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Punching In: Biden Union Task Force Plots Executive Actions (2)

June 7, 2021, 9:25 AMUpdated: June 7, 2021, 8:39 PM

Monday morning musings for workplace watchers

Task Force Strategy | Ohr on Amazon | In-Person Union Elections Are Back

Ben Penn: As the White House task force on union organizing expands its outreach, administration officials and union leaders involved in early discussions say there’s a clear focus on teeing up executive actions that wouldn’t require congressional support.

Its final recommendations for President Joe Biden are due Oct. 23, but expect moves before then that would use the federal government’s authority to support workers in organizing and bargaining collectively with management.

Seth Harris, the president’s deputy assistant on labor and the economy, told Bloomberg Law the task force’s recommendations will center on executive actions—including ones that will be considered for initiation before Oct. 23, as well as a blueprint of plans for the remainder of Biden’s presidency.

“Our principal focus is on finding as long a list as possible of recommendations to the president for executive action using existing authority within existing programs, policies, and practices, that would facilitate worker organizing,” said Harris, who’s one of two primary aides coordinating the task force, which is co-chaired by Vice President Kamala Harris and Labor Secretary Marty Walsh.

When the president signed an executive order April 26 to convene the Task Force on Worker Organizing and Empowerment, it marked a significant display of the administration’s emphasis on strengthening the labor movement after decades of decline.

By directing Cabinet members to have conversations and eventually produce a report, Biden’s move fell short of the type of bold, detail-oriented mandates union leaders might’ve expected. But interviews with a half-dozen people involved in the effort suggest the task force’s work may manifest into the administration’s most realistic shot at fulfilling at least some of its commitments to organized labor.

Task force staffers from the White House, the vice president’s office, and multiple Cabinet agencies will host listening sessions with unions through June 11 to solicit ideas for executive branch policies to grow union density.

The virtual sessions, which began last week, have been organized by economic sector, according to White House officials. The scope will be broadened to include academics and nonprofits, but the big push will be to sound out organized labor for suggestions on new regulations, policy statements, and executive orders, such as on workplace standards for federal contractors.

Four union participants who requested anonymity to describe the process said the discussions have been largely introductory, laying the groundwork for weedier talks later.

Task force staffers, led by Seth Harris and Dan Pedrotty, the vice president’s labor policy adviser, have encouraged union representatives to submit only proposals that can be accomplished via new administrative actions or that improve on existing executive policies, three union sources said.

Vice President Kamala Harris looks on as Labor Secretary Marty Walsh speaks during a May 13 meeting of the Task Force on Worker Organizing and Empowerment.
Photographer: Jemal Countess/UPI/Bloomberg via Getty Images

The subtext is that the task force will by no means duplicate the administration’s support for House-passed legislation to overhaul labor law—the Protecting the Right to Organize Act—that’s stalled in the Senate.

Instead, think recommendations for federal agencies to issue regulations, grants, and policies that promote worker power, such as by facilitating an uptick in unionized federal employees.

When it comes to using the president’s authority to boost unionizing, legal limitations will prevent some of organized labor’s inevitable suggestions from making their way into the task force’s recommendations. Those kind of changes would require Congress to pass the PRO Act.

But the task force’s final list won’t be a union grab-bag. White House officials said the recommendations will likely be in line with what the president and vice president want to accomplish.

Ian Kullgren: The National Labor Relations Board’s top attorney noted in a wide-ranging interview that a do-over election at the Amazon warehouse in Bessemer, Ala., wouldn’t require the Retail, Wholesale, and Department Store Union to prove all of its allegations against the e-commerce giant.

“I can tell you from almost a dozen years—a decade, at least—being regional director in Chicago, it only requires one objection,” acting General Counsel Peter Sung Ohr told Bloomberg Law. “There may be dozens that are filed, but it only requires one objection to be upheld to re-run the election.”

Amazon won the election by a landslide. The union’s challenge is still pending before the NLRB’s regional office in Atlanta. The union in April filed 23 objections with the NLRB, including an allegation that Amazon tried to intimidate workers during the election process.

