Acton Institute Powerblog

Explainer: What is the PRO Act?

Nancy Pelosi speaks about the PRO Act, as AFL-CIO President Richard Trumka looks on with approval. (Photo credit: AP Photo / J. Scott Applewhite.)

The House of Representatives passed the PRO Act, the most significant compulsory union membership expansion bill in decades, by a 225-206 vote on Tuesday. The Protecting the Right to Organize Act, or “PRO Act,” of 2021 would force millions of workers to pay union dues against their will, cripple freelance work, erase free speech and privacy rights, skew elections in favor of unionization, and radically increase the federal government’s intervention into everyday workplace disputes.

Here are the facts you need to know.

What does the PRO Act do?

The 2021 PRO Act amends the National Labor Relations Act to reshape relations between employees, employers, and labor unions. As it stands, the main components of the bill are:

1. Forcing workers to pay union dues by striking down “right to work” laws nationwide. The PRO Act would deny workers in any unionized workplace the right to choose not to pay a share of union dues – even if they don’t want to join the union. The bill contains a so-called “fair share” provision that mandates “all employees in a bargaining unit shall contribute fees to a labor organization for the cost of representation, collective bargaining, contract enforcement, and related expenditures as a condition of employment.” Such fees, which often amount to approximately 70% of total union dues, are predictably unpopular. In the first year after the Supreme Court Janus decision, which allowed public sector workers to opt out of such payments, “the American Federation of State, County and Municipal Employees (AFSCME) lost 98 percent of its agency fee-paying members,” and “the Service Employees International Union (SEIU), lost 94 percent of their agency fee-paying members.”

Labor unions justify this practice by citing the free rider problem: They claim that non-unionized employees reap the benefits of union membership without contributing anything in return. However, unions could eliminate this problem by negotiating “members only” contracts – and non-unionized employees may not feel well-served by the agreement their colleagues’ union thrust upon them.

The PRO Act would also obliterate federalism by striking down right to work laws from coast to coast, and beyond. A total of 27 states and the U.S. territory of Guam have passed right to work laws. Striking them down would harm economic dynamism and the decisions Americans have made to “vote with their feet,” as seven of the 10 fastest-growing states in the United States are right-to-work states. The PRO Act represents “yet another attack on states’ rights,” said Rep. Mariannette Miller-Meeks, R-Iowa, a right-to-work state. Sweeping, top-down federal legislation seldom holds the right answer for the whole country and always ignores the principle of subsidiarity.

2. Decimating independent contractors, which harms female workers. The PRO Act could hold damaging implications for freelancers and independent contractors. The bill intends to force industries that rely on independent contractors, like Uber and Lyft, to hire workers and give them the same benefits as employees. This will reduce the number of people working as independent contractors – but one new definition could eliminate whole categories of freelance work.

The PRO Act changes the definition of “independent contractor” by replacing the current definition with an “ABC Test” that dates back to the 1930s. The central plank says that someone can only be classified as an independent contractor if “the service is performed outside the usual course of the business of the employer.” But freelance writers engage in the “usual course” of a website’s business by writing; actors engage in the “usual course” of a movie studio’s business by acting. Under the bill, publishers would either have to hire every author who produces an article for their outlet – or cut ties with them.

The same dilemma played out when California passed Assembly Bill 5, which limited freelance authors to writing 35 articles per outlet. Golden State voters passed Proposition 22 last November to fix the most glaring problems of the law, but the remedy does not apply to all industries.

The majority of freelancers worry the PRO Act will hurt them, and harming freelancers’ ability to work impacts society at large. Upwork’s 2020 Independent Workforce Report found that three out of four independent contractors say they now earn the same amount of money, or more, than they did from their previous employer. And 79% told the Bureau of Labor Statistics that they do not wish to return to working for others as an employee. In fact, more Americans choose to work as independent contractors (6.9% of the U.S. workforce) than willingly join a private-sector union (6.3%).

Furthermore, a war on freelancers is a war on women. Two-thirds of U.S. freelancers across industries are female, according to PayPal. “I’m facing a painful truth: The man I prayed would become president could sign a piece of legislation that would kill my career as a freelance writer,” wrote Judi Ketteler in her recent NBC News op-ed, “I backed Biden and the Democrats. But their pro-union bill could kill my career.” Possibly foreseeing these problems, the PRO Act includes an amendment from Florida Democrat Stephanie Murphy asking the GAO to study the bill’s impact on freelancers — but by then, the damage will have been done.

