Using Executive Authority to Incentivize Employer Neutrality

Biden has commissioned a task force to study how to promote union organizing. One potential executive order would help right away.

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A few hours ago, the White House announced that it was commissioning a task force to solicit and discuss recommendations to promote union organizing. The task force will be led by Vice President Kamala Harris and includes Biden’s top economic advisers as well as Secretary of Labor Marty Walsh. The unabashedly pro-union stance of the task force stands in stark contrast to the infamous Dunlop Commission of 1994, which treated unions as simply a means to an end of increased productivity, cooperative behavior, and national wealth. Workers’ rights were far from the focus.

Presidents have used executive orders in the past to try to help or hurt unions. Barack Obama signed a EO that authorized federal agencies to require the use of project labor agreements by the agency’s contractors. George H.W. Bush signed a EO that required federal contractors to post notices instructing employees of their right to refrain from joining a union and of unions’ obligations under the Beck decision, which prohibited unions from using agency fees paid by non-members for non-collective bargaining-related (“financial core”) activities. And Donald Trump signed several EOs that severely restricted the autonomy of federal employee unions.

These EOs, among many others, are traditionally rescinded or reinstated depending on which party controls the White House. They have been individually impactful in carrying forth the specific objective they’re crafted for, but most orders have not been broadly influential on the growth or contraction of the labor force compared to legislation passed by Congress. (An exception would be the EO signed by John F. Kennedy which first granted federal employees the right to engage in collective bargaining with their employing agencies.)

The reason for this disparity is somewhat obvious: EOs cannot amend the laws that are already on the books. For example, President Joe Biden cannot sign an order which prohibits federal contractors from weighing in on employee unionization, as employers’ ability to do so is statutorily shielded under Section 8(c) of the National Labor Relations Act. Similarly, Biden cannot sign an order prohibiting employers from using captive audience meetings during union elections campaigns, as courts currently interpret employers to possess that right under Section 8(c) and would thus render the matter preempted by the NLRA. It is largely for this reason why Bill Clinton’s order barring federal contracts with employers who permanently replaced economic strikers was struck down by the D.C. Circuit in Chamber of Commerce v. Reich; employers possessed that right under extant case law, so the executive branch could not “regulate” it away. (It didn’t help appearances that legislative attempts to ban the permanent replacement weapon had just failed by way of filibuster in the Senate.)

This state of ossification has led to immense frustration among labor advocates, who have watched labor law reform die in Congress for decades while courts interpret the NLRA’s preemption doctrine to prevent states and cities from passing any pro-worker laws that even touch on aiding unionization. But any action that Biden can do in this area must likely follow the Reich model of attempting to curb employer opposition to unionism. Why? One, the president has immense “proprietary” authority over federal contracts, which totaled $550 billion as of 2018 and touched over 20 percent of the American workforce, creating eye-popping carrot-and-stick potential. And two, employer opposition to unionization is far and away the leading reason for unions’ decline since the middle of the twentieth century and their failure to organize new industries. Dumping money into organizing efforts won’t likely have much of an effect on union density so long as the current landscape remains in place. Either the law must change to make it easier to unionize, or employers must have some incentive to cease their almost universal opposition to private-sector unionism.

I’ve written extensively about the need to pass the Protecting the Right to Organize Act currently pending in the Senate. But longtime labor lawyer, author, and political commentator Thomas Geoghegan proposed an interesting solution for the employer intractability issue shortly after Biden won the 2020 election. As Geoghegan argues, Biden could sign an executive order which restricts the awarding of federal contracts to employers who have collective bargaining agreements with their workforce “unless there is no such supplier that can perform that contract at a reasonable cost or comparable quality.” Such a condition would squarely place the government in a “proprietary” rather than “regulatory” role, much as local governments do in signing project labor agreements (the general structures of which have been endorsed by the Supreme Court).

Employers will naturally declare this an interest-group handout, but as Geoghegan points out, a CBA-favoring executive order is well supported in federal legislation. Section 1 of the NLRA declares that it is the official economy policy of the United States to encourage the practice and procedure of collective bargaining. Opposition to collective bargaining harms the flow of American commerce by creating industrial strife, inequality in bargaining power, and depressed wages and working conditions. This Wagner Act-era language has never been altered by Congress, even by the anti-union amendments in Taft-Hartley and Landrum-Griffin. Geoghegan’s proposal simply takes this language seriously.

Of course, employers resist unionization for more reasons than just profit margins. Chief among them is the threat to unilateral managerial control in the workplace, which some employers have gone to extreme lengths to protect. But many (if not most) participating companies cannot afford to pass on their slice of a half-a-trillion-dollar pie. My guess is that many would drop their mantra against employee organizing efforts if such an EO were signed, just as employers during World War II had to learn to live with unions to get government-sponsored defense work. The Chamber of Commerce didn’t fight the Clinton EO simply because it thought the order was symbolic.

If concerns arise regarding the politics of such a restriction, there are less straightforward ways to muzzle employer opposition. One example I can think of is conditioning contracts on the existence of just-cause protection for bidders’ employees, which are almost exclusive to union-negotiated contracts; if nothing else, this would result in the first nationwide attack on at-will employment since the NLRA’s passage and subsequent civil rights legislation. But Biden has branded himself the “most pro-union president in history” and should not shy away from such a fight. Indeed, commissioning a task force to study how best to spur union organizing would suggest that these sort of bold proposals—along with expending any and all political capital necessary to get the PRO Act passed in the Senate—are the answers Biden is looking for.