On March 9, the House of Representatives passed H.R. 842, the Protecting the Right to Organize Act (PRO Act), setting the stage for a legislative fight in the Senate over organized labor’s long-held priority: pro-worker labor-law reform.
“If you compare organizing a union to forming literally any other organization in this country, the person who may be affected on the back end doesn’t get an equal say in the formulation process.”
The AFL-CIO calls the PRO Act the “most significant worker empowerment legislation since the Great Depression.” Jimmy Williams, general vice president of the International Union of Painters and Allied Trades, told Jacobin magazine it is the “first piece of legislation to really tackle some of our broken labor laws in this country since, really, the passage of the National Labor Relations Act.”
The most recent similar attempt at labor law reform, the Employee Free Choice Act, foundered in the Senate in 2009, failing to reach the sixty-vote threshold needed to overcome an anticipated filibuster. The act focused on more limited reforms intended to tackle worker organizing, namely “card check” union elections and binding arbitration for first contracts if workers and management failed to reach an agreement.
Rather than settle for more limited legislation, unions are expanding their demands for reform. Brandon Magner, a labor attorney who runs the popular newsletter “Labor Law Lite,” says the PRO Act attacks labor reform from all angles: “The whole ecosystem of labor law would work under the PRO Act, whereas right now it sort of sputters.”
Unlike the Employee Free Choice Act, the PRO Act looks beyond organizing and empowers unions through the repeal of many of the anti-union measures adopted in the Taft-Hartley Act in 1947. Right-to-work laws, bans on secondary boycotts and pickets, and other measures intended to curb union power are all addressed by the PRO Act. It would also ban the permanent replacement of striking workers, impose damages on employers for violating labor rights, and require employers to disclose payments made to so-called “union avoidance” firms.
Repeal of right-to-work—which is currently the law in twenty-seven states, with legislation advancing in New Hampshire—is a key provision, and has been a priority of organized labor for more than seventy years. These laws deprive unions of the ability to charge non-members fees, known as “agency fees,” to support the cost of representation.
Magner points to the 1995 Caterpillar strike in Peoria, Illinois, as an example of how the PRO Act’s changes to impasse procedures and the use of replacement workers can restore worker power.
“That’s exactly what broke one of the most powerful unions in the country,” Magner says. “They forced them out on strike through completely untenable contract proposals, maintained their contract offer to the point of impasse, then threatened permanent replacement because it was an economic strike.”
Under the PRO Act, such employer tactics would be illegal.
Another provision of the act would remove employer standing in representation elections. Employers often intervene to stall elections, and to play a role in determining who is eligible to vote and other details of election procedure—something used to great effect in the Amazon election in Bessemer, Alabama.
“If you compare organizing a union to forming literally any other organization in this country,” Magner says, “the person who may be affected on the back end doesn’t get an equal say in the formulation process.”
Business interests are increasingly nervous over the bill, with the United States Chamber of Commerce launching a campaign to stop the PRO Act and local Chambers of Commerce organizing their members in opposition.
Suzanne Clark, the CEO of the United States Chamber of Commerce, has made clear that businesses will fight to stop the bill: “The Chamber will fight to ensure this wish list of union-sponsored priorities fails in the Senate and never becomes law.”
The opposition is drawing support from some freelance workers, because the PRO Act would amend the National Labor Relations Act to apply a controversial three-pronged test for determining worker classification that is drawn from a controversial California law, AB-5. Rightwing groups like Americans for Tax Reform are seizing on this point, warning freelancers that the PRO Act federalizes policies that have “destroyed countless lives.”
This narrative has had some impact; Yes! magazine recently published an article repeating the connection between the PRO Act and AB-5, before rewriting it to address substantial factual inaccuracies.
Magner says concerns about the ABC test are misplaced. “The PRO Act deals only with unionization rights under Section 7 of the NLRA,” says Magner. “It wouldn’t affect the analysis under any other state or federal agency’s determination of whether you’re an employee or an independent contractor.”
While the Employee Free Choice Act failed with a stronger Democratic majority, worker advocates think this time will be different. Grassroots enthusiasm for the PRO Act is already growing, with the Democratic Socialists of America (DSA), working in coalition with advocacy groups like the Sunrise Movement and labor unions like the Communications Workers of America and the International Union of Painters and Allied Trades. The DSA is running a phone bank operation in states with undecided Senators urging them to cosponsor the bill.
The reception from lawmakers and the White House has changed as well. President Barack Obama was largely silent on the Employee Free Choice Act, leaving labor leaders wondering if the White House could have done more to ensure its passage in 2009.
In contrast, the Biden Administration has signaled a willingness to take bold action to support labor’s political priorities, and Senate Majority Leader Chuck Schumer has promised that the PRO Act will receive a floor vote if it reaches fifty cosponsors.
If the PRO Act passes, it will represent a significant shift in the landscape for organized labor at a time when unions are enjoying historic favorability, and corporations face widespread public distrust. Unions are vowing to ensure its passage, and the Painters and Allied Trades union has threatened to withhold political support from politicians who oppose it, saying that it’s “time to find out which side they’re on.”