PRO and con: The ups and downs of ‘Protecting the Right to Organize'

The labor movement may not ever have a better opportunity to obtain long-sought labor law reforms than they do right now. 

President Joe Biden ran for office in 2020 promising not just to protect union jobs, but to be the strongest pro-union president to ever occupy the Oval Office. And now, with Democratic majorities in both chambers of Congress, labor leaders are hoping they can capitalize on the current political environment in Washington, D.C. 

At the top of their wish list is passage of the Protecting the Right to Organize Act, also known as the PRO Act, a priority shared by Biden and members within his administration. The measure is a sweeping pro-union bill that proponents say would be the first major labor law overhaul of its kind since the National Labor Relations Act of 1935. 

Sponsored by Rep. Bobby Scott, a Democrat from Virginia, the PRO Act would allow the National Labor Relations Board to levy financial penalties against businesses when a worker is wrongfully fired or experiences “serious economic harm.”

The PRO Act would also effectively neuter state right-to-work laws, which allow workers to opt out of unions and avoid paying dues while maintaining the pay and benefits associated with collective bargaining agreements. The labor law reform bill would also require employers to finalize a union’s first collective bargaining agreement through mediation and arbitration if in dispute, while also barring businesses from requiring workers to attend so-called “captive audience” meetings, where employees are forced to attend gatherings intended to discourage unionization under threat of losing their jobs. 

When taken together, the legislation represents the most comprehensive set of labor law reforms in decades and would strengthen the power that unions and its members have in the workplace, labor leaders say. 

“It'll be the first major piece of pro-union legislation since the National Labor Relations Act passed,” said Rick Bloomingdale, president of the Pennsylvania AFL-CIO. Bloomingdale said that the NLRA was instrumental in the labor movement, allowing workers to organize much easier, as it cracked down on mistreatment of workers for unionization efforts. “We had unions prior to the National Labor Relations Act and obviously folks were negotiating and had collective bargaining agreements – but the National Labor Relations Act really set the framework for folks to be able to do it without being beaten or killed or all the things that happened pre-National Labor Relations Act around organizing.”

But a series of subsequent laws – such as the Taft-Hartley Act and Landrum-Griffin Act – undermined the original provisions of the NRLA, Bloomingdale said, and allowed states to pass right-to-work laws. These laws prohibited both companies and unions from requiring workers to be union members. Bloomingdale said the PRO Act, however, would help rebuild the power of workers to stand up to fear and intimidation in the workplace.

“The biggest reason people don't join unions is fear, because most of them have a mortgage or rent or other expenses and they can't afford to be fired for union activity. So, it's hard to get people to take a stand,” Bloomingdale said. “Even though they want that dignity, they also need that paycheck. When we eliminate and make it personal to supervisors [that] when you break the law, you're going to pay, then maybe we get some of the fear out of organizing.” 

Under the PRO Act, union elections would also be permitted to be held remotely or through the mail. Employers would also be barred from permanently replacing workers who participate in strikes, and workers would be allowed to participate in “secondary strikes,” which allow workers to strike in support of workers at other companies. 

Wendell Young IV, president of UFCW Local 1776 Keystone State, said the PRO Act would restore protections originally included in the National Labor Relations Act that have been whittled away by court rulings and other actions. 

“The law has been diluted and watered down through court decisions that administrative law agency decisions, and workers really, truly no longer have the rights that the law talks about,” Young said. “So, what the PRO Act will do is restore the law. It'll hold companies and company executives responsible for wrongdoing. It'll have meaningful penalties for those individuals, including the CEOs, and the companies.”

The proposal is beloved by labor leaders, as it would afford unions greater bargaining power and more organizing flexibility, but it has also earned considerable opposition from business groups and organizations dedicated to helping workers leave unions.

After the House passed the bill in March, Pennsylvania Chamber of Business & Industry President Gene Barr issued a blistering statement calling the PRO Act “a radical piece of legislation that would upend decades of established labor law, significantly stacking the deck in favor of unions.”

Barr said the bill “will encourage unfair lawsuits, stifle employers’ right to communicate with their workforce during union elections and force an unrealistic standard for hiring independent contractors that will also hurt free-lancers and gig workers,” adding that the legislation would strike a devastating blow to businesses trying to regain their footing after coronavirus-induced economic shutdowns.

