Punching In: Biden Courts Union Support Citing Wins With Leaders

Monday morning musings for workplace watchers.

Biden Meets With Unions|DOL Plans Disclosure Expansion

Ian Kullgren: As President Joe Biden’s candidacy for re-election hangs in the balance, it’s clear he believes union leaders might be the one group that can save him—if he can keep them all onboard.

Over the past week, the president has been constantly reminding union leaders of everything he’s done for them, and giving them even more to take home to their members as he fights for his political life. Unions have largely hung together, and even private doubts have been much more hushed than on Capitol Hill.

The White House July 11 awarded $1.7 billion in Inflation Reduction Act grants to retool traditional auto manufacturing facilities in eight states to make electric vehicles, including the battlegrounds of Pennsylvania, Michigan, and Georgia. The administration heavily favored companies that pledged to use union labor, Energy Secretary Jennifer Granholm told reporters.

More than $650 million will go to projects in Michigan, home of the United Auto Workers, where Biden made a campaign stop July 12. And $250 million is slated to retrofit a Stellantis NV plant in Kokomo, Ind., the hometown of UAW President Shawn Fain.

During his press conference at the NATO Summit in Washington, Biden reminded viewers that he stuck with unions despite getting “so roundly criticized” for doing so. “Not labor—union,” he said, making a distinction that only those in the labor movement would register.

Biden last week also appealed directly to the AFL-CIO executive council, where he seemed upbeat and energetic, said President Liz Shuler and another person with knowledge of the meeting. The federation’s executive board unanimously passed a resolution to keep backing Biden. The group is now planning a campaign of worker testimonials to refocus the conversation on how Biden’s policies have helped working people, Shuler said in an interview.

“He’s not a spring chicken, and that’s something we talked about all along, right before the debate,” she said. “But, I think, no matter someone’s age you’ve got to look at their record, you’ve got to look at what they deliver. And that’s what we talked about.”

Fain and at least one other union leader have raised concerns about sagging support in their states, though their comments weren’t in the context of whether to keep supporting Biden, according to a person with direct knowledge of the remarks who spoke on the condition of anonymity to reveal private discussions.

So far, no major unions have called for Biden to end his candidacy. If anything, they’ve circled the wagons.

“There are those saying, without acknowledging that you have answered the call for working people at every turn, that they don’t believe you can do the job anymore,” International Association of Machinists President Brian Bryant told Biden in a letter. “In the IAM, we value seniority. We believe that the best indicator of what someone will do in the future is what they’ve done in the past. And those who have proven they can do the job—and who have done it extraordinarily well—should continue to do so.”

President Joe Biden, right, during a meeting of national union leaders at the AFL-CIO in Washington, D.C., on July 10, 2024.

Photographer: Ting Shen/Bloomberg

Rebecca Rainey: The US Labor Department wants to require companies to hand over information about their supervisors’ and executives’ pay when they engage in anti-union activity, a proposal that could invite questions over the agency’s authority under federal labor-management laws.

A proposed rule under review at the White House budget office would consider whether companies should report “any portion of pay” earned by supervisors who have engaged in activity meant to persuade workers about union activities on their LM-10 form, according to the regulatory agenda. The LM-10 form details an employer’s spending, expenditures, and agreements on consultants or activities meant to convince employees about the exercise of their collective bargaining rights or to obtain information about a labor dispute.

The “split-income reporting” requirement would include, for example, “the pro rata share of the supervisor’s wages that were spent undertaking the reportable activity,” a summary of the Office of Labor Management Standards proposal said.

But the rulemaking effort is likely to face friction from Republicans and businesses, who have argued that such disclosures aren’t within the agency’s authority under the Labor-Management Reporting and Disclosure Act.

In a letter to the agency last year, Education and the Workforce Committee Chairwoman Virginia Foxx (R-N.C.) and Rep. Bob Good (R-Va.) argued that executives and supervisors should be subject to a reporting exemption under the LMRDA because conveying messages about labor issues is part of their regular work as officers of the business and is “obvious” to employees that the message is coming from the employer.

“Joe Biden is living up to his pledge to be ‘the most pro-union president ever.’ He’s going so far as to weaponize the federal government against those who dare to stand up to the labor bosses,” Foxx said in email. “All this proposed rule would do is give unions a new tool to target and smear their opponents.”

Corporate giants Starbucks and Amazon have also raised similar questions about the scope of information the DOL can seek under the LMRDA when attempting to fend off lawsuits from the agency requesting information on payments made to reimburse their employees for travel to work sites to discuss unionization with other workers.

In both cases, a federal judge sided with the DOL, finding that disclosures the agency sought were reasonable. The disclosures “were relevant to determine whether the employees were acting within their normal scope of employment or were being used solely as anti-union persuaders,” Washington-based District Judge Marsha Pechman said in the case involving Amazon.

At least one management-side attorney says the DOL’s effort, if finalized, will likely be challenged under the recent Loper Bright precedent from the US Supreme Court, which says that courts shouldn’t automatically defer to agencies’ interpretations of unclear laws.

“OLMS’s exploration of ‘split income reporting’ should begin by reading the SCOTUS decision reversing Chevron,” said Michael Lotito, who co-chairs management-side firm Littler Mendelson PC’s Workplace Policy Institute. “It might save all of us a lot of time instead of having to bring the inevitable challenge asking the courts to strike down something the Department cannot do.”

But not all agree that the rule would be toppled in court. Bob Funk, the founder of LaborLab, a nonprofit organization that tracks corporate spending on anti-union activity, said such disclosures fall squarely under the law and shouldn’t be subject to that exemption.

“Literally, section 203 of the LMRDA says the payments to any employees for the purposes of causing them to persuade other employees with respect to bargaining and representation rights must be disclosed,” he said in response to the suggestion that the DOL doesn’t have authority to collect such information under the law.

“I think this rule is exactly the kind of message that needs to be sent to employers, since there’s just a history of them simply not complying with the law,” he added.

The failure for employers to meet their reporting requirements under the law was detailed in a report from DOL’s own internal watchdog, which found significant gaps in the number of employer LM-10 submissions that “may have negatively impacted workers from making informed decisions about unionization.”

The proposal was sent to the Office of Management and Budget for review July 2, a process that can span weeks. Once approved by OMB, the Labor Department is clear to release the proposed rule and begin collecting public input.

We’re punching out. Daily Labor Report subscribers, please check in for updates during the week, and feel free to reach out to us.