Protecting the Right to Organize (PRO) Act - H.R.2474
BACKGROUND:
Labor unions have existed in the United States for centuries, with the first successful strike — in the building trades — occurring in 1791. The influence of labor unions waxed and waned during World War I, the prosperity of the 1920s, the Great Depression, and World War II (during which strikes were prohibited), but once World War II was over unions grew steadily. Union power peaked in the 1950s when 28% of the American workforce was unionized.
The labor movement is at least partially responsible for the rise of the middle class in the United States, with wages negotiated by unions (especially in mining and manufacturing) allowing individuals without a college education to support families and afford homes, leisure activities and higher education.
The labor movement also pushed for broader policy changes that improved working conditions for everyone, including laws prohibiting child labor, providing for a minimum wage, and providing equal pay for equal work regardless of race or gender. However, those achievements also rendered unions less important: Workers had legal protections regardless of whether they were in a union.
Historically, the bulk of union membership in the private sector was in manufacturing and mining industries, and as those industries declined in the U.S. (in particular with jobs being moved to other countries) union membership began to decline. That decline was hastened, many economists and others have argued, because unions in certain industries — notably the steel and automobile industries — had won contracts with outsized wages and benefits that ultimately rendered their companies uncompetitive.
Unions did, however, find growth in the public sector, with increasing numbers of state and municipal government employees becoming unionized — including teachers, police officers and firefighters.
According to the latest report from the Bureau of Labor Statistics (BLS), 10.3% of American wage and salary workers were members of unions in 2019, down from 20.1% in 1983 (the first year for which there is comparable data). By sector, 33.6% of public sector workers were union members in 2019 while only 6.2% of private sector workers were unionized. Non-union workers earned only about 81% of their union counterparts in 2019 (although BLS notes that there are various factors that contribute to the earnings difference).
Current Challenges for Unions
In addition to the decline of mining and manufacturing jobs and the transformation of the U.S. economy into a service economy, the economy has changed in other ways that has made it difficult for unions to attract new members.
More and more individuals work as independent contractors rather than employees, and therefore don't have bargaining rights. And more states (currently 28) have Right to Work laws that enable states to prohibit compulsory union membership and thereby allow workers in a company that is represented by a union to choose not to participate in the union or pay union dues even though they will receive the same wages and benefits negotiated by the union on behalf of its members.
Some companies have aggressively acted to prevent workers from organizing, including by threatening workers with termination. Unions allege that other employer actions, while skirting the edge of legality, make it clear to employees that action to organize is discouraged and may be punished. At the same time, some unions, notably the United Auto Workers, have recently been involved in scandals where union dues were used to purchase roughly $1 million in luxuries for union leaders.
The Obama administration took numerous regulatory actions intended to make it easier for unions to organize workers at businesses, actions the Trump administration has moved to reverse. Labor advocates also note that the National Labor Relations Board, which is responsible for enforcing collective bargaining rights under the National Labor Relations Act, lacks sufficient enforcement authority to ensure compliance with labor law.
Member Concerns
Supporters of the bill, primarily Democrats, say it is needed to protect workers and their right to organize and form unions. They claim that union membership has declined because of political attacks against unions, decisions by the National Labor Relations Board (NLRB) that hamper efforts to organize, and aggressive employer tactics that tilt the playing field against unionization and intimidate workers. They point to NLRB's reversal of regulations issued by the Obama administration to demonstrate how the very agency that is meant to support workers' rights has been acting to undermine them: These actions necessitate legislation clarifying and strengthening the right to organize. They also argue that longstanding weaknesses in the law, such as denying NLRB enforcement authorization and the lack of meaningful penalties for employer violations, have stifled workers' ability to organize, which in turn has led to wage stagnation and income inequality.
Opponents of the bill, primarily Republicans, say it represents an assault on the workplace rights of both employers and employees in order to help a special interest: labor unions. The bill, they say, will subject employees to harassment by union leaders, expand the pool of employees that are harassed, and undermine individual privacy by sharing information with union organizers. They say it infringes on workers' right to free speech by forcing workers who are not union members to contribute to unions for political causes they don't support. The bill assumes employers are guilty until they can prove that they didn't interfere in a failed election to unionize, and it infringes on employers' privileged association with their own legal counsel. They say union membership has plummeted because of unions' own failings and corruption, and that the bill will benefit only the lawyers who bring suits against employers, resulting in fewer jobs and higher unemployment.
