03.09.21

By: Ella Nilsen
Source: Vox

The House just passed a sweeping and bipartisan bill to boost unions

The US House of Representatives has officially passed a sweeping, bipartisan labor bill, the Protecting the Right to Organize (PRO) Act. Cheered by unions and disliked by businesses, the bill likely cannot pass the Senate without filibuster reform.

The bill passed the House Tuesday night on a vote of 225-206. The bill gained the support of five House Republicans, and was co-sponsored by three Republicans: Reps. Brian Fitzpatrick of Pennsylvania, and Chris Smith and Jeff Van Drew of New Jersey.

If enacted into law, the PRO Act would be one of the most dramatic changes to US labor law in decades. One of the bill’s most significant provisions is a policy that would override state right-to-work laws that weaken unions by letting unionized workers not pay dues. It would also create tougher penalties for employers who interfere in employees’ efforts to unionize.

Should these penalties work as designed, they would remove a major barrier to unionization, Stuart Appelbaum, president of the Retail, Wholesale and Department Store Union, told Vox in a recent interview.

“It’s the workers facing an uneven playing field when they try to assert their right to form a union,” Appelbaum said. “The employer has all sorts of opportunities to intimidate workers and to interfere with their desire to have a fair choice.”

Finally, the bill would give independent contractors and gig workers the right to collectively bargain alongside employees. There has been some pushback to this provision from businesses — and independent contractors themselves, who are afraid it could restrict their ability to continue to freelance. But House Democrats argue the bill would not restrict an independent contractors’ flexibility.

“It is a serious problem when employers misclassify employees as independent contractors in order to prevent their workers from organizing,” House Education and Labor Committee Chair Bobby Scott (D-VA) told Vox in a statement. “The PRO Act closes that loophole by giving eligible freelancers and gig workers, who are classified as employees, the right to decide for themselves whether to form a union. Or not.”

Scott added, “Anyone making wild claims that this bill would mean the end of freelancing or restrict workers’ flexibility is either mistaken or deliberately misrepresenting the facts.”

The bill’s passage comes as a time when membership in private sector unions is very low. Just 6.3 percent of private sector workers belong to a union, according to the Bureau of Labor Statistics, while workers’ membership in public sector unions is over five times that number, around 34.8 percent.

Beyond this bill, union organizers are seeing glimmers of hope, however. For one thing, a study by the progressive Economic Policy Institute found workers in unions were less likely to get laid off than their non-unionized counterparts during the Covid-19 recession, making a case for more union representation. For another, the administration of President Joe Biden is positioning itself as far friendlier to organized labor than even past Democratic administrations.

What’s in the PRO Act, explained

The PRO Act has many parts, but its main aims are to make it easier for workers to join a union and to make it easier for unions to exist.

The biggest reform would be allowing workers to override right-to-work laws that 27 states (plus Guam) currently have on the books. The PRO Act would allow employers and unions to enter into a contract that lets unions collect fair-share fees to cover costs of collective bargaining and administering the agreement.

With the support of pro-business groups, right-to-work laws have been proliferating from the South to Midwestern states with a more robust union history since Republicans flipped state legislatures en masse in 2010. The laws undermine unions in a creative but debilitating way: They don’t prohibit employees from joining a union, but they give employees the option to not pay union dues or agency fees that collectively help pay for the costs of bargaining or negotiating a contract. With fewer workers paying dues, it’s been tougher for unions to sustain themselves.

As Alexia Fernández Campbell wrote for Vox in 2019:

The Economic Policy Institute, a left-leaning think tank, attributes right-to-work laws to a 3.1 percent decline in wages for union and nonunion workers after accounting for differences in cost of living, demographics, and labor market characteristics.

