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Build Back Better Act Creates Tougher Fines for Union-Busting

Washington, DC — “What’s Disgusting…Union-Busting!”

The Build Back Better Act, passed by the House Nov. 19 by a 220-213 party-line vote, would sharply increase fines for employers who illegally retaliate against workers for union activity. 

The fines — as high as $100,000 for repeat offenders — are provisions of the proposed PRO Act [Protecting the Right to Organize] that were added to the $1.75 billion social-infrastructure package in July, as revenue-raising measures that could be included in budget legislation. Budget bills can’t be filibustered in the Senate, unlike labor-rights legislation.

AFL-CIO President Liz Shuler.

“It will hold accountable employers who attempt to union-bust with real, substantive financial penalties, making this the most significant advancement for the right to organize since passage of the National Labor Relations Act in 1935,” AFL-CIO President Liz Shuler said in a statement.

The bill would also increase funding for the National Labor Relations Board [NLRB], which is supposed to enforce workers’ rights, to $350 million a year. The NLRB has been frozen at about $275 million since 2012.

The legislation would levy fines of up to $50,000 on employers for each unfair labor practice they commit that violates workers’ rights to collective action that is protected by Section 8A of the National Labor Relations Act, explains Margaret Hoydock, a policy analyst and government affairs specialist at the Economic Policy Institute. Those include firing or demoting workers for union activity, threatening to close down the workplace if employees vote in favor of a union, and illegally disciplining union supporters or setting them up to be fired for poor performance. The fines would go up to $100,000 per offense for an employer who’s been found guilty of similar violations within the past five years.

If the Senate passes the bill, those fines “will add real teeth to the NLRA,” says Hoydock. “It’s not just something they could consider a cost of business.”

The EPI estimates that employers violate workers’ right to a union and collective bargaining in more than 40% of union election campaigns. But the NLRB can’t do more than order an employer to reinstate an unfairly terminated worker and pay them what they would have earned since they were axed, minus anything they’ve made on other jobs in the interim.

“As it stands, there are currently no financial penalties for violating workers’ rights,” a senior labor official who asked to speak on background told LaborPress. The bill would also make directors and officials of an employer personally liable to be fined if they “knowingly and willfully” participated in those violations, he added.

No Republicans voted in favor of the bill. Rep. Jared Golden of northern Maine was the only Democrat to vote no.

“Tucked into the Democrats’ socialist spending bill is a nasty scheme intended to bleed American job creators dry,” the Republican minority on the House Education and Labor Committee said in a statement Nov. 19. “These outrageously inflated fines will harm small businesses and embolden government inspectors to harass job creators.” 

The National Federation of Independent Business opposed the bill, claiming that “a small employer who makes a single error and forgets that his or her employees’ hours exceeded the overtime threshold and inadvertently forgets to pay overtime to 10 employees can now be subject to $207,400 in fines.” 

That is not true, Hoydock told LaborPress. The legislation would more than double fines for violations of wage-and-hour laws and Occupational Safety and Health standards, but not for first offenders, she says — only for “repeated and willful” violations.

The exception, she adds, would be for violations of laws against child labor.

The PRO Act provisions are far from certain to make it through the Senate, though. 

First, the Senate parliamentarian would have to decide that the increased fines are legitimate revenue measures, under the “Byrd rule,” named after the late majority leader Robert C. Byrd (D-W.Va.). That rule prohibits adding “extraneous matter” to budget-reconciliation bills. 

The Congressional Budget Office projects that the new penalties would bring in $90 million over the next 10 years, the labor official said, and the parliamentarian would have to decide whether that revenue is merely incidental to the policy change. He calls the $90 million estimate “woefully low,” based on the number of unfair labor practices found recently.

House Speaker Nancy Pelosi, he said, “made a serious effort to ensure that what went to the Senate would pass the Byrd rule.”

Second, no Republicans and not all Democratic senators have endorsed the new penalties. Three Democrats, Mark Warner of Virginia and Kyrsten Sinema and Mark Kelly of Arizona, have not yet endorsed the PRO Act. Joe Manchin of West Virginia has cosponsored the PRO Act, but has objected to several parts of the Build Back Better Act. His and Sinema’s opposition got proposals for 12 weeks of paid family leave and expanding Medicare to cover vision, hearing, and dental care deleted from its original version.

“We’re very confident that the penalties in the Build Back Better Act will be supported by all Democrats,” the labor official said. “Workers’ rights to organize can’t be real unless there’s some disincentive to violate the law. This would be a real advantage for workers.”

Union electric-car benefit

An unrelated provision in the bill would give people who buy electric vehicles a $4,500 federal tax credit if it was made in the U.S. with a union workforce.

“For the first time ever, critical renewable energy projects funded by the federal government — including wind and solar — will come with the kind of strong labor protections that ensure working people earn living wages and are safe on the job,” International Brotherhood of Electrical Workers President Lonnie Stephenson said.

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