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There’s an Excellent Labor Provision (Ssshh!) in the Build Back Better Act

If Senator Kyrsten Sinema doesn’t know, please don’t tell her.

Members of the Service Employees International Union (SEIU) hold a rally in support of the American Federation of State County and Municipal Employees (AFSCME) union
Scott Olson/Getty Images

Senators Joe Manchin of West Virginia and Kyrsten Sinema of Arizona still haven’t signed onto the latest iteration of the $1.75 trillion Build Back Better bill, even though the text and a section-by-section summary have been available for days. Are they looking for more provisions to throw out? A Washington Post report this past weekend used the ominous phrase “evolving concerns” to describe Manchin’s state of mind. I yield to no one in my support for public school teachers bucking fundamentalist Know Nothings to instruct their students in the scientific findings of Charles Darwin. But after weeks and weeks and weeks of negotiations, we can have no more evolution. I’m sorry, Senator, but we just can’t. The evolving-concerns window is now closed.

In fairness, Manchin’s evolution was about a paid leave proposal that some Democrats were trying to put back into the bill, not anything in the present text. But what Manchin said was so clueless that it may confirm Homo manchinus to be one of those evolutionary dead ends we learned about in high school, like the itty-bitty arms on Tyrannosaurus rex. Or maybe the poor man was so punchy after so many weeks of saying no that he just couldn’t remember why he said no to paid leave. At any rate, here’s what Manchin told his fellow Democrats:

Let’s add a work requirement!

One imagines an awkward pause, hesitant glances, perhaps a polite cough or two as his colleagues wonder which of them must explain to Manchin that if you receive paid leave from your job then by definition you already have a job.

I bring this up by way of sharing my unease at flagging an aspect of the Build Back Better bill about which I fear Manchin or, more likely in this case, Sinema will develop evolving concerns. A wiser man would hold his tongue, but I have a big mouth. So here goes: Some of the Protecting the Right to Organize Act, known familiarly as the PRO Act, is hiding in plain sight in the reconciliation bill. And it probably is too late for Manchin or (more likely) Sinema to squawk about that now.

The PRO Act is a hugely important measure to restore and enhance labor rights that were taken away by 1947’s Taft-Hartley law, passed, over President Harry Truman’s veto, by a Republican Congress eager to repeal what it could of the New Deal. The Democrats’ conservative Southern bloc sided with the Republicans, furnishing 20 Senate votes to override. Taft-Hartley all but eliminated “card check,” the process whereby a workplace could be organized through the collection of signed union authorization cards. Under Taft-Hartley, employers may choose not to recognize a card-check election and instead compel a formal election supervised by the National Labor Relations Board. NLRB-supervised elections occur under conditions so favorable to management that it’s the rare business that can’t intimidate and propagandize its way to a no vote. The PRO Act would reinstate card check in circumstances where the employer is found to have subverted a fair election.

Under Taft-Hartley, individual states could declare themselves “right to work,” meaning a worker in a unionized workplace who chose not to join the union could not be compelled to pay union fees covering his or her share of collective bargaining costs. Right-to-work laws bleed union treasuries by allowing workers to become “free riders,” enjoying the benefits of union contracts without having to pay a cent to secure those benefits. Today, 28 states are right-to-work, thanks to Republican gains over the past decade in state legislatures. The PRO Act would override these state laws by guaranteeing unions the right to require, in union contracts, fair share fees from nonmembers.

Democrats have been trying since 1947 to repeal Taft-Hartley, and they’ve never succeeded—not even during the “liberal hour” of President Lyndon Johnson’s Great Society. The PRO Act cleared the House in March (picking up five Republican votes!), but it never had a chance in the Senate, and unless Democrats keep their House majority in the midterms and expand their Senate majority by at least nine votes—a very unlikely prospect—the PRO Act won’t pass in the next Congress.

But an important piece of the PRO Act found its way this summer into the Build Back Better bill, thanks largely to the efforts of Senator Bernie Sanders, chairman of the Senate Budget Committee. Hardly anybody noticed, because hardly anybody reports labor news anymore. But when the House released the reconciliation text on Thursday, the fragment was still there.

The National Labor Relations Board is an independent agency that adjudicates labor-management disputes. If your employer fires you for trying to start a union, you can file a complaint with the NLRB. If your employer tells you there may be layoffs if you and your co-workers vote in a union, you can file a complaint with the NLRB. There are all sorts of things management is not permitted to do under the 1935 National Labor Relations Act, also known as the Wagner Act, and most of the prohibitions remained in effect even after Taft-Hartley permanently tilted labor policy back toward employers. The trouble is, employers seldom care what’s prohibited, because the penalties for violating the Wagner Act have always been laughably small.

Under the Wagner Act, if the NLRB rules in favor of an employee who’s been fired, management must reinstate that employee and give him or her back pay. That’s it. The employee is not entitled to damages. The employer is not obliged to pay the U.S. government a cent. It’s as if the penalty for running a red light were to fix a tuna fish sandwich for the cop who wrote the ticket.

The provision of the PRO Act that Sanders spliced into the reconciliation bill would change that. As an analysis prepared by the management-side law firm Littler Mendelson explains, it “would fundamentally change” the Wagner Act “from a ‘make whole’ remedial statute into a punitive one.” That’s quite correct, but I’d put it differently. It would finally make employers actually notice, almost a century after the Wagner Act became law, when they violate the Wagner Act, and perhaps it might cause them to resolve at least to try not to violate it in the future.

The new civil fines are described under Subtitle B of the reconciliation bill text, “Labor Matters,” section 21006. An employer who commits an unfair labor practice in firing an employee will pay up to $50,000 per violation the first time he does it and up to $100,000 per violation if he does it again within the next five years. “An employer” usually will mean a business, but if the individual who committed the unfair labor practice behaves especially badly, then that individual can be fined, too. The size of the penalties will be determined by the gravity of the offense, the size of the employer, the frequency with which such violations have occurred in the past, and “the public interest.”

Manchin would have to do a lot more evolving to oppose the NLRB’s new civil fines. He’s a Democrat in a state where unions still wield some political influence, and he endorsed the PRO Act in April at a gathering of the United Mine Workers. There would be no logical reason for Manchin to oppose civil penalties for the NLRB now merely because they stand an unanticipated chance of becoming law.

Arizona is considerably less labor-friendly than West Virginia, and according to the Arizona Mirror, Sinema and the more liberal Arizona Senator Mark Kelly are two of only three Senate Democrats—the third is Virginia Senator Mark Warner—who’ve refrained publicly from endorsing the PRO Act. Kelly and Warner reportedly have said in private that they’ll vote for it, so that leaves Sinema as the sole Democratic holdout, a familiar scenario.

But we don’t know that Sinema opposes the PRO Act, despite heavy business pressure on her to do so, and anyway the reconciliation bill contains only one part of the PRO Act (albeit an important one). If Sinema had previously voiced opposition to adding civil penalties for labor law violations to the reconciliation bill, news of that opposition would probably have trickled out by now. And honestly, if Sinema were to say now that she opposed anything in the House bill as written, she’d open herself up to the one accusation not leveled at her thus far—that she negotiated in bad faith with Biden and Pelosi and Schumer.

Still, we’ll all feel better when Sinema and Manchin sign on the dotted line. You can’t blame House progressives for opposing action on the infrastructure bill until Sinema and Manchin commit publicly to the reconciliation text. That’s just prudent bargaining strategy.