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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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