{"id":18383,"date":"2021-04-15T11:24:54","date_gmt":"2021-04-15T18:24:54","guid":{"rendered":"http:\/\/occupysf.net\/?p=18383"},"modified":"2021-04-15T11:24:56","modified_gmt":"2021-04-15T18:24:56","slug":"on-unions-a-gap-between-bidens-words-and-actions","status":"publish","type":"post","link":"http:\/\/occupysf.net\/index.php\/2021\/04\/15\/on-unions-a-gap-between-bidens-words-and-actions\/","title":{"rendered":"On Unions, A Gap Between Biden\u2019s Words And Actions"},"content":{"rendered":"\n

The president pledged two initiatives to halt Amazon-style union busting \u2014 but he has not tried to use executive authority to make them a reality.<\/h4>\n\n\n\n
Sam Mellins<\/a>\u00a0and\u00a0Julia Rock<\/a> April 14, 2021 (The Daily Poster)<\/a><\/a><\/a><\/td><\/tr><\/tbody><\/table>\n\n\n\n

This report was written by Sam Mellins and Julia Rock.<\/em><\/p>\n\n\n\n

As Amazon executives were trying to crush a union drive<\/a> among workers in Bessemer, Alabama, President Joe Biden released a video message<\/a> declaring his general support for the rights of workers to decide whether to form unions. Biden, however, has so far stopped short of trying to use his executive authority to fulfill two campaign promises that could boost such unionization efforts. <\/p>\n\n\n\n

During the 2020 campaign, Biden\u2019s platform included<\/a> support for a pair of measures designed to deter the kind of union busting at play in Alabama. One is a Department of Labor measure known as the \u201cpersuader rule,\u201d which would require employers to more thoroughly disclose their spending on anti-union consultants. The second is known as the \u201cneutrality rule,\u201d which would require federal contractors like Amazon to remain neutral during unionization campaigns. Both would signify major steps toward fulfilling Biden\u2019s campaign pledge<\/a> to be \u201cthe most pro-union president you\u2019ve ever seen.\u201d<\/p>\n\n\n\n

The Protecting the Right to Organize (PRO) Act, a major piece of labor legislation<\/a> that Senate Majority Leader Chuck Schumer has promised<\/a> will get a floor vote if it gets 50 co-sponsors, contains important provisions that would have changed<\/a> the way the Amazon union election played out, including both the persuader and neutrality rules. But unless the Senate abolishes the filibuster<\/a> \u2014 which isn\u2019t a possibility as long as conservative Democrats Joe Manchin<\/a> and Kyrsten Sinema<\/a> are opposed to doing so \u2014 the PRO Act doesn\u2019t have a shot of passing a 50-50 Senate.<\/p>\n\n\n\n

Biden could instead try to fulfill his campaign promises by using his executive authority to put the rules in place. Such a unilateral move would come with risks; executive actions are more likely to be held up in a federal court system packed with conservative, anti-union judges. But short of passing the PRO Act, such executive actions, despite their legal vulnerabilities, might offer the best opportunity to deter Amazon and other employers\u2019 efforts to block workers from unionizing. <\/p>\n\n\n\n

By jeopardizing Amazon and other union busters\u2019 access to lucrative federal contracts, a neutrality law or executive order from Biden could prompt those companies to cease the sort of intense employee intimidation<\/a> Amazon undertook during its workers\u2019 most recent union drive. Similarly, a persuader rule could create a public-relations deterrent, by making more of a company\u2019s anti-union spending public knowledge, therefore giving union organizers and supporters more information to try to shame companies into backing off.<\/p>\n\n\n\n

\u201cGreat News For All Employers On The Union-Avoidance Front\u201d<\/strong><\/h4>\n\n\n\n

During the 2020 campaign, Biden promised to reverse President Donald Trump\u2019s repeal of the Obama-era persuader rule, which had been designed to address a loophole in a 60-year-old labor statute requiring that any hires made by employers for the purpose of anti-union activities be reported to the Department of Labor within thirty days of the hire. The original law created an exemption if the purpose of the hire was merely to \u201cgive advice\u201d rather than to actually engage in anti-union activity. <\/p>\n\n\n\n

Despite the law explicitly saying that the anti-union activity that triggers mandatory disclosure may be undertaken \u201cdirectly or indirectly,\u201d courts for years have generally interpreted the \u201cadvice exception\u201d to mean that only anti-union personnel who interact with workers must disclose their efforts. <\/p>\n\n\n\n

In practice, if a union-busting firm gives the employer material to use in an anti-union presentation, but is not directly involved in presenting the material to employees, no disclosure is required.<\/p>\n\n\n\n