At the heart of the opposition from business leaders is the bill’s sweeping changes to the definition of an employee, which would make many gig workers, such as those who drive for Uber, Lyft and DoorDash, eligible to unionize. The bill would subject gig workers to a three-pronged test to determine whether they’re an independent contractor or an employee – a test that labor leaders say would benefit workers who have sought – and advocated for – the right to unionize. 

But opponents of the legislation argue that the bill would strip away choice from workers not interested in unionizing, such as those who pursue gig work on the side. 

“In reality, it would strip millions of workers from the ability to make their own decisions about union participation,” said Hunter Tower, the Pennsylvania Director of the Freedom Foundation, a nonprofit public policy think tank devoted to combatting the influence of public-sector unions.

Tower specifically pointed to gig workers at companies like Uber and Lyft, suggesting they could lose their independent contractor status, and the flexibility that comes with it, if the PRO Act is passed at the federal level and independent contractors are allowed to unionize. 

“It's basically stunning and brazenly opposed to giving workers choices,” he said.

Tower also said the PRO Act would likely benefit the Democratic Party, given that unions often align themselves with Democratic lawmakers. According to Open Secrets, public sector unions donated more than $18.7 million in 2020 to federal candidates, parties and outside organizations that supported Democratic causes, compared to $2.1 million toward Republican causes. 

Nate Benefield, vice president and COO of the Commonwealth Foundation, a conservative think tank based in Harrisburg, also expressed concerns with provisions in the PRO Act that would essentially end right-to-work laws.

Even though Pennsylvania is not a right-to-work state, Benefield said right-to work laws are beneficial because they provide workers with choices when it comes to unionization. “As an employee, you can join a union and choose to join a union; you can also choose not to join the union and not be forced to pay a fee,” Benefield said, adding that right-to-work laws “in many ways forces the union to be more representative” of its members.

Agreeing with Tower, Benefield also suggested that the PRO Act might be more of a tool to invigorate Democratic fundraising than a proposal with a real chance of becoming law. Benefield said the PRO Act resembles “one of those big ideas” that was designed to encourage political donations “without really having prospects of it becoming law.”

Young bristled at claims that the PRO Act was a mere political stunt. “It's nonsense,” he said. “This is about protecting workers’ rights.”

Though labor leaders championed the legislation as a surefire way to improve conditions for workers, they were upfront about the political realities facing the proposal. Although the PRO Act advanced out of the U.S. House with a 225-206 vote in March, backers of the bill don’t have a filibuster-proof majority of 60 votes to move it out of the Senate and onto Biden’s desk. Bloomingdale said it’s more likely that pieces of the legislation get approved through the budget reconciliation process. “Obviously, we're not going to break any kind of filibuster,” he said. 

The budget reconciliation process – a wonky, procedural tactic used to pass budget-related policies – presents certain limits to what can and can’t be included in the final package. Sen. Bernie Sanders, the chairman of the Senate Budget Committee, has said parts of the PRO Act will be included in it, but has not elaborated on what those pieces will be.

Bloomberg Law has reported, however, that those components will likely be the financial penalties against companies that violate workers’ union rights.

Bloomingdale highlighted the penalties, as well as banning captive audiences, repealing right-to-work laws and ensuring unions get initial contracts, as some of the PRO Act’s most important features. Young said passing the legislation in its entirety would be ideal: “I think they're all relatively equal in value, but they all make up a complete picture. Absent any one of those pieces, you're missing a piece to the picture, and it leaves space for the kind of skullduggery that employers have too much freedom right now.”

And while Democrats have largely been the ones pushing for the advancement of the legislation at the federal level, Young stressed that some Democrats, mainly Blue Dogs, have been the ones that have impeded expansive labor law reforms in the past. 

“There's been talk of labor law reform – this time that comes under the name PRO Act – it's had other names in the past. And each time when Democrats had the White House and both chambers, it's the Blue Dog Democrats that failed the workers of this country,” Young said. “I don't blame the Republicans. They know who butters their bread. They're gonna do whatever those people want them to do. While the majority is very thin right now, Democrats are the majority. Democrats claim to be the party of the workers in this country and generally vote much better for them than the Republicans do. So it's time for them to stand up and do the right thing for workers – including the Blue Dog Democrats.”