I. Bargaining Orders
The provision on bargaining orders is limited in scope—it applies only when the union has lost a Board-conducted election and four conditions are present: (1) the union has established that the employer “violated this Act or otherwise interfered with a fair election,” (2) the Board has determined that the election result should be set aside, (3) the employer has failed to demonstrate that its violation or interference was “unlikely to have affected the outcome of the election,” and (4) the union can show that, at some point in the year before the election, it had the support of the majority of the employees in the unit. In these circumstances, the issuance of a bargaining order is mandatory.
This bargaining order mandate goes beyond the remedy endorsed by the Supreme Court in NLRB v. Gissel Packing Co. In Gissel, the Court held that the Board may issue a bargaining order despite a union’s having lost a Board-conducted election where (1) the union can show that it had a card-majority before the election, and (2) the Board has found that the employer committed unfair labor practices that eroded that majority and have made the holding of a fair election or a fair rerun election unlikely. The Gissel analysis focuses on whether a fair election can be conducted despite the employer’s interference with the union’s campaign. The PRO Act shifts both the focus of the inquiry and the burden of proof. The focus is not on whether a fair election might be conducted, but on whether the employer’s conduct impaired the fairness of the election that was held. And the burden is then not on the party seeking a bargaining order to show that a fair election cannot be held; instead, the burden is on the employer to show that its own inappropriate conduct did not affect the results of the election already conducted.
Is the PRO Act’s alteration of the Gissel formula necessary? Certainly, Gissel upheld two “pro-union” principles: first, that, in certain circumstances, the Board has the power to issue bargaining orders even when the union has not won an election; and, second, that a showing based on signed authorization cards is sufficiently reliable to support the conclusion that the union once had majority support. The Court also observed that, “in ‘exceptional’ cases marked by ‘outrageous’ and ‘pervasive’ unfair labor practices,” the Board has authority to issue bargaining orders “without need of inquiry into majority status on the basis of cards or otherwise” if the Board concludes that traditional remedies would not remove the “coercive effects” of the employer’s misconduct and a fair election could not be held.
However, as it has been interpreted by the Board and the courts, Gissel has proven to be not much of a remedy for employer misconduct in election campaigns. The myriad considerations that the Board and the courts have brought to bear on whether an election or a rerun election may be “fair” are nothing but measurements of the unmeasurable—including, for example, the “seriousness” of the violations, the “pervasiveness” of the violations, the extent of employee awareness of the violations, and the “likelihood” the employer will commit additional violations. The very indeterminacy of these factors has led the courts to be downright hostile to Gissel orders. Indeed, the courts have increasingly declined to enforce them, classifying them as “extraordinary” remedies. By characterizing bargaining orders as “extraordinary,” the courts mean that the remedy is to be issued in very limited circumstances. And courts have been quite forthright in saying that because the remedy is “extraordinary,” they will closely scrutinize the National Labor Relations Board’s determination to issue one. Notably, this hostility to bargaining orders is not rooted in the language of the Act, but, rather, in the courts’ reading of Gissel. There is some irony in this, as the language the Gissel Court used in explaining its differences with the Fourth Circuit’s decision under review points to a greater acceptance of the Board’s authority to issue bargaining orders:
Despite our reversal of the Fourth Circuit below in Nos. 573 and 691 on all major issues, the actual area of disagreement between our position here and that of the Fourth Circuit is not large as a practical matter. While refusing to validate the general use of a bargaining order in reliance on cards, the Fourth Circuit nevertheless left open the possibility of imposing a bargaining order, without need of inquiry into majority status on the basis of cards or otherwise, in “exceptional” cases marked by “outrageous” and “pervasive” unfair labor practices. Such an order would be an appropriate remedy for those practices, the court noted, if they are of “such a nature that their coercive effects cannot be eliminated by the application of traditional remedies, with the result that a fair and reliable election cannot be had.”
The only effect of our holding here is to approve the Board’s use of the bargaining order in less extraordinary cases marked by less pervasive practices which nonetheless still have the tendency to undermine majority strength and impede the election processes. The Board’s authority to issue such an order on a lesser showing of employer misconduct is appropriate, we should reemphasize, where there is also a showing that at one point the union had a majority; in such a case, of course, effectuating ascertainable employee free choice becomes as important a goal as deterring employer misbehavior. In fashioning a remedy in the exercise of its discretion, then, the Board can properly take into consideration the extensiveness of an employer’s unfair practices in terms of their past effect on election conditions and the likelihood of their recurrence in the future. If the Board finds that the possibility of erasing the effects of past practices and of ensuring a fair election (or a fair rerun) by the use of traditional remedies, though present, is slight and that employee sentiment once expressed through cards would, on balance, be better protected by a bargaining order, then such an order should issue.
