The infrastructure bill’s hidden labor law agenda
President Biden’s $2.3 trillion infrastructure bill, the so-called American Jobs Plan, contains buried treasures … for labor unions. Touted as an effort to bolster this country’s crumbling infrastructure while creating jobs, the plan stealthily incorporates major provisions of the Protecting the Right to Organize Act (PRO Act) of 2021. Buried in the bill are labor law provisions that some critics say are a ploy by the Biden administration to avoid an anticipated Senate filibuster of the Pro Act.
If passed in its present form, the bill would enact the most salient changes in U.S. labor laws since 1935.
Calculated to “level the playing field” in labor relations between companies and unions, the plan goes much further. It would enact sweeping amendments to the National Labor Relations Act (NLRA), the federal law that governs the collective bargaining relationship between companies and unions and accords employees the right to act collectively to alter their working conditions. Among the key components of the bill relating to labor relations are the following:
Right to work. The bill would preclude states from enacting or enforcing existing statutes that prohibit compulsory unionization. States’ so-called “right to work” statutes forbid companies and unions from negotiating agreements that all employees must join the union (or at least pay union dues) to continue working for the company. This provision is intended to eliminate “free-riders,” employees who must be represented by the union but need not pay dues — a panacea for unions, since member dues are their only source of revenue.
“Backdoor” card check. The cornerstone of the National Labor Relations Board’s (NLRB) election procedures is the right of employees to vote for or against unionization in secret-ballot elections. The Biden bill would erode this process by permitting unions to be certified as representative of employees if the employer committed any violation of the labor law, whether serious or minimal, prior to the election, and the union can demonstrate objective majority support among the employees despite losing a representation election. Unions say this provision is necessary to curtail unlawful company interference in the election process. Companies say this provision deprives employees of free choice through a secret ballot. For employees, the provision may frustrate their option to change their minds about union representation after they are offered the company’s perspective about unionization.
Permanent replacements in strikes. Under existing law, economic strikers cannot be discharged but they can be permanently replaced, a distinction that affords little comfort to a striking employee. The bill would ban a company’s use of permanent replacements in strikes, depriving companies of a potent weapon to successfully weather a strike. For unions and unionized employees, this provision would remove a major impediment to striking by ensuring that strikers can return to work with the company when the strike ends. The result could be an increased willingness of unions to call strikes and a concomitant reluctance by employers to push labor negotiations to a bargaining impasse that might trigger a strike.
Secondary boycotts. Under current law, a union may not seek to enmesh a neutral company in its dispute with a target company by picketing or otherwise attempting to induce the neutral company’s employees to cease work in support of the union’s dispute with the targeted employer. This bill would eliminate this “secondary boycott” restriction and greatly expand unions’ use of picketing at locations where more than just the target employer is working. Particularly in the construction industry, the elimination of the ban on secondary boycotts will greatly enhance the impact of a union’s picketing, while potentially embroiling companies in disputes not of their making. The provision also increases the likelihood that unions will engage in so-called “top-down organizing,” a means for attempting to secure recognition from an employer without utilizing the election process. This, in turn, could deprive employees of the free choice of electing or rejecting union representation.
Enhanced remedies. Commentators have long characterized the remedies available to workers who are discharged or otherwise discriminated against because of their union activities as anemic. The Biden bill would introduce a panoply of new remedies for discrimination based on union activity. It would allow for imposition of fines, liquidated damages, punitive damages and other civil remedies not presently available to workers or to the NLRB. It also would impose personal liability on corporate directors and officers in some circumstances. In practice, it would convert NLRB claims of discrimination against companies from a nuisance to a serious financial and personal risk. These enhanced remedies are likely to embolden workers to engage in union-organizing activities with less concern about retaliation from their employers. In turn, this new attitude among workers is expected to contribute to an uptick in organizing efforts by the unions.
Introduction of interest arbitration. Currently, under the NLRA, following an impasse in negotiations over a collective bargaining agreement, a company may impose on its workers its last offer to the union; the union’s only leverage is to call a strike. This bill would require such disputes to be resolved by an arbitrator, commonly referred to as “interest arbitration.” For both companies and unions, this provision may moderate the content of proposals offered by either side in negotiations. For workers, this provision removes a serious impediment to pushing harder for a more attractive package of wages, benefits and working conditions from their employer.
The bill contains many other provisions that may be regarded as “union friendly” or “worker friendly.” For example, it would expand the “joint employer” doctrine through which one company may be drawn into the labor concerns of another company with whom it has certain types of close affiliations. It would aid gig-economy workers by redefining many of them as “employees” rather than “independent contractors,” which would encourage unionization since independent contractors are not subject to union organizing. For the worker, this redefinition would mean that many more workers may become eligible for fringe benefits awarded by companies only to workers classified as “employees.”
The bill also significantly narrows the definition of who is a “supervisor” under the NLRA, in order to limit the ability of companies to shield certain workers from union organizing by labeling them as supervisors. Moreover, the bill codifies the concept of “micro units,” allowing the NLRB to certify a union as representative of a group of workers as small as a departmental or sectional unit; that would enable unions to obtain a foothold in companies by organizing a single small facet of their operations.
By concentrating publicly on the infrastructure aspects of the bill, Democrats have diverted attention away from the monumental impact the bill will have on relations between companies, workers and labor unions. But given the proposed changes above and many others inserted into this bill, it is no exaggeration to state that it would fundamentally revise labor laws in a manner welcomed by labor unions and some workers but derided by most employers.
Robert S. Seigel is of counsel in the St. Louis office of Jackson Lewis P.C., and he previously was a staff attorney and manager with the National Labor Relations Board. His 40-year legal career has focused on federal and state labor laws and regulatory issues.