House-Passed 'America COMPETES Act' Contains Union Neutrality, Card Check and Binding Arbitration
The COMPETES Act contain provisions of the PRO Act, as well as the now defunct Employee Free Choice Act
The America COMPETES Act passed the U.S. House of Representatives 222-210 on Friday
The America COMPETES Act provides billions in grants, but there are strings attached
Within the America COMPETES Act, funding recipients (and their subcontractors) are required to pay prevailing (union) wages, accept union card check, as well as binding arbitration and more
WASHINGTON, DC—On Friday, the U.S. House of Representatives passed the America COMPETES Act 222-210, along near-party lines.
The bill—which Democrats say would increase America’s economic competitiveness with China by investing in several sectors to ease the supply chain crisis and fund research and development efforts—contains several provisions that would require employers receiving grants to agree to pay “prevailing (union) wages,” accept card-check unionization, as well as allow a tripartite panel of arbitrators to set employers and their employees wages and other terms and conditions of employment.
Prior to the bill’s passage, Rep. Eddie Bernice Johnson (D., Texas) inserted 65-pages worth of amendments (view here), several pages of which contain provisions that resurrect so-called “card check” which was a major component of Employee Free Choice Act (EFCA)—a pro-union bill in the late 2000s that never became law.
So-called “card check” is the process of unionizing workers through the gathering of signatures on union authorization cards (or electronically) and effectively eliminating secret-ballot elections.
Additionally, the binding arbitration provisions of the pro-union bill called the PRO Act, are contained in the approved amendments in the America COMPETES Act.
The Card-Check Provisions
Beginning on page 28, under the section titled “Labor-Management Cooperation” the Amendments require “any funding recipient” to:
“…recognize for purposes of collective bargaining a labor organization that demonstrates that a majority of the employees in a unit appropriate for bargaining who perform or will perform funded work have signed valid authorizations designating the labor organization as their bargaining representative…”
The Binding Arbitration Provisions
It appears the binding arbitration provision is taken verbatim from the currently-stalled Protecting the Right to Organize Act (or PRO Act).
The amendments state (beginning on page 30) that, once unionized, an employer must commence bargaining “no later than 10 days after receiving a written request for collective bargaining from a recognized or certified labor organization (union).”
If an agreement is not reached within 90 days of negotiations, “either party may notify the Federal Mediation and Conciliation Service of the existence of a dispute and request mediation.”
If an agreement is not reached after 30 days of mediation, the Federal Mediation and Conciliation Service (FMCS) will refer the dispute to a tripartite arbitration panel that will decide what the labor agreement will contain.
“A majority of the tripartite arbitration panel shall render a decision settling the dispute as soon as practicable and not later than within 120 days, absent extraordinary circumstances or by agreement or permission of the parties, and such decision shall be binding upon the parties for a period of 2 years, unless amended during such period by written consent of the parties.
Such decision shall be based on—
(A) the employer’s financial status and prospects;
(B) the size and type of the employer’s operations and business;
(C) the employees’ cost of living;
(D) the employees’ ability to sustain themselves, their families, and their dependents on the wages and benefits they earn from the employer; and
(E) the wages and benefits other employers in the same business provide their employees.”
Applies to Subcontractors
The America COMPETES Act also mandates that, were the employer to use a subcontractor to conduct the work, the above “Labor-Management Cooperation” provisions would also apply to the subcontractor and its employees.
As the Washington Free Beacon reports, “critics say the amendment undermines worker protections.”
"It is unfortunate that some in Congress continue to attack the rights of workers to a secret ballot election," Vinnie Vernuccio, president of the Institute for the American Worker, told the Washington Free Beacon. "The updated version of the America COMPETES Act is just the latest in a long list of attempts to favor union organizing over what workers actually want and their privacy."
Democrats have long pushed for card checks, also referred to as "majority sign-up," because they say the process simplifies the union certification process for workers. Democrats failed during the Obama administration to establish a permanent card check through the Employee Free Choice Act. Some Democrats debated a similar push for card checks in the latest version of the PRO Act, a pro-union bill backed by the Biden administration, but decided against including the measure in the bill.
Prevailing Wage (Davis-Bacon) Provisions
On page 27 of the amendments, on any construction projects:
“…all laborers and mechanics employed by contractors or subcontractors in the performance of construction, alteration or repair work carried out, in whole or in part, with financial assistance made available under this section shall be paid wages at rates not less than those prevailing on projects of a character similar in the locality as determined by the Secretary of Labor…”
Maintaining Union Neutrality
As noted by the Institute for the American Worker, the COMPETES Act also requires fund recipients to remain neutral to their employees being unionized:
“To be eligible for a grant, loan, or loan guarantee under this program, the recipient is required to “remain neutral in any union organizing effort for the term of the grant, loan, or loan guarantee” or maintain any existing collective bargaining agreement during the life of the loan and for two years after completing repayment of the loan (page 730).”
While the America COMPETES Act passed the House of Representatives on Friday, its chance of being signed into law by President Biden is questionable.
Although the U.S. Senate has its own bill, there is push back among Republicans and, now, with Sen. Ben Ray Luján (D-NM) having suffered a stroke and currently not working as he recovers, the Democrats’ slim one-vote majority (inc. Vice President Kamala Harris as a tie breaker) is all but gone—at least temporarily.
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