Are Unions Losing Hope for the PRO Act?

In a sign that unions are losing hope that the Protecting the Right to Organize (PRO) Act can pass Congress, they are now aggressively backing passage of the budget reconciliation bill because Democrats inserted into it what provisions of the PRO Act they think can fit in there. Many of these provisions are suspect, given that a reconciliation bill is supposed to only include things that directly affect revenue in the federal budget.

Over the past month, the National Education Association claimed it was spending more than a million dollars (it did not provide a precise figure) on a digital ad campaign calling for the PRO Act’s passage, while the Service Employees International Union said that it would pour $7 million into a similar ad campaign.

They have to do this because the PRO Act is radical legislation, not simply a bill to help unions organize, as some media outlets characterize it. Some Democratic Senators, like Virginia’s Mark Warner and Arizona’s Kyrsten Sinema and Mark Kelly, have objected to the PRO Act’s provision to abolish state right to work laws.

The PRO Act provisions shoehorned into the reconciliation bill include an estimated $2 billion in additional funding for the Department of Labor. The majority of that, $1.1 billion, would go to the Occupational Health and Safety Administration ($700 million) and the Wage and Hour Division ($400 million) for stepped-up enforcement. The PRO Act provisions in the reconciliation bill also include increased penalties on businesses for unfair labor practices and an expanded definition of what constitutes an unfair practice.

The provisions would also prohibit employers from:

• Locking out striking workers or hiring permanent replacements.
• Requiring workers to attend mandatory meetings where the managers make the case against unionization.
• Requiring workers to agree to class action arbitration instead of lawsuits to settle future workplace disputes.
• “Communicating” to workers that they are contractors rather than employees.

The last one is especially noteworthy because what “communicating” means in this context is unclear. That is probably deliberate. It would in theory allow the Labor Department to write a new rule effectively enacting a nationwide version of California’s anti-misclassification law, AB5.

It will be interesting to see what the Senate Parliamentarian will think of these provisions as they seem pretty far-removed from the “Byrd rules” regarding reconciliation bills. How do you calculate how they affect revenue?

The budget reconciliation bill is nevertheless a poor substitute for the PRO Act from the unions’ perspective. It lacks the PRO Act’s most far-reaching provisions, such as those eliminating all state right to work laws or reinstituting the Obama-era definition of joint employment. Both of those would be more profound and far-reaching changes to federal workplace laws. Blue Collar Joe hasn’t been able to deliver much of what he had promised his union allies.