A look at Joe Biden’s plan to strengthen unions and the NLRB

At its August 2020 convention, the Democratic Party adopted a platform incorporating elements of their nominee's previously announced 'Biden Plan for Strengthening Worker Organizing, Collective Bargaining, and Unions.”

What would that look like for Iowa?

The Biden Plan aims to restore the labor movement to its 1950s glory when unions represented 35 percent of private sector employees.

Today, unions represent 6.2 percent of private sector employees.

Biden claims there is a 'war” on organizing, collective bargaining, unions and workers that has been 'raging for decades and getting worse.”

One plank of the Biden Plan would have substantial impact on public sector employees, whose collective bargaining rights have been eroded in Iowa, Florida, Wisconsin, Michigan and Indiana.

If elected president, Biden would aim to establish a federal right to union organizing and collective bargaining for all public sector employees by signing into law the 'Public Safety Employer Employee Cooperation Act” and the proposed 'Public Service Freedom to Negotiate Act.”

The latter statute would set a minimum nationwide standard for collective bargaining rights for all states, while still giving each state the flexibility to write and administer their own collective bargaining laws, as long as they meet the federal minimum standards.

It would not override state laws prohibiting strikes by police and emergency personnel.

The Biden Plan also focuses on changes with the National Labor Relations Board and the law it administrates, the National Labor Relations Act.

One way it seeks to accomplish this is by abolishing so-called 'right to work” laws that exist in 27 states.

These laws provide that a labor contract may not require union membership as a condition of employment.

Iowa is a right-to-work state. As such, an Iowa employee can decide whether or not to financially support the union at the workplace.

Unions dislike these laws because the NLRB requires them to represent employees who do not join or pay dues, even the so called 'free riders.”

The Biden Plan also supports abolishing secret ballot elections among employees who wish to select the union.

Rather, the Biden Plan would permit the union to be formed if an employee has collected authorization cards signed by a majority of employees in the unit, also known as 'card checks.”

However, the Supreme Court ruled years ago that an employer may refuse to recognize a union based solely on the authorization cards, stating that the union can file a petition for an election. So legislation would be necessary to reverse the decision to allow card checks.

Another Biden Plan objective is to amend the National Labor Relations Act's free speech provisions to prohibit employers from holding meetings with employees during working time to discuss issues related to union representation and an upcoming NLRB election.

The law currently prohibits only captive audience speeches 24 hours before the poll's opening.

The Biden Plan also proposes to change the rules crafted by the NLRB, Congress and the courts regarding labor unions' arsenal of weapons during a labor dispute.

For example, the Biden Plan would abolish the employer's right to hire permanent replacements, abolish restrictions on intermittent or so-called ”hit and run” strikes, in which employees returned to work and then strike again. It also allow unions to picket so-called secondary employers such as contractors and suppliers, hoping that the secondary employers would pressure the primary employer to settle the waiver decision.

Finally, employers who allegedly pretend to bargain with unions - referred to as 'surface bargaining” - would be required to not only bargain in good faith, but also could be penalized for their bargaining conduct, in addition to making workers hold for the time the company stalled negotiations.

Even if Biden wins the White House, it is unlikely that all these reform proposals would occur unless Democrats also win control of the House and Senate.

Neither the Clinton-Gore nor the Obama-Biden administrations were able to stanch organized labor's membership decline in the way Biden's platform hopes to achieve.

Nonetheless, at a minimum, if Biden were to become president, his appointments to the NLRB clearly would return a pro labor union majority to the agency. In that case, the NRLB decisions and rule making would strengthen union organizing.

Biden also has promised to fund a ' dramatic” increase in the number of investigators in the labor and management enforcement agencies, including the NLRB.

Wilford H. Stone is a lawyer with Lynch Dallas in Cedar Rapids.

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