Biden Administration Acts to Promote Unions

On February 7, 2022, the Task Force on Worker Organizing and Empowerment publicly released its report to President Joe Biden, offering nearly 70 recommendations to promote pro-union policies and practices in the public and private sector. The Task Force, chaired by Vice President Kamala Harris, embodies President Biden’s vow to be the “most pro-union President” in the country’s history.

The report offers recommendations to promote worker organizing and collective bargaining for employees of the government and its contractors. It also recommends increasing access for all workers to information about their rights to join or organize a union and more aggressively enforcing existing labor laws. The recommendations generally fall into three categories: those that impact only federal workplaces, those that impact federal contractors and grantees, and recommendations intended to reach all employers, including those in the private sector.

With respect to federal workplaces, the report aims to make the federal government a model employer, and calls on various federal agencies to reduce barriers that impede unions’ ability to organize federal workers and increase their membership. The proposals seek to address a number of identified obstacles for employees, including difficulty gaining access to union organizers at their workplace, a lack of awareness of their rights under the National Labor Relations Act (NLRA), and difficulty getting help from federal agencies in enforcing their rights.

There are also a number of recommendations specific to federal contractors and grantees. The most notable include:

• Ensuring that union organizers and other union staff have access to employees on federal property, including military bases, national parks, and federal buildings, as long as it can be done consistently with safety, security, order, and contract operations.
• Instructing the Department of Defense to emphasize and verify that its contractors comply with regulations regarding notification of employee rights under the NLRA.
• Reducing barriers to union eligibility for federal grants and contracts. Among other things, the report directs the Office of Management and Budget to ensure that labor unions are not improperly excluded from grant and federal funding opportunities and to update the list of recipients eligible to receive federal financial assistance to explicitly include labor unions.

Facilitating first contracts for employees who organize a union by instructing the Federal Acquisition Regulatory Council (FAR) to consider requiring federal contractors to update the National Labor Relations Board (NLRB) on elections and negotiations. It also encourages the Federal Mediation and Conciliation Service to become involved with newly organized bargaining units and provide training to employees and employers.

The report also incorporates recommendations that would impact all workplaces and employees –private and public. These include: 

• Encouraging the federal government to be more proactive in urging and/or requiring employers to participate in training and mediation services designed to assist employers and unions in reaching a first contract.
• Recommending collaboration among agencies to increase visibility, support, awareness, and promotion of collective bargaining. In particular, the report recommends a coordinated, government-wide initiative to increase awareness among workers of their right to organize and increased outreach to young workers and underserved communities. The recommendation includes a specific directive to the Department of Labor (DOL) to expand and improve information about the right to organize and collectively bargain on Worker.gov, and make this information more widely available on other platforms.
• Urging all members and components of the Biden-Harris administration, including the President, Vice-President, and Cabinet, to talk about the importance of the federally-protected right of workers to organize and bargain, and the benefits to workers, employers, and communities of collective bargaining.
• Calling on multiple agencies to reduce the administrative burdens of union membership. The report suggests allowing automatic deductions from payments to Medicaid providers, making union dues eligible for a tax credit or above-the-line deduction that a worker can claim on an annual income tax return, and denying employer tax deductions for expenses related to activities that impede or inhibit union participation.
• Instructing the Small Business Administration to collaborate with other agencies in assembling a resource guide to inform small business employers of their obligation to respond legally and fairly to worker organizing and provide resources and training to small business employers.
• Ensuring effective enforcement of existing laws and strengthened anti-retaliation efforts. In particular, the report encourages federal agencies, including the DOL, NRLB, and Department of Homeland Security (DHS), to improve their administration and enforcement of the law through closer cooperation and coordination.

The task force recommendations come on the heels of Biden’s executive order requiring project labor agreements (PLA) for federal construction contracts valued at $35 million or more. The order is effective immediately and applies to solicitations for contracts issued on or after the effective date of final regulations issued by FAR, which will be approximately 120 days following the order. Notably, there is nothing precluding agencies from requiring PLAs in circumstances not covered by the order, including on construction projects valued at less than $35 million or those receiving federal funding.

These are the latest steps by the Biden Administration to promote unionization. Ultimately, the recommendations work within the current legislative and regulatory framework so private sector employers likely will not see significant legal change while the proposed Protecting the Right to Organize Act of 2021 remains stalled, but they mark the next steps in the Administration’s efforts to aggressively pursue whatever policies it can through enforcement of existing laws, using the “bully pulpit” to promote organizing in the private sector, and expanding requirements for federal contractors and grantees.

Ballard Spahr’s Labor and Employment Group counsels employers regarding the changing requirements and status of the COVID-19 vaccine mandates and workplace safety and compliance. Find more guidance for employers on our HR Law Watch blog.

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