Under the current act, Amazon was required to disclose its multiple<\/a> hirings<\/a> of anti-union consultants. But any law firms that may have been hired to advise on anti-union tactics but did not directly interact with employees remain shielded from public view.<\/p>\n\n\n\n

This renders the disclosure requirement far less powerful, said Brandon Magner, a labor lawyer. <\/p>\n\n\n\n

\u201cThe vast majority of the anti-union ecosystem is inhabited by law firms who are advising employers and consulting with them,\u201d Magner told The Daily Poster<\/em>, rather than contractors directly interacting with workers, meaning the disclosure requirement often isn\u2019t triggered.<\/p>\n\n\n\n

In 2011, the Obama administration tried to change the dynamic by issuing a new rule expanding this disclosure requirement to require employers to disclose when they hired outside counsel to fight a unionization drive. The so-called persuader rule<\/a> was enacted in 2016 against the opposition of the U.S. Chamber of Commerce<\/a>, which called the measure a \u201ctravesty\u201d that would \u201ccreate a further drag on job creation\u201d in a public comment. The National Federation of Independent Businesses likewise noted in a comment<\/a> on the rule that it would leave businesses \u201cdefenseless against skilled and experienced union organizers.\u201d<\/p>\n\n\n\n

Marni von Wilpert, a former National Labor Relations Board attorney who is now on the San Diego City Council, told The Daily Poster<\/em>, \u201cThe purpose of the rule is transparency.\u201d She noted that workers might view union drives differently if they know their employers are paying large sums of money to anti-union firms at the same time they are saying they can\u2019t afford to raise wages.<\/p>\n\n\n\n

But the 2016 rule never went into effect.<\/p>\n\n\n\n

After the rule was finalized, the National Federation of Independent Businesses sued the Labor Department in federal court, and won an injunction<\/a> from Reagan-appointed Judge Sam Cummings, blocking the rule four days before it was scheduled to become effective. At the time, the National Retail Federation \u2014 which lists Amazon as a member<\/a> and which recently lauded<\/a> the defeat of Amazon workers\u2019 union drive \u2014 was lobbying against the rule<\/a>, according to federal records<\/a>.<\/p>\n\n\n\n

One of Cummings\u2019s arguments was that requiring such disclosures would be a violation of attorney-client privilege, an argument echoed in the public<\/a> comments<\/a> submitted by trade associations.<\/p>\n\n\n\n

Magner argued that the attorney-client privilege argument doesn\u2019t hold water. <\/p>\n\n\n\n

\u201cIf the requirement was that I hand Amazon a 100-page notebook and said \u2018I want you to fill this up with every word exchanged between you and Jackson Lewis law firm telling me what legal strategies they use, what cases they cite, that would run afoul of attorney client privilege,\u201d he said. <\/p>\n\n\n\n

But in terms of the actual requirements of the persuader rule, \u201cThe ABA [American Bar Association] and state bars have never held that the duty of confidentiality extends to the identity of a client or to the fees paid by a client,\u201d he said.<\/p>\n\n\n\n

Two other federal district courts reviewed similar challenges to the rule and did not issue<\/a> injunctions. <\/p>\n\n\n\n

In 2018, the Trump administration repealed the rule, removing any chance for a successful reversal of the injunction, despite objections<\/a> from the AFL-CIO. At the time, an attorney at the anti-union<\/a> law firm Barnes & Thornberg wrote<\/a> that it was \u201cgreat news for all employers on the union-avoidance front.\u201d <\/p>\n\n\n\n

If Biden follows through on his campaign promise to reinstate the rule, and another suit is filed to stop it, it is possible that a judge would this time let it stand. An amicus brief<\/a> submitted by 20 law professors argued that the rule was within the authority of the Department of Labor to issue and did not violate attorney-client privilege. <\/p>\n\n\n\n

If a resurrected persuader rule survived legal challenges, Magner said that it would help specifically in making unions aware of when employers were planning anti-union pushes. <\/p>\n\n\n\n

Employers \u201calways have the first-strike capability,\u201d he said. \u201cThey can call up these lawyers whenever they want, get all the advice they need, and then they\u2019re prepared\u201d for a future union drive, even if one is not currently on the horizon, Magner said. <\/p>\n\n\n\n

\u201cUnder the Department of Labor\u2019s [persuader] rule, you are taking away the advantages provided under that system,\u201d he said. \u201cThe union would have a little bit of a heads up if the employers are preparing a huge offensive.\u201d<\/p>\n\n\n\n

Knowing whether companies are employing anti-union law firms would also help unions shame union-busting employers, Magner added.<\/p>\n\n\n\n