The clear import of this passage was that, where the union that lost an election could show that it had majority support at some point before the election, the Board can issue bargaining orders even when the employer’s improper conduct was not so “egregious” as to warrant an “exceptional” remedy.
In any event, Gissel marked a turning point. Prior to Gissel, the Board had adopted the principle that an employer committed an unfair labor practice if it refused to negotiate with a union when the employer did not have a good-faith doubt that the union had majority support, and the Board had concluded that it could issue a bargaining order to remedy that unfair labor practice. In fact, the Board had issued bargaining orders without going through the exercise of determining whether it could, instead, conduct a fair election. The Board changed course after Gissel and limited the issuance of bargaining orders to those limited circumstances in which it decided that a fair election or rerun could not be accomplished.
A wealth of empirical evidence supports the conclusion that this post-Gissel turning point has led to a significant increase in employer misconduct aimed at denying a union an election victory. The increase is hardly surprising. Post-Gissel, an employer that engages in unlawful anti-union actions to defeat a union-organizing campaign risks very little: a posting and, perhaps, some payment of backpay, but most likely, no bargaining order. In the absence of a bargaining order, the employer may persist in refusing to recognize the union and continue to test the workers’ resources and courage in yet another protracted election campaign. Because Gissel bargaining orders are rarely won, the prospect of a Gissel order is no real deterrent to unlawful anti-union behavior.
The PRO Act’s bargaining order provision is simply a reasonable policy choice to restore some deterrence against unlawful employer behavior and to accord value to employees’ pre-election choice to be represented by a union. This policy choice is based on common sense, particularly with respect to deterring improper employer conduct: if an employer calculates that its improper actions may result not just in a posting and a little backpay but in a requirement that it bargain with the union—the very object that it seeks to avoid—a reasonable employer will more likely confine its opposition to employee organizing efforts to lawful conduct.
Equally important, by shifting the burden to the employer to show that its wrongful actions did not affect the outcome of the election, the PRO Act incorporates a bedrock principle that is employed in many legal contexts: uncertainties concerning the consequences of a party’s wrongdoing should be resolved against the party that committed the wrong, and remedies should be designed accordingly. As Professor Derek Bok explained, that principle should apply with the same force in determining the appropriate remedy when an employer’s improper conduct causes the Board to set aside the results of a representation election as it does in other contexts:
By indulging in unfair labor practices, the employer has made it impossible to ascertain what the decision of the majority would have been in a free election. But there is a strong possibility that the union would have prevailed, in view of the support which it had already gained among the employees. Although the Board could order an election after ruling on the unfair labor practices, such an election might not provide an accurate indication of what would have occurred but for the employer’s violations, both because changes in personnel may have seriously altered the composition of the unit and because of the lingering effects of the serious unfair practices. Under these circumstances, it would be consistent with accepted remedial principles to prevent the employer from capitalizing on the uncertainty created by his own unlawful acts and to resolve even substantial doubts against him by conferring representative status on the union.
There should be very few principled objections to the PRO Act’s bargaining order provision. Certainly, employers should not be heard to object. They will never feel the “sting” of a bargaining order unless they act outside the bounds of what the law allows. All that the PRO Act does on this score is prevent the employer from profiting from its own unlawful conduct.
Another objection often advanced in opposition to this provision is the claim that a bargaining order remedy will take away from employees the right to exercise their choice about union representation in the privacy of the Board’s election booth. This argument ignores the fact that, by signing cards in support of union representation, employees have made a choice; and a refusal to issue a bargaining order in the face of the fact that a majority of employees exercised that choice prior to the tainted election actually contravenes the principle that employee choice should be honored. In Gissel, the Court made this very point in its endorsement of bargaining orders:
The Board’s authority to issue such an order on a lesser showing of employer misconduct is appropriate, we should reemphasize, where there is also a showing that at one point the union had a majority; in such a case, of course, effectuating ascertainable employee free choice becomes as important a goal as deterring employer misbehavior.
