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October 31, 2023 HUMAN RIGHTS

The “Protecting the Right to Organize” Act and the Radical Roots of Labor Law Reform

by Jonathan F. Harris and Dylan Holmes
"You have seen [strikes in] Toledo, Minneapolis, and San Francisco. That is mild. You have not yet seen the gates of hell opened, and that is what is going to happen from now on unless the Congress of the United States passes labor legislation to cure the evils which are existing in industry and which are driving these workers to desperation."

— U.S. Rep. William P. Connery Jr. quoting a labor leader, 1934

Congress enacted our nation’s labor laws only after hundreds of thousands of workers protested, struck, or even died to win a voice, respect, and dignity at work. As a result of these efforts, the reforms were significant—Congress mandated minimum wages and overtime pay and created a structure for workers to win formal recognition of their union. In fact, the preamble of the nation’s labor law, the National Labor Relations Act (NLRA), states that workers must have “full freedom of association, self-organization, and designation of representatives of their own choosing” to combat the inequality of bargaining power between workers and corporate employers. Consequently, the NLRA is an explicitly pro-union law that Congress passed to avoid even more militant worker uprisings against big business.

Almost a century later, an overwhelming majority of U.S. workers support unions and would form one with their coworkers if given the opportunity. Recent organizing drives at Amazon, Starbucks, Trader Joe’s, and Apple—and popular support for what some are calling the 2023 “Summer of Strikes”—show this. But for decades, labor activists have faulted federal law for making the process of joining a union cumbersome and even dangerous for workers. They say the NLRA and the body that administers it, the National Labor Relations Board (NLRB), enable employers to deliberately break the law—even fire union supporters—with few, if any, consequences.

To address this issue, some in Congress have sought to change the law to tip the scales more in favor of workers. Senator Bernie Sanders (I-VT) and Rep. Bobby Scott (D-VA) introduced the Richard L. Trumka Protecting the Right to Organize Act of 2023 (PRO Act), named after the late president of the nation’s largest union federation, the American Federation of Labor and Congress of Industrial Organizations (AFL-CIO). The PRO Act amends the NLRA in several ways, with the goal of making union organizing and bargaining easier while imposing substantially heavier penalties on lawbreaking companies.

An overwhelming majority of U.S. workers support unions and would form one with their coworkers if given the opportunity.

An overwhelming majority of U.S. workers support unions and would form one with their coworkers if given the opportunity.


Summary of the PRO Act

The AFL-CIO describes the PRO Act as “the most significant worker empowerment legislation since the Great Depression” and identifies five main areas in which the bill would actually fulfill this expectation, by: (1) holding employers (more) accountable when they violate workers’ rights; (2) ensuring that most workers today are included under the NLRA; (3) protecting collective action and removing barriers to worker voice; (4) strengthening employee bargaining rights; and (5) modernizing the union election and enforcement process.

Holding Employers (More) Accountable

Labor activists have critiqued the NLRB’s weak remedy structure and slow-churning process that incentivizes employers to disregard their legal obligations. For some employers, breaking the law and paying a relatively nominal fee down the line are worth it. The PRO Act, however, reduces that incentive by imposing aggressive sanctions against lawbreaking employers including back pay, front pay, consequential damages, and additional liquidated damages. Additionally, the act creates a private right of action for workers, imposes civil penalties of up to $50,000 per violation and personal liability for individual employers who knowingly fail to address labor violations, and forces employers to disclose the amount of money they are spending on consultants to stop union drives.

Ensuring that Most Workers Are Included under the NLRA

The PRO Act expands the definition of covered “employees” under the NLRA, short-circuiting employers’ attempts to classify workers as “independent contractors” not protected by the NLRA. Additionally, the act ensures that fewer workers are misclassified as unprotected “supervisors” and overrules the 2002 Supreme Court decision Hoffman Plastic Compounds, Inc. v. NLRB, which denied an award of back pay to a worker simply because he was undocumented.