At least two of the objections relating to alleged company discipline of union supporters were put on hold by the NLRB, because the acting regional director deemed them to be separate unfair labor practice charges involving individual workers. Unfair labor practice charges are being handled separately from the union’s objections to the election process and outcome.

Ohr was careful not to talk about specific allegations.

“Often, you’ll see a list of objections and many of them are overruled,” the Biden appointee said. “But if there’s just that one, the re-run of the election is ordered.”

Despite the general counsel’s broad authority over NLRB regional staff, Ohr said the Atlanta acting regional director is handling the Amazon case directly, without his involvement.

Union supporters demonstrate outside the Amazon fulfillment center in Bessemer, Ala., ahead of the union election.
Photographer: Patrick T. Fallon/AFP via Getty Images

The NLRB held a series of hearings last month on the union’s petition to overturn the April election based on allegations contained in the list of objections.

An employee testified that an Amazon security guard used keys to open a mailbox near the Bessemer facility’s entrance that had been installed for the express purpose of employees submitting mail-in ballots. The union contends this is evidence of tampering that should lead the agency to overturn the election.

Briefs in the objections case are due June 11, after which the acting regional director could make a decision at any time, RWDSU spokeswoman Chelsea Connor said.

Also Read: Top NLRB Attorney Details Hiring, Outreach Under Biden Budget

Robert Iafolla: After months of exclusively ordering mail-ballot union elections due to the pandemic, NLRB officials have resumed scheduling in-person votes.

An International Brotherhood of Teamsters affiliate’s bid to unionize a Los Angeles trash collection company marked the first case to clear the bar for a manual election under the NLRB’s legal test for pandemic voting, which the board created in its November ruling in Aspirus Keweenaw.

Following the Teamsters-related decision in mid-May, agency officials directed in-person voting for three of the next 10 elections they scheduled, according to a Bloomberg Law review of the roughly 125 election rulings since the Aspirus standard was established.

The agency will likely order more manual elections if Covid-19 infections continue to trend downward. Many contests were set for mail balloting because of one aspect of the six-part Aspirus test, which turns on pandemic metrics.

Specifically, that part says regional directors should consider mail-in votes if there is a rise in the 14-day trend in new confirmed cases in the county where the facility is located, or if the 14-day positivity rate in that area is 5% or higher.

The NLRB tightened its pandemic election standard with an April ruling that voided an order for a mail-in election at a Chicago hospital. The presence of virus variants didn’t qualify as a “compelling circumstance” under the Aspirus test’s loosely defined catchall provision, the board said.

Like office workers who want more flexibility as they return from working remotely, some parties—and NLRB field staffers who administer elections—might pine for more regular use of mail balloting as vaccinations become more widespread.

But the NLRB only allows mail-in voting under certain circumstances, such as a pandemic or when getting workers together is infeasible.

NLRB Chair Lauren McFerran (D) has urged the NLRB to consider normalizing other ways to conduct elections, such as via mail, telephone, and electronic voting.

“Other Federal agencies, such as the Federal Labor Relations Authority and the National Mediation Board, have long since adopted those election methods—it is time for the Board to bring its elections into the modern age,” she wrote in her Aspirus concurrence.

McFerran may look to expand alternative election methods when Democrats take control of the board. But to explore electronic voting, Congress would have to free the agency of a budget rider that’s blocked related spending.

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

(Updated with response from RWDSU spokesperson, in paragraph 24. An earlier version updated paragraphs 15, 17, and 18 to correct how the union in the Amazon election could get the NLRB to order a new vote. )

To contact the reporters on this story: Ben Penn in Washington at bpenn@bloomberglaw.com; Ian Kullgren in Washington at ikullgren@bloombergindustry.com; Robert Iafolla in Washington at riafolla@bloomberglaw.com

To contact the editors responsible for this story: John Lauinger at jlauinger@bloomberglaw.com; Martha Mueller Neff at mmuellerneff@bloomberglaw.com

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