Changing Administrations, Changing Labor Policies, Part I: What Employers Can Expect From the Biden Administration

The election of Joseph R. Biden Jr. to the White House, a long-time vocal supporter of organized labor, coupled with control of both houses of the U.S. Congress by the traditionally labor-friendly Democratic Party, is the prelude to changes on the labor law front, a number of which are potentially significant. (Note that following Democratic victories in both Georgia runoff races, the U.S. Senate is technically split 50-50. However, in case of a tie vote in the Senate, Vice President Kamala Harris is constitutionally empowered to cast a tie-breaking vote. Thus, Democrats have control of the upper chamber, albeit by a very slim margin.) The two major engines of this anticipated change will be the U.S. Congress, most especially the U.S. Senate, and the National Labor Relations Board (NLRB). Part one of this two-part series regarding labor law policy and the new administration discusses these anticipated labor law changes.

U.S. Congress

Nominations

The Senate will play two important roles. First, the Senate must confirm any nominees that President Biden will name to fill vacancies at the NLRB. Second, the Senate would be the legislative body that shapes any statutory changes in federal labor law before those changes reach President Biden’s desk.

In terms of the confirmation process, only the positions of NLRB Board member and general counsel (GC) require presidential appointment and Senate confirmation. The five-member NLRB currently has only four members—three Republicans and one Democrat, Lauren McFerran. The Republican with the shortest remaining time on the Board is Member William Emanuel. His term expires on August 27, 2021. Upon taking office, the president immediately named McFerran as chair, replacing Republican John Ring who will continue on the Board as a member.

In her new role, McFerran will be able to exert some control over the cases that are decided by the Board and more significantly the pace with which those cases are decided by the majority while they maintain that control. Soon thereafter, we expect President Biden to submit a nominee to the Senate for the currently open Board seat. One possibility for that position is Jennifer Abruzzo, a former NLRB associate general counsel and the current chief counsel for the Communication Workers of America (CWA). (Abruzzo could be held for subsequent nomination as GC—a position perhaps better suited to her experience.) Abruzzo has served as a labor policy advisor to the Biden transition team.

Perhaps most significantly, in an action totally unprecedented in the Board’s 90-year history, President Biden, within hours of taking office, fired the incumbent GC of the Board, Republican Peter Robb, despite the fact that he had 10 more months to serve pursuant to his Senate-confirmed term. Never before has an NLRB general counsel been removed before the end of a term simply because of a change in the political party occupying the White House. “Holdover” GCs have traditionally continued to serve until their terms expire or they resign voluntarily. There remain significant questions as to the legality of the removal, and it is certain to spawn future litigation.

The president also fired Robb’s deputy, Alice Stock. Immediately thereafter, NLRB career employee Peter Sung Ohr was named acting general counsel. Ohr was previously the regional director of the Board’s Chicago office. Since there is a time limit on how long an individual can serve in an acting capacity, the White House is expected to forward a nominee for the GC position to the Senate fairly soon.

While Republicans could not block or delay the naming of McFerran as chair, they could have substantially delayed the confirmation of Biden’s nominees to any vacant Board seats and his nominee for GC. However, having lost control of the Senate, all of Biden’s nominees, including those for the NLRB, will move quickly to confirmation with little opportunity for Republicans to slow the process. Thus,  McFerran, as chair, will be able to exercise some control over the Board agenda, and within a relatively short period of time, a new Democratic Board member will be installed and be able to partner with McFerran in opposition to the majority. Republicans will still hold a Board majority until Emanuel’s term expires in August 2021, but for a variety of reasons it is unlikely that Republicans will be able to push through much in the way of groundbreaking decisions during the January to August stretch this year.

Almost certainly nothing that is not already in the decisional pipeline is likely to see the light of day. Once Emanuel’s term expires the Board will be temporarily tied at two to two so it is likely that there will be not be any consequential decisions out of the Board at this point. When Emanuel’s term is up, the Biden administration will move quickly to replace him with a Democratic nominee. Once again, with no real prospect for Republican delay in the Senate this nomination will move quickly. Thus, by the fall of 2021 the Board will have a solid Democratic majority—much sooner than would have been the case had Republicans retained control of the Senate. In a similar vein, the Biden administration will be able to install its choice for GC much sooner than had been anticipated. The policies put into place by the Board’s GC have an immediate, “front line” effect on the agency’s practices, procedures, and decisionmaking.

