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Senate Health, Education, Labor and Pensions Committee Markup of S. 567 (PRO Act)

Senate Committee on Health, Education, Labor, and Pensions

Executive Session

Wednesday, June 21, 2023

Topline

  • The committee marked up and favorably reported three bills including S.567, the PRO Act.
  • All four bills were passed on partisan lines and without amendment.

 

Legislation

  1. 728, Paycheck Fairness Act
  2. 1664, Healthy Families Act
  3. 567, Richard L. Trumka Protecting the Right to Organize Act of 2023

 

Opening Statements

Chairman Bernie Sanders (I-Vt.)

In his opening statement, Sanders discussed the three bills being considered at the markup. On the PRO Act, he said that workers have the constitutional right to assemble and form a union. He added that over the last few decades, corporate interests have done everything they can to make it impossible for workers to exercise that right. He also noted that these issues come within the context of a nation in which the gap between the people at the top and everyone else is growing wider. He said that there is more income and wealth inequality than ever, more corporate concentration of ownership than ever, and 60% of people are living paycheck to paycheck.

 

Ranking Member Bill Cassidy (R-La.)

In his opening, Cassidy noted that this is the committee’s first partisan markup since the ACA in 2009. He said that the deeply controversial and partisan set of bills will not pass the Senate. He also stated that the committee should be focusing on other important bills and reauthorizations, including PAHPA, the SUPPORT Act, and reauthorizations of community health centers and the National Health Center Service Corps. Finally, Cassidy said that the PRO Act is not pro-worker, it is pro big union. He argued that being pro-worker means defending the rights of all workers, including those who do not want to join a union, but the PRO Act eliminates secret ballot elections and right to work in 26 states.

 

Consideration of Legislation

  1. 567, Richard L. Trumka Protecting the Right to Organize Act of 2023    

Sen. Markwayne Mullin (R-Okla.) said that the bill is about increasing the power of union bosses, eliminating right to work laws, attacking employee privacy, and destroying business models like the franchise industry. He offered an amendment to change the name to the Socialist Solutions for Labor Unions Act. The amendment was rejected 8-13.

He also offered an amendment to restrict the information that an employee provides to a union organizer to one piece of contact information chosen by the employee. It failed 9-12.

 

When offering his third amendment, Mullin said that the information that a union receives from an employer about his or her employees during a union organization campaign must be kept secure. He added that under no circumstances should a union be allowed to profit from the private information of employees that it receives during the organizing campaign. The amendment would make it unfair labor practice for a union to fail to protect employees’ information. It was rejected 9-12.

Mullin’s fourth and final amendment was intended to restore sovereignty to Tribal nations. He said that they should make their own decisions about labor laws and employee practices. The amendment was withdrawn and referred to the Indian Affairs Committee.

Sen. Rand Paul (R-Ky.) said that the National Labor Relations Act established monopoly bargaining, which gave union bosses the power to speak for 100% of the employees in a workplace if they won a majority of the ballots cast in a union election. He offered an amendment to replace the PRO Act with the National Right to Work Act, which gives the right to work protections to workers in all 50 states. He also said that the PRO Act invades employee privacy by forcing employers to hand over their personal cell phone numbers, email addresses, and home addresses, to union organizers. It was rejected 9-12.

Sen. Mike Braun (R-Ind.) offered an amendment to ensure that an employment relationship is not established between a franchisor and franchisee if the franchisor engages in certain activities. He said that the amendment is intended to protect franchisors from engaging in socially responsible business practices with franchisees, and it would allow a franchisor to require the use of certain literature, policies, and training for socially good programs, such as the promotion of apprenticeships, scholarships, childcare, paid family leave, and more. Sanders said that it would make it harder for workers at large franchises to exercise their constitutional right to form a union and collectively bargain for better wages.

The amendment was rejected 10-11.

 

Braun offered another amendment to amend the National Labor Relations Act to reform the NLRB Office of the General Counsel and the process for appellate review. He said that under the Biden Administration, the NLRB has chosen to engage in partisan advocacy rather than doing its job, but this amendment will return the agency to its intended purpose as an independent federal agency that acts as an impartial body in deciding cases related to the National Labor Relations Act. The amendment would increase the number of board members from five to six, requiring an even split among Republicans and Democrats, and require unanimous decisions. Parties would also be allowed to appeal to a federal court of appeals if the board fails to reach a decision within one year. The amendment was rejected 9-12.

