House Democratic Labor Agenda Includes Card Check Revival, Expanded Strike Fortifications

May 10, 2019

The House Education and Labor Committee this week held a hearing on an HR Policy-opposed sweeping rewrite of American labor laws, characterized by former NLRB Chairman Phil Miscimarra of Morgan, Lewis & Bockius as a measure that would have a “destabilizing impact on U.S. employees, employers, the general public, and unions.”

Among the significant components of the Protecting the Right to Organize (PRO) Act (H.R. 2474/S. 1306): 

  • Elimination of an employer’s role in resolving election issues before the NLRB;

  • Card check certification of a union that has lost an election where the employer committed any labor law violations or “otherwise interfered with a fair election” unless the election outcome was not affected;

  • Protection of brief, frequent “intermittent” strikes;

  • Broad joint employer liability, including situations where one employer had “indirect control” or “reserved authority to control” the working conditions of another employer’s employees;

  • Narrow independent contractor status, which would not exist unless a worker’s service is “performed outside the usual course of the business of the employer” (the so-called “ABC test” that currently exists in California’s wage and hour laws);

  • Elimination of the 70-year-old prohibition against “secondary boycotts, where employees strike their own employer in sympathy with the employees of another;

  • Elimination of state “right to work” laws;

  • Binding arbitration to decide initial contracts with newly elected unions;

  • Allowing class action lawsuits notwithstanding a signed employment arbitration agreement; and

  • Substantial increases in remedies, penalties and use of injunctions.

AFL-CIO President Richard Trumka spoke in favor of the bill, claiming that the current labor laws are “woefully outdated,” and allow “bad actors to do everything to undermine union organizing.”  In contrast, Miscimarra stated that “enforcement of the National Labor Relations Act has been substantially more effective than other labor and employment laws.”  Moreover, the legislation “does not adequately consider the competing interests of employees, employers, unions and the public, which have been carefully balanced by Congress for important reasons in the past 80-plus years.”

Be smart:  Sponsored by Education and Labor Chair Bobby Scott (D-VA) with 79 cosponsors, the bill should have little problem passing the committee, but no chance of seeing action in the Senate, where it was sponsored by HELP Ranking Member Patty Murray (D-WA) with 39 cosponsors.  A more relevant question is whether it will have smooth sailing in the full House, where some moderate Democrats are starting to push back on a nationwide minimum wage increase and potentially other progressive measures.  For comparison, during the Obama administration a relatively narrower “card check" bill passed the House, but was unable to get the requisite 60 votes in the Senate even when the Democrats had a 60-seat majority.