Unions would gain power under a bill backed by Democrats. What does that mean for California?
A high-profile bill that House Democrats passed this month will make it easier for private sector workers to join unions, but it won’t do much directly for labor organizations representing California government employees.
That’s by design.
Unions already feel strong in the public sector, but they’ve lost influence among private companies. That’s led to union advocates to want to push for more action in the private sector before turning to the public sector, according to Steve Smith, spokesman for the California Labor Federation.
“We have a high level of unionization in the public sector, especially here in California,” Smith said. “The Janus decision, as challenging as that’s been for us, unions have actually lost very few members because of it.”
Nationally, about 35% of public-sector workers are unionized, while only 6% of private-sector workers are unionized, according to a 2020 report from the Bureau of Labor Statistics. In California, about 18% of all employed workers are represented by a union.
Democrats passed the PRO Act, in the House on party lines, but it’s stalled until the Senate chooses to take it up or not. Though Democrats narrowly control the Senate, it would still require at least 10 Senate Republicans to support it in order to pass to break a potential filibuster.
The fate of fair share fees
Part of the Protecting the Right to Organize Act, known as the PRO Act, would allow private sector unions across the country to charge fees to workers who benefit from contracts they negotiate even if the employees do not want to participate in the organization.
Those charges are known as fair shares by advocates, but called forced dues by people who don’t want to pay them.
California public employee unions lost the power to levy fair share fees in 2018, when the Supreme Court handed down a decision known as Janus vs. AFSCME that prohibited the practice among labor groups representing government workers.
At the time, California unions sounded the alarm over the decision, saying it could mean the death of unions if everyone decided to opt out.
But Smith said those fears did not come true — he credits a marketing campaign after that Supreme Court decision, which kept all but a few members of those unions from opting out of fees.
California law already allows fair share fees among private-sector unions. Smith said Congress could pass a federal law to reinstate those fees in the public sector, but the Supreme Court decision would make it complicated to word such a law in a way that would be constitutional and survive court challenges.
“The court hasn’t applied that argument to the private sector yet,” said Greg Mourad, vice president of the National Right to Work Committee, a group critical of union power. “That’s a decision between the employer and the union.”
Other private sector union changes
But there are other provisions in the bill that would be a change for private sector unions in California.
Notably, it changes the definition of “employee,” which would allow millions of gig workers such as rideshare drivers the right to organize and form a union.
Some Republican lawmakers have called the law a federal version of California’s Assembly Bill 5, a labor law that passed in 2019 and required businesses to give employment benefits to more workers.
But the PRO Act different from the California law in that it doesn’t guarantee those employees certain wages and benefits. Instead it just allows them to participate in unionizing efforts.
Another change that has union critics up in arms is one on binding arbitration. Currently, unions and employers have to negotiate in good faith, and neither has to agree with a proposal made by the other.
Under the newly proposed process, unions and employers would have three months to come to an agreement before a government mediator could step in. If the parties still don’t agree for another month, the mediator can impose a contract regardless of either party’s agreement.
“Under this proposal, the government is weighing in on the outcomes. It decides what terms are negotiated and decided,” said Maxford Nelsen, Director of Labor Policy at the Freedom Foundation. “That’s an incredible encroachment on the part of the federal government on the rights part of private business to conduct their own affairs. It’s really quite sweeping.”
Smith said it was more about pushing employers to actually respond to union demands, since some employers delay agreements as a tactic to subvert union demands.
“The problem there is, we see employers drag their feet and it can stretch on months or years before workers get a contract,” Smith said. “This would create a road map to a first contract through binding arbitration.”
Finally, the proposed law would make it easier for private unions to form. Right now, if a majority of workers indicate they want to unionize then the employer can voluntary recognize the union or request a secret ballot. Employees vote on whether they’d like to unionize, and if a majority votes to unionize then it’s recognized by the National Labor Relations Board and the employer.
Under the proposed changes, unions would have two chances to organize if the employer requests the secret ballot. If the vote fails, the union can challenge the results based on allegations of employer interference, including intimidating employees into voting against unionization. If the National Labor Relations Board agrees with that assessment, employees can organize through a process called card check.
Card checks mean union representatives can approach each employee individually to ask them to vote to unionize. If they get a majority of employees to sign on that way, they can unionize.
This story was originally published March 23, 2021 at 5:25 AM.
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