Braun’s final amendment was to preserve provisions in the National Labor Relations Act and Labor Management Relations Act regarding the prohibition of secondary boycotts. The amendment strikes provisions in the PRO Act that allow for secondary boycotts. The amendment was rejected 8-13.

Sen. Roger Marshall (R-Kans.) offered an amendment to define a joint employer as one who is directly, actually, and immediately in control of the business operations. This includes hiring, firing, and setting salaries. Sanders said the amendment would undermine protections for workers whose workplaces are controlled by more than one employer. The amendment was rejected 10-11.

 

Cassidy then offered eleven amendments, all of which were rejected. The parenthetical after the description of each amendment represents the yes-no vote tally:

  • The first amendment was to codify the common law worker classification test under the Fair Labor Standards Act (10-11).
  • The second amendment would make it an unfair labor practice to fail to inform fellow workers that the salt is being paid by a union to organize a workplace (9-12).
  • Cassidy’s third would require the majority of employees in a workplace to cast a vote in a secret ballot election during an organizing campaign (8-13).
  • The fourth amendment would prohibit the use of remote voting in an organizing campaign to ensure the integrity of the vote and the privacy of the voter (9-12).
  • The fifth amendment would prohibit unauthorized aliens from signing cards in an organizing campaign and create an unfair labor practice when the union allows that (10-11).
  • His sixth amendment would prohibit people in the U.S. illegally from being able to sue an employer for an unfair labor practice (9-12).
  • Cassidy’s seventh amendment would prohibit unions from using dues collected from those here illegally for political purposes (10-11).
  • Number eight would prohibit labor organizations from communicating with employees who are here illegally to organize these individuals into a union (10-11).
  • The ninth amendment would amend the National Labor Relations Act to prevent students from being defined as employees of a college or university (8-13).
  • Cassidy’s tenth amendment would end the International Longshore Workers union monopoly on West Coast ports to prevent future stoppages and slowdowns. It would require the collective bargaining agreements to be staggered (7-13).
  • His eleventh amendment would clarify that an employer can discipline a worker for using derogatory language (10-11).

Sen. Mitt Romney (R-Utah) offered an amendment to guarantee the right to a secret ballot election when an employee is choosing to unionize a worksite. The amendment was rejected 9-12. Sen. Tommy Tuberville (R-Ala.) offered an amendment to require that unions allow workers to choose how their union dues are spent for political purposes. It was also rejected 9-12.

 

Mullin offered another amendment to ensure that employers educate workers on how to identify human trafficking and that the prevention of human trafficking is not deemed as a joint employer under the new standard created by the PRO Act. Sanders said that the amendment is unnecessary because supply chain audits are not used to determine joint employer status. It was rejected 10-11.

 

Finally, Cassidy offered 13 amendments on behalf of Sen. Ted Budd (R-NC). The votes are listed in parentheses after the description of each amendment:

  • The first amendment would require the DOL secretary to certify that the PRO Act will not have an adverse effect on the employment rates of women (9-12).
  • The second amendment would require the DOL secretary to certify that the PRO Act will not have an adverse effect on the employment rate of minorities (9-12).
  • The third amendment would require the DOL secretary to certify that the PRO Act will not have an adverse effect on the employment rates of veterans (9-12).
  • The fourth amendment would strike the definition of employee that eliminates independent contractors (10-11).
  • The fifth amendment would require a GAO study on the ABC test to be submitted to Congress not one year after the enactment of the PRO Act (10-11).
  • The sixth amendment would prohibit the DOL secretary from promulgating any rule instituting the ABC test (10-11).
  • The seventh amendment would allow a union employee to work during a labor dispute (9-12)
  • The eighth amendment would require the DOL secretary to certify that the PRO Act will not have an adverse effect on equal pay.
  • The ninth amendment would strike Section 106 of the PRO Act, which provides for damages against employers for violations of unfair labor practices (7-13).
  • The tenth amendment would amend Section 106 to add a new section to provide for damages against unions for violations of unfair labor practices (9-11).
  • The eleventh amendment would prohibit a union organizer from using threats or violence to intimidate a worker during a union organizing campaign (9-12).
  • The twelfth amendment would permit an employer to pay greater wages or compensation than is provided for in the collective bargaining agreement (8-13).
  • The thirteenth amendment would require the DOL secretary to certify that the PRO Act will not have an adverse effect on the employment rates of those with disabilities (9-12).

 

Finally, S.567 was agreed to by a vote of 11-10 and will be favorably reported.

 

For more information on this hearing, please click here.

For an archive of past SIFMA hearing coverage, please click here.