During President Biden’s campaign, he described himself as a “union man.” We are nearing the first 100 days of President Biden’s presidency, and his appointments to the NLRB and the U.S. Department of Labor (“DOL”) are consistent with that description. He has been appointing pro-union representatives including current or former state and federal officials who are sympathetic with labor unions to both agencies. The new Secretary of Labor, Marty Walsh, previously served as a construction trades union official before becoming the Mayor of Austin and before moving into his current position as Labor Secretary.
The majority of the five-member National Labor Relations Board will flip to the Democrats when William Emmanuel’s term expires on August 27, 2021, and when President Biden fills the vacant open Board seat. The new General Counsel of the NLRB, Peter Sung Ohr, has already made decisions supportive of union positions. Mr. Ohr is a prosecutor of unfair labor practice charges and significantly influences NLRB policy and enforcement. Once the NLRB has a Democratic majority, in combination with the new General Counsel, it can be expected that many of the decisions made during the Trump administration giving employers more flexibility, will be reversed. A few examples of the expected outcomes as a result of reversals of decisions made by the Republican-dominated NLRB are:
- There will be limitations on an employer’s right to insist on confidentiality of witness statements and workplace investigations.
- Before the first collective bargaining agreement is signed, employers will be required to bargain over discretionary management decisions, such as discipline.
- Employers will be required to provide employee access to an employer’s electronic communications systems for communications regarding protected concerted activity, which would include union organizing.
- Permissible employee handbook policies will be diminished because of the view that the policies restrict an employee’s right to engage in protected concerted activity.
President Biden has begun rescinding executive orders promulgated by President Trump and has frozen current rulemaking of the executive branch agencies which applies to both the DOL and the NLRB. President Biden is expected to reinstate an executive order issued by President Obama that required the consideration of an employer’s labor law violation history as a criterion to be weighed when considering a party for a federal contract. Under the executive order, employers seeking federal contracts were required to sign neutrality agreements in which they promised not to oppose union organizing.
The PRO Act
The Democrats are supporting a major amendment to the NLRA. The Protecting the Right to Organize Act (the “PRO Act”) provides increased protections to labor union organizing activities and reduces the rights of employers to respond to union campaigns. The House of Representatives passed this legislation on March 9, 2021, and the bill will be voted on by the Senate sometime in the future. A few examples of the comprehensive scope of the changes that would occur if the PRO Act is enacted are:
- Allowing intermittent strikes to be deemed s protected concerted activity. Currently, intermittent work stoppages are not considered to be protected concerted activity.
- Repeal of the provision allowing states to have “right to work” laws prohibiting employer and union agreements that make union membership mandatory.
- Making secondary boycotts lawful. Currently, boycotting a neutral employer because of its connection to a primary employer with whom the union has a dispute is illegal.
- Requiring employee access to an employer’s electronic communication systems for union organizing and other protected concerted activity.
- Prohibiting “captive audience” meetings in which employers discuss their position on a union campaign or unionization.
- Issuing fines for unfair labor practices with the possibility of a personal fine on management employees.
- Allowing for temporary injunctions while certain unfair labor practice charges are being litigated, such as termination cases.
- Establishing a private right of action for unfair labor practices.
- Requiring arbitration of the first contract under negotiation between an employer and a newly recognized union if no contract is agreed upon within 90 days of the commencement of negotiations.
- Establishing a cabinet-level team to promote union organizing and collective bargaining.
Department of Labor
The DOL has already published notices to rescind a number of proposed rules issued under President Trump such as the proposed rules defining independent contractor and joint employer. The DOL has also withdrawn two opinion letters issued under President Trump regarding independent contractor classification of virtual workers and compensable time for truck drivers under the FLSA. In light of the union affiliation of the new Secretary of Labor, it is very possible that the DOL will revisit two subjects favorable to labor unions.
- Under President Obama, the DOL attempted to revise the “Persuader Rule” to require that employers report fees paid to attorneys who advise employers in representation and decertification campaigns and other labor matters. These changes caused great concern to employers and their attorneys because of their impact on the attorney/client privilege.
- Labor unions are required to submit annual reports concerning their expenditures, including salaries paid to union officials. These financial reporting requirements may be reviewed and possibly eliminated.
Many well-established principles and statutory provisions (going back all the way to the 1930s) are subject to change under the current administration. It is apparent that the NLRB has become very politicized and precedent has little value when the political party of the majority of the NLRB members dictates how cases are decided. Similarly, the regulations and guidance promulgated by the Department of Labor are impacted by the political affiliation of the Secretary of Labor. Clearly, the pendulum is now swinging more towards the protection of employees and labor unions than the protection of employers.