Biden Administration Makes Union-busting Riskier

 

Federal labor law has been essentially frozen since the Taft-Hartley Act passed over President Harry Truman’s veto in 1947, leaving Republican and Democrat lawmakers to engage in decadeslong trench warfare at the National Labor Relations Board to nudge legal precedents and enforcement standards in their preferred direction. The result has been an ever-escalating series of policy shifts when the balance of power in Washington flips from one party to the other, putting the fate of disputes between employers and workers in the balance.

For clarification, as it pertains to this article, Union-Busting refers to a range of activities undertaken by employers to prevent the formation of unions or to disrupt existing unions. These activities can include:

Surveillance: Monitoring employees to identify and intimidate union supporters.

Propaganda: Distributing anti-union materials and holding meetings to dissuade employees from supporting unions.

Retaliation: Punishing employees who support or participate in union activities through demotions, firings, or other adverse actions.

Historically, union-busting has been a significant issue in the United States, with companies investing substantial resources in anti-union campaigns. This has often led to contentious labor relations and has undermined efforts to improve working conditions and secure better wages for workers.

Soon after taking office, President Biden ousted the chief prosecutor that Orange Julius Caesar appointed at the NLRB and, with the help of Senate Democrats, installed union-friendly allies on the board who have adopted positions that boost workers in confrontations with businesses. In August, the Democratic board majority issued a landmark ruling known as the Cemex decision that puts a tight leash on employers in cases where agency officials determine they broke labor law during a union representation vote. It also shortened the timeline to bargaining in such cases, removing a previous standard that allowed for tainted union elections to be rerun.

One of the most significant steps taken by the Biden Administration is supporting the Protecting the Right to Organize (PRO) Act. This comprehensive labor reform bill aims to strengthen workers' rights to organize and bargain collectively. Key provisions of the PRO Act include:

1. Penalties for Violations: The PRO Act introduces substantial financial penalties for companies that violate workers' rights, including those engaging in union-busting tactics. These penalties are designed to be a deterrent against illegal anti-union activities.

2. Simplifying the Unionization Process: The Act seeks to streamline the process for workers to form and join unions, making it easier for employees to organize without fear of retaliation.

3. Enhanced Protections: The legislation provides additional protections for workers against employer retaliation and unfair labor practices, ensuring a safer environment for union activities.

The passage of the PRO Act would represent a significant shift in labor law, providing unions with more power and resources to combat employer resistance.

Notable Actions by the NLRB Include:

Revisiting Precedents: The NLRB has signaled its intent to revisit and potentially overturn decisions that made it easier for employers to challenge unionization efforts.

Expanding the Definition of Employee: The Board has expanded the definition of who qualifies as an employee, thereby extending labor protections to more workers, including those in the gig economy.

Aggressive Enforcement: The NLRB has ramped up its enforcement actions against companies that engage in union-busting, with a focus on holding employers accountable for illegal activities.

President Biden has issued several executive orders aimed at promoting unionization and protecting workers' rights. For instance:

Executive Order on Worker Organizing and Empowerment: This order establishes a task force dedicated to promoting union organizing and collective bargaining. The task force is tasked with identifying and eliminating barriers to unionization across federal agencies and among federal contractors.

Federal Contractor Regulations: New regulations have been introduced requiring federal contractors to disclose their spending on anti-union activities. This transparency measure aims to discourage companies from using federal funds to finance union-busting campaigns.

The new framework significantly raises the risk that an employer could be hit with a bargaining order for even a single transgression if it interferes with an election. The NLRB now puts the onus on employers to petition the agency for an election shortly after most employees seek union representation or are forced to bargain with the union without an election.

The heightened threat of bargaining orders has already prompted employers to adapt to the new requirements and, combined with other pro-worker changes, emboldened unions seeking to organize workplaces by chipping away at management’s leverage. Biden styles himself the most labor-friendly president in history, and actions like the Cemex decision have given him a chance to demonstrate those bona fides. It’s something he’s sure to tout in his reelection campaign as he courts union members’ votes and stokes their political organizing skills.

The measures taken by the Biden Administration have several implications for both companies and workers:

For Companies:

Increased Scrutiny: Companies are now under greater scrutiny for their labor practices. The risk of substantial financial penalties and reputational damage has increased the stakes for employers considering anti-union tactics.

Legal Risks: With a more aggressive NLRB and stronger labor laws, companies face higher legal risks if they engage in union-busting. This includes the possibility of facing lawsuits and NLRB actions that could result in significant fines and required remedial actions.

Public Relations: Companies that engage in union-busting may suffer from negative public relations, as there is growing public support for labor rights and unions. This can impact a company's brand and consumer base.

For Workers:

Greater Protections: Workers now have greater protections against retaliation and unfair labor practices. The risk of being fired or demoted for union activities is reduced, providing a safer environment for organizing.

Empowerment: The Biden Administration’s policies empower workers to stand up for their rights and seek better working conditions, pay, and benefits through collective bargaining.

Support for Organizing: The administration’s support for unionization efforts and the establishment of the task force provide workers with more resources and support in their efforts to organize.

The Biden Administration's actions to make union-busting riskier reflect a strong commitment to protecting workers' rights and promoting fair labor practices. By supporting the PRO Act, empowering the NLRB, and issuing executive orders aimed at fostering unionization, the administration has created a more favorable environment for labor organizations. These measures not only deter companies from engaging in union-busting but also empower workers to organize and advocate for their rights. As these policies continue to take effect, we can expect a shift towards more balanced labor relations in the United States, benefiting workers and promoting economic equity.

References

National Labor Relations Board. (2021). "NLRB Decisions and Directions of Elections." Retrieved from [NLRB](https://www.nlrb.gov)

White House. (2021). "Executive Order on Worker Organizing and Empowerment." Retrieved from [White House](https://www.whitehouse.gov)

30 Things Joe Biden Did as President You Might Have Missed. (2024). Retrieved June 3, 2024, https://www.politico.com/news/magazine/2024/02/02/joe-biden-30-policy-things-you-might-have-missed-00139046