Congress thwarted Biden on unions. Or did it?

As a presidential nominee, Joe Biden repeatedly promised to deliver on union-friendly policies like the Protecting the Right to Organize Act, the latest iteration of Democrats’ long-fought-for overhaul of labor law.

It turned out to be an effective strategy: Biden won the 2020 election with an assist from organized labor in battleground states like Michigan. In fact, he performed the best out of the past three Democratic presidents with union voters.

But nearly a year and a half into his presidency and with midterms looming, Biden has yet to even secure a Senate vote on the PRO Act — let alone enactment. And that’s not to mention the chamber’s eleventh-hour deathblow to his pick to lead the Labor Department’s Wage and Hour Division, David Weil.

Yet, labor experts and union leaders say the administration’s unilateral actions on labor policy have moved the needle on unions more than previously thought possible.

From installing former union official Marty Walsh as Labor secretary, to outfitting the National Labor Relations Board with union alums, to issuing a spate of union-friendly executive orders, the White House has taken significant steps toward expanding union membership despite the challenges presented by a narrowly divided Congress.

“It's been absolutely extraordinary,” said Steve Rosenthal, a former political director at the AFL-CIO who served in the Labor Department during the Clinton administration. “We went through decades of Democratic presidents" who didn't "say the ‘u’ word.”

“Biden has kicked the door down.”

Even on the Hill, the administration has managed to eke some pro-union policies past Republicans and moderate Democrats, including language in the bipartisan infrastructure bill that requires contractors to pay prevailing wages — typically set by unions — and expands registered apprenticeships, which often involve partnership with unions.

“We've talked about this for literally years in different configurations,” Rep. Donald Norcross (D-N.J.), a former union organizer who co-chairs the Labor Caucus, said. “He's embraced it.”

And there are yet more under consideration. Provisions in the House-passed version of the China competitiveness legislation would cement union participation in decision-making processes on key issues like workforce development. Other language, in Democrats’ reconciliation package, would empower the NLRB to levy fines on employers who violate labor law — though the future of that legislation is, at best, uncertain.

Congressional Republicans are harshly critical of the backdoor efforts.

"One of the biggest problems with this DOL is its obvious union favoritism," the top Republican on the House Education and Labor Committee, Virginia Foxx (R-N.C.), said at a hearing this month. "This department has bowed low enough before union bosses to taste dirt. How many times has the Biden administration’s DOL kowtowed before union bosses instead of standing up for workers?"

But the administration sees little downside.

“There’s no secret that if the PRO Act passed, it would be big for labor,” Walsh said. “But you can't wait for the PRO Act to pass and put everything on the PRO Act, because it's just not realistic.”

The White House has brought unions along for every step of the process — more so than even the Obama administration, union officials said.

“They made it clear to us from the beginning: ‘Don't bring us legislation. We’ll work with you on legislation — but bring what we have the power to do now to help move the ball forward,’” Shane Larson, senior director of government affairs and assistant to the president at Communication Workers of America, said. “I’ll be honest, the Obama administration was very much: ‘We know better than you.’”

"This administration is: 'Help us.'"

Already, the administration’s actions could be paying off for organized labor. Private-sector union membership hit 6.1 percent in 2021 — its lowest point since passage of the National Labor Relations Act in 1935. But petitions filed with the NLRB to hold a union election are up 57 percent, according to the agency.

And that doesn’t account for all of the organizing that takes place outside the NLRB process, including in the public sector and via voluntary recognition by employers.

“More workers have organized this year than organized for years,” Kate Bronfenbrenner, who studies unions at Cornell University, said.

Biden is widely seen as the most vocally pro-union president in decades — more willing to wield the bully pulpit in favor of organized labor than any of his Democratic predecessors. He released a pointed video amid a campaign to organize an Alabama Amazon facility and he called out the company by name while addressing union members in D.C. He even went so far as to host union organizers at the White House, irritating employers like Starbucks.

Some union allies say Biden hasn't gone far enough. Sen. Bernie Sanders (I-Vt.) has called on the president to block companies that violate labor law from receiving federal contracts; others, like Bronfenbrenner and Larson say he could do more when it comes to the federal employees and contractors under his control.

And there are areas where unions and the White House do not align, particularly as the administration wrestles with surging inflation and a looming recession. Unions' increasingly vocal calls for student loan forgiveness have thus far been mostly ignored. And it's unclear whether the administration will keep Trump-era tariffs in place despite organized labor's opposition to lifting them.

But for the most part, union leaders and their allies are happily surprised with the breadth of Biden's moves. Within the Labor Department alone, key agencies like the Occupational Safety and Health Administration are taking steps to reverse Trump-era policies and, in some cases, going beyond that.