Opponents discount the value of employee choice manifested by a card showing rather than in a Board-conducted election. But no empirical data suggests that determining worker support on the basis of authorization cards is less reliable than the results of an election. Again, the Gissel Court made this very point:
Further, the employers argue that, without a secret ballot, an employee may, in a card drive, succumb to group pressures or sign simply to get the union “off his back,” and then be unable to change his mind as he would be free to do once inside a voting booth. But the same pressures are likely to be equally present in an election, for election cases arise most often with small bargaining units, where virtually every voter’s sentiments can be carefully and individually canvassed. And no voter, of course, can change his mind after casting a ballot in an election, even though he may think better of his choice shortly thereafter.
Similarly, as to the allegedly inherent unreliability of cards as a measure of the worker’s “true” choice, the Court remarked:
[W]e think it sufficient to point out that employees should be bound by the clear language of what they sign unless that language is deliberately and clearly canceled by a union adherent with words calculated to direct the signer to disregard and forget the language above his signature. . . . We cannot agree with the employer here that employees, as a rule, are too unsophisticated to be bound by what they sign unless expressly told that their act of signing represents something else. In addition to approving the use of cards, of course, Congress has expressly authorized reliance on employee signatures alone in other areas of labor relations, even where criminal sanctions hang in the balance, and we should not act hastily in disregarding congressional judgments that employees can be counted on to take responsibility for their acts.
Voluntary recognition—nearly always predicated on a card showing of majority support—is a process that is itself recognized in the Act as a standard part of our labor-management relations system. The Act contemplates that recognition may be based on a card showing rather than on the results of an election. For example, section 9(c) of the Act provides that a Board-conducted election may be triggered by a petition “alleging that a substantial number of employees (i) wish to be represented for collective bargaining and that their employer declines to recognize their representative . . . .” This section thus contemplates demands for voluntary recognition. Similarly, the Act permits picketing up to thirty days for the purpose of pressuring an employer to recognize the union—without an election. As a matter of practice, voluntary recognition is obtained through card showing. The argument against the PRO Act’s bargaining order provision that is premised on the assumed unreliability of cards is simply inconsistent with congressional recognition of the role of authorization cards in our labor-management relations system.
The idea that a Board-conducted election is a test of employee desires in a context free of intimidation is highly questionable. Particularly in small and medium-sized places of employment, employers very often know who has voted, and the voters are aware that they know. But even in large places of employment, employers may call on department heads to gauge employee sentiment in their departments. The Board is itself well-aware that the contesting parties are intent upon learning how employees will vote and that they gather that information. Employees also know that they are being watched and evaluated, particularly as the date for the election approaches. No rational person would conclude that the workplace is free of intimidation in these circumstances. The “privacy” of the voting is simply not a guarantee that the process is not tainted by coercion and intimidation.
Finally, whatever the merits of the guesstimate that a canvass of employees’ choices is more reliable in an election than it is in a review of authorization cards in the abstract, it bears repeating that the PRO Act’s bargaining order requirement arises in a limited context: only where (a) the Board has determined that the election was not a fair test of employee sentiment and the election results have to be overturned, (b) the employer committed unfair labor practices or otherwise improperly interfered with the election and cannot show that its improper actions did not likely affect the election results; and (c) the union is able to show that it had a card majority before the election.
A decision on what remedy to impose in these circumstances should take account of the legitimate interests of those involved, but care must be taken to correctly evaluate those interests. The parties involved include the employer that seeks to avoid having to bargain with a union, the union which is seeking the right to represent the employees, and the employees working for the employer. The Court’s decision in Bigelow v. RKO Radio Pictures should lead fair-minded people to discount the employer’s interest, the wrongdoer whose improper conduct has created the need to choose a remedy. The union’s interest is certainly entitled to more weight than that of the wrongdoer.
Those who object to bargaining orders generally purport to be advocating for what they identify as the interest of the third group, the employees in the bargaining unit, an interest that they define as enshrined in the principle that employees have a protected right to choose whether to be represented by a union. The argument advanced is that this interest is “best” served by running another election in which employees can again assert their choice. However, an analysis that treats the interest of the whole group of affected employees as being a shared interest in having a rerun election is an analysis that is divorced from reality. There may well be those in the employee group for whom gaining another opportunity to exercise their choice in a rerun election is of paramount concern. But there are others whose paramount concern is gaining the right to be represented by a union that they have already chosen without further, likely extensive, delays. In the context of weighing the interests of affected parties, we must consider not just the wishes of workers for whom the expression of their choice in a private NLRB voting booth is a weighty concern; we must also consider the interests of the workers who risked their jobs—and perhaps suffered retaliation from their employer—to gather support from their co-workers only to see their co-workers’ confidence and solidarity eroded in the face of the employer’s campaign and who will, if a bargaining order is not issued, face the onslaught of another employer campaign. No moral or legal principle requires us to hold that the wishes of the “pro-rerun-election” employee group are of greater value than the wishes of the “pro-bargaining-order” group. It is simply a policy choice.