SUMMARY: This bill modifies the National Labor Relations Act to give the National Labor Relations Board (NLRB) greater enforcement authority, as well as to make it easier for workers to unionize.
Among the measure's provisions, it gives the NLRB authority to enforce its own orders, allows the board to impose civil monetary penalties against employers who engage in unfair labor practices and to seek court injunctions against such companies, and empowers the NLRB to order employers to pay wronged employees larger monetary awards.
It also modifies the process under which employees may organize and vote to join a union, including by requiring the NLRB to schedule pre-election hearings to be held within eight days of when workers file an election petition with the NLRB and by limiting the ability of employers to add unrelated employees who don't want to unionize to a proposed bargaining unit that will be voting on unionizing; it expands the number of employees eligible for collective bargaining by narrowing the definition of supervisor and independent contractor who are not eligible, and by modifying the definition of joint employer; and it prohibits employers from permanently replacing employees who strike and from discriminating against employees who support or participate in a strike.
NLRB Enforcement Authorities
The National Labor Relations Board is an independent federal agency established in 1935 to administer the National Labor Relations Act. The board protects employees' rights to organize and elect unions as their collecting bargaining representative. NLRB also prevents and remedies unfair labor practices committed by private sector employers and unions.
The bill gives the NLRB the authority to enforce its own orders, and also allows the board to impose civil monetary penalties against employers who engage in unfair labor practices, to seek court injunctions when unfair labor practice complaints are filed against employers, and to order employers to pay wronged employees larger monetary awards.
It also authorizes the board to conduct economic analyses when deciding cases (which is currently prohibited), and it reinstates the requirement that the NLRB annually report to Congress on its activities and operations.
Enforcement of NLRB Orders
Under current law, NLRB is unable to enforce its own orders; when an entity does not comply with the board's orders, the NLRB must seek enforcement through the U.S. Courts of Appeals.
The bill authorizes NLRB to enforce its own orders, requiring employers that fail to comply with an NLRB order to pay a civil monetary penalty of up to $10,000 for each violation.
Employers adversely affected by NLRB orders could ask federal courts to review the order; such employers must seek court review within 30 days of receiving an NLRB contempt order.
Other Civil Monetary Penalties
The bill authorizes the NLRB to impose civil monetary penalties for unfair labor practices and other violations.
Under the measure, the NLRB could impose a civil monetary penalty of up to $50,000 against an employer who prevents employees from organizing or who punishes employees for trying to organize. When setting the size of the penalty, NLRB must consider the gravity of the violation, the impact of the violation on the employee, and the size of the employer. If the employer had committed another violation in the previous five years, the maximum penalty would increase to $100,000.
It allows the NLRB to assess a civil monetary penalty of up to $500 when an employer fails to post a notice of employee rights and protections in the workplace, fails to inform new employees about their rights under the NLRA, or fails to produce voter eligibility lists in a timely manner.
The NLRB would also be authorized to hold an officer or director of a company personally liable, and assess a civil penalty against that individual.
Injunctions
The bill requires the NLRB to seek temporary injunctions against employers that engage in unfair labor practices that prevent employees from organizing, that punish employees for trying to organize, or that cause serious economic harm to an employee.
The federal district court where the NLRB seeks the injunction would be required to grant the requested relief, unless the court concludes it is not likely to succeed on the merits.
If an employee is harmed by an employer's unfair labor practice and the NLRB fails to seek an injunction within 60 days of the employee filing a charge, the employee would have 90 days to bring a civil action against the employer. Similarly, if the NLRB notifies the employee it will not issue a complaint, the employee would have 90 days to bring civil action.
Employee Awards
Under current law, when the NLRB orders an employer to pay a former employee back pay because of a labor violation that caused serious economic harm (including by firing the employee) and the employee subsequently earned income at another job, the amount earned at the other job is subtracted from the NLRB-ordered back pay.
The bill requires sanctioned employers to pay such employees their entire back pay, without any such reduction.
It also allows the NLRB to award the employee front pay, when appropriate, as well as consequential damages and liquidated damages in an amount that is twice the amount of other damages awarded.
The bill states that employees whose rights are violated under the National Labor Relations Act cannot be denied remedies under that law on the basis of their immigration status.
Union Elections
Under current law, workers who seek to form a union must file a petition with the NLRB showing support from at least 30% of those employees who would be eligible to vote to unionize, after which the NLRB ensures there are no legal bars to an election by the workers and notifies both the employer and prospective union that a pre-election hearing regarding the workers' request will be held.
