June 03, 2021

Americans Want Workplace Representation, But Employers Still Win Union Elections

How the PRO Act Levels the Playing Field, Protects Workers and Gives Them a Fighting Chance at Unionization

BY JOSÉ A. MASINI

Nearly half of workers want union representation but only about a tenth of them have it. Existing safeguards on the right to organize often prove insufficient when faced with employers determined to prevent unionization at all cost. The Protect the Right to Organize (PRO) Act, however, if passed, will help workers effectively exercise the right to union representation, discourage employer interference with and retaliation for the exercise of that right, as well as provide workers with additional protections in the workplace.

A critical component of the PRO Act is that it facilitates access to union elections and limits employer interference with the process. Presently, for example, employers can require workers to attend near-unlimited “captive audience” meetings, and force them to listen to anti-union propaganda, which has proven an effective tool in defeating organizing drives. The PRO Act makes participation in such meetings voluntary. Additionally, the bill requires employers to post notices informing workers of their rights and for employers to disclose contracts with anti-union consultants hired to dissuade employees from unionization, thus bringing honesty and transparency to the union election process. The PRO Act also allows union elections to happen in a neutral environment away from an employer’s premises, thereby reducing the potentially coercive effect of holding an election in an anti-union workplace.

To more effectively discourage unlawful employer conduct, the PRO Act empowers the National Labor Relations Board (NLRB) to go beyond its equitable remedies for unlawful retaliatory terminations—reinstatement, backpay and notice posting—and impose monetary penalties for violations. Such penalties may extend beyond the company and onto corporate directors and officers who participate in those violations or who, having knowledge of them, fail to take preventive action. Furthermore, the bill requires the NLRB to seek injunctions to reinstate workers while their case is pending—a crucial step in preventing an unlawful termination from inflicting irreparable economic harm on a worker, or having a permanent chilling effect on an organizing campaign by firing the strongest leaders. It also streamlines the NLRB’s enforcement process by permitting it to enforce its rulings, rather than wait on Circuit Court enforcement. Nonetheless, as these and already existing protections may be insufficient to deter hostile employers from unlawful, coercive, and retaliatory acts against workers, the bill further protects workers’ rights to freely choose a bargaining representative by allowing the NLRB to issue bargaining orders against employers who unlawfully interfere in an election instead of currently having to get Court approval of very rare Gissel bargaining orders under 10(j) or rerun the election.

The bill also addresses what happens after an election. It requires mediation and arbitration to settle disputes in first contract negotiations, thus preventing uncooperative employers from dragging out the bargaining process when union support may be most fragile. The bill overrides so-called “right-to-work” laws and allows unions and employers to enter into collective bargaining agreements that include collecting fair-share fees to cover the costs of collective bargaining and contract administration for workers who otherwise reap the benefits of unionization but do not contribute to them. The bill further allows workers to strike in support of and in solidarity with workers at other companies—also known as secondary activity—and to participate in economic strikes without the risk of being permanently replaced.

The PRO Act would protect workers in a broader context as well. The bill makes it unlawful under the National Labor Relations Act to misclassify workers as independent contractors when they are employees; misclassification subjects workers to less favorable terms and conditions of employment, and misleads workers into thinking their rights to organize and seek better terms and conditions are not protected. The bill codifies a joint-employer standard with less leeway for employers, who under a recent NLRB rule can deploy these joint management schemes to retain influence over terms and conditions of employment while evading bargaining obligations and liability for violations.

Undoubtedly the PRO Act will face stiff opposition from employers who fear unionization or the consequences of unlawful anti-worker behavior. However, to unions and their workers, it signifies perhaps the boldest effort to protect the right to organize and advocate for better working conditions since the origin of the National Labor Relations Act.  

José A. Masini Torres

Assistant General Counsel

José A. Masini Torres is Assistant General Counsel at the International Union of Operating Engineers and a former NLRB field attorney who primarily practices traditional labor law. José is a member of ABA Committee on Practice and Procedure Under the NLRA and presented at the Committee’s 2020 Midwinter Meeting. He has served as a Chapter Editor for the 7th Edition of Employment Discrimination Law and the 2020 Edition of How to Take a Case Before the NLRB, and is a contributing editor for The Developing Labor Law. Views presented herein are strictly his own.