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House Vote on Union-Backed Bill Sets Up Test for 2020 Elections

Jan. 30, 2020, 11:16 AM

A bill that would make the most significant changes to labor law in generations is shaping up to be a litmus test in the fall elections, as union and business lobbyists pressure lawmakers in both chambers ahead of a vote in the House next week.

Support for the Protecting the Right to Organize Act (H.R. 2474) is a prerequisite for House lawmakers who want union support in reelection battles. The bill amounts to a union wish-list of legislative changes, including eliminating right-to-work laws, making it harder to classify workers as independent contractors, and imposing penalties against employers who retaliate against unionizing drives.

“There’s a concerted effort to make it clear that unions’ rights are on the ballot this year,” said Shane Larson, national director of legislation, politics and international affairs for the Communications Workers of America. “We believe it’s absolutely critical for the House of Representatives to have a vote on the PRO Act so that we know where exactly these candidates stand on the most important issues for union members.”

House lawmakers who vote against the bill risk being portrayed as hostile to organized labor, a stance that could be a factor in races in battleground states or in districts President Donald Trump flipped in 2016, particularly across the Rust Belt. The legislation has already become an issue in one primary race in Texas.

The bill has 218 House co-sponsors, giving it a solid chance of clearing the chamber. The Senate version (S.1306) is unlikely to get a floor vote, but its long-shot status doesn’t matter for many business and labor groups. Both sides of the lobbying battle realize the legislation’s fate depends on whether Democrats can hold their House majority, unseat Trump, and make inroads in the Senate.

House Democratic leadership’s decision to bring the bill up for a vote, fresh off organized labor providing important backing for the new North American trade deal, is part of a strategy to leverage union support in the fall elections. Democrats hope to use the bill’s worker-friendly platform to provide a boost at the polls in an election year when economic inequality will be a dominant theme.

Businesses detest the PRO Act and are using lobbying muscle to depict it as a threat to economic growth and job creation. They hope for a repeat of what happened to a similar union-backed measure, the Employee Free Choice Act. That bill cleared the House in 2007 but failed to draw sufficient support in the Senate. Lawmakers didn’t coalesce around an effort to revive it two years later, and the measure went nowhere in either chamber.

Employers view the PRO Act as an “existential threat,” said Matt Haller, senior vice president of government relations and public affairs at the International Franchise Association. The group believes the bill’s changes to franchising relationships, specifically in relation to questions of joint employment, would “eradicate” the franchising business model. The bill would make it easier for a franchiser to be considered a direct employer of a franchisee’s workers, subjecting the franchiser to a host of new workplace liabilities.

Rep. Virginia Foxx (R-N.C.), the top Republican on the Education and Labor Committee, said the PRO Act is a political power grab by unions.

“Union bosses are used to twisting arms, so it’s no surprise they are aggressively pushing a radical bill that will allow them to consolidate power, coerce workers, line their own pockets, threaten small businesses, and bolster their own political agendas,” she said in a statement.

Ghosts of Past Failures

The PRO Act has been endorsed by the leading candidates in the race for the Democratic nomination for president, including Sens. Bernie Sanders (I-Vt.), Elizabeth Warren (D-Mass.), and Amy Klobuchar (D-Minn.); former Vice President Joe Biden; former South Bend, Ind., mayor Pete Buttigieg; and entrepreneur Andrew Yang.

Supporters point to declining union membership and growing inequality as reasons for why sweeping changes to labor laws are needed. But the ghosts of past failures to overhaul federal labor law loom over the minds of union organizers and advocates promoting the PRO Act. Organized labor has been defeated in efforts to promote measures revamping federal labor law during Democratic administrations as far back as that of Lyndon Johnson.

The Employee Free Choice Act, the most significant effort prior to the PRO Act, would have allowed a union to be certified to bargain with an employer if union officials collected signatures from a majority of a company’s workers; employers would have lost their right to demand a separate ballot.

The EFCA negotiations that came closest to succeeding collapsed when a handful of moderate Senate Democrats balked at supporting the measure, preventing proponents from cutting off debate in 2007 after the House had signed off. Union organizers argue this time will be different because the Democratic Party has become more progressive and willing to embrace liberal labor policy, as evidenced by the PRO Act’s 218 co-sponsors.