At that hearing the parties consider various issues, including the employer's position regarding the appropriateness of the proposed labor bargaining unit and the type, date and location of the election. Based on the hearing, the NLRB can then set conditions for an election to unionize, with the employer required to post at the workplace a Notice of Election once the election is scheduled and provide to the union a final list of those employees who are eligible to vote to unionize.
After the election to unionize is held and the votes tallied, parties may file objections to the NLRB regarding voter eligibility, the conduct of the election or conduct that affected the results of the election. The NLRB must seek to resolve objections and may hold a post-election hearing, which must occur within 14 days after the votes are tallied or as soon as is practical.
(The NLRB in 2014 under the Obama administration issued regulations requiring that pre-election hearings be held within eight days of the filing. These regulations took effect on April 14, 2015, and remain in place. However, the NLRB under the Trump administration last year issued new regulations to eliminate that requirement; those regulations take effect April 16.)
Modifications to Election Process
The bill statutorily requires the NLRB to schedule pre-election hearings to be held within eight days of when workers file an election petition with the NLRB, and to schedule post-election hearings within 14 days of receiving objections to the election results.
It removes the standing of employers to participate in pre-election hearings as a litigant (rather, those hearings would be considered investigatory fact-finding hearings), and limits the ability of employers to expand the universe of employees who will be able to vote to unionize (currently, an employer can ask the NLRB to expand the unit and add other employees for the election, which employers have used as a means of diluting union support). Under the measure, the NLRB must accept the union's proposed bargaining unit of employees — unless any excluded employees share an overwhelming "community of interest" with those employees in the proposed unit.
Within two business days after the NLRB directs an election is to occur, employers must provide the union with a list of employees' names, addresses, work locations, shifts, job classifications, and if available to the employer, personal landline and mobile telephone numbers and email addresses. The information must cover all employees in the bargaining unit and be in a searchable electronic format.
The measure allows union representation elections to be conducted electronically, through certified mail, or at a location that is not owned or controlled by the employer, if the union makes such a request.
NLRB Recognition of Unions
When a majority of valid employee ballots have been cast in favor of a union, the bill requires the NLRB to not only certify the labor organization on the employees' behalf, but also to issue an order to the employer requiring the employer to engage in collective bargaining.
In cases in which the NLRB determines that a failed election for union representation should be set aside because the employer interfered in the election and the employer can't demonstrate that its actions were unlikely to have affected the outcome, the agency would be authorized to order a new election with appropriate safeguards. Or, if the year before a majority of employees in the voting unit had signed authorization cards designating the union as their representative, the NLRB could certify the labor organization and order the employer to bargain with it.
Organizing Activities
The bill allows employees to use workplace email or other employer-provided electronic communication systems to engage in concerted union organization activities — unless the employer presents a compelling business reason it should not occur.
It prohibits employers from requiring the attendance of employees at any company activities unrelated to the employee's job, including those intended to present the company's position on unions.
Employers also would be required to disclose any arrangement they have with legal counsel to conduct activities to persuade employees to exercise or not exercise their right to collective bargaining. Such activities include: planning or conducting employee meetings; training employer representatives to conduct such meetings; coordinating or directing activities of employer representatives; establishing or facilitating employee committees; identifying employees for disciplinary action, reward or other targeting; and drafting or revising employer personnel policies, speeches, presentations or other communications to be delivered to employees.
Initial Collective Bargaining
The bill establishes a new process for initial collective bargaining between an employer and a new union.
Under the measure, when a new union submits a request to the employer for bargaining, the union and employer must meet within 10 days to begin negotiations — although that time period could be longer if both parties agree. If they cannot agree after 90 days (or longer if they both agree to more time), either party could request mediation facilitated by the Federal Mediation and Conciliation Service (FMCS). And if after 30 days (or longer if both parties agree) that agency cannot help them reach conciliation, it must refer the dispute to an arbitration panel.
The arbitration panel would have three members: one selected by the union, one selected by the employer, and one neutral member mutually agreed to by both parties. Parties would have 14 days to choose arbitrators, or the FMCS would choose them. Two of the three arbitrators must support a decision for it to be final, and it would be binding for two years unless amended by written consent of both parties.
Decisions reached by the arbitration panel must be based on the size and type of the employer's operations and business and its financial status and prospects; the cost of living for employees and their ability to sustain themselves, their families and their dependents; and the wages and benefits supplied by other employers in the same business.
