Republicans introduce anti-union bills in preview of 2024 agenda

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Background

Corporate employees across the country have embarked on a firestorm of union organizing efforts over the past year, affecting companies from Starbucks to Amazon to Apple. Corporations have predictably struck back with a variety of union-busting tactics, including bringing in highly-paid consultants, agitating anti-union employees, and spreading anti-union propaganda.

Companies can hire anti-union lawyers who take advantage of loopholes in labor law or consultants who are experts in turning workers against unions. There are firms, [San Francisco State University’s Dr. John] Logan says, that focus primarily on producing anti-union ads, anti-union digital assets, and temporary websites to host a company’s anti-union messaging. Some businesses go a step further and hire union avoidance experts for full-time, in-house positions, he adds, sometimes given the more innocuous title of employee relations specialists. They’re often responsible for training managers on how to spot union activity, keeping the company updated on labor law, and generally preventing workers from beginning to organize.

Public unions

The Supreme Court unanimously ruled in Abood v. Detroit Board of Education (1977) that public-employee unions could require nonmembers to pay them in exchange for collective bargaining and other apolitical services the union provides. All employees, whether part of a union or not, benefit from the union’s negotiations with management, and therefore could be required to pay the documented costs of contract administration and negotiation.

Over the following three decades, the Supreme Court largely affirmed Abood, holding that the need to prevent free-riding on the union’s bargaining ability can trump an apparent burdening of speech. As long as unions don’t force payment for political activities, nonmembers could be required to pay agency fees.

The first significant chip in union rights at the Supreme Court came in 2012’s Knox v. Service Employees International Union. In a 5-4 ruling, the court ruled that instead of giving non-union members covered by union contracts the chance to opt-out of political activity fees, nonmembers must be given the option to opt-in. All four liberal justices dissented from this section of the opinion, with Justice Breyer writing that requiring nonmembers to opt-in to special assessments “runs directly contrary to precedent.”

Then, in 2014’s Harris v. Quinn, the court again ruled in a 5-4 split that home health care workers in Illinois cannot be compelled to financially support a union they don’t wish to join. Like in Knox, Justice Alito used his opinion to undermine Abood and argue that every activity of a public sector union could be considered political:

Altio: The Abood Court’s analysis is questionable on several grounds…Abood failed to appreciate the conceptual difficulty of distinguishing in public sector cases between union ex­penditures that are made for collective-bargaining pur­poses and those that are made to achieve political ends.

Finally, in 2018 the court ruled 5-4 that public sector unions cannot require nonmember employees to pay agency fees covering the costs of political and apolitical union activities, thereby overturning precedent established in Abood. Justice Alito wrote the majority opinion in the case, Janus v. AFSCME.

Justice Kagan dissented, writing that Janus “will have large-scale consequences” that alter “the relationship between employees and employers…in both predictable and wholly unexpected ways.”

There is no sugarcoating today’s opinion. The majority overthrows a decision entrenched in this Nation’s law—and in its economic life—for over 40 years. As a result, it prevents the American people, acting through their state and local officials, from making important choices about workplace governance. And it does so by weaponizing the First Amendment, in a way that unleashes judges, now and in the future, to intervene in economic and regulatory Policy.

Departures from stare decisis are supposed to be “exceptional action[s]” demanding “special justification,” Rumsey, 467 U. S., at 212—but the majority offers nothing like that here. In contrast to the vigor of its attack on Abood, the majority’s discussion of stare decisis barely limps to the finish line. And no wonder: The standard factors this Court considers when deciding to overrule a decision all cut one way. Abood’s legal underpinnings have not eroded over time: Abood is now, as it was when issued, consistent with this Court’s First Amendment law. Abood provided a workable standard for courts to apply. And Abood has generated enormous reliance interests. The majority has overruled Abood for no exceptional or special reason, but because it never liked the decision. It has overruled Abood because it wanted to.

Because, that is, it wanted to pick the winning side in what should be—and until now, has been—an energetic policy debate… And maybe most alarming, the majority has chosen the winners by turning the First Amendment into a sword, and using it against workaday economic and regulatory policy…almost all economic and regulatory policy affects or touches speech. So the majority’s road runs long. And at every stop are black-robed rulers overriding citizens’ choices. The First Amendment was meant for better things. It was meant not to undermine but to protect democratic governance—including over the role of public-sector unions.

Private unions

The Supreme Court’s ruling in Janus only applied to public unions, leaving the regulation of private sector unions to the federal National Labor Relations Act and to individual state laws.

The National Labor Relations Act was enacted in 1935 under President Franklin Roosevelt to enshrine the right of employees to join a union and engage in collective bargaining. It was later amended with the passage of the Taft-Hartley Act in 1947, prohibiting “unfair” labor practices like jurisdictional strikes and political strikes. The Taft-Hartley Act further permitted states to enact right-to-work laws banning unions from requiring fees from non-members.

