United States: The Biden Administration Moves To Promote Organized Labor

MINTZER SAROWITZ ZERIS LEDVA & MEYERS LLP LABOR & EMPLOYMENT BULLETIN APRIL 2021

We have all seen the statistics reporting declining membership in unions over the years. Indeed, at this point, there are more public employer union members than there are private employers. According to the January 22, 2021 US Bureau of Labor Statistics, the union membership rate of public-sector workers (34.8 percent) is more than five times higher than the rate of private-sector workers (6.3 percent).

Just recently, Amazon came out on the winning end of an organizing campaign launched by the Retail, Wholesale and Department Store Union. The final vote was a blowout in favor of Amazon: 1,798 to 738. The United Food and Commercial Workers Union has been trying to unionize Wal-Mart for years.

In the meantime, states have implemented Right to Work laws prohibiting union membership as being a requirement to work for an employer. There are 28 states that have right to work laws on the books, believing that these laws will help promote the state's business economy as well as give it an edge in attracting new business development in their state.

On April 26, 2021 President Biden personally entered the arena declaring that his administration will turn the tide and promote union growth. His Executive Order, titled "Executive Order on Worker Organizing and Empowerment" begins with the following finding:

The National Labor Relations Act proclaims that the policy of the United States is to encourage worker organizing and collective bargaining to promote equality of bargaining power between employers and employees.In the past few decades, the Federal Government has not used its full authority to promote and implement this policy of support for workers organizing unions and bargaining collectively with their employers.Therefore, it is the policy of my Administration to encourage worker organizing and collective bargaining.

To get the federal government actively involved in promoting the organization of the American workplace, the President, through this executive order, has created a large task force. The purpose of the task force is to identify executive branch policies, practices, and programs that can be used to support "worker power" as well as union organizing and collective bargaining. The task force is also to identify statutory, regulatory, and other changes that may be necessary to more effectively support organizing and collective bargaining activities. Indeed, while not members of the task force, the Executive Order suggests that the task force "invite" the National Labor Relations Board and other boards and commissions charged with the implementation of labor and employment laws to consult with it for the purposes of increasing and promoting organizing campaigns and collective bargaining.

The task force is to be led by the Vice President of the United States, Kamala Harris, and its membership includes the Secretaries of Labor, Defense, Interior, Agriculture, Commerce, Health and Human Services, Housing and Urban Development, Transportation, Energy, Education, Veterans Affairs, and Homeland Security. It also includes the Administrators of the Environmental Protection Agency, General Services, Small Business Administration, the United States Trade Representative, the Director of the Office of Management and Budget, the Director of the Office of Personnel Management, and the Chair of the Council of Economic Advisers. It also includes the Assistants to the President for Domestic Policy and for Economic Policy. In short, every executive agency that plays a role in shaping the American economy is a member of the task force whose purpose is to increase union membership by promoting organizing campaigns and collective bargaining.

To serve its purpose, the task force is required to submit to President Biden a list of actions it believes will promote union organizing and collective bargaining in both the public and private sector no later than 180 days from the date of the Order. The task force may also identify time sensitive actions to be taken prior to the expiration of the 180 day time period.

Given the current makeup of Congress, it is doubtful that the President could get any type of legislative change that would promote union membership, organizing, and collective bargaining. However, much of labor law is regulatory in nature and thus no congressional involvement is needed. Further, NLRB decisions and directives from its previous General Counsels can have substantive impact on American workplaces. Indeed, it was not so long ago that the NLRB issued numerous decisions finding various standard employee handbook provisions to violate the Section 7 rights of employees, even though they worked for a non-unionized private employer.

How effective, or aggressive, the Biden Administration will be remains to be seen. However, given the membership of the new task force and its directives, employers across the country should be preparing for what may be to come.

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