Biden’s labor support may stall unless Senate enacts protections

Senate Democrats don't expect passage of stand-alone labor bill

Sen. Tim Kaine says the Senate isn't likely to pass a stand-alone union-organizing bill and is more likely to attach the provisions to another measure.  (Tom Williams/CQ Roll Call)
Sen. Tim Kaine says the Senate isn't likely to pass a stand-alone union-organizing bill and is more likely to attach the provisions to another measure. (Tom Williams/CQ Roll Call)
Posted May 18, 2021 at 11:03am

President Joe Biden may be a labor-friendly president, but months into his term he is running out of ways to support unions without help from Congress.

Unions praised Biden’s actions so far, including his nomination of Marty Walsh, a union member, to head the Labor Department; his reversal of Trump administration executive orders that made it more difficult for public sector workers to unionize; his directions to his Cabinet to find ways to encourage union organizing; and his support for workers trying to form a union at an Amazon.com Inc. warehouse in Bessemer, Ala.

However, union leaders and labor economists told CQ Roll Call there’s a limit to what Biden can do unless the Senate passes a bill that would strengthen protections for workers forming a union. Even Plan B would involve getting provisions of that bill attached to something else that could pass. 

Biden’s and the Democrats’ labor record among unionized workers may depend on those provisions getting enacted, or making sure that Republicans take the blame. 

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Tim Schlittner, a spokesman for the AFL-CIO, said the Senate must pass the bill “by any means necessary.”

“We have had 100 days of a pro-union president, and it’s inspiring, it’s heartening, but we know the best is yet to come and that’s going to require the Senate to pass the PRO Act,” he said, referring to the so-called Protecting the Right to Organize Act. 

Biden used his April 28 joint address to Congress to call on the Senate to pass the bill. The president since March has said those provisions are integral to the infrastructure package unveiled that month, a point that cheers the unions.

“Our mantra in the past year has been, build back better with unions, because we see union members as critical to rebuilding America’s infrastructure,” Schlittner said.

The House voted 225-206 on March 9 to pass its version of the bill, sponsored by Rep. Robert C. Scott, D-Va.

But even Senate Democrats acknowledge they don’t have the votes to pass a stand-alone bill, and may not even have all the Democrats’ votes. Attaching the labor provisions to an infrastructure package or some other legislation may be the best option available. 

Sen. Tim Kaine, D-Va., a member of the Health, Education, Labor and Pensions Committee, said getting the bill’s provisions into an infrastructure package is the top priority right now. It’s unlikely the legislation would get the 60 votes needed to end a filibuster, he added.

Among the bill’s provisions is one that supporters consider crucial to making it easier to form a union: the ability to require financial payments from employers that break labor laws during an organizing campaign. Another provision related to organizing campaigns would ban company practices to discourage employees from joining a union.

The bill would also override state “right to work” laws that allow workers covered by a collective bargaining agreement to opt out of paying union dues and establish a stricter definition for employees and independent contractors. 

“I have a hard time imagining enough Republicans agreeing to it,” Kaine said in an interview. “So the question would be, could you do it under reconciliation?”

Democrats are considering whether to adopt a second budget resolution for fiscal 2021 and use it to pass legislation that couldn’t survive a Senate filibuster. Reconciliation bills need only a simple majority to pass in the Senate. 

But the rules give the Senate parliamentarian authority to decide whether provisions meet the budgetary requirements of reconciliation.  The parliamentarian in February blocked Democrats’ attempt to raise the minimum wage through a COVID-19 relief package passed through reconciliation.

Kaine said some provisions in the labor bill, such as the financial penalties, may be attached to other measures, possibly including legislation passed under reconciliation. 

“There would be some possibility that you could get some of it in through reconciliation and then find the remaining pieces you couldn’t, and we’d have to do that separately,” he said. “If you can’t get it all in reconciliation, I don’t have any objection in normal work through committee. Now that we have the majority, we can get a bill in a position where it’s got some chance on the floor.”

One problem right now is that several Democrats may have reservations. Sen. Patty Murray, D-Wash., introduced the bill that 47 Democrats have signed on to as co-sponsors. 

Sen. Mark Warner, D-Va., one of the holdouts, said he’s concerned about independent contractor provisions. For companies that run their businesses on apps, such a provision could dramatically change how they operate.  

“There’s an awful lot in the PRO Act I like,” Warner said in an interview. “There were some concerns I have about gig workers and making sure we don’t put everything back into a 20th century construct.”

The filibuster

Bruce Oppenheimer, a political science professor at Vanderbilt University, said Democrats could use it to build a case for weakening the filibuster.

“I think you have to build up more of a level of frustration during this Congress before you can do that,” he said in an interview. “So you might find it being used as one of a series of pieces of legislation for which they think there’s broad support, where you can’t get it through the Senate.”

Celine McNicholas, director of government affairs for the Economic Policy Institute, said Biden needs to get the legislation through the Senate to make good on his rhetoric. She said Biden’s encouragement of Amazon workers trying to organize in Bessemer demonstrates the limits of verbal support. 

“The classic example of that at this point is, the president comes out with a statement in Bessemer and the union does not prevail in the election,” said McNicholas, a former special counsel for the National Labor Relations Board. “It didn’t create a free and fair election. That would require policy reform.”

The vote broke heavily in the company’s favor. The Retail, Wholesale and Department Store Union has appealed the election to the NLRB, citing unfair labor practices. Amazon has denied any wrongdoing.

“Calling on Congress to do its job, we all know, is insufficient for Congress to do its job,” McNicholas said. “This administration is going to have to take an active role in championing the bill and an active role in looking for legislative mechanisms to actually get it passed, because we will not be able to pass the PRO Act and a host of other critical reforms with the 60-vote threshold.”

‘Enforcement is not enough’

The financial penalties for employers is one provision that supporters would like to see enacted. 

“Enforcement is key, and having a fair referee at the NLRB is key, but enforcement without teeth is really hard to change the culture,” said the AFL-CIO’s Schlittner. “Enforcement is not enough.”

The bill would add those teeth, he said. The legislation would impose up to $100,000 in civil penalties for each violation. Equivalent penalties could be levied on corporate leadership if they’re found culpable in the behavior. 

McNicholas said imposing financial penalties on companies that break the law would likely make the biggest difference for workers trying to form a union.

“The greatest failure of the law is that it literally incentivizes employers to take every action, both legal and illegal, against workers when they try to organize. There are no penalties,” she said. “Hanging up a poster that you’re going to cease and desist from that kind of conduct, does not a penalty in my view make.”

If the NLRB finds a company violated the law, the employer may have to post the violations in the workplace to inform employees. If they’re found to have wrongfully fired an employee, they may owe back pay. Otherwise, there are no financial penalties for breaking the law.

Schlittner said Biden still has a few other executive tools available. He could, for example, appoint worker-friendly members to the NLRB and give unionized companies preference when awarding federal contracts.

Ellyn Ferguson, Lindsey McPherson and Caroline Simon contributed to this report.