Does Obama Win Mean Big Labor Is Back?

If you are under age 40 and work in talent management there is a good chance you have never dealt with organized labor in the workplace. This could change given Tuesday’s re-election of President Obama. Yes, part of your next strategic initiative might include union avoidance training.

Obama’s second-term win was made possible in no small part by his “ground game” in battleground Midwestern states, a turnout effort to which organized labor contributed mightily. Now, according to Duke law students who have been analyzing labor issues this fall, labor may be looking for its payback.

This semester, in addition to teaching doctrinal theory and case law, I have been working with my law students at Duke studying economic and political trends to understand what the future holds for labor. Tuesday night, as the results started to roll in, I asked them what a second Obama term might bring.

According to the students, Obama’s win makes it more likely that labor will seek to push its legislative priorities to the top of a second term legislative agenda, including “card check” legislation, prohibition of the use of permanent replacements during lawful strikes, increased penalties for unfair labor practices, and mandatory arbitration to reach first contracts when a union is certified. Without getting into the legal specifics, suffice it to say that all of these initiatives make it easier for groups to form unions and tougher and more risky for companies to oppose them.

While the class is skeptical that labor issues will supersede other legislative initiatives, at a minimum they believe Obama will appoint strongly pro-labor individuals to key government positions who will use rule-making powers to expedite processes under which unions can be certified. This alone suggests that union organizing will spike across the business landscape.

Many white-collar workers imagine labor law has nothing to do with them. A union worker is somebody named Gus carrying a pipe wrench and wearing a hard hat, right? Nothing can be further from the truth. Professional and staff workers have the right to form unions for the purpose of collective bargaining as long as they don’t meet certain exclusions (supervisory status, for example). Unions have been formed among health care workers, university graduate assistants, clerical employees and lawyers. It is likely that most of your entry-level talent management team is subject to union organization.

Should you care? Maybe not; it is not a foregone conclusion that having union employees on your team will cause strife or lower productivity. However, a union workforce makes decision making and business planning far more complicated, in that virtually every decision concerning the terms and conditions of employment – benefit changes, promotion policy, compensation structure, etc. – must be collectively bargained. And sometimes, when the bargaining gets tough,  your employees will bring in Gus to help.

For these reasons, most companies strongly prefer to remain non-union. If your organization feels the same way, there are simple things you can do right now:

  • Learn the basics of labor relations under U.S. law: The website of the National Labor Relations Board is a good place to start:
  • Communicate what your company policy is on unionization: You can’t prohibit it, but you can communicate to your workers your preference to remain non-union.
  • Conduct labor relations training among entry-level supervisors: There are certain do’s and don’ts every supervisor needs to know when union activity starts, and a seemingly innocent misstep can create serious legal liability.
  • Get rid of abusive managers: A union vote – particularly in small groups – is often a referendum on a jerk supervisor.
  • Be fair: Unions show up when workers feel they are being treated unfairly. If you and your team follow this rule at all times, you can forget the other ones above.

It will be interesting over the next months and years to see what happens on the organizing front. While the Duke students and I don’t anticipate a return to the days when union bosses were as powerful and famous as CEOs, we do think labor relations will become a bigger part of your life if you work in HR.

Good luck.

My thanks to the Duke Law students who helped analyze the results of the election for this blog: Koree Blyleven, Larissa Boz, Angela Cherepinsky, Jaimin Choi, Caryn Devins, John Donovan, Brittany Edwards-Franklin, Keaton Forcht, Ross Greenky, Emily Hagan, Shelby Highstein, Kathleen Horrigan, Andrew Katbi, Ryan Kennedy, Tim Kopcial, Jeffrey Pavlak, Michael Pritchard, John Ramsey, Evelyn Rolo, Bill Rose, Serena Rwejuna, Dan Sanchez, Sneha Shah, Sonya Shao, Soeren Skjerbek and Chris Wooley.