Legal Ease


Elections Have Consequences By Richard D. Alaniz, Alaniz Law & Associates


ince the passage of such foundational pro-labor legislation as the Fair Labor Standards Act (FLSA) and the National Labor Relations Act (NLRA) during the 1930's New Deal, it has been a political and business fact of life that Democratic administrations favor employees and organized labor at every opportunity. Some administrations have been more aggressive than others in this regard. President Biden and his administration stayed true to this historical fact when he assumed office in 2021. Even before taking office, he committed to achieve certain specific goals regarding labor during his term. First, he promised that


S his


administration would be the most pro- union administration in the country's history. He intended to achieve this by securing passage of the Protecting the Right to Organize Act (PRO Act) and otherwise fostering the growth of unions in America's workplaces in every manner possible. Secondly, he promised to implement a regimen of aggressive enforcement of all federal laws that affect the workplace, something he claimed the Trump administration had failed to do.


The PRO Act is an accumulation of


all the changes in traditional labor law that unions have sought for the past 30 years or more. It would be a fundamental tilting of the playing field in favor of unions. Among its provisions are: the


32 ❘ July 2024 ®


elimination of state right-to-work laws; permitting secondary boycotts in labor disputes; permitting civil causes of- action against employers in union organizing matters; hefty fines for employers for interfering with union organizing of their employees; elimination of captive audience meetings by employers; permitting regulatory action to speed up secret ballot unionization elections, and provide union access to an employer's premises if they unlawfully interfere with union organizing. It is essentially organized labor's wish list.


Despite the fact that Democrats controlled both houses of Congress for the first two years of the Biden term, the PRO Act never made it to the floor for a vote. Subsequent to being blocked in committee, Democrats attempted to attach some of its provisions to various spending bills that came up for a vote. The provision for hefty fines against employers for union election interference was a favorite for attempted linking to the spending bills. All those efforts were defeated.


to support unionization


The PRO Act and similar efforts of American


workplaces are existential necessities to organized labor.


Union membership,


at 6.4% of the private workforce at the start of the Biden presidency, was at its lowest point in history. Membership has been steadily declining for more


than forty years. Unions have been


desperate to reverse this trend and the Biden administration was seen as their last hope.


While there were a few


scattered union organizing victories with Starbucks coffee shops and some Amazon stores, union membership dues actually fell to 6% during Biden's term in office.


The second promise, an aggressive


enforcement regimen, began with President Biden during his first week in office directing that the Occupational Safety and Health (OSHA)


double the


Administration number


of


workplace inspectors and immediately begin employer safety audits. Over 700 new inspectors were hired, and some workplace audits were conducted. However, the audits, like most other enforcement activity, were short-lived.


The COVID-19 pandemic caused


much of the country to shut down in March 2021, including all federal executive agencies. Federal employees were directed to work from home until further


notice. This essentially ended


any proposed widespread enforcement activity against employers. There were a few sporadic cases of child labor violations prosecuted by the U.S. Department of Labor (DOL), but they were the exception. One agency, the National Labor Relations Board (NLRB) with jurisdiction over union matters,


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