The House of Representatives passed the most significant potential change to labor law in more than 70 years on March 9.
The PRO Act, which passed house at the beginning of March, would turn back decades of anti-union legislation and give working people back their voice on the job.
The Protecting the Right to Organize Act, or PRO Act, passed 225-206, with the support of all but a single Democrat – 213 had sponsored the bill- and only five of 211 Republicans.
The bill contains more than 30 substantial reforms and updates to existing labor law to expand protections of workers’ rights, punish companies for violating those rights and reset the rules so union elections will be free, fair and safe.
It also undoes one of the most harmful labor policies ever passed in the United States, dissolving so-called right-to-work laws nationwide.
"Nearly 60 million Americans would join a union if they get a chance, but too many employers and states prevent them from doing so through anti-union attacks," President Joe Biden said in a statement before passage of the bill. "They know that without unions, they can run the table on workers — union and nonunion alike."
International President Lonnie R. Stephenson said the PRO Act is the most extensive expansion of workplace democracy since the 1935 passage of the Wagner Act, which created the National Labor Relations Board and granted private sector workers the right to form and join unions.
“Where unions are strong, wages are higher for typical workers- union and nonunion alike,” Stephenson said in a letter sent to all members of the House before the vote. “Family-sustaining middle-class jobs are the route to economic security and there is no better path to the middle class than a union job with the security it provides.”
A similar bill died last year when the Republican Senate was controlled by then-Majority Leader Mitch McConnell and the Trump White House vehemently opposed it.
The bill contains more than 30 major reforms to existing labor law that would kill off right to work and punish companies that violate workers’ right.
Despite the Democrats slim 51-50 lead in the Senate (with Vice President Kamala Harris breaking any tie) the bill faces an uncertain future. The bill will need to find 60 votes to break a filibuster, or the Democrats will have to break the filibuster itself.
As if signaling the importance of the bill to working people, opposition is fierce. The National Retail Federation called it the “worst bill in Congress.” The Chamber of Commerce called the PRO Act “dangerous” and said it would “destabilize” the economy.
“Only a bunch of CEOs could look around this country and see stability,” said Political and Legislative department Director Austin Keyser. “The only reliable thing about this economy is that wages for working people are going to be the same next year as they are this year.”
There are decades of data drawing a clear line between union busting and going bust. Between 1979 to 2019, as relentless attacks on workers’ rights cut union membership by more than half, average incomes for the bottom 90% of households increased just 1.1%.
Over the same period, average incomes for the wealthiest 1% increased more than 184%.
During the first seven months of the pandemic alone – while workers suffered record-high unemployment and thousands who could work were left unsafe, infected and sadly, killed – America’s 614 billionaires grew their wealth by a combined $931 billion.
“The PRO Act is a game changer” Stephenson said. “If you really want to make America work for working people you have to get the up off their knees; passing the PRO Act is absolutely essential to doing that."
Making the Right to Organize a Reality Again
The bill has three broad areas of reform.
First, it gives workers back the tools they need to exercise their right to organize and strips away many of the tools businesses use to deny workers’ rights.
First to go is the pervasive misclassification of workers, where an employer uses lawyer words like “onboarding” and “independent contractor” in place of simpler ones like “hire” and “employee” and magically gets out of paying minimum wages, workers’ compensation and Social Security.
“Since private sector unions were legalized in 1935, whole business models have popped up with the sole purpose of getting around labor laws” Stephenson said. “Instead of entrepreneurs starting companies to sell their inventions, lawyers and bankers have invented companies for the purpose of skinning working people.”
Fast food restaurants have particularly taken advantage of a legal fiction that a franchise is somehow separate, as if say, McDonalds didn’t set all the rules, making it impossible for McDonalds workers to organize for better wages and benefits.
“A hundred years ago, factory work and mining jobs were no different from modern day low wage work. They became middle class jobs when they became union jobs, and the PRO Act ends the lie that some jobs, and some people, don’t deserve dignity,” Keyser said.
A third of the bill is dedicated to making union elections, fair, free and safe.
