How the PRO Act Will Change U.S. Labor Law
With the news that West Virginia Senator Joe Manchin will co-sponsor the Protecting the Right to Organize Act, Labor and its allies are beginning to get a gleam in their eyes. Labor activists see the PRO Act as the key to building back a powerful labor movement. Climate activists, including the Democratic Socialists of America Green New Deal Campaign and the Sunrise Movement, see a powerful labor movement as a necessary fighting force to win a Green New Deal and necessary party in a Just Transition away from fossil fuels.
The labor law reform legislation, once deemed a moonshot, is suddenly gaining momentum. The bill has already passed the House and will require support from all 50 Demcratic Senators to put breaking the filibuster at issue. Only three Democratic senators remain on the fence: Arizona Senators Kirsten Sinema and Mark Kelly and Virginia Senator Mark Warner. DSA has organized a massive phone-banking effort aimed at getting all 50 members of the Democratic Senate Caucus on board.
Manchin’s close relationship with the United Mine Workers and his friendship with UMW leader Cecil Roberts appear to have played a major role in Manchin’s support for the bill. Manchin made his announcement at a UMW-sponsored event at which Roberts said the miners’ union would support moving away from fossil fuels if there was a transition that would provide jobs to replace those that will be lost.
Charleston, W. Va., police arrest UMW President Cecil Roberts (standing, center) and 15 other miners at rally against Patriot Coal in 2013. Picture by MetroNews
The PRO Act is the biggest piece of pro-labor legislation since the passage of the National Labor Relations Act in 1935. Amid massive labor upheaval in the 1930s, the NLRA guaranteed private sector workers throughout the United States the right to organize. But, of course, powerful business interests opposed the legal protection for unions from the start. Since 1935, the wealthiest and most powerful ruling class in history has waged an unrelenting struggle to defeat the protections that workers won in the New Deal era.
Over the years, the fundamental right of workers to organize has been undercut by legislative attacks including the notorious Taft-Hartley Act of 1947, exploitation of weaknesses in the original act, and a relentless series of anti-labor court decisions.
Employers now routinely interfere with union organizing. Instead of being punished for committing unfair labor practices, employers who indulge in coercion, intimidation, disinformation, and firings to beat back organizing campaigns are rewarded with union-free workplaces. Abuses are so rampant that the International Trade Union Confederation ranks the United States just one tier above the worst nations in the world for systemic violations of labor rights.
The PRO Act would reverse many of the restrictions on labor rights that have resulted in less than 6½% of the private sector workforce having union representation. The PRO Act addresses the obstacles to organizing with corrective measures as varied as the rules that are standing in our way.
The PRO Act would:
Put an end to so-called “Right to Work” laws. One of the most poisonous provisions of the Taft-Hartley Act lets states pass so-called “Right to Work” laws. “Right to work” sounds like a job guarantee, but it’s nothing of the sort. It actually refers to laws that prohibit unions from requiring dues from all the workers they are legally obliged to represent. Florida became the first state to pass a “Right to Work” in 1944 and Missouri became the 28th state to do so in 2020. In “Right to Work” states, unions are required to represent all members of the bargaining unit equally, even those who don’t pay dues. Not surprisingly, unions are weaker in the “Right to Work” states and wages are lower. The more accurate way to refer to“Right to Work” would be the “Right to Work for Less.”
Make solidarity legal again. The Taft-Hartley Act law outlawed sympathy strikes, boycotts, and picket lines targeting employers other than the “primary” employer whose employees are organizing or striking. The PRO Act would remove these restrictions, which isolate workers in legal silos.
Impose meaningful penalties on employers who violate the law. When employers are found guilty of engaging in violations of labor laws at the end of the National Labor Relations Board’s lengthy process — in many cases the only penalty is that the employer must post a notice promising to behave better in the future. The heaviest penalty is to pay unlawfully fired workers back pay, but the employer can deduct whatever pay the workers got when economic necessity forced them to take other jobs. The PRO Act provides for civil penalties of up to $10,000 per violation per day plus actual damages. Further, workers can take these claims to court just like workers who are injured by violation of anti-discrimination laws.
