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The PRO Act would reshape the tech industry — will it get the chance?

The Retail, Wholesale and Department Store Union (RWDSU) is holding a hearing this week to contest the results of the Amazon union election. Organizers say the retail giant interrogated employees, spread anti-union propaganda, and held captive audience meetings.

These tactics might seem dirty, but most aren’t explicitly illegal. “According to the letter of the law, workers have the right to organize, but it doesn’t pan out that way in practice,” says Kelly Russo, an organizer with the Office and Professional Employees International Union (OPEIU) Local 2. “Labor laws are weak or have loopholes that allow employers to dissuade people from forming a union.”

The National Labor Relations Act (NLRA) of 1935 was meant to defend worker organizing. But the Taft–Hartley Act of 1947 poked holes in many of its protections. The legislation allowed states to pass right-to-work laws, forcing unions to represent workers who don’t pay dues, which weakens their position financially.

Now, Congress is considering a law that would dramatically reshape American labor. The Protecting the Right to Organize Act (also known as the PRO Act) would eliminate many of the roadblocks that workers face when they try to unionize. Among other things, it would ban companies from forcing employees to attend captive audience meetings where managers spread anti-union messages; allow unions to collect dues from non-union members — increasing their budgets and their ability to effectively organize; and establish penalties for companies that violate workers’ rights.

“The PRO Act is the most significant piece of labor legislation since the New Deal,” says Veena Dubal, a law professor at the University of California, Hastings. “It really addresses the ways that workers’ rights to organize have been eroded, which is why we see these huge misinformation campaigns and well-funded propaganda.”

The bill would have massive implications for tech companies that have faced few consequences for union busting. After the Bessemer election, RWDSU accused Amazon of firing an organizer for handing out union cards. This is illegal under current labor law. But even if it were proved true, the punishment for Amazon would be minimal. “There is no repercussion, essentially,” Dubal says. “A worker would have to file an Unfair Labor Practice charge, then they wait for months and months to find out if they were illegally fired. And then the only power that the state has to enforce this is to say, ‘Look, Amazon, you have to reinstate the worker and you have to put a sign up in the break room that says that you broke the law.’”

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The PRO Act could also impact the Alphabet Workers Union, which launched in early January. The union is open to contractors as well as white collar workers — making NLRB recognition nearly impossible. Under the PRO Act, that might change. The law reshapes the test for determining who is an independent contractor. “It would make it much easier for a lot of people who are misclassified right now as independent contractors to organize,” Dubal says.

It’s for that reason that Uber, Lyft, DoorDash, and Instacart have spent at least $1,190,000 on lobbying efforts to influence the bill, according to reporting in The Intercept. Uber has said that the possibility of drivers unionizing could pose a business risk, writing in its 2020 financial filing: “If a significant number of Drivers were to become unionized and collective bargaining agreement terms were to deviate significantly from our business model, our business, financial condition, operating results and cash flows could be materially adversely affected.”

The PRO Act passed the House on March 9th, 2021. Senate Majority Leader Chuck Schumer (D-NY) said he’d bring the legislation to the floor for a vote if supporters rallied 50 co-sponsors, according to reporting in The Intercept. But right now that’s unlikely to happen. No Republicans are expected to back the bill, and prominent Democrats like Sen. Mark Kelly (D-AZ) have been reluctant to voice their support.

So far, only 47 senators have signed on in support of the measure, leaving the bill far short of the 60 “yes” votes necessary for it to overcome a filibuster. Three Democrats, including Kelly, Sen. Kyrsten Sinema (D-AZ), and Sen. Mark Warner (D-VA), have stayed relatively silent on the sweeping labor legislation, and unions have promised not to support the lawmakers in upcoming elections if they fail to back the bill, according to Politico. Labor activists have gone as far as showing up at Warner’s home on Wednesday with a cake to lobby for his support for the bill, The Washington Post reported.

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“‘Send me the PRO Act.’ Support the President,” the cake read.

With Republicans largely opposed to the legislation, the PRO Act needs every ounce of support possible from Democrats and Independents in order to send it to the president’s desk. Without 60 lawmakers in favor of the legislation, one senator can prevent the bill from being brought for a vote by prolonging debate on it. “It’s the legacy of slave power. I have no other way to describe the filibuster than that. We need an abolition of this anti-democratic nonsense that prevents real progress,” says Tom Smith, organizing director of the Communications Workers of America.

In a statement to The Verge, Warner said, “I am concerned about the portion of the bill that deals with worker classification. Many Americans prefer alternative work arrangements that give them the freedom and flexibility to set their own hours or work around their other interests.”

A spokesperson for Kelly told The Verge that he was “evaluating the legislation and speaking about it with stakeholders in Arizona as he focuses on building an economic recovery that benefits working Arizonans who have been hit hard by the pandemic.”

Sinema’s office did not respond to a request for comment.

The lack of support from Senate Democrats has been a blow to unions that are hoping the PRO Act will help them regain some of their power. “I think the question for us is ‘are we going to take advantage of this moment or not?’” Smith says. “Are we going to make this another one of those moments in history when tens of millions of workers are able to successfully organize unions?”

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President Joe Biden has repeatedly touted his support for the PRO Act. In March, he released a statement encouraging the passage of the bill: “As America works to recover from the devastating challenges of deadly pandemic, an economic crisis, and reckoning on race that reveals deep disparities, we need to summon a new wave of worker power to create an economy that works for everyone.”

That call was brought up again last month during Biden’s first joint address to Congress. “The middle class built this country, and unions built the middle class.”

Organizers hope they’ll get a chance to do so again, noting that the current labor landscape is heavily weighted toward corporations. “The hell scape that workers face when they try to exercise their fundamental human rights, and their freedom of association — it’s just so stacked against them right now,” Smith says.