BY ELEANOR MUELLER
*This article was originally made available to POLITICO Pro subscribers on 02/12/2021
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Senate HELP Chair Patty Murray (D-Wash.) and House Education and Labor Chair Bobby Scott (D-Va.) on Feb. 4 unveiled the latest version of the Protecting the Right to Organize Act, Democrats’ wide-reaching labor overhaul legislation that passed the House last session but was never taken up in the Senate.
The bill, H.R. 842 (117), would rewrite decades of labor law to strengthen workers’ ability to form unions, including by empowering the National Labor Relations Board to levy fines on employers who retaliate against workers for attempting to organize, and by extending collective bargaining rights to more workers.
A committee aide said there were four differences between the new bill and the one that passed the House in February: no more rules of construction, whistleblower provisions or GAO report on sectoral bargaining; a requirement that the bill’s annual NLRB report include board members' recusal obligations; additional "election bars," which set limits on when the NLRB can conduct a union election; and a new severability clause.
President Joe Biden promised during the 2020 campaign that he would enact the bill, but business groups are staunchly opposed. Guiding it to enactment, if even possible in such a narrowly divided Congress, will doubtless be a headache for the new administration, which is beholden in many ways to the corporate interests that helped win Biden the presidency.
WHAT’S IN THE BILL?
The bill would:
— Define two or more employers as “joint employers” if they share control of a worker’s terms and conditions of employment, thus codifying the standard established in the NLRB's overturned Browning-Ferris ruling (Sec. 101)
— Define workers as employees, rather than independent contractors, unless an individual is free from the employer’s control and direction with performance of the service; the service is performed outside of the employer's usual course of business; and the individual is customarily engaged in an independently established trade (Sec. 101)
— Narrow the definition of a supervisor to someone who spends a “majority” of their “worktime” on supervisory activities (Sec. 101)
— Require the NLRB to submit annual reports to Congress, a practice ended in 2009, and enable it to conduct economic analyses (Secs. 102 and 103)
— Prohibit employers from discriminating against or permanently replacing workers for participating in a strike; locking out employees prior to a strike; forcing workers to attend anti-union meetings; withdrawing union recognition without a decertification election; and entering into or enforcing agreements where an employee promises not to participate in joint, class or collective litigation (Sec. 104)
— Make worker misclassification a violation of the National Labor Relations Act (Sec. 104)
— Allow workers to hold so-called secondary picketing and strikes and to participate in collective bargaining via employer-hosted platforms, such as workplace email (Sec. 104)
— Require employers to maintain terms and conditions of employment while collective bargaining is ongoing until an agreement with a union has been reached; post notification of workers’ rights under the NLRA; and provide unions with a list of employees’ names and contact information within two days of an NLRB-directed election (Sec. 104)
— Set specific deadlines and other standards for reaching an initial collective bargaining agreement (Sec. 104)
— Ban employers from “gerrymandering” a bargaining unit to include individuals in the voting unit who have no interest in joining the union (Sec. 105)
— Permit NLRB elections to be held by mail, electronically or at a non-employer-controlled location (Sec. 105)
— Remove employers as a party in NLRB hearings and other union representation proceedings (Sec. 105)
— Allow employees to form a union via “card check,” or the signing of authorization cards designating the union as their representative, if the NLRB has found that a union election should be set aside because the employer has committed a violation of the NLRA or otherwise interfered with a fair election (Sec. 105)
— Unlike the 116th Congress version of the PRO Act, the 117th version would bar the NLRB from conducting an election for a period of time after the employer voluntarily recognizes the union; a period of time after the NLRB issues a remedial bargaining order; within three years of a bargaining agreement; or before the NLRB resolves any unfair labor practice charges (Sec. 105)
— Direct the NLRB to provide back pay, front pay when appropriate, consequential damages and liquidated damages to any employee discriminated against under the NLRA by their employer (Sec. 106)
— Allow the NLRB to enforce its own orders, and grant the NLRB the ability to collect monetary penalties from employers found to have violated the NLRA (Secs. 107 and 109)
— Require the NLRB to seek temporary injunctions when employers are found to have engaged in unfair labor practices (Sec. 108)
— Permit unions and employers to negotiate “fair share” fees, which are fees to ensure employees who benefit from collective bargaining are contributing their “fair share," regardless of state laws that may prevent such agreements (Sec. 111)
The bill would also make conforming amendments, per the above, to the 1947 Labor Management Relations Act and the 1959 Labor-Management Reporting and Disclosure Act (Secs. 201 and 202). It would authorize “such sums as may be necessary" to carry out the bill’s provisions (Sec. 302), and, unlike the 116th Congress version of the PRO Act, it includes a severability clause (Sec. 301).
WHO ARE THE POWER PLAYERS?
Scott, as the House sponsor and chair of the Education and Labor Committee, is a key supporter.
Murray, sponsor of the forthcoming Senate companion bill and chair of the HELP Committee, will play the lead role in easing the bill through her chamber.
Marty Walsh, once confirmed as Labor secretary, will be a forceful advocate for the administration on the Hill as it lobbies for the legislation.
Rep. Virginia Foxx (R-N.C.), the top Republican on the Education and Labor Committee, has been an outspoken critic of the legislation since it was introduced last Congress and was quick to reiterate her concerns when Democrats rolled it out again in the 117th Congress.
WHAT’S HAPPENED SO FAR?
The then-GOP-controlled Senate did not take up the measure before the end of the year.
Scott reintroduced the measure Feb. 4. “The PRO Act is an opportunity to honor the contributions of the many frontline workers during the pandemic and American workers nationwide who continue to uphold our economy," he said.
Business groups again announced their opposition. “Congressional Democrats are attempting to implement Obama-era labor law policies that were rejected by the judicial system, opposed on a bipartisan basis and/or abandoned by the agencies asked to enforce them,” said Kristen Swearingen, chair of the Coalition for a Democratic Workplace. The group represents some 500 trade associations including the National Association of Manufacturers, National Restaurant Association, National Retail Federation and U.S. Chamber of Commerce.
Democrats have higher hopes for the measure this Congress with majorities, albeit narrow ones, in both chambers and a Democratic president who ran for office on the promise that he would enact the bill.
But the administration will need to walk a thin line as it attempts to appease the business interests that helped put Biden in office while still following through on pro-union campaign promises.