The PRO Act Muddies Good-faith Collective Bargaining
President Biden pledged to be the “strongest labor president you’ve ever had,” but his allies must have missed the memo.
Earlier this month, Democratic congressmen reintroduced the Protecting the Right to Organize Act (PRO Act), a bill that would significantly alter existing labor laws to undercut the very spirit of American labor. While provisions in the bill regarding right-to-work, independent contractor classification, and rights-based arbitration have garnered the most attention, the proposed changes to negotiation rules have fallen under the radar. If enacted, the bill may have long-lasting, uncertain effects for initial collective bargaining agreements (CBAs) in the private sector. By tightening the window for negotiations and defaulting to interest arbitration, the PRO Act stifles all parties in their pursuit of a fair contract.
After many years of steady decline, unions are in the midst of a resurgence. The approval rate for unions is high (65%) and pandemic-related economic changes have prompted employees to organize in previously non-union industries, as seen at Amazon and Medium. But if organizing campaigns succeed in their competitive elections, they face an uphill climb to secure better working conditions for employees.
Section 8(d) of the National Labor Relations Act describes the statutory duty for unions and employers to negotiate in “good faith.” The courts have described good faith as “an open mind and a sincere desire to reach an agreement” — though it has never required parties to agree upon any proposal.
The PRO Act departs from this convention and compels the parties to reach their first agreement after just 90 days. This provision betrays a lack of understanding about collective bargaining. At its core, collective bargaining implies lengthy discussions between employers and unions. When two parties with fundamentally disparate interests come together, they are bound to disagree. This is true in every negotiation, but it is certainly apparent in the first one since employers and unions must reach a decision about every issue — wages, hours, and grievance procedures among many others — and all without the benefit of previous CBAs. The first agreement often takes months, even years to complete, yet the PRO Act requires that a CBA be agreed upon within a narrow and perhaps unrealistic time frame.
If the 90-day time period expires, the parties are forced to enter mediation and ultimately interest arbitration. This process, often used in the public sector, occurs when collective bargaining disputes reach an impasse. The negotiation is settled by a neutral, third-party arbitrator panel, who may understand the industry but is seldom familiar with the nuanced issues between the employer and employees. As it’s currently written, the PRO Act will mandate arbitration at the end of 90 days, regardless of whether or not the parties are stuck in a dispute. It won’t matter if the parties simply didn’t have sufficient time to settle each issue. If the clock runs out, their private negotiations are turned over to the arbitrators. And it’s anyone’s guess as to whether or not either side will be satisfied with the outcome.
Interest arbitration is final and binding. According to the PRO Act, the contract will last for two years and employees forgo the right to ratify the agreement. Employees have expressed disapproval for such forced contracts in the past. In 2015, NYPD officers demonstrated in front of the arbitrator’s home because they wanted more than a one percent raise.
Interest arbitration is fundamentally an imperfect process, with controversy surrounding its fairness and effectiveness. Although long-standing criticisms have been allayed by recent academic findings, this research has largely focused on the public sector. The PRO Act will nevertheless impact the private sector, where collective action is gaining steam, but research is more limited. Experts do not know how interest arbitration will impact businesses, yet the PRO Act still intends to mandate the process.
This isn’t the first time Democrats have tried to pass such legislation. Similar language appears in the Illinois Public Law 96-0598 and Employee Free Choice Act, a 2008 bill that also sought to accelerate negotiations. The provision garnered criticism and ultimately failed to pass. The original PRO Act was introduced in 2019, passed in the House of Representatives, but stalled in the Senate.
Congressional Democrats have reintroduced the PRO Act at an opportune moment. The pandemic has renewed interest in workplace safety and collective power, and Democrats are ready with votes and the president’s approval. But if passed, the PRO Act will fundamentally rewrite American labor law, without full regard for the repercussions that may follow. Provisions such as the interest arbitration mandate are neither pro-business nor pro-labor, and significantly undermine the ability of collective bargaining processes to run their natural course.
Negotiations are fine without the PRO Act. Let’s keep collective bargaining about good faith, mutual cooperation, and workplace improvements — rather than stringent and unnecessary standards.
Rachel Chiu is a Young Voices contributor who writes about technology and employment policy. Her writing has been published in USA Today, The American Conservative, and elsewhere. Follow her on Twitter: @rachelhchiu.