Currently, 28 states have right-to-work laws: Arizona, Alabama, Arkansas, Florida, Idaho, Georgia, Indiana, Kansas, Iowa, Kentucky, Michigan, Louisiana, Mississippi, Nebraska, Missouri, Nevada, North Dakota, North Carolina, Oklahoma, South Dakota, South Carolina, Tennessee, Utah, Virginia, Texas, Wisconsin, and Wyoming.

Anti-union bills

National right-to-work

During the 2021-2022 Congress, three bills have been filed to create a national right-to-work.

  • H.R. 1275, sponsored by Rep. Joe Wilson (R-SC) and cosponsored by 107 other Republicans.
  • S. 406, sponsored by Sen. Rand Paul (R-KY) and cosponsored by 21 other Republicans.
  • S. 3464, sponsored by Sen. Rand Paul (R-KY).

Rep. John Moolenaar (R-MI) introduced legislation to extend right-to-work ordinances to Native American tribes. Reps. Tom Cole (R-OK), Dusty Johnson (R-SD), Doug LaMalfa (R-CA), Don Young (R-AK), and Debbie Lesko (R-AZ) joined as cosponsors. Sen. Jerry Moran (R-KS) introduced the same bill in the Senate, garnering eight cosponsors including Sens. John Thune (R-SD), James Risch (R-ID), Kevin Cramer (R-ND), John Hoeven (R-ND), Mike Crapo (R-ID), James Lankford (R-OK), Steve Daines (R-MT), and Mike Rounds (R-SD).

Nat’l Labor Relations Board

H.R. 2063: Repeals the authority of the National Labor Relations Board to prosecute complaints of unfair labor practices. Introduced by Rep. Austin Scott (R-GA) with seven cosponsors: Reps. Neal Dunn (R-FL), Jody Hice (R-GA), Scott Perry (R-PA), Jeff Duncan (R-SC), Drew Ferguson (R-GA), Barry Loudermilk (R-GA), and Rick Allen (R-GA).

  • S. 882: Senate version of H.R. 2063. Introduced by Sen. Mike Lee (R-UT) with Sens. Marsha Blackburn (R-TN), Mike Braun (R-IN), and Rand Paul (R-KY) as cosponsors.

Other anti-union bills

H.R. 1902: Eliminates the use of official time by Federal employees. Official time is paid time off from assigned Government duties to represent a union or its bargaining unit employees. Rep. Dan Bishop introduced the bill with 18 cosponsors: Reps. Darrell Issa (R-CA), Mo Brooks (R-AL), Matt Gaetz (R-FL), Burgess Owens (R-UT), Ralph Norman (R-SC), Scott Perry (R-PA), Joe Wilson (R-SC), Tracey Mann (R-KS), Jim Banks (R-IN), Louie Gohmert (R-TX), Tom McClintock (R-CA), Debbie Lesko (R-AZ), Gregory Steube (R-FL), Jeff Duncan (R-SC), Ken Buck (R-CO), Madison Cawthorn (R-NC), Tom Rice (R-SC), and Adrian Smith (R-NE).

  • Official time represents 0.1% of all the salaries and benefits paid to federal employees in a given year and ensures federal workers have the ability to resolve disputes, address discrimination, negotiate contracts, and identify safety or health hazards.

H.R. 2403: Amends the Taft-Hartley Act to forbid agreements between employers and unions wherein the employer will remain neutral toward union representation. The main goal of such agreements is to obtain promises that the employer will not disparage the union and will not disrupt the unionization process. Rep. Bob Good (R-VA) introduced the bill with four cosponsors: Reps. Scott Perry (R-PA), Marjorie Green Taylor (R-GA), Matt Gaetz (R-FL), and Pat Fallon (R-TX).

H.R. 2640: Requires a majority of union members to vote in support of the expenditure of union funds on political causes (eg lobbying in favor or opposition to a certain bill). Introduced by Rep. Bill Huizenga (R-MI) with no cosponsors.

H.R. 3640: Requires unions to file certain disclosure forms detailing expenditures of union dues and imposes civil fines on labor organizations that fail to file required disclosures. Introduced by Rep. Michelle Steel (R-CA) with Reps. Tim Walberg (R-MI) and Madison Cawthorn (R-NC) as cosponsors.

H.R. 5178: Allows employers to discriminate against job-seekers with union sympathies (see “salting. Introduced by Rep. Rick Allen (R-GA) with eight cosponsors: Reps. Ralph Norman (R-SC), Scott Perry (R-PA), Austin Scott (R-GA), Drew Ferguson (R-GA), Jody Hice (R-GA), Earl Carter (R-GA), Burgess Owens (R-UT), Bob Good (R-VA), and Kat Cammack (R-FL).

S. 805: Repeals the Davis-Bacon Act, which mandates workers of federally funded or assisted contracts are paid prevailing wages.