3. Removing free speech and privacy rights from workers. The PRO Act could subject workers to harassment by union organizers on the workplace, by phone, or at their doorstep. The law requires employers to give union organizers a list of “employees’ home addresses, work locations, shifts, job classifications, and, if available to the employer, personal landline and mobile telephone numbers, and work and personal email addresses” before a union election. It also deprives workers of requisite information by denying employers’ right to hold a mandatory meeting informing employees of the consequences of unionization for the firm overall.

4. Tilting elections in favor of labor unions. The PRO Act seeks to increase union membership, which has fallen by half since the 1980s. Only 6.3% of U.S. workers in the private sector choose to belong to a union; the rate is more than five times higher for public-sector unions (which President Franklin D. Roosevelt believed should not exist). The bill would allow federal bureaucrats to “set aside” an election the union loses if, in their sole discretion, the employer “has committed a violation of this Act or otherwise interfered with a fair election.” (Emphasis added.) Current law calls for a new election, which the union may lose a second time.

The bill also allows union representatives to select their voters by organizing micro-units instead of asking all employees to vote. Any group of people in a “community of interest” could form a union for their own department. This could lead to unions cherry-picking workers who would vote to unionize without having to conduct – and lose – a general workplace election. The change would deprive all workers of a voice, even though reduced productivity and artificially higher wages impact every employee.

The bill further skews elections toward labor unions by changing their venue. Currently, union elections take place at the workplace to maximize turnout. The PRO Act allows ballots to be cast offsite, or even by mail. “At the request of the labor organization, the Board shall direct that the election be conducted through certified mail, electronically, at the work location, or at a location other than one owned or controlled by the employer,” it says. This potentially reduces turnout and opens the door to questioning election results.

Finally, if the union and management fail to agree on negotiations, the bill halts the bargaining process and imposes mandatory arbitration. Outside parties will impose a deal on parties, binding for two years, depriving voters of the right to vote to ratify (or reject) the deal’s terms.

5. Dramatically increasing federal intervention in workplace disputes – even against innocent parties. The PRO Act expands the economic damages that could be inflicted on corporations if they are ruled to have violated NRLB standards and allows individual employees to sue independently, as well.

Those new penalties could fall on innocent parties. The PRO Act would allow the federal government to punish a franchise for the actions of its franchisees. Under the Obama administration, the National Labor Relations Board attempted to loosen the criteria for “joint employer” to anyone exercising “indirect control” as part of 2015’s Browning-Ferris Industries of California, Inc. That would allow the government to hold McDonald’s responsible for the actions of every one of its managers or franchise owners nationwide. Under the Trump administration, the NLRB overturned the order, replacing it with a final rule reinstating the normative understanding of the franchisee-franchiser relationship last February.

The bill also renders third parties subject to “secondary boycotts” by unions. To maximize pressure on an employer, union organizers may choose to boycott, or picket, third parties that happen to have a relationship with the employer – including its vendors, suppliers, or stores that carry the employer’s product.

What is the PRO Act’s current status?

The bill, introduced by Rep. Bobby Scott of Virginia, passed the House on March 9. Five Republicans – including three co-sponsors – voted in favor of the bill, while one Democrat opposed it. However, the Democrats’ margin of control in the Senate cannot overcome a Republican filibuster. Clearing the evenly divided Senate “requires getting rid of the filibuster for sure, or finding some way around it,” said Rep. Andy Levin, D-Mich. Some Democrats have considered including some (but not all) of the PRO Act’s measures in a Senate budget reconciliation package, which requires only a majority vote. Senate Democrats have also discussed abolishing the filibuster, as they pledged to do during the election; however, Sen. Joe Manchin, D-WV, has said he would oppose any such measure.

How does the PRO Act fit in with the Biden administration’s overall relationship with unions and his labor policy?

Although he’s never held a blue collar job, Biden has long deemed himself a “union man.” Labor unions contributed $27.5 million to Biden’s presidential campaign as part of their $65 million in total contributions to Democratic candidates in the 2020 election cycle. Biden was also the top recipient of campaign donations from teachers unions. As president, Biden has rolled out an aggressive, whole-of-government union promotion effort, which may have crossed the lines of legality. He fired Trump appointee Peter Robb from the National Labor Relations Board, although his term did not expire until November. The PRO Act, which Biden has announced he would sign, would be the most ambitious piece of the agenda to date.

“All of us deserve to enjoy America’s promise in full – and our nation’s leaders have a responsibility to deliver it. That starts with rebuilding unions,” Biden said. “They are critical to strengthening our economic competitiveness.”

Rev. Ben Johnson

Rev. Ben Johnson is Executive Editor of the Acton Institute's flagship journal Religion & Liberty and edits its transatlantic website.