"They're working to do everything you can do short of labor law reform," Bronfenbrenner said.

Under the leadership of Doug Parker, OSHA hired more than 270 staffers between August and May, according to the agency, and scaled up its inspections and investigations. It’s also embarked on an ambitious rulemaking agenda that includes regulating Covid-19 transmission in health care workplaces and combating workplace violence against health care workers, as well as a broader infectious disease standard.

At the National Labor Relations Board, Biden lost no time in clearing out employer-aligned Trump appointees — General Counsel Peter Robb and Deputy General Counsel Alice Stock — the first president in more than 70 years to exercise that power.

He also immediately appointed as chair Lauren McFerran, a former Obama administration official who told POLITICO in her first months in office how she planned to wield a Democratic majority to enforce the law in ways paralleling PRO Act provisions.

"My own view of the law is that without any statutory changes at all, the law is intended to be read much more broadly in its coverage," she said.

Biden also named CWA veteran Jennifer Abruzzo as the NLRB’s general counsel and SEIU alum David Prouty as a member — sparking complaints from Republicans of potential ethics violations (since dismissed).

Abruzzo moved quickly to outline an ambitious agenda and execute it, releasing guidance that encouraged stricter penalties when employers violate labor law; more court injunctions in response to allegations of union busting; and bans on so-called captive audience meetings where employers mandate worker attendance to discuss the downsides of unionization.

Employers and union officials expect a potential ruling soon on a decades-old legal standard, dubbed Joy Silk, that would allow workers to form a union if a majority of employees sign a card expressing support, rather than holding a formal vote.

Business groups are lobbying fiercely against it.

“General Counsel Abruzzo is really charting the most effective course I've seen since I started being a union organizer in 1980,” Rep. Andy Levin (D-Mich.) said.

At the same time, Biden has issued a spate of union-friendly executive orders. In April 2021, he signed one creating a task force committed to studying how the federal government could act unilaterally to expand workers’ right to join a union. The group released its recommendations in February; agencies have since published the steps they are taking to comply.

If Republicans win control of the House in November, they will likely prioritize oversight of the efforts: The task force "is attempting to bypass Congress to implement PRO Act policies through executive fiat," Foxx said.

Republicans and business groups have also complained that some of the administration's actions are likely to hike the cost of federally funded projects. That includes a February executive order requiring the largest to use project labor agreements — a pre-contract commitment by employers to enter into a collective bargaining agreement with at least one union.

The project cap of “$35 million is a pretty big job,” Norcross said. “Symbolic, some people suggest. I’m saying: ‘No, this is very real.’”

When it comes to legislation, the Biden administration has been able to squeeze piecemeal pro-union policy past lawmakers as parts of unrelated legislation despite a 50-50 Senate, where Vice President Kamala Harris holds the deciding vote.

“If you read the administration's policy proposals — everything from climate change, to you name it — the word ‘labor’ and ‘unions’ is in there as much as it is in their labor law reform,” Rosenthal said.

Addressing the AFL-CIO convention this week, Biden was quick to tout language in the bipartisan infrastructure deal that expanded registered apprenticeships — many of which are run by unions — and applied the Davis-Bacon Act, which makes federally funded projects more likely to be staffed by unions.

“We made sure that the infrastructure law included significant labor protections,” Biden said. “I insisted an overwhelming majority of the funds" included in "the law are subject to Davis-Bacon requirements. [A] union has to do it.”

Even beneath-the-radar provisions, like those that require recipients of broadband funding to comply with labor laws and have worker-selected safety and health committees, skew in favor of unions, Larson said.

As for the American Rescue Plan, Democrats frequently point to their inclusion of union-backed language that would bolster multi-employer pension plans.

"Had we not acted, pensions would have failed; workers and retirees — from truckers to bricklayers — would have lost nearly everything they worked to save; and many participating employers would have been forced to close or cut jobs," House Education and Labor Chair Bobby Scott (D-Va.) said at a committee hearing on DOL policies this month.

Language in the PRO Act that would let the NLRB fine employers also made its way into Democrats’ reconciliation package last year as one of the provisions most palatable to moderates. It’s unclear whether it will survive in the revamped version of the legislation still under negotiation.

Even without it, organized labor is approaching November ready to brand the White House’s actions as proof they’ve succeeded. With Republicans gunning to take one or both chambers of Congress, Democrats will need to squeeze every vote they can out of friendly constituencies.

“Our job leading into the midterms is to educate our members, and show them … that their vote in 2020 translated into all of these things that got across the finish line,” Shuler said. “Whether it's infrastructure, whether it's the American Rescue Plan or pension relief — we have a lot to point to.”

Nick Niedzwiadek contributed to this report.