Legislation

The current political alignment represents a favorable opportunity for organized labor to advance its legislative agenda. Not only are both houses in labor-friendly Democratic control, but the White House will now have organized labor’s staunchest supporter in decades sitting in the Oval Office.

Last Congress, the U.S. House of Representatives passed the Protecting the Right to Organize (PRO) Act—the most sweeping and radical revision of federal labor law in history. The legislation, however, died in the Republican-held Senate, and would have been vetoed by Trump even if it had passed. Despite a diminished Democratic majority in 2021, the bill, or a version of it, will likely pass the House again. As a candidate, Biden pledged to support the bill and to sign it if passed. (Indeed, President Biden claimed during the campaign for the presidency that he wanted an even stronger bill that would include criminal penalties for violations of the National Labor Relations Act.) On paper anyway, the only thing that would now block the PRO Act from becoming law is a Democratic-controlled Senate.

Despite the Democrats having a one-vote margin in the Senate, passage of the PRO Act in its present form is unlikely for three reasons. First, the Senate legislative filibuster rule would require 60, not 51, votes to move the legislation to an up or down vote on the substance of the bill. While there is talk and a strong push among progressives for the Senate to eliminate the filibuster for legislative action, that prospect seems unlikely. As long as the filibuster remains in place there are not 60 votes even in the current Senate that would support the PRO Act in its present form. Second, the Senate has a narrow bandwidth for major legislation. A slim majority narrows that bandwidth even further. A major overhaul of federal labor law would have to be a top priority of the Biden administration. While President Biden is a supporter of the bill, it does not appear to be at or near the top of his legislative wish list. Like a number of other legislative initiatives, labor law revision will certainly take a backseat to such clear priorities as COVID-19 relief and economic stimulus, healthcare, immigration, infrastructure, and environmental legislation.

It bears noting that the same situation occurred when President Obama, himself a strong supporter of both organized labor and the Employee Free Choice Act (EFCA), failed to get that legislation advanced despite having a Senate supermajority. In large measure, EFCA failed because of the political primacy and legislative preoccupation with “Obamacare.” That effort simply took all the oxygen out of the room. History is likely to repeat itself and there will be multiple difficult policy initiatives of greater importance than any comprehensive labor law overhaul. Third, in its current form, the PRO Act contains more than a few “poison pills.” For example, one provision in the bill repeals right-to-work legislation now in place in some 26 states, including some which have enacted the legislation by popular vote within the last decade. It would be difficult to imagine senators voting against the popular will of their own constituents.

Countering all these obstacles to the passage of the PRO Act is the political lure of the “working class” vote. These are the blue-collar voters traditionally aligned with the Democratic party who became alienated by its leftward direction and wound up in the Trump coalition. Democrats want them back, and Republicans want to keep them in the fold. Very often, on both sides of the aisle, politicians (incorrectly) assume that what appeals to organized labor appeals to blue-collar voters. While that’s true in some instances, like a minimum wage hike or paid leave, it is not true in others, like EFCA’s proposed elimination of a secret ballot vote in union elections. The latter provision proved to be extremely unpopular with most voters, including blue-collar workers. Passage of the “right” legislation, however, or even portions of the PRO Act, might be viewed by senators of both parties as helpful in the scramble for the blue-collar vote. As a consequence, passage of some more modest form of labor law revision legislation remains a possibility. If the majority does not overreach it may effectuate some legislative changes.

The Board

Although legislation remains a possibility, the more likely avenue for immediate change in labor law policy is the Board. That process will begin in the fall of 2021 once Biden’s nominee to succeed Emanuel is installed. The list of administrative and potentially legislative changes is long, and is summarized below. However, two things are important to bear in mind about the Board. First, when acting through its case adjudication function—historically its predominant means of policymaking—the Board is constrained to act only with regard to issues that are actually presented to it in a particular case. At least one success of the Trump NLRB is that it has largely cleared the case decisional pipeline. As much as it may wish to change a particular policy it needs a case vehicle to do so through its decisional authority. The Board, however, also has rulemaking authority and has in recent years increased its usage of that authority to enact policies of broad application on its own and without a case vehicle. The drawback is that rulemaking is a very time-consuming process, and even as the Board becomes more familiar with its use, it is still realistically limited to only a handful of potential issues over what will be a minimum three-year run of Democratic control.

Stay tuned to the Ogletree Deakins Traditional Labor Relations blog for part two of our two-part series on labor law policies and the Biden administration.