The President does not make laws regarding worker organizing and collective bargaining. The Constitution delegates that responsibility to Congress. In turn, Congress delegated the administration of private-sector labor law to the National Labor Relations Board. The Supreme Court subsequently built a fortress called “preemption” around the NLRB’s jurisdiction and Congress’ authority. With only limited exceptions, efforts by the states or the President to regulate within the labor relations fortress are preempted and, therefore, void.
Yet, the Constitution directs the President to “faithfully execute” the laws. Also, Congress regularly delegates expansive authority to the President to administer laws, especially when federal spending and extensive, detailed, and/or complex implementation issues are involved. Congress cannot oversee every procurement decision, administer every grant, and distribute funds to governments and private entities effectively. Congress needs the President, the President’s Cabinet, and the legion of career employees who staff Cabinet departments to do it.
This is the authority --- implementing and administering laws --- the President can use, in some circumstances, to help workers organize or join unions and bargain collectively. Hold your applause. This authority is limited. Unlike Congress, the President likely could not declare that only unionized entities can receive federal funds or tax credits, for example. Even so, there is a great deal the President can do, if the President values workers and understands the important role that worker power can play in ensuring effective administration of government programs.
The New York Times’s Jonathan Weisman nicely illustrated the point in his story about a recent union representation election victory by the United Steelworkers at a Blue Bird electric school bus plant. Weisman described the Biden Administration’s role as follows:
Just two weeks ago. . . the Environmental Protection Agency, which administers the Clean School Bus Program, pushed a demand on all recipients of federal subsidies to detail the health insurance, paid leave, retirement and other benefits they were offering their workers. They also required the companies to have ‘committed to remain neutral in any organizing campaign and/or to voluntarily recognize a union based on a show of majority support.’ And under the rules of the infrastructure bill, no federal money may to be used to thwart a union election.
Any union organizer can tell you the immense value of an employer remaining neutral, or taming its opposition to a union, in a representation election campaign.
These requirements were not written into the Infrastructure Investment and Jobs Act that birthed the Clean School Bus Program. The EPA, which administers the bus program, imposed the requirements to advance the program’s goals. The requirements will help ensure a high-quality, stable, sufficient, and skilled workforce at Blue Bird that can cost-effectively produce electric school buses without the delays associated with excessive employee turnover, low morale, and workplace disputes.
This is what it means for the President to faithfully execute the laws: setting requirements that help to achieve a statutory program’s goals. The Clean School Bus Program is only one example. An even better example may be the Commerce Department’s Broadband Equity, Access, and Deployment Program (BEAD) program. The BEAD program will spend $42.45 billion to expand high-speed Internet access in all 50 states, the District of Columbia, Puerto Rico, and the U.S. territories and commonwealths. These states are the grantees (i.e. they will receive the money), but they will partner with subgrantees that likely will use contractors and subcontractors to complete the work.
The “notice of funding opportunity” (or NOFO) soliciting BEAD grant applications includes a section entitled “Fair Labor Practices and Highly Skilled Workforce.” The requirements in that section “promote the effective and efficient completion of high-quality broadband infrastructure projects by ensuring a reliable supply of skilled workers and minimizing disruptive and costly delays.” Again, that’s the goal: faithfully executing the law and advancing its goals by empowering workers and blocking employers from illegally exploiting their power.
Subgrantees and their contractors and subcontractors must disclose their records of compliance with federal labor and employment laws to the state/grantees. States and other grantees must evaluate those compliance records. So, chronic labor rights violators should not expect to participate in the broadband program. Perhaps more important, subgrantees and their contractors and subcontractors must produce plans to ensure ongoing compliance with labor and employment laws. The funding document suggests how:
- use a directly employed workforce as opposed to a subcontracted workforce;
- pay prevailing wages and benefits to workers,
- use project labor agreements (i.e., pre-hire collective bargaining agreements between unions and contractors that govern terms and conditions of employment for all workers on a construction project);
- implement workplace safety and health committees that include workers;
- commit to union neutrality;
- use labor peace agreements;
- use Registered Apprenticeships or other joint labor-management training programs; and
- take steps to prevent the misclassification of workers.
Only two of these requirements --- project labor agreements and labor-management registered apprenticeships --- directly lead to union representation of workers. Several others (e.g., union neutrality, labor peace agreements, direct employment, and prevailing wages) increase the likelihood that workers will be able to win a union or unionized contractors will be able to win contracted or subcontracted work.
This NOFO section also requires that subgrantees, contractors, and subcontractors have a plan to employ “an appropriately skilled and credentialed workforce.” In addition to training and credentials, subgrantees are encouraged to determine whether the workforce is unionized and directly employed or subcontracted. Signaling unmistakably that unionized employees are more likely to be appropriately skilled and credentialed, and encouraging states to inquire about this point with their subgrantees, will give unionized contractors and their employees an improved opportunity to secure this work.
These provisions' measure of success is not words on a page. The measure is how the words influence the behavior of states, internet service providers, construction and installation contractors and subcontractors, their employees, and the unions that represent workers in the broadband industry. Ultimately, the question is whether more workers in the broadband sector are represented by unions and secure higher pay, better benefits, and lasting, secure jobs.
Maybe that’s the next story for the New York Times or other news outlets to report.
