May 7, 2021
The Democratic-controlled House of Representatives passed the latest version of the PRO-Act, the Protect the Right to Organize Act. President Biden has exuberantly expressed his support as key to revitalizing unions and American workers in general. Employers have flatly stated that were the Act to pass it would be the most significant reform of labor law in the US in the last fifty years. On that point, there’s no argument since there has been no successful efforts to reform the Act in fifty years.
Before we all become Las Vegas oddsmakers, let’s look at what’s in the Act before it goes into the Senate’s meat grinding machine. Unquestionably, there are some benefits for unions and the ability of workers to join unions in NLRB conducted organizing campaigns.
On the sustainability level, the Act would preempt state so-called right-to-work laws in some fashion. They might still exist on the books, but the Act would make any collective bargaining agreement between a union and employer that included servicing or so-called agency shop fees or similar dues collection methods to be legally binding under federal law. This wouldn’t be the revolution by any means, since it would be a hugely contentious bargaining issue in the twenty-seven states where right-to-work is now law, but it would make a great difference where bargaining was a bit less contentious.
On the organizing front, workers would be able to refuse to attend mandatory union-avoidance sessions known as captive-audience meetings. Unions would have more access to information including phone numbers and email addresses, though that could also be done through an NLRB rule-making procedure as easily. Frankly, I would have to look more deeply at the legislation, because the Act doesn’t seem to level the field as much as organizers would have hoped.
The fight over the bill will be larger than just between unions and likely organizing targets. Gig companies like Uber, DoorDash, Lyft and others are already intensely lobbying against the provision that would extend the kind of law passed in California against their opposition nationally in clarifying that these workers are employees and not subcontractors. That’s a dagger in the heart of their exploitative business model, and likely more upsetting to them than the fact that the Act would also make such workers eligible to certify unions. Tech companies like Amazon and a gazillion other corporations from airlines to food stores that have fallen in love with mandatory arbitration in order to circumvent workers efforts to challenge discrimination, pay issues, and other disputes through government agencies and the courts would also be banned.
No question, it would make a world of difference for workers’ rights and the ability to win justice on the job. The Senate remains a killing zone though. At best, there would be significant amendments for the PRO Act to have a chance given the slim Democratic majority. At the worse, the bill could get stranded by a filibuster under the current rules. Hope springs eternal, but I wouldn’t bet on passage, because the odds remain almost impossibly long.