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Tagged with: Labor Law, Prevent Union Organizing
Ever since political parties changed in the federal administration, there hasn't been any doubt the White House would find multiple ways to make it easier for labor unions to gain membership and make it harder for employers to counter unionization attempts. One bookend is the National Labor Relations Board (NLRB) becoming a Democratic majority board. The other bookend is the recently released White House Task Force on Worker Organizing and Empowerment report.
Taken together, employers are faced with a monumental shift in their ability to address a union campaign, and employees are being encouraged to organize. This is accomplished via Presidential Executive Orders and unelected officials on the NLRB issuing decisions interpreting the NLRA. It's important to take the time to understand the content of the Worker Empowerment Report and do what you can do now in response to a pro-union environment.
Using the word "empowerment" in the task force title was smart. Employee empowerment means taking control and claiming one's rights. We feel that employee empowerment can help companies stay union-free. Employee empowerment is more likely to mean joining a union at the Biden administration.
The overarching message in the Worker Empowerment Report is that employees should organize, and the federal government will do all it legally can do to help or become a "model actor." The report doesn't just promote the unionization of federal employees. There are numerous recommendations addressing public and private employees and employers. This is a major push to increase union membership. How did we get to this point? It's been a political journey.
The Worker Empowerment Report has three stated goals.
There is a long list of 70 recommendations arranged under four headings. The "all employees" term refers to federal and private-sector employees, though most recommendations specifically say employees of federal contractors.
Notice the White House Task Force on Worker Organizing and Empowerment Report is not just for federal workers. It encompasses all workers, so the Department of Labor (DOL) will necessarily be the agency that brings as many of the recommendations as possible into the workplace. However, numerous federal agencies are involved in implementation, and that alone will likely lead to more complexities and risks of violations to employers.
There is no timeframe for reaching a collective bargaining agreement. It often takes more than a year to finalize the contract. The Task Force makes numerous recommendations that include POTUS instructing the Federal Acquisition Regulatory Council to require contractors to undergo training and mediation through the Federal Mediation and Conciliation Service (FMCS). POTUS is also asked to encourage the NLRB, FMCS, and the Federal Labor Relations Authority (FLRA) to offer FMCS services for mediation of a first contract.
The Task Force recommends increasing the reporting requirements on persuader activity. Persuaders are third-party labor consultants who help organizations stay legal and maintain a direct connection with employees. The recommendation is for the Department of Labor to strengthen its rules and enforcement for reporting requirements, revising the LM-10 form to require disclosure as to whether a filer is a federal contractor, and have the DOL and the Office of Federal Procurement Policy (OFPP) to develop a system for making sure contacting agencies are made aware of persuader reports filed by federal contractors.
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The task force believes too many employees are not aware of their employee rights and the procedures they can follow for enforcing their rights. The DOL is instructed to lead a government-wide initiative to increase employee awareness of federally-protected rights to organize and bargain collectively with employers, especially young workers, workers of color, and women. The NLRB, FLRA, FMCS, and National Mediation Board (NMB) are encouraged to prioritize expanded outreach at the national and regional level to increase compliance with EO 13496 that requires federal contractors to post a notice that informs employees of their NLRA rights.
There are many other recommendations in this area. For example, the Small Business Administration is instructed to assemble a resource guide for small businesses to inform small business employers of their obligation to respond fairly and legally to work organizing.
Also, the DOL is instructed to create a resource center for workers, employers, the public, and other government agencies on the benefits of unionizing and labor-management partnerships to workers, employers, and communities. The General Services Administration is instructed to implement its union organizing and collective bargaining rights awareness session for the employees of federal contractors to share the benefits of unions and collective bargaining.
Federal agencies are asked to improve their administration and enforcement of the laws like those establishing and protecting the rights of employees to organize and bargain collectively. The DOL is instructed to update and strengthen its Memoranda of Understanding with the NLRB to ensure that workers alleging retaliation for participating in protected concerted activity get the full protection of the law. Also, the Department of Homeland Security (DHS) is to develop and implement immigration enforcement policies that protect organizing and collective bargaining rights and enforce wages, workplace safety, and other standards. DHS is also to develop plans for ensuring victims of labor exploitation and unfair labor practices are not afraid to cooperate with the law.
Another recommendation concerns independent contractors. The DOL is asked to prioritize action to prevent and correct the misclassification of workers as independent contractors. This is accomplished through partnerships with federal and state agencies, like the IRS, and through guidance and rules for employers and workers.
The DOL is instructed to work with the Bureau of Labor Statistics and the Commerce Department to collect data on the status of employment relationships, union membership and worker organizing, strike activity, the relative performance of businesses with unionized workforces, and more. The data on problematic employers would be accessible to the public.
There is so much more in this White House Task Force on Worker Organizing and Empowerment. In general, the report's recommendations are designed to make it easier for public and private-sector employees to unionize and file unfair labor practices charges, increase monitoring of all employers for compliance with labor laws and regulations promoting unionization, and give union members more priority for job opportunities and greater access to federal agency advisory tables.
Source: White House Task Force on Worker Organizing and Empowerment
Attorney Michael Lotito and associates at the legal firm Littler write, "The Task Force Report makes clear that the Biden administration views the federal government and its agencies as tools to increase union membership, not as neutral bodies to serve all constituents. The report attributes the decline in union membership since the 1950s primarily to employer resistance and outdated labor law, not in any part to the passage of other worker protections like the Occupational Safety and Health Act (OSHA) and Title VII of the Civil Rights Act of 1964, employers'' voluntary grievance programs, or dissatisfaction with unions' representational performance. The Report appears to share some of the same goals as the Protecting the Right to Organize (PRO) Act, which passed the House of Representatives on March 9, 2021, but has not moved since."
Some of the points to take away are the following:
The private-sector employees in this particular report refer mostly to those working for employers who are federal contractors. However, private employers will be impacted and pressured in various ways, like involving the FMCS to negotiate a first contract. Even if not directly mentioned, private employers can assume that many of the recommendations will be extended to private employers whenever legally possible. It's important to avoid thinking that private-sector employers are largely excluded.
Though there is no implementation plan for the 70 recommendations, the message is very clear. The Department of Labor will play a critical role in helping the Task Force achieve its goals. In fact, the agency announced its support for the White House Task Force on Worker Organizing and Empowerment and has already named numerous DOL initiatives that will impact all employers. These initiatives meet the instructions given to the agency in the White House Task Force on Worker Organizing and Empowerment.
As an employer who wants to maintain a direct connection to employees, you have strived to develop positive employee relations and a positive culture and regularly provide leadership training. In light of this report, there is another layer of activities that can keep your organizations prepared for the onslaught of pro-union federal initiatives and increased scrutiny. For example, if you haven't reviewed your employee handbook for compliance with current labor laws or completed an HR audit of employee classifications, you are leaving your organization vulnerable to labor unions, unfair labor practices, and federal agency fines. Your leadership training on labor laws should always be current also.
On top of taking steps like that, you need a plan for addressing the coming policies and regulations as they are rolled out by various government agencies. The pressure on employees to unionize will be intense, but the pressure on employers to stand back in the face of union organizing efforts will be worse. The Biden administration and labor unions believe the current laws favor employers who want to stay union-free, and that is why union membership is declining. So, the new plan of attack is through government regulations and stronger enforcement. One prediction that is easy to make is this: the current government will be relentlessly pro-union.