If there is a worse piece of legislation in the history of American labor relations than the Protecting the Right to Organize (PRO) Act, one would be hard-pressed to find it. This gift to organized labor, introduced in May by Rep. Bobby Scott, D-Va., and Sen. Patty Murray, D-Wash., would dismantle virtually every existing safeguard against union monopoly in the private-sector workplace. Among its features, the measure would override state Right to Work laws protecting employees from being fired for withholding union dues; create an expansive “joint employer” standard to force employers to bargain alongside their contractors; and ban employment arbitration agreements. The House Education and Labor Committee approved the measure on September 25 in a party-line 26-21 vote, setting up a brutal battle in 2020 in the full House and likely the Senate.
Labor unions in this country regularly proclaim their solidarity with “working families,” also known as “working Americans.” In practice, such phrases refer to workers who belong to a union, who are open to joining, or pay partial dues (“agency fees”) in lieu of joining. They do not refer to people outside the union orbit. Unions have a natural interest in expanding their membership. More members mean more dues collections, better contracts, an enhanced strike threat, more effective organizing drives and more political influence. And one of the best ways of boosting membership is through securing monopoly privileges from the federal government. As unions now represent a shrinking share of the private-sector U.S. workforce – only 6.4 percent in 2018, as opposed to five times that 60 years ago – labor leaders have found it necessary to get extra creative in lobbying Washington lawmakers to clear any and all obstacles to organizing and representation even if it means denying reluctant employees and employers due process. The PRO Act is the fulfillment of every major union demand over the last several decades.
Until the new 116th Congress convened this January, pro-union lawmakers had to trim their sails. Democrats, the natural ally of organized labor, had been a minority in the House of Representatives for eight years and in the Senate for four years. Their publicized push on behalf of unions, co-sponsored by Sen. Bernie Sanders (Vt.) and Rep. Mark Pocan (Wisc.), was the Workplace Democracy Act, a revival of the Employee Free Choice Act in the latter part of the previous decade. The legislation, as misnamed as its predecessor, would have forced a private-sector employer to accept a union as the sole workplace bargaining representative if its organizers convince a majority of affected workers to sign a membership pledge card. The measure, like its predecessor, stalled. The Worker’s Freedom to Negotiate Act, co-sponsored by Rep. Scott and Sen. Murray, also went nowhere.
The midterm elections of a year ago changed the political landscape overnight. Democrats regained their control of the House with a comfortable 235-199 majority. The party’s freshman class, epitomized by the media-hyped Rep. Alexandria Ocasio-Cortez, D-N.Y., was particularly radical. Union leaders, buoyed by this changing of the guard, let it be known that they expected Congress to deliver. In short order, Congress did just that. On May 2, Rep. Scott and Sen. Murray unveiled the Protecting the Right to Organize Act (H.R. 2474, S. 1306), an overhaul of the National Labor Relations Act of 1935 that would give unions enormous leverage in organizing workplaces, conducting election campaigns, negotiating contracts and filing grievances. This legislation is as misnamed as its antecedents. The right of a union to organize a workplace in this country is not in jeopardy. But if the PRO Act becomes law, employees who are reluctant to join or remain in a union will find themselves with very little option but to support a union financially and in other ways. And nonunion employers will find themselves bogged down in needless and costly legal disputes.
As comprehensive legislation, the PRO Act is a veritable fantasy laundry list come true for organized labor. Here are some of the things it would do:
Repeal all state Right to Work laws. Currently, 27 states have Right to Work laws that protect private-sector employees from being fired for not paying dues to a union with an active collective bargaining agreement (it had been 28 states until Missouri voters, following a misleading union campaign, repealed its new law in August 2018). The PRO Act would repeal these laws, effectively nullifying Section 14(b) of the Taft-Hartley Act of 1947. Unions, ferociously opposed to Right to Work laws, for decades have sought such federal legislation.
Mandate employer recognition of a union if a majority of employees sign pledge cards. Card check campaigns often involve high-pressure and even criminal tactics on the part of union organizers to induce workers to sign cards indicating their intent to join. NLRB-supervised secret ballot elections, where employees at least enjoy privacy in exercising their preferences, carry the possibility of a union defeat. Under the PRO Act, unions would have it easier. A targeted employer would have to accept a union as the sole bargaining agent if it acquires signed cards from more than 50 percent of affected workers. The union would face at most a minimal bar of proof as to how pledge cards are worded and how signatures are obtained. Making things much worse, the proposed law would require employers to hand over employee home addresses, email addresses, phone numbers, work schedules and other private information to union organizers. The possibilities for harassment would be almost limitless.
Authorize the NLRB to intervene on behalf of a union in an election dispute. The PRO Act stipulates that if a union loses a secret ballot election, the National Labor Relations Board can claim employer “interference.” At that point, the NLRB would have the power to nullify an anti-unionization vote, cite the results of a successful prior union card check, and declare the worksite unionized. Employers, in effect, would be guilty until proven innocent, as the burden of proof of noninterference would be entirely on them. A more brazen denial of contractual liberty would be hard to imagine.
Force companies to bargain alongside contractors or franchisees even if the former has no control over wages, benefits, scheduling and other workplace standards. Last September, the National Labor Relations Board issued a Notice of Proposed Rulemaking to restrict the circumstances under which a large employer could be forced to the bargaining table with one or more of its contractors, subsidiaries or franchisees. This move rankled the unions, which long have sought “joint employer” status for deeper-pocketed parent companies. Organized labor won a victory this January when a federal appeals court upheld the Obama-era NLRB decision in Browning Ferris Industries of California broadening parent company liability for workplace terms and conditions.
