A report from a congressional watchdog argues that Republicans’ attempt to nix staffer unions in the House rules package isn’t valid, and recent testimony from the agency that oversees Hill worker protections seems to confirm that analysis.
The House began allowing members’ staff to form unions last year by adopting a resolution that authorized regulations from the Office of Congressional Workplace Rights. Republicans opposed the measure at the time, and after taking control of the House, they adopted a rule that said the “regulations adopted pursuant to [last year’s resolution] shall have no force or effect” during the current Congress.
While that might seem to nullify aides’ ability to form new unions, the language is actually ineffective, said Kevin Mulshine, author of the Demand Progress Education Fund report and a former senior adviser and counsel at OCWR.
“It’s entirely within the power of the House to write specific rules that change or even eliminate rights that staffers have,” Mulshine said. “But … in order to do it, they have to do it in a clear and unequivocal way. And they didn’t do that.”
Testimony by OCWR Executive Director Patrick Findlay on Wednesday would seem to support that interpretation. When Rep. Adriano Espaillat, D-N.Y., asked at a House Legislative Branch Appropriations Subcommittee hearing how OCWR had supported last year’s resolution guaranteeing protections for staff unionizing, Findlay made no mention of this year’s rules package or any suggestion that his office had stopped overseeing staff union elections.
OCWR declined to comment on the report or to answer questions about Findlay’s testimony.
Findlay noted that 14 offices had filed union petitions last year, and that seven had been formed and are now in the process of collective bargaining.
“There are seven that are pending at different stages of the process, some earlier than others, the conferencing and trying to settle on what they’re going to have as their bargaining unit,” he said. “Others are about to have an election, [and] others we are in various other spots.”
Findlay went on to describe the electronic election system that OCWR is using to ensure that members’ district staff can “participate on equal footing with DC staff” in union ballots. No one else at the hearing inquired about staff unions.
What lies ahead
The current confusion is 27 years in the making. Coming into power under the banner of Newt Gingrich’s “Contract for America,” Republicans set out to apply to lawmakers the same workplace laws the rest of America has to follow. The Congressional Accountability Act of 1995 created the Office of Compliance (which later became OCWR) and tasked it with writing regulations to implement the law. But before those regulations could take effect, each branch of Congress would have to adopt them via resolution.
While Congress adopted authorizing resolutions for most regulations, including those to afford the Capitol Police and Architect of the Capitol workers protections under the National Labor Relations Act, the House only adopted a resolution covering staffers last year and the Senate still hasn’t acted. The House GOP then tried to unring that bell in January.
As Mulshine noted in the report, the Constitution provides clear authority to each chamber of Congress to write its own rules. But, he contends, it’s not clear what House Republicans were trying to do with regard to unions in their rules resolution. First, the 1995 law sets out a process for amending or suspending OCWR regulations that wasn’t followed.
Second, the rules subsection in question doesn’t mention unions — it’s titled “restoring legislative branch accountability” — and to “extinguish the rights granted to federal employees in its employ, the House must do so with clear and unequivocal language,” the report argued. Mulshine also argues that the House can’t unilaterally suspend regulations promulgated by an independent office like OCWR, pointing to analogous Supreme Court precedent.
But even if you didn’t buy any of those arguments, Mulshine said, the GOP’s rules package still doesn’t block staff unions. That’s because all it purports to do is suspend OCWR regulations adopted pursuant to last year’s authorizing resolution, but OCWR has made lots of other regulations about unions over the years. In effect, last year’s resolution opened the barn door, allowing the possibility of staffer unions to bolt out; the GOP’s rules package may now shut that barn door, but that doesn’t lock the union horses back up.
The Congressional Workers Union, which has led the office organizing charge on the Hill, agreed with Demand Progress that the House rules had no impact on its efforts.
“It’s been clear since the beginning of this Congress that the Republican majority is intent on stamping their legislation as anti-worker with every opportunity they can, from rules to individual committee actions,” CWU spokeswoman Taylor Doggett said. “We were disappointed to see the rules package include anti-worker rhetoric when it passed in January, but we haven’t let that stop our organizing drive. If anything, it has been invigorated by this union-busting language.”
While the Demand Progress report lays out a legal argument for continued recognition of staff unions in the House, political realities may ultimately settle the issue.
So far, only Democratic offices have sought to form unions, and those members have all publicly supported their staff in the process — none have had to actually rely on the protections federal labor law provides labor organizers. Pro-labor members can always voluntarily recognize a staff union, as Sen. Edward J. Markey did last week, or adopt pro-worker policies without a union, as Rep. Alexandria Ocasio-Cortez did in 2019.