Democracy is not served by allowing organizing drives to be thwarted with inappropriate actions that interfere with elections and then consigning the question of whether the employees will ever be represented by a union to a perhaps never-ending cycle of rerun elections until the employees who want a union simply give up. The policy of “honoring the employees’ right to choose” does not dictate that the default remedy in these circumstances—where an employer’s improper actions have rendered an election unfair and the union can show that it had majority support before that election—must be a rerun election. Rather, the Board must consider whether to honor the choice the employees made prior to the election, or to render that choice a nullity. In issuing a bargaining order, the Board honors that pre-election choice. The PRO Act simply gives the Board a tool to do so.
II. The Repeal of the Act’s Constraints on Secondary Activity
Sections 8(b)(4) and 8(e) constrain union picketing, striking, and related activity. In a nutshell, unions may not, except in limited circumstances, use that activity to target secondary employers or the employees of secondary employers. These provisions were not in the original Act. Section 8(b)(4) was added in 1947, over the veto of President Truman, and Section 8(e) was added in 1959 in the Landrum-Griffin Act. Senator Robert Taft, a principal sponsor of the 1947 bill, explained that the constraints on secondary activity were intended to protect the business affairs of third parties who were “wholly unconcerned” with the employer and union involved in a labor dispute. The PRO Act would repeal these sections of the Act. The proposed repeal is another policy choice to restore the playing field to its pre-1947 status.
The principal argument of the House proponents of the PRO Act in support of this provision is that labor unions’ secondary activity is actually protected by the First Amendment. For many years, scholars have noted that the Act’s bans on secondary activity cannot be squared with Supreme Court decisions protecting nearly identical conduct undertaken in civil rights campaigns, particularly the Court’s decisions in NAACP v. Claiborne Hardware and Thornhill v. Alabama. In the House Report, the majority adopts this analysis and refers specifically to the 2015 article by Catherine Fisk and Jessica Rutter, Labor Protest Under the New First Amendment.
The Supreme Court has not visited this question for many years. Several decades ago, the Court indicated that it believed collective activity protected by the First Amendment somewhat inexplicably loses its protection when it is engaged in by labor unions. While the Court held in Claiborne Hardware that a consumer boycott intended to redress racial discrimination was protected by the First Amendment, the Court also observed that “[g]overnmental regulation that has an incidental effect on First Amendment freedoms may be justified in certain narrowly defined instances.” The Court characterized the picketing for civil rights as being directed at a “public issue”—akin to political speech “lying at the core of the First Amendment”—and contrasted it with labor picketing that was, in the Court’s view, merely addressed to economic concerns and, therefore, entitled to lesser constitutional protection. Only a couple of years before Claiborne, the Court had held in NLRB v. Retail Store Employees Local 1001 (Safeco) that Section 8(b)(4)(ii)(B) bars even peaceful picketing of a secondary employer if the picketing “reasonably can be expected to threaten [the secondary] with ruin or substantial loss.” The Court noted that it was “well-established” that Congress is empowered to bar picketing that is intended to encourage consumers to boycott a secondary. Without saying so, the Court evidently deemed picketing for union recognition or the advancement of employee economic interests to be picketing not directed at a “public issue” and, for that reason, not worthy of First Amendment protection. That value judgment is not to be found in the language of the First Amendment.
If the distinction between “commercial” interests and “political” interests was ever a sound one, commentators have persuasively argued that First Amendment jurisprudence has evolved in a way that this distinction is no longer tenable. In recent years, the Court has found that “speech” that is unequivocally dedicated to furthering commercial interests is entitled to the highest level of protection under the First Amendment. The Court’s decision in Sorrell v. IML Health, Inc. is a good example. In Sorrell, the Court employed heightened scrutiny to hold that the First Amendment bars a state law proscribing pharmaceutical companies’ and their agents’ use of prescription histories for purposes of marketing, where the statute permitted the use of that data for other purposes, such as research. To the extent that a union’s interests in engaging in collective action like boycotts may be characterized as “commercial,” they are certainly no more commercial than the marketing interests of the pharmaceutical companies in Sorrell. It would seem that courts’ consideration of the First Amendment protection of labor secondary activity has simply not caught up with these developments in First Amendment jurisprudence.
