Its still Striketober, and people are taking notice. Gallup tells us that unions have the highest public favorability rating theyve had in half a century. And yesterday, a poll conducted by Data for Progress asking respondents if they favored employees going on strike for better wages, benefits, and working conditions found that 74 percent of Americans, and even 60 percent of Republicans, approved.
None of this, however, has translated to any congressional legislation bolstering Americas long-beleaguered unions. In fact, we havent seen that in the U.S. since World War II.
However, that 70-year-plus record of refusing to shore up the worker power that employers and the courts have steadily eroded may be coming to an end. Well, a partial and fragmentary end, fittingly for the partial and fragmentary bill known as the Build Back Better Act. Nevertheless, any legislation that would make it easier to join a union in America would be an oasis in a desert of inaction.
The House has already passed, on a party-line vote, the PRO Act, which would effectively ban employers drives to thwart their employees efforts to form or join a union and bargain collectively, even though in theory those drives are already banned by the 1935 National Labor Relations Act. During the decades in which the act has been steadily diminished by court rulings, one of its defects has become glaringly visible: It laid out no punishment for employers when they violate the worker rights the act once guaranteed.
For example, currently, if an employer illegally fires a worker for their pro-union stance, the employer may be compelled, after what is often a years-long process, to rehire that worker and pay them what they would have earned on the jobless what they may have made on other jobs theyve taken in the interimand post a piece of paper somewhere in the workplace acknowledging that this has happened. This penalty is not really worth the paper the acknowledgment is printed on, and serves only as a minor, glancing cost of doing anti-union business, far cheaper than higher wages and benefits.
The 70-year-plus record of refusing to shore up the worker power that employers and the courts have steadily eroded may be coming to an end.
The PRO Act seeks to end this perverse state of affairs by specifically banning what are now common employer practicesfiring workers seeking to organize, compelling workers to attend management propaganda meetings, and the likeand requiring courts to issue stop-and-desist orders if employers violate those bans. But so long as the filibuster remains the rule in the Senate, theres no chance the PRO Act can pass there, as all Republicans oppose it, the GOPs rank-and-file support for strikes and unions notwithstanding. Senate Democrats have worked hard to unify around the PRO Act, but its meaningless as long as minority rule reigns in the Senate.
Even so, elements of the PRO Act that affect federal budgetary matters can be made part of a reconciliation bill, and thats what has happened to one element of the act. That element stipulates that employers can be fined from $50,000 to $100,000 for each unfair labor practice they commit, in addition to paying whatever damages the worker can claim. The PRO Acts creation of a fine will certainly diminish employer lawbreaking, particularly since unfair labor practices often impact many workers.
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The good news is that Democrats believe they have the votes to include this provision in the Build Back Better Act. All House Democrats (with the possible exception of one: Texas Rep. Henry Cuellar, the only Democrat to vote against the PRO Act on the House floor) and all 50 Democratic senators plus VP Kamala Harris appear to support its inclusion.
The bad news is that it still has to pass muster with the Senate parliamentarian, who rules on whether reconciliation provisions sufficiently affect budgetary outcomes over the next decade to merit inclusion. And when it comes to the parliamentarian hurdle, no one really knows how she will rule. Mind you, Democrats can overrule the parliamentarian, but theyve shown little inclination to do so in this session of Congress.
Two provisions that were not part of the PRO Act, but which could nonetheless positively affect the future of unions, are floating around as possible tax code changes in the reconciliation bill. The first would restore the tax deductibility of union dues. The second would make employers expenditures on opposing their employees efforts to unionize no longer a deductible business expense. These dont seem all that likely to raise the Senate parliamentarians eyebrow, but neither are they guaranteed to make it into the BBB bill, due to potential opposition from caucus members.
So, the much vexed and diminished BBB bill may actually include a provision or two that improves, however marginally, workers ability to have some voice on the job. Or not.