Potential Impact of the 2012 Election on US Labor Relations

After the 2008 Presidential elections it was widely expected that the Obama Administration and Congress, which was controlled by the Democratic party, would pass legislation making it easier for trade unions to organize workers. Private sector union membership has been on a steady decline for the past few decades and currently less than 7 percent of private sector workers are members of unions.

The legislative efforts, however, failed with the defeat of the so-called Employee Free Choice Act. As a result, the Obama Administration shifted its focus to the government agencies responsible for enforcing existing U.S. labor laws, such as the National Labor Relations Board ("NLRB"), the National Mediation Board ("NMB") and the Department of Labor ("DOL"). The President appointed allies of the union movement to critical positions in those agencies, which have, in turn, attempted to achieve through agency regulation what could not be achieved through legislation. For example, shortly after President Obama appointed union advocates to the NMB, which has authority over labor relations in the airline and railway industries, the NMB significantly relaxed union representation election procedures that had been in place for more than fifty years.

Similarly, the President's appointees to the NLRB have issued regulations and decisions that encourage collective actions by employees against employers, even in non-unionized workplaces.  For example, the NLRB issued a new rule requiring all private sector employers (regardless of whether they employ union members) to display a poster in the workplace that essentially encourages workers to form unions. That NLRB rule is currently being challenged in court.

The NLRB has also significantly expanded the types of employee behaviour that it considers to be protected activity.  The NLRB has recently taken the position that employees have the right to use social media such as Facebook to disparage their employer or fellow employees.  The NLRB has also said that employees have the right, while on duty and in a pay status, to engage in public demonstrations intended to embarrass key management officials.  At the same time the NLRB has limited an employer's right to control access to its premises by off-duty employees or even non-employees who wish to undertake actions disruptive to the employer's operations.

During the Obama Administration, the Department of Labor has seen its budget increase by billions of dollars and it has issued scores of new regulations and hired hundreds of new investigators.

The pro-unionization policies from federal agencies are expected to continue and perhaps even increase if President Obama is re-elected. If the Democrats gain control of both houses of Congress, we could also see renewed legislative efforts to support trade unions and impose additional restrictions on business. If Mitt Romney is elected President, we would expect to see government agencies adopt a more pro-business attitude and begin to reduce the regulatory burdens imposed in recent years. In addition, if the Republican party continues to control the House of Representatives and gains control of the Senate, we could see attempts to enact more pro-business legislation. A new President's power to effect immediate change would be constrained somewhat, however, because of the legal requirements for altering regulations that are already in place.  In addition, appointees to agencies such as the NLRB and NMB serve for a set number of years and several Obama appointees will retain their seat for the remainder of their term even if Mitt Romney is elected.

This article was written by Dave Baffa, Jack Toner and Leon Sequeira of Seyfarth Shaw LLP