Outlaw permanent replacement of striking workers. In 1981, newly elected president Ronald Reagan fired 11,345 striking air traffic controllers, signalling to employers across the United States that a new era of union-busting had arrived. Since then, employers have frequently threatened or carried out permanent replacement of workers who go on strike. The PRO Act bars the use of this devastating weapon to prevent or break strikes.
Striking air traffic controllers were fired en masse by Pres. Ronald Reagan and the Professional Air Traffic Controllers Organization (PATCO) union was destroyed. Reagan’s action ushered in an era in which the permanent replacement of strikers became a favored weapon of employers to suppress strikes.
Protect undocumented workers. An employer who fires an undocumented worker in violation of the NLRA cannot be required to compensate the fired worker. This makes it risk-free to the employer to fire undocumented workers when they participate in protected activities such as an organizing drive or strike action. The PRO Act will prevent undocumented workers from being denied remedies for violations of their labor law rights because of their immigration status.
Cut delays of union elections. Delay is a key to executing employer strategies to defeat organizing drives. The more time the employer has to sow fear, uncertainty, and doubt in the workforce, the more likely the employer will persuade employees to vote against union representation. Employers can push off election dates by filing bogus claims of unlawful union campaign activities; those claims have to be processed before the election can take place. The PRO Act speeds things up by allowing employer challenges to be taken up after the election.
Ban captive audience meetings. Employers resisting organizing drives can require employees to attend captive audience meetings in which the workers are forced to ingest hours of anti-union propaganda. Employees can be disciplined, even fired, if they refuse to attend, leave early, or ask the wrong question. The NLRA, as interpreted by the courts, gives unions no right to hold similar meetings with the workforce. The PRO Act outlaws captive audience meetings.
Extend protection to gig workers and freelancers. The NLRB has been using a complicated 21-part test to distinguish employees whose right to organize is protected from “independent contractors” who can be fired or even sued for organizing. In recent years, increasing numbers of workers have been categorized as “independent contractors,” depriving them of any rights under federal or state labor law. The PRO Act will define employees in a way that limits the “independent contractor” exception to those who truly run their own independent businesses and do not perform core functions of the companies they work for. The PRO Act enables eligible gig workers and freelancers to choose freely whether to unionize and engage in other “concerted activity” without putting their jobs at risk.
Reinforce the employer’s duty to bargain with a newly elected union. Union victories are often short-lived and bittersweet. Employers simply go through the motions of collective bargaining but make no effort to come to terms with their employees’ elected representatives. Nearly half of newly organized shops fail to obtain a first collective bargaining agreement. The PRO Act establishes a mediation and arbitration process to establish a first contract if the parties are unable to come to terms.
Prohibit mandatory arbitration agreements and class action waivers Right-wing courts have weaponized the 1926 Federal Arbitration Act to permit employers to impose mandatory arbitration agreements that force employees with grievances into secret tribunals before arbitrators chosen by the employer, and furthermore to bar them from joining with other workers to bring class actions to pursue claims that none of them could afford to pursue on their own. The PRO Act outlaws employers’ requiring employees, as a condition of their employment, to sign away their right to seek legal redress in the courts.
Level the playing field in contract negotiations. Under current law, an employer can unilaterally implement its final offer when contract bargaining reaches a stalemate. The employer holds this powerful trump card throughout negotiations. Although the NLRA requires employers to bargain with unions in “good faith” over wages, hours, and working conditions, a well-coached employer can maneuver to impasse without getting caught in obvious bad faith. Under current law, the employer can then simply impose the terms of its own final offer, including whatever concessions the employer insisted on. The PRO Act would require the employer to maintain current wages, hours, and working conditions until the parties reach agreement. Neither side would get what it wants by refusing to bargain.
Along with these key reforms, the PRO Act will remove many other barriers to workers organizing for democracy in the workplace and in society.
The vision of industrial democracy espoused by the authors of the original National Labor Relations Act has yet to be realized. As the law has been progressively weakened over the past 85 years, the time for a major overhaul has arrived.
A vibrant union movement would make for greater equality, more grassroots power in communities, and a social and political base for the sweeping and transformative change envisioned in a radical Green New Deal.
Source: Economic Policy Institute
Ted Franklin is a retired labor lawyer, member of the National Writers Union, coordinator of System Change Not Climate Change, and member of the Democratic Socialists of America Ecosocialist Working Group.