Protecting Collective Action and Removing Barriers to Worker Voice

The PRO Act bans several employer anti-union tactics, including firing and permanently replacing workers who are on an “economic” strike because of wages and economic issues (as opposed to a strike because of unfair labor practices), locking workers out to prevent them from striking, and prohibiting workers from using work computers to engage in collective action. The act also bans mandatory “captive audience” meetings in which employers force workers to sit through anti-union propaganda presentations. Additionally, the act protects strikes, regardless of how long, frequent, or large they are, and protects “secondary boycotts,” wherein employees of one employer can picket, strike, or boycott in solidarity with employees at another employer. By removing these barriers, the PRO Act permits effective worker action in an otherwise fragmented labor market.

Crucially, the PRO Act overrides state “right-to-work” laws meant to deplete union treasuries. These laws, found in 26 states, prohibit employers from agreeing to collect “fair share fees” from nonunion employees to cover the costs of the union services those workers benefit from. The act resolves this free rider problem. 

Strengthening Employees’ Bargaining Rights

After enduring months of anti-union tactics and winning their union, it can be even more difficult for workers to enjoy the fruit of having a union: a collective bargaining agreement. According to the Economic Policy Institute, over a third of newly formed unions still have no union contract after two years. Current law allows employers to drag out the contract bargaining process as long as possible, which undermines faith in the union. Currently, the NLRB can address this “bad faith bargaining” only by instructing the employer to bargain, with little force behind that instruction. Under the PRO Act, the NLRB issues bargaining orders quicker and has them enforced by a U.S. district court.

Modernizing the Union Election and Enforcement Process

The PRO Act makes it easier for all eligible workers to vote in a union election either by mail, electronically, or at a convenient location. The act also requires employers to provide a searchable electronic voter list of all the employees in a “bargaining unit”—the workers eligible to be in the union—and their contact information. Another change allows workers and the NLRB to decide who is eligible to be a part of the union. This averts the common employer tactic of squabbling over the size and scope of bargaining units—a sort of gerrymandering.

The PRO Act precludes employer stalling and intimidation tactics, both during and after a union campaign. Typically, workers sign cards authorizing a union as their representative, and the PRO Act allows those cards to serve as proof of a union victory should the employer unlawfully interfere with the election. Additionally, if the NLRB determined that an employer unlawfully fired workers, under the act, the board may immediately seek an injunction in a U.S. district court requiring reinstatement of the employees. This faster trigger for obtaining an injunction would better address malfeasance during the union election process—instead of waiting months or years after the fact—and would prevent an employer from benefiting from its own illegal behavior.

Hope for Reform Rests on Worker Action

The PRO Act is the latest effort to overhaul federal labor law and has been reintroduced in multiple Congresses. But almost all agree that the chances of the act’s passage are slim.

The act’s prospects likely depend more on a renewed labor movement, perhaps approaching the militancy of the 1930s that led to the passage of the NLRA. We can already see some sparks that could bring such a national movement to the fore. In places like Bessemer, Alabama, workers have explicitly connected legacies of racism and worker subordination as part of their union campaigns. Similarly, temporary workers and gig workers are showing they are less willing to stand for oppressive conditions, while the pandemic taught us how dangerous and precarious work can be for many. If the PRO Act is to become a reality, therefore, it will likely come only as part of a larger nationwide effort led by organized workers.

At the same time, however, organizing workers need laws like the PRO Act to transform spontaneous action into sustainable and concrete change. That is, to evolve a “moment” into a “movement” with the institutional heft to alter workplace power dynamics.

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Jonathan F. Harris

Associate Professor at LMU Loyola Law School Los Angeles

Jonathan F. Harris is an associate professor at LMU Loyola Law School Los Angeles and a fellow at the Student Borrower Protection Center and the University of California Student Loan Law Initiative.

Dylan Holmes

Labor Law Attorney

Dylan Holmes earned his J.D. at LMU Loyola Law School Los Angeles and will join the labor law firm Weinberg, Roger & Rosenfeld.