Ban employment arbitration agreements. Under the Federal Arbitration Act of 1925, employers have the right to insert clauses in contracts that allow or require settlement of workplace disputes via arbitrators rather than the courts. The PRO Act would repeal this right, in effect vacating last year’s U.S. Supreme Court 5-4 decision in Epic Systems Corp. v. Lewis upholding the act’s enforcement. Unions long have despised arbitration clauses as infringements upon the right to sue an employer. Yet such clauses in fact may benefit employees who lack the money to hire an attorney to pursue a workplace grievance. The biggest winners of a ban would be lawyers and their clients seeking riches via settlements of class-action suits of dubious merit.
Authorize “secondary boycotts” by unions of targeted employers. Under NLRA Section 8(b)(4), a union has the right to engage in picketing or other forms of disruption against an employer whom it accuses of unfair labor practices. However, a union does not have the right to target other, “secondary” companies that maintain a business relationship with the ostensibly offending primary one. This clause is a necessary restraint against unions dragging neutral parties into an unfair labor practices complaint. The PRO Act would repeal this protection and apply a “guilt by association” presumption to secondary employers. By inducing secondary employers to cease doing business with the primary one, the proposed legislation would isolate the primary employer and hence raise the likelihood of its surrendering to union demands.
This is far from the whole story. The PRO Act would severely restrict the definition of an independent contractor, so that people who work for a company would be classified as employees and hence easier to unionize. It also would codify the NLRB’s “ambush election” rule dramatically shortening the time frame of a representation election campaign to two days following the filing of a union petition, making it virtually impossible for an employer to voice objections toward unionization to its employees. In addition, it would restore the Obama-era Labor Department “persuader rule” (which last July was rescinded by the DOL) that forced employers to reveal the nature of outside legal advice regarding a union campaign – a clear interference with attorney-client privilege. It also would deny an employer the right to keep its worksite open during a strike. And it would impose personal liability on company management for violations of the law and would impose penalties as high as $100,000.
For labor unions and their supporters in Congress, the arrival of the PRO Act is the grand moment they’ve been waiting for. AFL-CIO President Richard Trumka, the leading barometer of union opinion, put it this way during a May 8 hearing before the House Education and Labor Committee, Subcommittee on Health, Employment, Labor and Pensions:
The union movement and all working people are hungry for pro-worker reforms to our existing labor laws. The PRO Act would do many important things, chief among them provide more substantial relief for workers whose rights have been violated…ensure a process for reaching a first contract once a union is recognized…and create a true deterrent, so employers think twice before violating the law.
Something is happening in America. Workers are embracing collective action with a fervor I haven’t seen in a generation. It is time for our laws to catch up. It is time to make the PRO Act the law of the land.
Capitol Hill co-sponsors of H.R. 2474 similarly paint a distorted picture. “The Trump Administration has been waging an unrelenting assault to undermine the right of workers to form unions and collectively bargain,” stated Rep. Brad Schneider, D-Ill., in a June 25 press release. “The Protecting the Right to Organize Act is an effort to strengthen the tools available to workers to exercise their right to organize, and hold accountable employers who seek to unfairly retaliate.”
Employer groups are taking a much different view. In a May 8 letter to Reps. Bobby Scott, D-Va., and Virginia Foxx, R-N.C., respectively, chairman and ranking minority member of the House Committee on Education & Labor, Jason Todd, vice president of government affairs for the Alexandria, Va.-based Independent Electrical Contractors, called the PRO Act a “misguided piece of legislation” whose purpose “is simply to increase union membership through drastic changes to well-established labor law at the expense of the rights of the employees and employers, like those of the merit shop electrical contracting industry.” Shannon Meade, vice president for public policy and legal advocacy for the Washington, D.C.-based National Restaurant Association, in a May 8 letter to Reps. Scott and Foxx, termed the proposed legislation “an aggressive partisan power-grab that would bolster the power of unions over the interests of employees and their employers.”
Such summations are accurate. Not only does the PRO Act rest on dangerous assumptions about how labor markets work, but it also would grant enormously coercive powers to federal labor agencies. A paper published in late August by the Washington, D.C.-based Competitive Enterprise Institute argued that the PRO Act, far from protecting worker rights, would eliminate almost every vestige of a level playing field on which labor and management can negotiate. This legislation, the authors wrote, “would radically overhaul United States labor relations law to facilitate labor union organizing without regard to the negative consequences on workers, consumers, employers, and the economy…It would preempt state labor laws, overrule three Supreme Court decisions, and transform the National Labor Relations Board (NLRB) from a remedial body to a punitive one.”
The Protecting the Right to Organize Act isn’t about protecting the rights of anything except union monopoly power. Unions at present are not being denied the right to organize, hold elections, collectively bargain or file grievances. Those rights have been enshrined in labor law for more than 80 years, and they are regularly enforced. Nobody has taken these rights away or even has proposed doing so. The PRO Act is about elevating the economic and political clout of organized labor at the expense of employers, employees and anyone else who might object. Even if enacted on a piecemeal basis, this legislation would be a bad bet for the American workplace.