Although the U.S. House of Representatives has passed the union-backed Protecting the Right to Organize (PRO) Act, the far-reaching bill faces long odds in the evenly divided Senate. Even without passage, though, the bill may be a boost to labor interests.
The PRO Act passed the House on March 9 on a 225-206 (largely party-line) vote. Five Republicans joined 220 Democrats in voting for the measure, and one Democrat voted against it.
The bill also passed the House last year, but it was never taken up in what was then a Republican-majority Senate. The Senate is now evenly divided, but Vice President Kamala Harris can cast a tie-breaking vote. To pass, however, the PRO Act would need 60 votes in the Senate to overcome a filibuster.
What Bill Says
The bill is touted as one that would make the most extensive changes to the National Labor Relations Act in its 86-year history. Among its provisions, the PRO Act would:
- Require employers to engage in mediation when negotiating first contracts and, if that is unsuccessful, agree to arbitration;
- Require employees represented by a union to pay “fair share” fees to the union even if they choose not to be union members (currently, such fees are prohibited in states with right-to-work laws);
- Allow employees to engage in secondary boycotts;
- Ban permanent replacement of striking workers;
- Prohibit employers from holding “captive audience” meetings in which employees are required to listen to antiunion messages from an employer;
- Give the National Labor Relations Board (NLRB) the power to issue civil penalties for unfair labor practice charges; and
- Make it harder for an employer to justify classifying workers as independent contractors.
Big Labor ‘Wish List’
Burton J. Fishman, an attorney with FortneyScott in Washington, D.C., and a frequent contributor to Federal Employment Law Insider, says the roots of the PRO Act reach all the way back to the aftermath of the 1981 air traffic controller strike, which led to President Ronald Reagan branding the walkout illegal and then firing all the strikers.
“It is the big labor wish list that not only includes a number of measures to make unionizing easier and to punish opposition to unions, it even gets into the definition of independent contractors,” Fishman says. “It is the entire labor wish list.”
One key area in the bill concerns redefining independent contractor status to make more workers eligible for union organizing, Fishman says. The bill’s provisions that make union organizing more difficult and costly also are important.
“But this may not address all of the problems that have affected union membership over the last few decades—one of which is some benefits that used to be won through collective bargaining are now bestowed by statute,” Fishman says.
Albert L. Vreeland, an attorney with Lehr Middlebrooks Vreeland & Thompson, P.C. in Birmingham, Alabama, says the PRO Act breaks a lot of new ground. In particular, its provisions on nonunion members paying union fees in right-to-work states “would effectively eliminate right-to-work—a historical change.”
As to what employers would be most affected by the bill, Fishman says big retailers are a main target, and he notes the attention focused on a union campaign underway at an Amazon plant in Alabama. Also, depending on the final definition of independent contractor and joint employer, the gig economy and franchisors would see major impacts.
Fishman calls the bill’s chances of becoming law “none to slim” and adds there is strong antiunion resolve among Senate Republicans, and some Democrats also might oppose it.
Even if it doesn’t pass, Fishman says the Biden administration’s focus on union issues may prompt more workers to push for unionization. “President Biden has made his support of labor’s interests clear repeatedly,” he says, noting the president’s statements supporting unionization at Amazon, his appointments to U.S. Department of Labor posts, and his firing of the previous administration’s National Labor Relations Board general counsel.
Steven L. Brenneman, an attorney with Fox, Swibel, Levin & Carroll, LLP in Chicago, Illinois, says if passed the PRO Act would have a big impact on the gig economy. “The law would enable many more workers to shed their status as independent contractors, to become employees for purposes of federal labor law, including the right to unionize,” he says. “We have already seen this battle over gig workers’ rights take shape in places such as California, and the PRO Act would expand it nationally.”
Vreeland says he doesn’t see the administration’s focus on union issues prompting more union campaigns. “Whether more workers push for unionization begins at their workplace—all politics is local,” he says. “So, I do not see more employees’ pushing for unions as a result of President Biden’s prolabor efforts.”
But if an infrastructure bill is passed, Vreeland says union membership in the building trades may increase based on federal contracting requirements.
Advice to Employers
Although the bill isn’t expected to pass the Senate, Vreeland says if it does, employers will need to evaluate supervisor/frontline manager job duties since the bill would make more supervisors eligible for unionization.
Also, employers would need to “up their game” to sustain a union-free culture, including in communications to employees on the benefits of remaining union-free and to managers and supervisors about signals of union activity and how to discuss unions with employees.
Fishman says the union label has been “tarnished and derogated” over the years. “So, employers who work with their workforces, respect their workers, pay fairly, and listen to complaints are always at an advantage.”
Tammy Binford writes and edits news alerts and newsletter articles on labor and employment law topics for BLR web and print publications.
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