Lessons from the EFCA experience boost organized labor’s efforts to use the PRO Act as a litmus test this year, some backers argue. Blanche Lincoln, a Democrat who represented Arkansas in the Senate from 1999-2011, was a key holdout in 2009, according to union and business lobbyists who spoke to Bloomberg Law for this story.

Lincoln received support from conservative groups for opposing the bill, but drew the ire of labor unions, which said they would urge voters not to support her. Lincoln eventually lost her re-election campaign by a landslide to Sen. John Boozman (R) in 2010.

Former Rep. Kevin Yoder (R-Kan.), now a consultant with the IFA, said the debate over the EFCA, also known as the “card check” bill, was a major issue in the 2010 elections. He said his opposition to the bill helped him win against his opponent, Stephene Moore, the wife of his predecessor, Democrat Dennis Moore.

“When that bill was moving through Congress, there were a number of Democrats self-styled as Blue Dogs that had signed on to the card-check legislation. It angered a lot of suburban, independent small-business types who felt it was sort of a betrayal of the pro-business reputation that some of those Democrats had put forward,” Yoder said. By the 2010 election cycle, he said, those same Democrats were shying away from the topic. Yoder was unseated in 2018.

The EFCA’s failure went deeper than a handful of resistant Senate Democrats, said Joe McCartin, a Georgetown University professor and executive director of the school’s Kalmanovitz Initiative for Labor and the Working Poor. Lyndon Johnson and the three subsequent Democratic presidents failed to get workplace policy legislation past Republican filibusters after choosing to pursue other priorities at the outset of their administrations, he said.

Rep. Mark Pocan (D-Wisc.), reflecting on the PRO Act, said the margin of a House vote could affect matters if a Democrat defeats Trump in November.

“There were lots of promises by presidential candidates, by Democrats, and then it wasn’t ever enacted,” said Pocan, co-chair of the Congressional Progressive Caucus. “Because of that we want to make sure that it does have a strong show of support on the floor.”

Wolf at the Door?

The PRO Act goes well beyond the EFCA and earlier attempts to update federal labor laws. That reality actually makes it harder for business lobbyists to assemble a strong grassroots campaign to fight the PRO Act because many don’t see the bill as a threat right now, said Randy Johnson, a lobbyist with Seyfarth Shaw who served as the U.S. Chamber of Commerce’s top labor lobbyist during the EFCA debate.

“In my experience, the wolf has to be at the door” to get businesses to act in numbers, he said.

But Haller and Johnson both said some members of the business community are lobbying hard to preempt a push in the Senate. The Chamber, for instance, has been circulating ads online and on television in opposition to the PRO Act. In the Washington, D.C. area, the organization directed ads at Sens. Tim Kaine and Mark Warner, two Virginia Democrats who haven’t announced a position on the Senate version.

Unions say the PRO Act can serve as a barometer in the Senate even if it doesn’t get a vote. “It also puts those senators on the record: If they do support it, why are they then not pushing McConnell to put it on the chamber floor?” Larson said, referring to Senate Majority Leader Mitch McConnell (R-Ky.)

McCartin, the Georgetown professor, noted the vast majority of Democratic House members serving in districts Trump carried in 2016 are PRO Act co-sponsors. That also includes members who voted against impeachment, such as recent Democrat-turned-Republican Rep. Jeff Van Drew of New Jersey.

Many moderate Democrats in the House back the bill, but business lobbyists are trying to squeeze holdouts from more rural or red states, such as Rep. Lucy McBath (D-Ga.).

The Coalition for a Democratic Workplace, a conservative business group that opposes union-friendly legislation, published polling data earlier this month showing majority opposition in Rep. Joe Cunningham’s (D-S.C.) district and statewide. Cunningham isn’t listed as a co-sponsor of the bill. His office didn’t return a request for comment.

“To the extent that unions still have this much power in the Democratic party to cause a large swath of Democrats to vote against the interests of their district for fear of retribution from unions, I think, still speaks to their tremendous political control in the Democratic party,” Yoder said.

To contact the reporter on this story: Jaclyn Diaz in Washington at jdiaz@bloomberglaw.com

To contact the editors responsible for this story: John Lauinger at jlauinger@bloomberglaw.com; Chris Opfer at copfer@bloomberglaw.com

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