30 Mar Changes in Labor Law Under President Biden
MASUD LABOR LAW GROUP
By: Kraig M. Schutter
The labor law pendulum is swinging back to the left. This article provides an overview of recent and probable future changes to federal labor law under the Biden administration.
President Biden is expected to use Executive Orders to further the aims of labor unions – a key constituent of his. These include requiring union agreements as a condition for working on federal projects, consideration of an employer’s labor law violation history as a factor in awarding federal contracts, and disbarring federal contractors if they have repeated violations of federal labor law. The new President is also expected to require contractors to sign neutrality agreements in which they promise not to oppose union organizing of their workforce during the life of their federal contracts.
The National Labor Relations Board (“NLRB”)
As soon as he took office, President Biden fired Peter Robb, the NLRB’s General Counsel (the “prosecutor” for alleged unfair labor practices), when Robb refused to resign. The legality of the firing appears destined for a court challenge. His putative successor, acting General Counsel Peter Sung, immediately began rescinding directives Robb had given Regional Directors in matters such as which cases to prioritize and how to prosecute them. Cases involving union finances and allegations of union wrongdoing have been immediately relaxed.
The NLRB currently consists of three Republican members, one Democrat, and one vacancy. After undoubtedly filling the open seat with a pro-union official in the coming months, we can expect change in Board policy to begin with the replacement of Trump appointee William Emanuel in August, 2021. With a progressive working majority at that point, Board decisions and policies are going to revert back to pro-union positions employers saw during the Obama years. Basically, the Trump Board nullified much of the Obama Board’s policies and the Biden Board will bring them back.
We expect the following reversals of current law:
• Employee rights to use employer property. During the Obama years, the NLRB ruled that employees have a right to access their employers’ electronic communications systems for concerted activity (ordinarily union organizing) if they also use the systems as a part of their work for their employer. The Trump Administration reversed this as violating the employer’s property rights. The Biden Board will bring it back, perhaps with even more reach.
• Quickie elections. About one year ago, the NLRB’s current Republican majority issued a rule reversing the Obama-era Board’s “quickie election” rule, which had dramatically limited the time for employees to hear from all sides in a union election campaign. The Biden Board can be expected to revise the current rule with another “quickie election” style rule as soon as it can.
• “Micro” bargaining units. For decades, the legal presumption has been that all those employees sharing a “community of interest in employment” are to be eligible to vote in a union election. The Obama Board ruled that unions have the right to pick which particular groups of employees to organize and that only through proof of “an overwhelming community of interest” can an employer hope to avoid piecemeal organizing of their shops. The Trump Board reinstated the traditional standard. The Biden NLRB will certainly tack back to micro units favored by unions.
• Handbook restrictions. The Obama Board required employers to rewrite their employee handbooks to fit an enhanced view of employee rights to concerted activity. For example, the NLRB held that at-will statements required special language referencing the possibility of future negotiated changes to an at-will employment relationship under a potential collective bargaining agreement if employees were ever to become represented by a union. While the Trump Board overturned these rules over the past several years, employers can expect to have to rewrite their handbook policies again in the coming years.
• Confidential investigations. Under the Obama Board, employers were forced into making “balancing test” determinations of whether they could insist upon confidentiality in investigations, such as sexual harassment investigations, each time an investigation might be related to potential discipline of an employee. That standard will be coming back.
• Business relationships. The Biden Board will also revert back to the Obama-era preferences for finding “joint employer” relationships between separate companies where some level of joint control over an employee might exist and, conversely, for finding a traditional employee relationship where the parties believe themselves to have an independent contractor relationship.
The U.S. Department of Labor
President Biden’s nominee for Secretary of Labor, Boston Mayor Marty Walsh, was once a construction trades union official. He will embark on an agenda aimed at minimal oversight of union activity and increased restriction on employer involvement in union-related concerns. In particular, employers should brace themselves for the resurrection of the “persuader rule.”
The persuader rule mandates that employers and their consultants (usually labor lawyers) report their financial relationship and communications to employees in opposition to union organizing. There has been an “advice exception” to this rule since the 1950’s. During the Obama Administration, however, the DOL tried to narrow the exception so that virtually any preparation or communication about union organizing would fall outside the exception. The revised persuader rule never materialized though, because it was immediately enjoined by a Texas federal court. The Biden DOL will undoubtedly try again.
The Biden Administration will certainly support any pro-union legislation that may emerge from Congress. The most far reaching among such expected legislation is the so-called “Pro
Act.” The Pro Act would represent a sea change to the legal landscape for union organizing and representation. Its key tenets are:
• Eliminating the ability of states to enact Right to Work laws;
• Codifying the persuader rule and eliminating an employer’s right to require attendance at mandatory working time meetings where unionization is discussed (“captive audience” meetings);
• Assisting union organizing by compelling an employer to provide employee information and other assistance in union communication with employees, shortening the timeframe for elections, and perhaps even dispensing with elections in certain instances;
• Eliminating or restricting an employer’s existing right to participate in the representation process in matters such as the scope of the employee grouping(s) seeking union representation, and the date, time, manner, and location of the election;
• Eliminating the prohibition on “secondary boycotts” so that unions would effectively be able to picket customers of the employers with which a union may have a dispute;
• Beefing up penalties for unfair labor practices, such as forcing an employer to bargain with a union despite the union losing the election, eliminating offsets to back wages (such as unemployment benefits), instituting monetary fines that do not currently exist, and providing a “private right of action” for a union or employee where the NLRB has declined to pursue an alleged unfair labor practice; and
• Instituting “interest arbitration” for newly elected unions unsuccessful at persuading the employer to agree with their bargaining proposals – in essence, mandating that a panel of arbitrators determine the terms of the collective bargaining agreement.
In short, federal labor law will shift to the left under President Biden much like it had under President Obama. Attorneys representing businesses are invited to contact the Masud Labor Law Group for consultation and planning in regard to President Biden’s pro-union agenda.