But that hasn\u2019t happened, because so far Biden has not moved to reinstate the Obama-era rule.<\/p>\n\n\n\n

Requiring Government Contractors To Stop Busting Unions<\/strong><\/h4>\n\n\n\n

The White House has come closer to following through on Biden\u2019s other campaign promise to implement a labor neutrality rule, which would require that companies with federal contracts remain neutral and refrain from actively combating union organizing among their employees. This measure was included<\/a> in Biden\u2019s sweeping infrastructure proposal, the American Jobs Plan.<\/p>\n\n\n\n

If conservative Democrats maintain their opposition to ending the filibuster, Democrats will likely try to pass Biden\u2019s infrastructure plan using budget reconciliation, which allows legislation to pass under with a simple majority vote. Using the reconciliation process allows the Senate parliamentarian to advise tossing certain measures from legislation if she decides they aren\u2019t specifically budget-related, and it\u2019s easy to see that happening with the labor neutrality rule. <\/p>\n\n\n\n

Senate Democrats could overrule or replace the parliamentarian, but they refused<\/a> to do so last month to keep a $15 minimum wage provision in their COVID-19 relief bill. <\/p>\n\n\n\n

As the ultimate overseer of federal procurement, Biden could also attempt to enact the neutrality rule through some form of executive order to fulfill his promise to \u201censure federal contracts only go to employers who sign neutrality agreements committing not to run anti-union campaigns.\u201d <\/p>\n\n\n\n

So far, he has not done that, and some labor law experts argue that such a rule would be struck down in court on the argument that it would be preempted by<\/a> the National Labor Relations Act. <\/p>\n\n\n\n

Short of enacting the neutrality rule, Biden could also pass an executive order mandating that the federal government only enter into contracts with companies that have collective bargaining agreements, an idea proposed by labor lawyer Thomas Geoghegan<\/a>.<\/p>\n\n\n\n

However Biden goes about doing so, if the administration adopts any neutrality rule, it could have major implications for major employers that work with the government \u2014 and that includes Amazon.<\/p>\n\n\n\n

The federal government contracts with Amazon Web Services (AWS), the company\u2019s cloud computing subsidiary, mostly<\/a> through<\/a> intelligence and national security agencies. AWS has been aggressively pursuing<\/a> these federal contracts<\/a>, which are sometimes worth<\/a> billions of dollars \u2014 and a union neutrality rule for contractors could force companies like Amazon to choose between busting unions or getting those contracts. <\/p>\n\n\n\n

The neutrality rule is not a new idea. The March 2020 coronavirus-related stimulus bill that was signed by Trump included language aimed at requiring<\/a> some corporate recipients of federal loans to remain neutral in union elections. Magner, however, said that such requirements were mostly symbolic, as the legislation did not contain any enforcement mechanism<\/a> and made available numerous loans that did not include neutrality requirements<\/a>. <\/p>\n\n\n\n

However a rule is framed in the American Jobs Plan, Magner cautioned that unless the bill contains an enforcement mechanism, a neutrality requirement could prove to be similarly ineffective. <\/p>\n\n\n\n

\n\n\n\n

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The president pledged two initiatives to halt Amazon-style union busting \u2014 but he has not tried to use executive authority to make them a reality. Sam Mellins\u00a0and\u00a0Julia Rock April 14, 2021 (The Daily Poster) This report was written by Sam Mellins and Julia Rock. As Amazon executives were trying to crush… Continue reading → <\/span><\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[1],"tags":[],"_links":{"self":[{"href":"http:\/\/occupysf.net\/index.php\/wp-json\/wp\/v2\/posts\/18383"}],"collection":[{"href":"http:\/\/occupysf.net\/index.php\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"http:\/\/occupysf.net\/index.php\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"http:\/\/occupysf.net\/index.php\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"http:\/\/occupysf.net\/index.php\/wp-json\/wp\/v2\/comments?post=18383"}],"version-history":[{"count":1,"href":"http:\/\/occupysf.net\/index.php\/wp-json\/wp\/v2\/posts\/18383\/revisions"}],"predecessor-version":[{"id":18384,"href":"http:\/\/occupysf.net\/index.php\/wp-json\/wp\/v2\/posts\/18383\/revisions\/18384"}],"wp:attachment":[{"href":"http:\/\/occupysf.net\/index.php\/wp-json\/wp\/v2\/media?parent=18383"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"http:\/\/occupysf.net\/index.php\/wp-json\/wp\/v2\/categories?post=18383"},{"taxonomy":"post_tag","embeddable":true,"href":"http:\/\/occupysf.net\/index.php\/wp-json\/wp\/v2\/tags?post=18383"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}