Presidential Election: A Labor Relations Overview

By Allen Smith, J.D., and Lisa Nagele-Piazza, J.D., SHRM-SCP September 2, 2020
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Editor's Note: This article is part of a series reviewing the similarities and differences between the two presidential candidates' positions on workplace issues. Check back each week for a new overview on such topics as paid leaveminimum wage, health care, immigration, retirement assistance and more.

This year's presidential election puts a spotlight on labor relations, with former Vice President and Democratic presidential nominee Joe Biden supporting union-backed legislation that President Donald Trump has opposed.

Biden supports a bill known as the Protecting the Right to Organize (PRO) Act that would significantly change labor relations law, making it more difficult to classify workers as independent contractors and expanding the definition of "joint employer."

In fact, Biden would go even further by allowing workers to more easily organize unions through the signing of authorization cards and by imposing criminal liability on executives for "interfering with organizing efforts and violating other labor laws," according to Biden campaign materials.

Trump has promised to veto the PRO Act if it reaches his desk. The legislation passed the House of Representatives earlier this year but has stalled in the Senate.

His administration has said the bill "contains provisions that would kill jobs, violate workers' privacy, restrict freedom of association, and roll back the administration's successful deregulatory agenda," according to a Feb. 5 statement.

The Society for Human Resource Management (SHRM) opposed the bill.

Michael Lotito, an attorney with Littler in San Francisco, said the PRO Act would be "the most pervasive change to our basic labor law, the NLRA [National Labor Relations Act], since it was passed in 1935."

In a position paper, the Biden campaign asserted that the change is needed, stating, "There's a war on organizing."

During Trump's presidency, the National Labor Relations Board (NLRB) has consistently delivered employer-friendly rulings on a number of issues, noted Dan Altchek, an attorney with Saul Ewing Arnstein & Lehr in Baltimore. "We can expect to see more of that in a second term if Trump were to win re-election," he stated.

Card Check

Today, 30 percent of the members of a requested bargaining unit must sign union cards to schedule a union election, noted Steve Bernstein, an attorney with Fisher Phillips in Tampa, Fla. Under Biden's plan, once cards are signed by 50 percent plus one of the requested bargaining unit, a company would become unionized without undergoing an NLRB election, he said.

Surveys have shown that a large share of the nonunionized workforce would "want unionization tomorrow if given the chance," according to Larry Mishel, a distinguished fellow with the Economic Policy Institute in Washington, D.C. He said there is "a vast unmet demand for collective bargaining."

Criminal Liability

"Creating civil and criminal liability for employers who oppose union organizing will effectively mandate union representation throughout the private-sector workplace," said Lawrence Lorber, an attorney with Seyfarth in Washington, D.C. He added that this proposal "raises significant constitutional issues impacting on company executives' First Amendment rights."

But the Economic Policy Institute said in a report last year that the NLRA has weak enforcement provisions and insufficient penalties.

Another PRO Act change would include making right-to-work laws illegal. Such laws, which have been adopted by 27 states, prohibit union security clauses that require all employees covered by a collective bargaining agreement to pay fees to the union representing them.

Employer Flexibility

Under the Trump administration, the NLRB has issued numerous business-friendly rulings that offer predictability and enhance employer flexibility, Altchek said.

Over the years, the NLRB has developed many multifactor tests and evaluated the "totality of the circumstances" to make decisions. "The way those tests have been applied has led to a lot of confusion for practitioners," he noted. Recent NLRB decisions have offered more clarity, he said.

For example, the board recently gave employers more flexibility to discipline or fire employees for abusive conduct when they are engaging in otherwise protected activity under the NLRA. The board's new bright-line test replaces several standards that applied in different circumstances. SHRM supported the decision.

The AFL-CIO and other organized labor groups had urged the board to retain the prior standards, arguing that NLRA-protected speech "can be coarse because of the passions such topics inflame."

Robert Boonin, an attorney with Dykema in Detroit, said legal doctrine under the NLRA tends to swing based on the president's political ideology. "But those changes are typically slow, since changes usually aren't made until a case on the topic reaches the NLRB—and that could take years."

[Need help with legal questions? Check out the new SHRM LegalNetwork.]

More Rulemaking

The NLRB has used its rulemaking authority during the current administration to make substantive and procedural changes, including modifications to union election rules. "Rulemaking is much more time-consuming than individual case adjudication," explained Brian Hayes, an attorney with Ogletree Deakins in Washington, D.C., and a former NLRB member.

The current board is still working on several potential reforms. For example, it proposed a rule clarifying that college or university students working in jobs connected to their studies aren't employees covered by the NLRA and therefore can't unionize.

A final rule on the matter is expected soon, but the rulemaking process could be delayed. Even if the board issues a final rule this year, it could be challenged in court. Whether the federal government chooses to defend a final rule will depend on who is in charge.

If Republicans retain the White House, "those remaining rule initiatives will be finalized and others will undoubtedly be pursued," Hayes said.

However, if Biden wins the election, Altchek said, Democrats may drop pending proposals and legal defenses to the current administration's rules.

 

Allen Smith, J.D., is SHRM's manager, workplace law content. Lisa Nagele-Piazza, J.D., SHRM-SCP, is SHRM's senior legal editor.

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