In addition to overriding state right-to-work laws, the bill takes a number of other measures to strengthen unions, including:

  • It would authorize “meaningful” penalties for companies and executives for violating workers’ rights, and allow the National Labor Relations Board (NLRB) to assess monetary penalties for each violation.
  • If a company is retaliating against an employee, the bill would requires the NLRB to immediately seek an injunction to reinstate the employee while their case is pending. The bill gives the NLRB power to enforce its own rulings, rather than waiting for a decision from the Court of Appeals.
  • The bill would prohibit employers from requiring workers to attend so-called “captive audience meetings,” where the employer attempts to dissuade employees from voting to unionize.
  • The bill facilitates first contracts between companies and newly certified unions by requiring mediation and arbitration to settle disputes.
  • The bill would implement an “ABC test” to determine whether independent contractors or freelance workers can be considered full-time employees. While that has caused some fear that this legislation could hurt freelance journalists or gig workers, Democratic aides say the bill won’t limit someone’s ability to freelance or contract with a company but will simply give them the option to collectively bargain along with regular employees.

Even though the legislation passed the House with three Republican co-sponsors, it’s unlikely to gain much — if any — Republican support in the Senate.

“The PRO Act is not and shouldn’t be political or controversial,” Republican Rep. Brian Fitzpatrick, one of the House Republican co-sponsoring it, told reporters on Tuesday.

Though five Republicans ultimately voted for the act, the vast majority of House Republicans opposed it. Most Republicans voted in line with business and industry groups that stand in staunch opposition to unions.

“The bill would make radical changes to well-established law, diminish employees’ rights to privacy, and threaten entire industries that have fueled innovation, entrepreneurship and job creation,” said Kristen Swearingen, the chair of the Coalition for a Democratic Workplace — a group representing 600 major industry organizations including the US Chamber of Commerce and the National Retail Federation.

The PRO Act, as with many other bills the House is poised to pass in the coming weeks, will likely meet its end in the 50-50 US Senate. The bill doesn’t have support among Senate Republicans, and can’t meet the 60-vote threshold to override the filibuster. There have been some preliminary discussions about ways to incorporate pieces of the bill into the next Senate budget reconciliation package, but the entire bill cannot pass through reconciliation.

Absent any filibuster reform in the Senate, the PRO Act probably won’t be hitting Biden’s desk in the next two years. That’s why some of the country’s largest unions like the AFL-CIO are currently deciding whether to publicly support eliminating the filibuster.

Biden is seen as union-friendly, but there’s only so much he can do

Recently, the White House released a video statement of Biden unequivocally endorsing workers’ right to collectively bargain, and referencing an ongoing vote in Alabama to decide whether Amazon workers at a Bessemer, Alabama, warehouse will unionize.

“Everybody knew what he was referring to,” said Appelbaum, the president of the union that would represent Amazon workers if they unionize. “The only organizing he was referring to was the organizing in Alabama, and the workers understood clearly what the president was saying.”

The Bessemer fight has garnered national attention and could prove to be a pivotal battle for modern labor movements. Appelbaum said the PRO Act would give workers tools to push back against intimidation by Amazon, which is strongly urging its workers to vote against forming a union.

But beyond advocating for labor laws to boost unions, there’s plenty Biden can do from the White House to encourage union growth. One of his early acts as president was to fire Trump-appointed National Labor Relations Board general counsel Peter Robb; he named longtime NLRB attorney Peter Sung Ohr as Robb’s replacement.

This move was seen as an effort to ensure the Biden administration and its agencies can enforce prevailing wage laws and that its NLRB will be more union friendly. Labor historians have noted Biden’s union statement is striking — in both its strong pushback against employers interfering in employees attempts to unionize and its timing in the middle of a crucial union vote.

“It’s basically unprecedented in American history,” Erik Loomis, a history professor at the University of Rhode Island who studies labor rights, recently told Vox. “Even FDR did not really intervene at the moment of a union election with a direct statement for a particular set of workers.”

But ultimately, Biden still needs Congress to expand the existing labor laws in the US. The House has taken the first step, but the Senate would likely need to get rid of the filibuster for this bill to have any chance of passing.

Correction: Rep. Brian Fitzpatrick represents a Pennsylvania district. An earlier version this story misidentified which state he represents.