Last month, Congress passed the Protecting the Right to Organize, or “PRO” Act, with support from all but one Democrat and five Republicans. The bill introduces sweeping changes to American labor laws and would expand collective bargaining rights more significantly than any law in recent memory.
If passed, the bill would be the most significant long-term economic reform of the Biden administration thus far. After President Joe Biden backed off of his previous support for $2,000 stimulus checks, a $15 minimum wage and the unilateral cancellation of $10,000 worth of federal student loan debt, this has the potential to buy back some goodwill from an increasingly restive progressive wing of the Democratic coalition.
According to the Economic Policy Institute, nearly half of all workers say they want a union in their workplace. However, only 12% are actually represented by one. This comes at the tail end of a 40-year trend of declining membership in unions, representing over 27% of workers in 1979. This trend has been hugely consequential for workers, who have lost an estimated $200 billion in total per year due to the decline. Meanwhile, non-union workers make just 81 cents for every dollar made by union workers.
While some of this unionization decline can be attributed to the outsourcing of manufacturing jobs and the increase in undocumented immigrant labor, a large amount can also be attributed to the efforts of employers and their allies in government to weaken unions’ power. The PRO Act would make it easier for employers to unionize, making it harder for their employers to thwart their efforts and give them more tools to gain concessions once they’ve been organized.
The PRO Act’s most significant provision is the repeal of Section 14B of the 1947 Taft-Hartley Act, which dealt a massive blow to organized labor by allowing states to pass “right-to-work” laws, which are currently active in 27 states. These laws allow workers to be employed in unionized workplaces without paying dues to the unions representing them, which severely weakens their ability to bargain on behalf of all workers. This has led to a depression of wages for workers in right-to-work states, who make anywhere from 1-6% less than those in states without right-to-work laws, according to a study from UCLA.
The act would make it easier for gig-economy workers, such as those at Uber, Amazon and DoorDash, to form unions, which they cannot do under the National Labor Relations Act. The bill would allow these workers, currently classified as “independent contractors,” to become classified as employees under the National Labor Relations Act, entitling them not only to the right to organize, but also to receive healthcare, retirement and workers’ compensation benefits.
Some freelance workers and employers have expressed fears that this would lead formerly independent contractors to be fired, forced to unionize or lose their flexibility. However, these fears misunderstand the purview of the bill. According to labor lawyer Brandon Magner in the newsletter Labor Law Lite, the re-classification “would only affect the analysis of employee vs. independent contractors status for the purposes of the NLRA,” and would not affect it “for the purposes of state laws, such as those involving minimum wage, overtime, unemployment compensation, or various benefit schemes.” This means that gig workers could gain the right to organize while maintaining the benefits that come with the status of an independent contractor at the state level.
In addition to these major changes, the PRO Act includes a host of provisions designed to provide unionizing workers with previously unavailable tools. For instance, the bill would allow workers who are not on strike to enact “secondary boycotts” on businesses whose workers are striking to add pressure on employers. It would also allow for the streamlining and shortening of the union election process, requiring employers to recognize unions that are formed with majority support through a petition or card-checking in place of a formal election process, which can be used by employers to prolong and undermine the unionization effort.
Other provisions would remove some of the most commonly used union-busting tactics. Employers would be prohibited from hiring permanent replacement workers to undermine strikes and holding mandatory meetings to present anti-union propaganda. Employers also often outright ignore the law, threatening and firing workers who attempt to unionize, knowing that the National Labor Relations Board will not inflict monetary penalties on them beyond restitution. The PRO Act would allow the NLRB to enforce monetary penalties up to $50,000 on employers who violate the NLRA.
If passed, the PRO Act would be the biggest gain for the American labor movement since the Wagner Act first protected the right for private-sector workers to unionize all the way back in 1935. This is fitting, as President Biden has made comparisons between himself and former President Franklin Roosevelt, who made strengthening unions a key plank of his New Deal agenda to move American workers toward the light in a time of crisis.
But getting the PRO Act through Congress will not be easy. In fact, it will likely be the biggest gut check that the Biden administration will face in the early days. The bill is dead on arrival without reforms to the filibuster, which in its current form would require an impossible 60 votes to pass the Senate. After a long period of arguing that it should stay as it is, effectively killing his agenda outright, Biden seems to have come around on the need to, at the very least, reform the filibuster. Rather than requiring a simple majority, Biden’s preferred tactic is to have Senate rules re-written to require the minority to stall the vote by dragging out debate verbally a la Robert Byrd or Strom Thurmond, which is vastly more taxing than the silent filibuster that is currently used.
But if Biden truly wants to emulate FDR and be “the most pro-union president you’ve ever seen,” he has to put his money where his mouth is. The time for talk is over. Biden must finally answer Pete Seeger’s immortal question: “Which side are you on?”