Rep. Levin: Voters Strongly Support Passing the PRO Act
By Congressman Andy Levin
Because of the filibuster, most legislation requires 60 votes in the Senate to become law. One exception to this rule is a process called budget reconciliation, which allows Congress to “bring existing spending, revenue, and debt limit laws into compliance with current fiscal priorities established in the annual budget resolution.”
There are limitations to what can be included in a reconciliation bill. The most well-known of these limitations is the “Byrd Rule” which prohibits provisions for a variety of reasons. Relevant to this discussion, the Byrd Rule prohibits provisions that do not have more than an incidental effect on expenditures or revenues.
So how does the Protecting the Right to Organize (PRO) Act fit within this process? There is one major section of the bill that could be passed via reconciliation: civil monetary penalties. The current National Labor Relations Act (NLRA) has woefully inadequate remedies. The National Labor Relations Board (NLRB) is prohibited from imposing penalties even for egregious violations of the law, like when an employer fires a worker for trying to form a union. Instead, the most common remedy in these cases is reinstatement with back pay minus any earnings in the interim and a requirement that the employer post a sign.
Effectively, the employer is made to pay only what they would have paid the employee had they not fired them illegally, or usually even less, because most people must find another way to make money to survive, and whatever they make is deducted from the penalty. Meanwhile, the employer can sow fear and doubt among its workforce and crush nascent organizing efforts. This paradigm led Human Rights Watch to declare in 2000, “a culture of near-impunity has taken shape in much of U.S. labor law and practice.” One recent study found that the NLRA’s current remedies are so weak that an employer who is certain they’ll be caught may still have a financial incentive to break the law anyway.
The PRO Act includes an array of new remedies to fight union busting, but the most likely to survive a Byrd rule challenge are the civil monetary penalties. Per violation, those penalties are:
Up to $500 for relatively minor cases, like failure to maintain notice postings of workers’ rights under the NLRA or the failure to provide a prospective voter list;
Up to $10,000 for failure to abide by NLRB orders;
Up to $50,000 for more egregious unfair labor practices, like firing employees for trying to form a union;
Up to $100,000 for repeat offenders; and
Potential personal liability for officers and executives if they participated in, authorized, or knew about the illegal activity but failed to stop it.
The Economic Policy Institute found that employers are charged with violating the law in 41.5 percent of union organizing drives. The imposition of monetary penalties in these cases would have a meaningful effect on revenue and thus penalties should be eligible for inclusion in a reconciliation bill.
Each of the past three Democratic Presidents has tried to reform labor law to varying degrees. Each time they were stymied by the filibuster and, in some cases, recalcitrant Democrats. That’s why the imposition of monetary penalties would be so monumental – it would be the first change to the NLRA to make it easier for workers to form unions since the Wagner Act was passed in 1935. And this is no mere window dressing – monetary penalties would serve as a meaningful deterrent against so much of the union busting behavior we see across the country.
A July poll from Data for Progress found that 56 percent of respondents support passing the PRO Act through reconciliation and 52 percent support increasing penalties for employers who engage in union busting activity. This result is consistent with a similar poll in May, where 59 percent of respondents, after learning about the provisions of the PRO Act, supported the bill – including 56 percent of Independent/Third-Party respondents. In the May poll, 57 percent of respondents supported penalties for election interference.
Voters’ strong support for passing pieces of the PRO Act through reconciliation underscores why Congress must pass the larger bill. There’s no chance for justice for poor and working-class people unless workers are free to form a union and bargain collectively under federal law. We need the PRO Act now, and this is a great first step.
Congressman Andy Levin (@RepAndyLevin) represents Michigan’s 9th Congressional District in the House of Representatives, where he serves on the Education and Labor Committee and the Foreign Affairs Committee.