Their bill won’t pass the Senate, but it tells us what’s coming the next time they’re in charge.
Writing about legislation often feels pointless under divided government, because no partisan bill is going to become law anyway. So it is with the Protecting the Right to Organize (PRO) Act, a labor bill that the Democratic House created and will vote on soon — and that most certainly will not pass the Republican Senate.
These fruitless exercises do give us a sense of what the parties will do when next they seize power, however, and it’s a slow news week, so let’s see what the Big Labor Left has on its mind these days. In short, this is an aggressive bill that doubles down on the coercive unionization system the U.S. already has in place.
A brief primer on that system: Under the National Labor Relations Act (NLRA), private-sector unionization starts with a union trying to get workers to sign cards saying they’d like to join. If half of the workplace signs up, the employer can voluntarily recognize the union (via “card check”); or, far more likely, it can insist on a secret-ballot election. If the union wins, it becomes the workers’ exclusive representative — the business is legally required to negotiate with the union in good faith, and it is illegal for individual workers to negotiate their own deals with the business directly. The law also spells out various “unfair labor practices” ensuring that neither side does anything to interfere with the process. In states without right-to-work, employees unionized this way must support the organization through dues or fees, even if they voted against the union and don’t wish to join it.
With all that in mind, let’s take a look at the biggest proposed changes:
Bye-bye, right-to-work. Workers everywhere could be forced to financially support unions they don’t want to join, because right-to-work laws would be banned.
Agree to a contract or one shall be imposed upon you. In everyday life, when a contract negotiation fails, the result is that . . . there is no contract. Under the bill, failed negotiations would lead to the business being forced into mediation and eventually binding arbitration with the union.
“Stealth” card check. During the Obama administration, Democrats tried to end secret-ballot elections, so that card check would be the end of the process. This bill isn’t so brazen, but when a union loses an election, the National Labor Relations Board would be able to find the employer guilty of election interference and accept the results of the card check instead of the actual vote.
Better rules for me, worse rules for thee. Struggles between unions and management can get brutal, and much of labor law consists of ground rules for how the two sides fight it out. The bill would shift these rules fundamentally in unions’ favor. Businesses, for example, would face greater liability for their violations and could no longer require workers to sit through anti-union presentations during the workday. Unions, meanwhile, would see restrictions on their behavior lightened, especially regarding strikes: Businesses could no longer discourage strikes by hiring permanent replacement workers, and unions could conduct “secondary” or “sympathy” strikes and boycotts against businesses that aren’t even involved in the negotiations at issue.
Hope you liked Obama’s National Labor Relations Board: I’ve written previously about how the NLRA leaves too much to the discretion of the executive branch, and as a result labor law ping-pongs every time the White House changes hands. The bill would change that, naturally by writing numerous Obama-era rules into the law so no future administration could change them back. It would become harder for businesses to rely on independent contractors rather than full employees; unions could stage “ambush” elections so business owners wouldn’t have much time to make their case; franchise businesses such as McDonald’s would often be considered “joint employers” of people hired by individual franchises, and thus exposed to liability for labor-law violations; etc. I do wish Congress would negotiate an end to these issues and write a compromise into the law, but this is not that.
The time is ripe for a reimagining of labor law. The current system is obviously not serving its purpose, as seen in the enormous decline of private-sector unions in recent decades. There are ways we could make the system more flexible and less coercive (see here for a lot of ideas), giving unions an opportunity to regain a foothold without forcing workers to join. But Democrats appear stuck in the past.