Joe Biden’s election as president of the United States signals a possibly radical shift in labor policy, pushing things much further left than even when he was vice president under Barack Obama’s administration. Biden, who has long defined himself as an old-school union fan—“Blue Collar Joe”—has endorsed a long wish list of legislative changes favored by labor leaders. This includes the abolition of state right to work laws, potentially forcing millions of workers into unions whether they want that or not. He’s also signaled that he will appoint union allies as both labor secretary and to fill out the National Labor Relations Board (NLRB), the two federal entities that enforce workplace laws.
Much of this will hinge on the control of the Senate, which may yet stay in Republican hands. If it does, Senate Republican Leader Mitch McConnell (R-KY) is certain to block the main labor law bill that labor leaders’ unions want, the Protecting the Right to Organize (PRO) Act. It would also likely set up a fight over Biden’s nominee for the Labor Department and result in open NLRB seats being left unfilled. In the latter case, the board would lack a quorum and would be limited in what it could do, a situation that has become familiar at the NLRB in recent decades.
Should Democrats wrest control of the Senate away from the GOP or even get a 50-50 split that can be broken by Vice President-elect Kamala Harris, then it becomes theoretically possible for Biden to enact the far-reaching changes that labor leaders want by having the Senate rules changed. And they’ll push for it. With union membership at 10.3 percent of the workforce, a record low, the movement is counting on a Democratic administration to change the rules to favor them. Unions spent an estimated $188 million promoting Democrats in the election. They’re going to demand something in return. This could put moderate or pro-business Democrats in a tough position.
Nearly a decade ago, even having Democratic majorities in both the House and Senate did not lead to passage of the unions’ top wish list item, the Employee Free Choice Act. The legislation, dubbed “card check,” would have resulted in the federal government recognizing unions whenever they presented cards allegedly signed by a majority of workers. Employers would have been prohibited from asking the NLRB to hold an election to verify the claim. In effect, workplaces would have been organized solely on the unions’ say-so. Internally, moderate Democrats resisted backing card check once they heard from business leaders back home about how radical the change would be in practice. As recently as the last presidential election, a $15 federal minimum wage was a fringe stance that then-nominee Hillary Clinton did her best to avoid.
That was then. The Democratic Party has since moved further left on labor and employment issues. A $15 minimum wage is the official party platform and Biden has enthusiastically backed it. He has also made the Protecting the Right to Organize Act, a wish list of items for union leaders, the centerpiece of his labor agenda. The PRO Act would repeal the right to work laws in 28 states. It would enact a nationwide version of California’s now-repealed AB5 law, forcing “gig economy” businesses like Lyft and Uber to classify their contractor workers as traditional employees. It would also prohibit most of the tactics used by companies to counter union organizing bids, ensuring that workers only hear what the unions tell them. It would codify the expansive “joint employer” rule that the Obama administration pursued, making a business liable if it could be said to exert vaguely defined “indirect control” over another business’ workplace policies, a potentially vast expansion of corporate legal liability.
The PRO Act is, in short, a massive ask for moderate Democrats, who will have to balance that against the needs of businesses and economy back home. It is possible that the PRO Act will face opposition within the party just like the Employee Free Choice Act did. The opposition may not be as strong this time though. In the current Congress, the PRO Act has 216 Democratic House cosponsors and 41 Senate ones. Then again, it’s not clear how many actually studied the bill, which is typically characterized by its supporters and described in news stories as just “pro-union,” with little hint of its radical provisions.
Assuming the Senate stays in Republican control or merely proves unreliable for Biden, the pressure to placate unions will then be on the president’s picks to head the Labor Department and to fill the open seats on the NLRB. News reports suggest that the Biden camp’s top contenders to head the department are Michigan Congressman and former AFL-CIO organizer Andy Levin, former NLRB board member Sharon Block and California Labor Secretary Julie Su. Vermont Senator Bernie Sanders’s name comes up too. Appointing an avowed socialist to head the department would have been unthinkable a short time ago, but not anymore. Whoever it turns out to be, the safe bet is that they’ll follow Obama administration’s practice of stepped-up enforcement by agencies like the Occupational Health and Safety Administration and issuing pro-labor rulemakings.
Expect the department to announce that the recent decision to by the Trump administration to roll back the joint employer rule to be revisited and a proposed rule that would allow gig economy companies to continue to workers to classify workers as contractors to be rolled back if it is adopted before the current administration exits. The next administration will also have to deal with the lingering questions of how to ensure worker safety and a functioning economy in light of the COVID-19 crisis. That will take up a lot of time and attention and may distract official from enacting the pro-labor reforms. In other words, while everyone wants a vaccine, unions leaders have an additional reason to want one.
Just as significant will be who runs the NLRB, a semi-independent agency whose five board members are nominated by the president and confirmed by the Senate. While the department enforces the rules regarding workplace safety and workplace conditions, the board oversees union-related activity, including workplace elections. It currently has three Republicans, one Democrat and an open seat. Trump appointee William Emanuel’s term is up in August, giving Biden the opportunity to give the NLRB a controlling Democratic majority. Biden will also get to appoint the general counsel for board. While the name suggests a legal role, the general counsel runs the NLRB’s day-to-day activities and can initiate legal proceedings, so that pick is just as important. This again assumes Biden can get nominees through the Senate. Partisan gridlock has resulted in the board lacking a working quorum several times in recent decades and could easily happen again. In that case, the board will still function with the next-in-line civil servants running things, without the ability to set new policy.