4.29.21

President Joe Biden issued an Executive Order on Monday establishing a task force whose stated purpose will be to recommend ways that existing laws and policies may be used to promote “worker power” -- in other words, unionization -- as well as new legislation that might serve the same purpose.

According to the Executive Order, there has been

a steady decline in union density in the United States and the loss of worker power and voice in workplaces and communities across the country. This decline has had a host of negative consequences for American workers and the economy, including weakening and shrinking America’s middle class. Meanwhile, some workers have been excluded from opportunities to organize unions and bargain collectively with their employers by law or practice, and so have never been able to build meaningful economic power or have a voice in their workplaces.

The new task force is intended to “encourage worker organizing and collective bargaining.” The Chair of the task force will be Vice President Kamala Harris, and the Vice Chair will be Secretary of Labor Marty Walsh. The remainder of the task force will consist of cabinet-level and other officials, “or their designees.”

The focus of the task force will be to promote unionization primarily in “areas of the country with hostile labor laws,” among “women and persons of color,” in “hard-to-organize industries, and in changing industries.” The task force is encouraged to collaborate with the National Labor Relations Board, the Federal Labor Relations Authority, and the National Mediation Board, among other agencies. Moreover, the task force is encouraged to gather information from “labor organizations, other worker advocates, academic and other experts,” as well as others who will advance the objective of the task force. (Apparently not employers, or their advocates.)

Within six months, the task force is directed to present its findings and recommendations to promote “worker organizing and bargaining in the public and private sectors, and to increase union density.” The public sector encompasses state and local governments as well as the federal government.

According to the Executive Order,

substantial evidence shows that union membership increases wages, the likelihood of receiving employer-provided benefits, and job security. Union membership also gives workers the means to build the power to ensure that their voices are heard in their workplaces, their communities, and in the Nation.

Therefore, it is the policy of my Administration to encourage worker organizing and collective bargaining.

The Biden Executive Order revokes two Executive Orders issued by President Trump: One, establishing the President’s National Council for the American Worker (2018), and the other, Continuing the President’s National Council for the American Worker and the American Workforce Policy Advisory Board (2020).

Analysis

The Executive Order is the latest effort by President Biden to carry through on his political promises in late 2020 to be “the most pro-union” and “strongest” pro-union president “you’ve ever seen.” Still, the underlying premise – that the decline in union density has had a host of negative consequences for American workers and the economy, including weakening and shrinking America’s middle class -- does not appear to be backed up by empirical data.

At the same time, it is possible that the decline in unionization is a result of worker choice and changes in the greater economy. In the private sector, the increase in mobile workers and workplaces, workplace efficiency, positive employee relations, and legal protections for employees, may make union representation a less desirable option. Moreover, many may object to paying dues to fund union operations. Finally, if union demands result in a strike, or cause an employer to relocate or close its operations, the consequences for workers, their families, and their communities can be catastrophic.

The Executive Order’s statements that “[s]ince 1935,, when the National Labor Relations Act was enacted, the policy of the federal government has been to encourage worker organizing and collective bargaining,” wholly ignores the 1947 Taft-Hartley amendments to the NLRA. Those amendments were intended to check the power of organized labor by providing freedom of association for workers and free speech rights for employers. Under current law, individual employees have a fundamental right “to refrain” from engaging in union and other concerted activities.

The Executive Order, as well as the PRO Act pending in Congress which would upend much of the current labor law framework, appear to be efforts to tip the scales in favor of organized labor, an important and powerful supporter of President Biden’s Administration. And, although this is certainly good for unions, it remains to be seen whether it will be good for the workers, whose decision to join a union – or not join – is what the laws were intended to protect.

Federal contractors, in particular, should begin preparing for the results of task force recommendations that may come with little warning. No action from Congress is needed for the President to act. Federal contractors can expect executive action to include mandates that contractors stay neutral in representation elections and provide information on labor consultant activities.

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