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Louis Jacobson
By Louis Jacobson March 19, 2024

PRO Act has stalled, but administration is shaping policy through NLRB

As a presidential candidate, Joe Biden promised to make union organizing easier for workers.

His signature legislation to accomplish that goal — the Protecting the Right to Organize, or PRO Act — died in the Senate after passing the House on a largely party-line vote, with near unanimous Democratic support, in 2021. The legislation would have helped labor unions in several ways, including by expanding the definition of who can be covered by federal labor standards, undercutting "right to work" laws in many states, and banning the use of striker replacements.

With the PRO Act's latest version stalled in Congress, the Biden administration has boosted unions in other ways.

A key lever of influence is the president's ability to appoint members to the National Labor Relations Board, an independent federal agency that decides collective bargaining and workers' rights cases. The board has five members, with the president's party usually exerting a 3-2 majority. (The board now has a 3-1 Democratic majority because of a vacancy.)

One of the board's most important decisions, experts say, came in the "Cemex case," which established a new standard for how employers must respond to a request for union recognition. 

In that case, the International Brotherhood of Teamsters sued a cement company, alleging that, before a unionization vote, the company had threatened pro-union employees, surveilled workers and restricted employees communicating with union representatives.

The board in August 2023 not only upheld an administrative law judge's ruling to set aside the election results but effectively declared that the union had won the election because of the company's anti-union actions.

The Cemex case is "hugely significant," said Nick Kauzlarich, media relations and digital director for the Economic Policy Institute, a research group that's generally aligned with unions.

Kate Bronfenbrenner, director of labor education research at Cornell University's School of Industrial and Labor Relations, agreed with Kauzlarich. "This is not an NLRB we've seen before," Bronfenbrenner said.

Other cases that could benefit unions are winding through the board and the courts. For instance, the NLRB moved to expand the scope of the "joint employer rule," which addresses how company working with contractors are treated under labor law. The board decided that companies that hire contractors would face a greater legal challenge if those contractors committed labor violations or refused to bargain collectively.

Meanwhile, Biden's appointment of Jennifer Abruzzo as the NLRB's general counsel "has been beneficial for workers seeking to form unions," Kauzlarich said. Abruzzo's office has actively pursued charges of unfair labor practice violations.

And, at the Labor Department, the Biden administration has expanded the scope of transparency requirements, known as LM-10 reports, for whether companies are using anti-union "persuader activity" — efforts by companies to convince workers not to form a union.

The administration's continuing inability to pass the PRO Act signals that the most far-reaching pro-organizing policies Biden sought have not been implemented. But Biden's reshaping of the NLRB's membership has produced significant victories for unions seeking greater freedom to organize. We rate this promise a Compromise.

Our Sources, Protecting the Right to Organize Act, 2021 version, main index page, accessed March 15, 2024, Protecting the Right to Organize Act, 2023 version, main index page, accessed March 15, 2024

House roll call vote on the PRO Act, accessed March 15, 2024

American Bar Association, "The NLRB's Cemex Decision and Its Implications," Jan. 31, 2024

Economic Policy Institute, "EPI comments on NLRB's proposed rulemaking on the Standard for Determining Joint-Employer Status," Dec. 7, 2022

Akin Gump Strauss Hauer & Feld LLP, "NLRB's Joint Employer Rule Vacated," March 13, 2024

National Labor Relations Board, Who Are We?, accessed March 15, 2024

Bloomberg, "House Republicans Say DOL Overstepping With Labor Disclosure," Aug. 3, 2023

Email interview with Nick Kauzlarich, media relations and digital director for the Economic Policy Institute, March 5, 2024

Email interview with Kate Bronfenbrenner, director of Labor Education Research at Cornell University's School of Industrial and Labor Relations, March 4, 2024

Louis Jacobson
By Louis Jacobson December 17, 2021

PRO Act stalls in Senate, but part is inserted into Build Back Better bill

As a candidate, Joe Biden pledged to send to Congress a set of policies to "build worker power to raise wages and secure stronger benefits."

