What Does a Biden Administration and Democratic Control of Congress Mean for Labor Policy?

Spilman Thomas & Battle, PLLC
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Spilman Thomas & Battle, PLLC

In February 2020, the House of Representatives passed the Protecting the Right to Organize Act (the "PRO Act"), codifying several Obama-era decisions and rulemakings that facilitate union organizing and make it easier for unions to win representation elections. It would ban “Right-to-Work” laws, strengthen penalties for unfair labor practice charges, allow secondary boycotts, and require employers and unions to arbitrate during initial contract negotiations until the contract is ratified instead of simply requiring the parties to bargain in good faith.
 
President Biden supports the PRO Act, but it stands little chance of passing in the Senate. Historically, the filibuster has meant that any labor law reforms need 60 votes to pass in the Senate. Even if Democrats remove the filibuster, there is no guarantee they would get 51 votes because some Democrats may oppose its aggressive changes to the National Labor Relations Act. For example, Senator Manchin (D-WV), who is no enemy of labor and has earned high praise from the AFL-CIO for his labor-friendly positions, opposed a similar bill that was proposed during the Obama administration.
 
With little chance of major legislative changes, the Biden administration likely will seek to achieve pro-labor reforms through the National Labor Relations Board’s rulemaking and adjudication processes. With a Biden administration, we anticipate that the Board will seek opportunities to reinstate the standards from three decisions reached during the Obama administration: Browning-Ferris Industries (which expanded the joint-employer rule to find an entity may employ workers if it has the authority to control those workers whether or not it actually exercises any control in practice), Purple Communications (permitting workplace email access for organizing purposes), and Specialty Healthcare (regarding the appropriate structure of bargaining units that allow unions to establish “footholds” within employers to facilitate broader organizing).
 
While we expect changes, they will not be immediate. The Board includes five members, all of whom are appointed by the President and approved by the Senate for five-year terms. There is currently one Democrat-appointed member on the Board and one vacant seat. In August, a Republican-appointed member’s term will end. So, the earliest opportunity for there to be Democratic control of the Board is August 2021.
 
For non-unionized employers, now is a good time to evaluate the health of your labor relations and the competitiveness of your compensation. Unions do not unionize employees; employers unionize employees. The best way to avoid organizing campaigns is to regularly evaluate your compensation and benefits to ensure they are competitive with or better than the market. Also regularly solicit employees for questions or concerns. Train your supervisors on how to respond to questions or concerns and how to identify the early signs of union organizing. Employers should work with outside counsel to identify other weaknesses in their labor relations strategy and develop a plan to avoid union organizing before it is too late. If your business becomes the target of an organizing campaign, you are already behind the 8-ball and, if enacted, the Biden administration’s anticipated changes will likely make it more difficult for you to succeed in an election.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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