President Biden is committed to promoting labor organizing in an effort to strengthen union organizing after years of declining membership. In 2020, 10.8 percent of employees, including governmental employees, belonged to a union. In the 1950s, the total union membership exceeded 30 percent, including governmental employees. In 2020, the union membership in the private sector was 6.3 percent, whereas in 1983, the unions represented 23 percent of the employees in the private sector.

On April 26, 2021, President Biden signed an executive order that created the Task Force on Worker Organizing and Empowerment. The order directs the task force to analyze ways of establishing government policies to encourage employees to organize and to then successfully obtain collective bargaining agreements with employers. We can anticipate a significant push by this task force in recommending to the president the establishment of executive orders that do not require congressional support. The task force met with organized labor for their recommendations, and it is anticipated executive orders will establish new standards for employers that have federal contracts. The task force is to submit final recommendations to President Biden on October 23, 2021. If pending infrastructure legislation is enacted, there will be a focus upon providing employment opportunities to unionized federal contractors, including an expected focus on minority contractors.

The task force is co-chaired by Vice President Kamala Harris and Labor Secretary Marty Walsh. On March 23, 2021, Walsh was sworn in as the 29th Secretary of Labor. He has served stints as a Massachusetts state representative and Boston mayor. In addition, he previously served as a board member of Laborers’ Local 231, the Building & Construction Trade Council and as a member of Teamsters Local 177.

Employers should anticipate that the Biden administration will leverage federal purchasing to send to unionized employers and other organizations that promote employee rights. While the Biden administration and labor leaders will push hard for favorable legislation, we can expect there will be litigation by employer organizations on extreme mandates that endeavor to force the use of unionized federal contractors. Employer arguments center, in part, upon the National Labor Relations Act, which provides employees with the right to join a union, as well as the corresponding right to refuse to join a union.

Employer-led organizations have in the past been successful in addressing these issues in the courts and before the NLRB. In addition, while the House recently approved the Protecting the Right to Organize Act (PRO), it lacks the support of the Republican senators as well as some Democrat senators. This is significant since the PRO, if passed, would prohibit employers from conducting anti-union mandatory meetings on company time, fine employers who break the law, and require arbitration to secure collective bargaining agreements between employers and unions.

The Amazon Election

In addressing the efforts to organize Amazon employees in Bessemer, Alabama, President Biden sent a video message that encouraged employees at Amazon to vote for the union. Bessemer is home to 27,000 residents, the large majority of whom are Black. Amazon established a warehouse of operations that paid employees $15 per hour, including affordable medical, dental and vision. The union’s focus was upon working conditions. 1,798 employees voted against joining the Retail, Wholesale and Department Store Union. 738 voted for union representation. 505 collected ballots remain unopened, since these votes would not reverse the outcome of the election.

Following the election, the union filed 23 objections with one of the regional directors of the NLRB, including a claim that Amazon tried to intimidate employees during the election process. For example, it was reported that an Amazon security guard used keys to open a mailbox that was set up for employees to submit mail-in ballots. The union claims that this installation of the mailbox on the warehouse property led employees to believe that Amazon would play a role in collecting and counting votes. The union is also maintaining at least two union supporters were terminated by Amazon for supporting the union. Briefs were submitted by Amazon and the union in June 2021, and the matter is pending before one of the regional directors of the NLRB.

While a regional director of NLRB could order a rerun of the election based upon the conduct of Amazon, it appears unlikely the union would prevail in any rerun due to the landslide vote in favor of Amazon. There is also the possibility of an order by the NLRB to require Amazon to engage in mandatory collective bargaining with the union; however, this is remote in light of Amazon’s landslide victory in the election.