Furthermore, it has never been clear why a union’s efforts to raise the wage base of a workforce—an action that will, in many circumstances, change the socioeconomic life of an entire community in much the same way that the boycott of racist enterprises may do so—is somehow categorically less a “public issue” than the efforts of civil rights organizations to achieve such a similar outcome. Each deserves the protection of the First Amendment.
Whether or not this First Amendment analysis will ultimately prevail in the courts, there are other sound reasons for the PRO Act’s repeal of secondary prohibitions. Most importantly, the right to resort to secondary activities should be restored because those activities work: they produce real pressure that leads more quickly to settlements. If achieving industrial peace is the goal, secondary activity is a tool that gets to that peace. Secondary activity is frequently resorted to so that more confrontational, and potentially much more commercially harmful, primary activity may be avoided. Re-equipping unions with a tool that is effective will limit lengthy, destructive strikes and revitalize collective bargaining.
The House Minority Report filed in connection with the PRO Act advanced two arguments in opposition to this repeal: (1) that there is something wrong with entangling “neutral” companies in a conflict that does not really involve them; and (2) that the economy has grown since 1947 and is stable, and allowing unions to engage in secondary activity would threaten that growth and stability. The first argument is one that the courts have used frequently over the years, but it is one that is premised on an unquestioned and dubious assumption: that secondary targets are unwitting neutral bystanders who do not have an interest in the underlying quarrel. The idea is that it is “unfair” to harm such neutrals. In fact, though, secondary targets are chosen precisely because they are not neutral in any objective economic sense: they have business dealings with the primary, and the primary and secondary both benefit from those dealings. It is only in declining to look at the economic reality of this relationship that one can conclude that the secondary is “neutral.”
As to the second argument, the notion that the economy has been stable and humming along since 1947 is not one that is shared by those who pay close attention to the growth of inequality in this country. The studies are legion that show that, as union density has declined in the last forty years, the real wages of workers have failed to grow. There is no reason to believe that the continuation of the status quo will arrest that decline. Furthermore, there is no rational basis to conclude that whatever gains in productivity and vitality our economy has experienced since 1947 are attributable in some degree to the NLRA’s ban on secondary activity. Another very large sector of the economy—that sector governed by the Railway Labor Act—has experienced at least as much growth in productivity and vitality in this period. The Railway Labor Act does not bar secondary activity by unions that have exhausted the RLA’s dispute resolution processes, and the unions governed by the RLA make use of that tool.
In 1947, a right-wing Congress, intent upon reversing the growth of union power that began in the New Deal and was evident during the war years, was able to legislate constraints on unions’ secondary activity. It will be useful to unions, and to our country, if a more enlightened Congress can restore that power.
Conclusion
The PRO Act’s provisions on bargaining orders and the repeal of prohibitions of secondary activity are simple policy choices, and those choices are hardly unheard of: they have their antecedents in the Wagner Act itself. How one analyzes them rests in the end on how one feels about the collectivist approach to addressing work issues that is at the heart of the union movement. Professor Theodore St. Antoine alluded to this decades ago:
The ethos of the labor movement cuts against the American grain at several points. Our national instinct, reflected in many statutes and judge-made law, is to exalt the rugged individualist over an anonymous group, to favor wide-open competition over a controlled market, and to prize the right of each person to remain aloof from the quarrels and concerns of his neighbors. . . . Yet the workingman does not have the capacity to assume that heroic pose. For him, strength only comes through combination with his fellows, through concerted rather that solitary action. His instinct is to shun solo combat in the marketplace, and to seek by alliances with other workers to reduce if not eliminate the hazards of competing for jobs and job benefits.
If one adopts the view that our democracy is well-served by having healthy unions engage in collective action, the PRO Act is a very welcome development.