On March 9, the House passed the Protecting the Right to Organize Act, or PRO Act, which would enhance leverage for labor unions. But the bill — which passed with only five Republican votes — has not advanced in the Senate.

However, a provision from the PRO Act has been included in a version of the Build Back Better bill, the safety net measure that includes many agenda items supported by Biden. It has passed the House and is now under consideration in the Senate.

On Dec. 11, 2021, the Senate Health, Education, Labor and Pensions Committee approved a version of the Build Back Better bill that includes a provision addressing civil penalties for labor violations that is included in the PRO Act.

The provision would change the National Labor Relations Act to impose civil penalties on employers who commit an unfair labor practice, including the potential for individual liability for officers or directors.  

The proposed fines could reach $50,000 per violation, or $100,000 for willful violations or if there is "serious economic harm" to an employee, according to an analysis by the law firm Proskauer Rose LLP

"This would represent a dramatic change to the enforcement of the NLRA, as historically, the NLRA's remedy for employer unfair labor practices has been to compensate the aggrieved party with money (such as back pay) and/or by equitable means (such as reinstatement of a bargaining unit member who was improperly terminated)," wrote Proskauer lawyers Joshua Fox and Timothy Kelly.

The vast majority of the PRO Act has not been included in the Senate's Build Back Better measure and remains stalled in the Senate. Moreover, it is uncertain whether the labor provision will make it to the final version of Build Back Better that is considered in the chamber, including a decision by the parliamentarian whether it is sufficiently fiscal in nature to be included in a budget reconciliation bill. Finally, if it does make it into the final bill, there's no certainty that the larger bill will be approved by the Senate and reconciled with the House version.

Still, the inclusion of a portion of the PRO Act in the Build Back Better bill represents an advance for at least part of Biden's labor agenda, so we rate this promise In the Works.

Our Sources

Proskauer Rose LLP, "Senate Committee Proposes Bill to Add Civil Penalties to NLRA," Dec. 12, 2021, Protecting the Right to Organize Act main index page, accessed March 12, 2021

House roll call vote on the PRO Act, accessed March 12, 2021

Louis Jacobson
By Louis Jacobson March 12, 2021

Joe Biden applauds Alabama workers on union vote; House passes PRO Act

During his career in politics, Joe Biden often touted his ties to organized labor. And during the 2020 presidential race, he promised to be a pro-labor president.

"Because Biden knows we need to build back better, he will include in the economic recovery legislation he sends to Congress a series of policies to build worker power to raise wages and secure stronger benefits," his campaign said.

On Feb. 28, Biden made and tweeted a video in which he supported the right of some 6,000 Amazon workers in Bessemer, Ala., to vote on joining a union.

"Today and over the next few days and weeks, workers in Alabama and all across America are voting on whether to organize a union in their workplace," Biden said in the video. "This is vitally important — a vitally important choice, as America grapples with the deadly pandemic, the economic crisis and the reckoning on race. What it reveals is the deep disparities that still exist in our country."

Biden added in the video that "there should be no intimidation, no coercion, no threats, no anti-union propaganda," Biden said. "No supervisor should confront employees about their union preferences."

Less than two weeks later, the House acted on legislation that seeks to enhance leverage for labor unions.

On March 9, the House passed the Protecting the Right to Organize Act, or PRO Act. Among other things the legislation would:

• Expand the definitions of what types of workers can be covered by federal labor standards;

• Empowers unions to encourage participation in "secondary strikes," in which a union decides to strike in sympathy with an existing labor strike;

• Targets "right-to-work" laws in many states by allowing collective bargaining agreements to require all covered employees to pay union dues;

• Prohibits the use of striker replacements and discriminating against workers who go on strike;

• Bans employers from requiring or coercing employees to attend meetings where arguments are made to discourage union membership; and,

• Tightens enforcement penalties by the National Labor Relations Board.

The measure passed with only five Republican votes, and it would need to win the support of at least 10 Republicans in the Senate in order to proceed to a vote. (At least one Republican, Sen. Marco Rubio of Florida, has expressed support for the workers seeking to organize in Alabama.)

House passage represents a step forward, so we rate this promise In the Works.

Our Sources

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