The House of Representatives passed the Protecting the Right to Organize (PRO) Act of 2021 on March 9. Five Republicans joined Democrats to give the bill a 225-206 ticket to the Senate.
The National Law Review said that the PRO Act would represent “arguably the most significant piece of labor legislation since the National Labor Relations Act was passed in 1935.”
The bill would touch on multiple areas of employee rights, union authorities, labor practices and labor law enforcement, and related elections and communications.
In a White House statement of support on March 9, President Joe Biden said, “The middle class built this country, and unions built the middle class. Unions give workers a stronger voice to increase wages, improve the quality of jobs and protect job security, protect against racial and all other forms of discrimination and sexual harassment, and protect workers’ health, safety, and benefits in the workplace.”
The PRO Act would also trump “right to work” laws on the books in 27 states. These laws do not establish any additional right to work per se, but they allow employees to take a job without being required to join the relevant union in that area, if one exists.
Currently, workers who decline to join a union are still eligible for the wage provisions and protections of a management/union bargaining agreement covering that workplace. The PRO Act would allow unions to begin collecting dues from those employees.
Tackling the “employee or independent contractor” debate that has risen to prominence in the gig economy, the bill would also implement the “ABC test” for determining a worker’s status.
Within the HVAC industry, ACCA has voiced strong opposition to the PRO Act and issued an action alert to its members. In a recent ACCA blog post, government relations representative Chris Czarnecki described some areas of concern this way:
- Giving unions the power to demand employers not do business with other non-union companies
- Giving unions the sole determination over the manner elections are conducted — effectively eliminating secret balloting
- Eliminates workers’ rights to remove unions that have failed to adequately represent their interests
- Limiting the ability of businesses and individuals to utilize independent contractors
- Mandating civil fines up to $50,000 for any “unfair labor practice” (double for repeat offenders), and $10,000 daily fines for non-compliance with any National Labor Relations Board order
The Associated General Contractors of America has called the PRO Act “anti-construction,” “anti-worker,” “anti-recovery,” and even “anti-union.”
Something to Build On
Representing 2,600 contractors with considerable union membership, the Mechanical Contractors Association of America (MCAA) sees the version of the PRO Act that passed the House as “an opening bid for potentially pared down reforms,” said general counsel John McNerney.
In the event that compromise discussions lead to a construction-specific organizing section, “there might even be some aspects of that reform that might be negotiated so that the open-shop might even find it advantageous in specific areas.”
MCAA singled out worker misclassification as a major industry problem that continues to require attention, legislative or otherwise. MCAA feels that this practice alone “constitutes a per se violation of an employee’s right to engage in protected concerted activity under the NLRA.”
The association does have issues with some of the bill’s language. McNerney cited proposed changes to picketing, striking, and subcontracting rules as “highly problematic” for both its members and their members’ nonresidential client base.
“Of course,” McNerney concluded, “all this is not to say that MCAA has any current realistic hopes of a transformative compromise discussion in the current environment on the Hill.”
McNerney’s skepticism seems justified. The PRO Act first passed the House a year ago, but Majority Leader McConnell let the bill die via no action in the Senate. This year, Majority Leader Schumer is expected to pick up the legislation.
However, the bill would need the support of 10 Republicans to reach the 60 senators needed to overcome a likely GOP filibuster and proceed to a floor vote.
If the Senate changes its own rules to remove or modify the filibuster — a subject of some debate but no real movement through the first quarter of 2021 — then prospects for the PRO Act could improve instantly and significantly.
At present, the Republican ability to block a floor vote, a move that would reflect considerable opposition to the bill from groups such as the U.S. Chamber of Commerce and the National Retail Federation, probably spells the end of the road for the legislation this year.