Appendix**
Excerpts from the House Report (H. Rep. No. 116-347, 116th Cong. (2019)
I. From the Majority (H. Rep. No. 116-347, at 26)—re Bargaining Orders
A. Remedies for Employer Interference in Elections Must Be Strengthened
The NLRB’s representation process is further hampered by its limited remedies in the event of employer interference. In the most serious instances, the NLRB may issue a Gissel order requiring that the employer bargain with the union when the employer has committed unfair labor practices that have made the holding of a fair rerun election unlikely or have undermined the union’s majority support. However, employers can appeal these bargaining orders, thus extending the process for years and ultimately denying their employees their right to form a union. Moreover, employers who engage in these dilatory tactics do not face fines and are not required to pay employees for any monetary losses, even after a reviewing court upholds the Gissel order.
The PRO Act reforms this precedent by requiring that, when a labor organization loses a representation election where it previously had majority support, and when the employer committed a violation of the NLRA or otherwise interfered with the election, the NLRB shall presume that the employer’s conduct affected the election outcome. Unless the employer rebuts that presumption, the NLRB must certify the union and order the employer to bargain. This will deter employers from unlawfully interfering in elections. If an employer commits an unfair labor practice before an election, the PRO Act is clear that the employer can be subject to both the NLRB’s procedures for remedying unfair labor practices and the NLRB’s consideration on whether to issue a bargaining order.
II. From the Majority (H. Rep. 116-347, at 34–35)—re Secondary Activity
A. The Pro Act Removes Unjust Restrictions on Workers’ Exercise of Rights
1. The First Amendment Protects Secondary and Recognitional Picketing
When the NLRA was amended in 1947, it placed significant constraints on workers’ free speech rights. Some of the restrictions prohibit collective action such as strikes or picketing directed at “secondary” employers, which are employers other than the employees’ direct employer. The amendments were a Republican reaction to a wave of strikes at the end of World War II. To prevent strikes that would disrupt production in war industries, President Franklin Delano Roosevelt established the National War Labor Board in 1942, which arbitrated labor disputes and prohibited unions from supporting strikes. Immediately after the war, labor disputes proliferated as rank-and-file workers demanded ages that would reinstate their pre-war standard of living. Republicans reacted by passing the Labor Management Relations Act, 1947 to curtail the power of unions, and they overrode President Harry Truman’s veto of the legislation.
One of the 1947 amendments, Section 8(b)(4) of the NLRA, prohibits unions from encouraging employees of another company to strike and from picketing designed to pressure a secondary employer to cease doing business with the workers’ employer. These restrictions pose serious problems under the First Amendment to the Constitution of the United States. As Professor Garden explained at the July 25th Hearing, this section “is in tension with more recent First Amendment cases in which the Supreme Court has made clear that speaker- and content-based restrictions on speech are presumptively invalid,” and the Supreme Court has repeatedly construed the provision narrowly in order to avoid having to decide on its constitutionality. Further, in an increasingly fissured workplace where companies subcontract for labor, subcontracted workers are more limited in their ability to engage in free speech picketing against the entity that controls their economic arrangements because of the risk that picketing is unlawful if the contracting entity is not an employer. The 1947 amendments to the NLRA further undermine workers’ free speech rights through Section 8(b)(7), which almost completely prohibits them from peacefully picketing their employer to encourage the employer to recognize their union.
The PRO Act protects workers’ First Amendment rights by repealing prohibitions on unions’ picketing and secondary activities. In addition, because the PRO Act ends the prohibition on picketing designed to convince an employer to cease doing business with another company, the PRO Act also ends the probation on unions and employers freely bargaining for such an agreement in support of a secondary boycott.
III. From the Minority (H.R. Rep. 116-347, at 116–17)—re Bargaining Orders
A. Eliminating Employee Free Choice
H.R. 2474 also contains a risky “card-check” scheme that allows unions to organize a workplace without ever receiving majority support in a secret-ballot election. Currently, unions must collect authorization cards expressing interest in the union signed by at least 30 percent of the bargaining unit. Unless the employer voluntary recognizes the union, the union must win the majority of votes cast in a secret-ballot election. Under H.R. 2474, if a union receives cards from a majority of the bargaining unit but loses the election, it can file an unfair labor practice charge against the employer, alleging interference. Unless the employer proves its actions did not affect the outcome of the election, the union is automatically certified without ever winning a secret-ballot election—turning America’s presumption of innocence on its head and depriving workers an opportunity to voice their opinion free of the harassment and intimidation that unions often use to coerce workers into signing authorization cards. Over the past decade, the Committee has heard testimony from employees who have been personally subjected to this kind of union coercion. For example, in 2011, Mr. Larry Getts, an employee at Dana Corporation in Fort Wayne, Indiana, testified that union officials would “even follow us to our vehicles at the end of the day and some of us even to our homes.” In 2013, Ms. Marlene Felter, a medical records coder in California, testified that union organizers “were calling them on their cell phones, coming to their homes, stalking them, harassing them . . . to convince them to sign union cards.”