The PRO Act also revises the definitions of employee, supervisor, and employer to reflect the ways companies have purposefully blurred lines to block them from joining unions.
One of the last and most powerful forms of leverage a worker has is withholding their labor, but that right has been increasingly constrained over the last 80 years. The PRO Act would deregulate workers’ use of strikes, secondary strikes and boycotts.
Unions will be able to make direct appeals to a company’s customers, support other unions in their strikes and target a company’s suppliers and vendors.
And a company would be forbidden from permanently replacing striking workers or preemptively locking workers out.
Holding Employers Accountable for Violating Workers’ Rights
Second, the bill holds employers accountable for violating the rights of working people.
There are currently no penalties for employers who illegally fire or retaliate against workers attempting to form a union. The most any working man or woman can get is back pay, minus whatever they earned in whatever job they landed before judgment in their favor.
The PRO Act establishes compensatory damages for workers and punitive damages and fines up to $50,000 for employers who violate the NLRA and $100,000 if they have previous violations in the last five years.
Companies would also be liable for front pay and consequential damages, none of which will be reduced if a worker gets a job in the meantime or refuses to find other work.
The process of holding a company to account is also accelerated, giving the NLRB a power most other regulatory agencies in the federal government already have: the right to enforce its own rulings and issue injunctions to stop bad behavior in its tracks.
Finally, if the NLRB’s General Counsel fails to prosecute a case – as happened often during the previous administration when management-side attorney Peter Robb filled that role – that worker is out of luck.
If the PRO Act is signed into law, every worker would have the opportunity to get their day in court no matter what the NLRB says. If successful, workers could not only receive back pay and punitive damages, they could also recover attorney fees.
Bringing Democracy Back to the American Worker
Lastly, some of the most dramatic changes in the bill would reset the rules for representation elections.
The National Labor Relations Act says the policy of the United States is to encourage unionization, but the rules for elections have made it nearly impossible, even for the small section of the workforce that hasn’t yet been “promoted” to independent contractor or been made a “frontline leader.”
First, companies have to make all payments for union busting companies and lawyers public and the dreaded captive audience meetings would be banned outright.
But it goes much further.
“The decision to join a union is a constitutional right and really none of the company’s concern at all. They should have no more involvement in a representation vote than they should be allowed to tell their workers how to vote for president,” Stephenson said.
If the bill passes, companies have to provide organizers contact lists for the proposed bargaining unit and allow workers to use company email for union and other organizing activities.
Businesses would have no say anymore in who is included in a bargaining unit, what the unit will be and where and how the election is conducted. Votes could be held by certified mail, virtually, at a neutral site or even by email.
And unlike today, where corporations can delay and delay a vote, election hearings would be held no more than eight days after filing authorization cards with the NLRB and the election 20 days later, at most.
Under current law, if an organizing drive fails because of employer misconduct, the only remedy is to re-run the election, imposing no cost on the employer.
The PRO Act also allows the NLRB to set aside the result and create the bargaining unit if the organizing committee can show they have a majority of signed authorization cards.
As many a newly formed union has learned, a successful election is no guarantee of a contract. Ask the Comcast technicians in Middleboro, Mass., Local 2322 who had to fight for seven years for their first contract.
That would all end with the passage of the PRO Act.
First contract negotiations would have to start within 10 days of a successful vote. If no deal is reached within 90 days, either side can request federal mediation.
Within 30 days of a declaration of impasse or a union request for mediation, a panel of federal arbitrators (one chosen by the union, one by management and one by mutual agreement) would be able to impose the terms of an agreement on both parties.
Under current law, it’s the employer who gets to impose their last offer.
“This bill doesn’t force a single person to join a union if they don’t want to. It doesn’t put a single worker in control of a company’s business decisions. The line between workers and management is not moved a single inch,” Stephenson said.
“The U.S. with this bill as law would simply be returning to the deal that built the most successful economy in human history,” Stephenson said. “We encourage the U.S. Senate to do whatever it takes to pass the PRO Act and return balance to our nation’s labor laws. Workers across this country are watching very closely to see who their champions are in Congress.”