Pro-union bills

Right-to-work

H.R.842 and S. 420 – Protecting the Right to Organize Act of 2021: Expands labor protections related to employees’ rights to organize and collectively bargain in the workplace in five main ways:

  • Allows unions to override right-to-work laws
  • Prohibits employers from interfering in union elections.
  • Allows newly certified unions to seek arbitration and mediation to reach a first contract between labor and management.
  • Prevents an employer from using its employee’s immigration status against them.
  • Establishes monetary penalties for companies and executives that violate workers’ rights.

The House version, introduced by Rep. Robert Scott (D-VA), passed 225-206 in March 2021. It was never taken up in the Senate.

Climate

H.R. 848: Creates “green jobs” for businesses with unions. Introduced by Rep. Mike Thompson (D-CA) with 42 cosponsors.

H.R. 998: Provides funding for offshore wind projects and gives priority to union workers. Introduced by Rep. William Keating (D-MA) with 27 cosponsors.

H.R. 1352: Provides funding for water infrastructure jobs that use union labor. Introduced by Rep. Brenda Lawrence (D-MI) with 102 cosponsors.

H.R. 2415: Creates an incentive program to remediate orphaned wells and requires that workers on such projects be paid prevailing wages. Introduced by Rep. Teresa Leger Fernandez (D-NM) with 34 cosponsors.

H.R. 2644: Creates funding for local governments to eliminate pollution and implement climate adaptation measures and requires that workers of such projects be part of a union.

S. 283: Establishes a National Climate Bank to invest in clean energy technologies and infrastructure to reduce greenhouse gas emissions. Projects are required to involve union labor. Introduced by Sen. Edward Markey (D-MA) and cosponsored by Sens. Chris Van Hollen (D-MD), Richard Blumenthal (D-CT), Brian Schatz (D-HI), Martin Heinrich (D-NM), Debbie Stabenow (D-MI), Cory Booker (D-NJ), and Elizabeth Warren (D-MA).

S. 2118: Creates a new $2,500 tax credit for the purchase of union-built electric vehicles. Introduced by Sen. Ron Wyden (D-OR) with nine cosponsors: Sens. Debbie Stabenow (D-MI), Robert Menendez (D-NJ), Tom Carper (D-DE), Benjamin Cardin (D-MD), Sherrod Brown (D-OH), Michael Bennet (D-CO), Robert Casey (D-PA), Sheldon Whitehouse (D-RI), and Catherine Cortez Mastro (D-NV).

Expanding unions

H.R. 903: Extends the right to unionize to Transportation Security Administration employees. Introduced by Rep. Bennie Thompson (D-MS) with 231 cosponsors. Passed the House in a 220-201 vote earlier this year.

H.R. 1948: Extends the right to unionize to all employees in the Veterans Health Administration. Current law exempts healthcare providers from collective bargaining on matters of professional conduct or competence, peer-review, or changes to employee compensation. Introduced by Rep. Mark Takano (D-CA) with 106 cosponsors.

  • S. 771: Senate version of H.R. 1948. Introduced by Sen. Sherrod Brown (D-OH) with Sens. Patty Murray (D-WA), Elizabeth Warren (D-MA), Dick Durbin (D-IL), Bernie Sanders (I-VT), Benjamin Cardin (D-MD), Mazie Hirono (D-HI), Richard Blumenthal (D-CT), Chris Van Hollen (D-MD), Alex Padilla (D-CA), and Dianne Feinstein (D-CA) as cosponsors.

H.R. 2586: Establishes collective bargaining procedures for firefighters and EMTs across the country. Introduced by Rep. Daniel Kildee (D-MI) with 205 cosponsors.

  • S. 2178: Senate version of H.R. 2586. Introduced by Sen. John Hickenlooper (D-CO) with seven cosponsors: Sens. Margaret Hassan (D-NH), Jacky Rosen (D-NV), Robert Menendez (D-NJ), Chris Van Hollen (D-MD), Jon Tester (D-MT), Richard Blumenthal (D-CT), and Alex Padilla (D-CA).

Misc

H.R. 594: Provides grants for union-run apprenticeship programs. Introduced by Rep. Tim Ryan (D-OH) with Rep. Susan Wild (D-PA), Rep. Ro Khanna (D-CA), and Del. Eleanor Holmes Norton (D-DC).

H.R. 2549: Allows an above-the-line tax deduction for union dues and expenses. (An above-the-line deduction is subtracted from gross income and is available whether or not a taxpayer itemizes other deductions.) Introduced by Rep. Conor Lamb (D-PA) and cosponsored by 81 lawmakers.

  • S. 1157: Senate version of H.R. 2549. Introduced by Sen. Robert Casey (D-PA) and cosponsored by 20 lawmakers.

H.R. 4497: Provides grants to build and maintain affordable housing, mandating union representation. Introduced by Rep. Maxine Waters (D-CA) and 80 cosponsors.

H.R. 5495: Creates supply chain grants and requires that employers enter into an agreement with unions wherein the employer will remain neutral toward union representation. The main goal of such agreements is to obtain promises that the employer will not disparage the union and will not disrupt the unionization process.