the working conditions and benefits they enjoy.

We can expect to see increased union activism, both in the wake of the Trump administration’s stoking of social tensions and the Biden administration’s effort to regain support among workers for the Democratic Party

Poor or non-responsive management, wages, benefits, or even workplace safety do not tend to fuel this new collective activism. Instead, ad hoc issues such as the use of company products or services, sales to a particular customer, or a strategic business decision often serve as rally points for collective action.

Although they cannot negotiate a contract, minority unions can use other tactics to pressure their employers into changing their policies. They may turn to public pressure campaigns and lobby legislative or regulatory bodies to influence employers.

These workers focus on access to executive leadership or even a company’s Board of Directors and other stakeholders to address key social justice issues.

Other demands revolve around seeking to have a voice in the strategic direction of the organisation, not only as it relates to employees, but as it relates to customers, vendors, suppliers, and the community, and world, at large.

In January 2021, more than 400 Google engineers and other workers formed a minority union, capping years of growing activism there and presenting a rare beachhead for labour organisers in Silicon Valley. Employees who opt to join the union will contribute 1% of their total compensation to the union to fund its efforts.  The union’s creation was highly unusual for the tech industry, which has long resisted efforts to organise its largely white-collar workforce.

While minority unions may prove more influential in 2021 and beyond in advancing employees’ rights to engage in some types of collective action, organised labour still may not see a benefit. Even if effective in advancing employees’ objectives, minority unions may undermine support for traditional unions, thereby harming organised labour more than helping it.

Nevertheless, we can expect to see increased union activism, both in the wake of the Trump administration’s stoking of social tensions and the Biden administration’s effort to regain support among workers for the Democratic Party.

Philip M Berkowitz is the US practice co-chair of Littler Mendelson’s international employment law practice group and co-chair of the firm’s financial services industry group