The House rules package proposed by Republican Kevin McCarthy, the man who would be speaker, aims to kneecap congressional staff’s nascent labor movement, but union supporters say his attempt at union-busting may go worse than his bid for the speaker’s gavel.
Under Democratic control, the House started allowing offices to unionize last year by adopting regulations promulgated by the Office of Congressional Workplace Rights. The organization push came amid a larger demand among Hill aides for better pay and working conditions. By the end of the year, staffers for 14 Democrats had filed union petitions.
Last week, McCarthy released a proposed House rules package that purports to neutralize those regulations. Unionized staff say they intend to fight it.
“We’re currently seeking advisement for legal and legislative subject matter experts on how the Rules package could impact House unionization,” Congressional Workers Union spokeswoman Taylor Doggett said. “As of now, we have no plans to stop our organizing drive, and this has in fact invigorated workers to want to utilize their collective power even more and cement their seat at the table so no matter who is in control, their right to a democratic workplace remains solid.”
No one doubts that Congress could get rid of the staff unions by enacting a law. But that means a bill would need to pass both chambers and either get signed by the president or overcome a veto. There’s virtually no chance of that happening with Democrats in control of the Senate and the White House.
The question is how much the House can do on its own to stuff the labor genie back in its bottle after Democrats freed it last year.
The answer: It’s complicated — really complicated. Here are a few possible scenarios.
Some of this will depend on the exact language of the GOP’s rules purporting to ban the unions, and some on how the OCWR then responds to that language. The answer may come down to judicial interpretation of the relevant statutes and the exceedingly scant case law on these issues in a lawsuit. But that would settle just the legal issues — the practical ramifications for staffers are another matter.
OCWR declined to comment. Originally called the Office of Compliance, it was created by the Congressional Accountability Act of 1995. That was the first law passed under the banner of then-Speaker Newt Gingrich’s “Contract with America,” which aimed to subject Congress to the same workplace laws as the private sector. The office quickly issued union rules, but neither chamber authorized them by resolution until the House did last May. Now McCarthy’s “Commitment to America” platform includes a rules package that would gut the belatedly adopted regulations.
The Constitution gives each chamber the authority to “determine the Rules of its Proceedings,” and the CAA explicitly states that the adoption of the regulations promulgated by the OCWR are enacted “as an exercise of the rulemaking power,” but the devil remains in the details, said Kevin Mulshine, a former Architect of the Capitol inspector general who was senior counsel at the OCWR’s antecedent office when the CAA passed.
“The rules authority of each house is impregnable and ongoing,” Mulshine said. “The key, though, is whether the wording in the draft House rules is sufficient to hit the GOP’s target. I have my doubts.”
The GOP’s current rule proposal states that the OCWR’s union-authorizing regulations adopted last year “shall have no force or effect during” the 118th Congress.
Mulshine isn’t sure exactly what that language would do, though, and there’s next to no case law interpreting the CAA to offer any hints. “One has to look elsewhere,” he said. “Fortunately, the speaker mess gives us some time to find the precedents that will light the way to an answer.”
Horses out of the barn
As written, the proposed rule might shut the barn door only after some horses have already bolted: It could be read as preventing future offices from organizing, but not as revoking recognition of existing staff unions or preventing the OCWR from conducting unionization votes in offices that have already petitioned to do so.
It’s unlikely the proposed language would decertify the existing unions — the OCWR has recognized bargaining units in the offices of Democrats Ilhan Omar of Minnesota, Ro Khanna of California, Melanie Stansbury of New Mexico, Cori Bush of Missouri, Jesus “Chuy” García of Illinois and Ted Lieu of California.
Similarly, it’s unlikely that the other seven offices that filed petitions to form unions would be stopped from doing so. And it’s less likely still that any rules language could nullify a collective bargaining agreement those unions might sign before the House gets its affairs in order. So far, though, only one staff union has signed a contract — former Michigan Democratic Rep. Andy Levin’s office did just before his term ended after he lost a primary.
If the rules package passes, it’s unclear how the OCWR would respond. The office’s five-member board is jointly picked by the House and Senate’s majority and minority leaders. If they continued to oversee union elections, the speaker might sue; if they didn’t, the unions or would-be organizers might sue.
In either case, a federal court might decide it’s a nonjusticiable political question, leaving the legal matter unsettled.
Regardless of where the courtroom arguments ultimately lead, the practical destination will remain largely the same for staffers and members. Labor laws generally protect workers who decide to band together to collectively bargain with their bosses by preventing employers from retaliating against them.
If a member — or any boss, really — wants to treat their workers like a union without the legal formalities, they can. In 2019, New York Democratic Rep. Alexandria Ocasio-Cortez’s office made headlines for raising the wages for low-level staff by paying top aides less.
So far, the offices that have organized have been driven more by ideology than grievances; they’ve all worked for pro-labor Democrats who’ve supported their union bids. There was never much expectation that Republican staffers would organize, given the party’s long-standing ideological opposition to unions.
The symbolism may matter more. For progressive staffers, forming and joining a union is the ultimate expression of solidarity with a labor movement rebounding after decades of decline, partially due to an uptick in professional, college-educated workers looking to organize. By stripping the other party’s staffers of their right to unionize, the House GOP may be doing little more than letting its traditional allies in corporate America know that the party’s new, pro-worker rhetoric is little more than just that.
Gutting the congressional unions may slow the momentum in recent years towards paying staffers better and improving workplace conditions generally. But the GOP House rule package is silent on other labor provisions the House adopted late last year that would implement family paid leave and overtime rules.
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