Fair Share Agreements
The bill permits unions and employers to enter into collective bargaining agreements that require all employees in a bargaining unit, as a condition of employment, to contribute fees to the union for the cost of representation, contract enforcement and related expenditures. This provision would hold even in so-called "right to work" states that prohibit unions from collecting fees from non-union employees.
Expand Workers Eligible for Collective Bargaining
The bill expands the current definition of the term joint employer and modifies the definition of employee to list three conditions that must be present in order for an individual to be classified as an independent contractor — rather than an employee who is eligible for collective bargaining.
It also narrows the definition of supervisor, specifying that a supervisor must operate as such for a majority of his or her work time and removing from the definition the duties of assigning tasks to others and responsibly directing them. (Under current law, managers and supervisors are prevented from joining unions or being part of the bargaining unit because they are considered to be part of a company's management rather than its labor force. Narrowing the definition of supervisor would allow more workers to be union members.)
Joint Employer
The bill defines joint employers as those entities that co-determine or share control over the essential terms and conditions of an employee's employment — thereby making that employer eligible for collective bargaining with a union. Under the measure, control includes relevant direct control and indirect control over terms and conditions, authority to control terms and conditions, and exercised control over terms and conditions.
(The definition of "joint employer" has been in dispute since 2015, when the NLRB under the Obama administration determined that a company must only have the potential to exert control over terms and conditions of employment in order to be an employer, rather than having direct and immediate control, as had been the previous standard. At the end of 2017, the NLRB under the Trump administration reversed that definition, but the vote was subsequently vacated due to a potential conflict of interest by one of the board members. The Obama-era definition remains in place until March 16, when a new regulation defining joint employer is scheduled to take effect.)
Employees vs. Independent Contractors
Under the law, only workers who are employees, and not independent contractors, have the right to organize and collectively bargain.
The bill defines workers as employees — and not independent contractors — unless the following three conditions are met:
The individual is free from control and direction in the performance of the service, both under the contract for the performance of service and in fact;
The service is performed outside the usual course of the business of the employer; and
The individual is customarily engaged in an independently established trade, occupation, profession or business of the same nature as that involved in the service performed.
Other Employer, Employee & Union Actions
The bill eliminates current legal prohibitions against a union conducting a secondary boycott and against a union conducting recognition picketing. It allows picketing to convince an employer to cease doing business with another company.
(A secondary boycott is an attempt to influence one company by exerting pressure on another company. For example, a union could tell a supplier of the company whose employees they represent that they will ask the public to boycott the supplier. Recognition picketing is picketing to obtain an employer's recognition of the union as the employees' bargaining representative. Under current law recognition picketing is prohibited if the employer has recognized another union, if a valid unionization election was held within the last year, or if picketing is conducted for more than 30 days without an election petition having been filed.)
The measure specifies that employees would have the right to strike regardless of the duration, scope, frequency or intermittence of any strike.
Employer Responsibilities
The bill prohibits employers from permanently replacing employees who strike, and from discriminating against employees who support or participate in a strike. Employers would be prohibited from locking employees out of the workplace unless a strike has been threatened or is happening.
Employers would not be able to withdraw union recognition unless employees hold a decertification election.
The measure requires employers to post and maintain notices to employees of their rights under the National Labor Relations Act (NLRA), and to notify each new employee of the information in the notices. It prohibits employers from communicating or misrepresenting to employees that they are not covered by the NLRA, when they are in fact covered.
It also prohibits employers from entering into or enforcing agreements where an employee promises not to bring or support any kind of joint, class or collective claim relating to his or her employment. Employers would be prohibited from coercing employees into promising not to pursue such activities or from retaliating against or threatening an employee for refusing to make such a promise.
CBO Cost Estimate
The Congressional Budget Office (CBO) estimates that the bill would have no effect on direct spending but would increase revenues by $39 million over 10 years. Because the measure affects revenues, pay-as-you-go procedures apply. CBO estimates that the legislation would increase spending subject to appropriation by $3 million over five years, assuming appropriation of the necessary amounts.
The bill contains both intergovernmental and private sector mandates, as defined in the Unfunded Mandates Reform Act (UMRA). CBO estimates that the cost of the intergovernmental mandate would be below the annual threshold for the intergovernmental mandates established by UMRA ($82 million in 2019, adjusted annually for inflation), but that the aggregate cost of complying with the private sector mandates would exceed UMRA's annual threshold ($164 million in 2019, adjusted annually for inflation).
