Four years ago, Donald Trump fashioned himself a president for union workers. But once he occupied the White House, Trump only made life harder for organized labor ― through the Supreme Court, through the National Labor Relations Board and through executive orders.
With former Vice President Joe Biden leading Trump in polls in the final days of the race, unions are phone-banking and canvassing hard in hopes of putting a Democrat back in the White House. There are many things a Biden administration could do to help reverse the downward trajectory of labor unions in the U.S., especially as the pandemic makes clear how little leverage most Americans have over their working conditions.
How much influence Biden could have depends on who controls the Senate, and whether the filibuster limits what they can do via legislation. But even if Republicans remain in control of the upper chamber, Biden could reshape the landscape for labor organizing and strengthen his party’s political base in the process.
A More Labor-Friendly NLRB
One big step a Biden administration could take is reshaping the National Labor Relations Board to the benefit of workers rather than employers.
The five-member NLRB referees disputes between unions and corporations, and the GOP majority Trump installed has routinely ruled in favor of the latter. They have made it harder for certain workers to join unions and bargain collectively in the workplace, from fast-food restaurants to university campuses.
One of the first steps the Trump-shaped NLRB took was to undo worker-friendly reforms made during the Obama administration, such as streamlining union elections so that employers have less time to interfere. The GOP-led board drew plaudits from employer groups and lawsuits from unions.
Board members serve five-year terms and must be approved by the Senate; there is currently one vacancy, leaving a 3-1 Republican majority. A President Biden could flip the board to Democratic control within his first term, and his appointees could reverse the corporate-friendly precedents of the Trump era. They could also go back further if they chose to. Unions would have much less to fear in taking their quarrels with employers before the board.
Still, worker-friendly boards under previous Democratic presidents have done little to stop the shrinking footprint of organized labor. The union membership rate in the U.S. has fallen steadily for decades; now a mere 1 in 10 workers belongs to a labor union, the lowest share since the Labor Department started tracking it in 1983. And besides, a subsequent Republican-led board can easily undo the rulings that help more workers unionize.
The Power Of The Federal Purse
Labor leaders say a Biden administration would have to do more than Democratic presidents have done in the past, including Biden’s old boss, Barack Obama, to give workers a greater voice in their workplaces.
One powerful tool at the president’s disposal is federal procurement. Companies that contract with the government have to abide by certain rules if they want to keep government business. Obama used executive orders to raise working standards and the minimum wage among federal contractors. But he did so well into his second term, and as soon as Trump won, Republicans were able to use procedural maneuvers to undo some of that work.
The new president could help unions by requiring employers who accept federal dollars to stay neutral in union campaigns. Such a stipulation would infuriate Republicans and business groups, and make it more likely certain workers would unionize. Biden could do such moves unilaterally.
“Biden does not have to wait,” said Joseph Geevarghese, executive director of Our Revolution, the progressive political group that grew out of Sen. Bernie Sanders’ (I-Vt.) 2016 presidential run. “We don’t have to fix the filibuster for him to be bold on this issue.”
Mary Kay Henry, president of the Service Employees International Union, said she believes states accepting federal money should have to allow collective bargaining to state-funded home-care workers, for example. That could grow union representation in red states that have resisted the concept.
“That’s a way to change the system,” Henry said. “We can make it easier for workers to join together and bargain.”
Henry acknowledged that the Obama-Biden team was slow to embrace the idea of using procurement power to affect workplaces, but she’s confident a Biden administration would move more quickly this time.
“It took too long in that previous administration to figure it out,” she said. “And now that they figured it out, it’s much easier to imagine getting it done.”
Although Trump made changing U.S. trade policy a hallmark of his 2016 candidacy, his tenure has done little to revive U.S. manufacturing and bring jobs that were offshored back to the country. Owen Herrnstadt, chief of staff to the president of the International Association of Machinists and Aerospace Workers, said Trump has been fixated on tariffs and lacks a broader vision for stemming the loss of jobs to other countries.
Herrnstadt’s union represents workers at manufacturers like Boeing and Harley-Davidson. Even though Biden has supported the kind of trade deals that unions have opposed in the past, Herrnstadt said there’s a lot to like in Biden’s manufacturing plan, like his proposal to eliminate tax incentives that unions say encourage sending jobs overseas.
“What’s refreshing about the Biden manufacturing plan is that it realizes this is something that calls for a comprehensive policy and strategy,” Herrnstadt said.
A Shot At Sweeping Labor Law Reform
But a Biden presidency could boost unions in a potentially historic way if Democrats take control of the Senate. The Democratic-controlled House has already passed a bill known as the Protecting the Right to Organize Act, or PRO Act. If enacted, it would mark the biggest overhaul of labor law since the Taft-Hartley Act of 1947, which paved the way for “right to work” laws and restricted the ability of workers to strike and boycott.
Among other measures, the PRO Act would ban right-to-work laws that are now on the books in a majority of states; reinvigorate the power to strike and boycott; and increase penalties on employers for union-busting.
“Biden does not have to wait. We don’t have to fix the filibuster for him to be bold on this issue.”
Business groups that oppose unions fear the significant changes the law would bring about. Just this week, Sen. Chuck Grassley (R-Iowa) was warning GOP supporters that a Democratic takeover of the Senate would lead to the repeal of Taft-Hartley.
Herrnstadt said the law would help tilt the scales back toward workers when it comes to collective bargaining. Research shows that corporate America has ramped up its resistance to unions over the years, often hiring anti-union consultants to dissuade workers from organizing. The punishments for breaking the law are very weak.
“There needs to be a drastic change in the way policy has been implemented by the government,” Herrnstadt said. “The PRO Act would go a very long way to restoring those rights.”
The PRO Act stands virtually no chance of passing so long as Republicans can filibuster it and require a 60-vote threshold. That’s why progressive worker groups like the Communications Workers of America union have steered their support toward Democratic candidates who say they’re willing to blow up the filibuster. But even if Democrats took the Senate and a President Biden were willing to do so, passage would by no means be a sure thing.
The last time Democrats held all the levers of power, including a Senate supermajority, they failed to pass landmark labor law reform with the Employee Free Choice Act in 2009 and 2010, in large part due to a lack of support among moderate Democrats. Resistance from centrists within the party could easily doom major labor legislation again.
D. Taylor, president of the hospitality union Unite Here, said the PRO Act “has to get passed.” But even if Democrats win the White House and Senate and push the legislation through, he still sees major roadblocks for unions because of the way Trump has shaped the judiciary.
“I think that the Trump judicial branch will do everything in their power to thwart the rights of workers,” Taylor said.
The conservative Supreme Court of recent years has posed a serious threat to unions. The 5-4 decision handed down in Janus v. AFSCME in 2018 effectively made the entire U.S. public sector “right to work,” allowing employees to stop paying fees to unions that still must bargain on their behalf. The replacement of the late Ruth Bader Ginsburg with Justice Amy Coney Barrett cements a 6-3 conservative majority, making further rulings against unions and workers highly likely for years to come.
Taylor said favorable legislation and policy toward unions will only do so much, especially if it gets stymied in court. He said, “We have to view our model as the 1930s” ― a time when New Deal policy set the stage for union growth, but labor capitalized through the aggressive organizing of new workers.
“We have to do mobilization, work actions and strikes,” Taylor said. “I don’t think corporate America is going to change.”
Correction: This story incorrectly stated that the PRO Act allowed workers to unionize through “card check.” In fact, the bill would only allow that in very specific circumstances.
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