The U.S. Supreme Court has acknowledged that the so-called card-check process is “admittedly inferior to the election process” for determining representation. While it is important that an employer bargain in good faith with a majority-supported union, it is essential that federal law ensure the union has properly demonstrated such majority support. Moreover, as Mr. G. Roger King, Senior Labor and Employment Counsel at the HR Policy Association, testified on behalf of the Coalition for a Democratic Workplace at a July 25, 2019 Full Committee hearing on H.R. 2474, advocates of the bill overstate the prevalence of the problem of employer election interference:
[B]argaining orders are available today to unions if they can establish that employers have committed numerous and severe unfair labor practices or objectionable conduct during the critical pre-election period. [A] very small percentage of unfair labor practice cases ever reach the Board or courts for decision. In FY 2018, nearly 80% of unfair labor practice charges were either resolved by way of settlement, at the regional board level, or at the administrative law judge stage, or withdrawn, with Board Order comprising only 2% of the disposition of such charges. Stated alternatively, representatives of organized labor have continually, incorrectly, overstated both the number of cases where severe election misconduct occurs and misrepresented the type of alleged employer conduct that is at issue in such cases.
Card-check union certifications do not only undermine the rights of American workers. They also represent rank hypocrisy on the part of House Democrats. Not only is every Member of Congress elected in a secret-ballot vote, but a secret-ballot vote is also how House Democrats select their own leadership. Moreover, as part of the negotiation over the enactment of the United States-Mexico-Canada (USMCA) trade agreement, Democrats have pressured the Trump administration to ensure enforcement of a new Mexican law that guarantees workers in that country the right to a secret-ballot election to determine union representation. Democrats are seeking to deprive their own constituents, American workers, the same right they seek to protect for Mexican workers.
The undemocratic system of card-check union certification has been previously rejected by Congress. In 2007, following Committee approval, the Democrat House passed the Employee Free Choice Act, which automatically certified a union as the bargaining representative without employer consent or a secret-ballot election if the employer received authorization cards from a majority of the bargaining unit, even without an unfair labor practice charge against the employer. However, the bill failed a cloture motion in the Democrat Senate by a vote of 51–48. Moreover, card-check remains unpopular. 2015 polling by the Opinion Research Corporation (ORC) showed that 79 percent of union households, 81 percent of Democrats, and 81 percent of independents support the right to a secret-ballot election to determine unionization. Committee Democrats are ignoring the will of the American people, including their own voters and union households, to push legislation increasing the coercive power of union leaders.
IV. From the Minority (H. Rep. 116-347, at 129–30)—re Secondary Activity
Finally, H.R. 2474 repeals the ban on so-called secondary activity that was enacted in the 1947 Taft-Hartley amendments to the NLRA. Secondary activity extends the pain of striking and picketing by allowing unions to target the business partners of a company they are seeking to organize. As such, businesses with no direct connection to the employer being targeted by the union will be subject to union harassment. Given the interdependent nature of companies in the 21st century economy, allowing secondary boycotts could subject nearly any employer, employee, or consumer in the country to union harassment. Coupled with H.R. 2474’s other extreme provisions allowing unions to exploit more economically painful and disruptive strikes than are currently permitted, legalizing secondary activity would target and destroy countless small businesses.
H.R. 2474 seeks to restore an antiquated view of the American economy reliant on constant struggle and conflict between labor and management. A workplace landscape defined by conflict creates the most opportunity for unions to promote their goals of unionization and H.R. 2474 is singularly aimed at increasing that prospect, irrespective of the consequences for workers, employers, and the economy as a whole. In 1937, there were nearly 5,000 strikes nationwide and while economic disruption of this magnitude undoubtedly harmed American workers by reducing overall productivity, it underscored unions’ ability to dictate the direction of the economy, representing a win for unions but a long-term loss for American workers and employers. This 1930s-era vision of the economy is the “future of work” that Democrats seek to impose on modern businesses with H.R. 2474.
In a May 8, 2019, Subcommittee on Health, Employment, Labor, and Pensions hearing on H.R. 2474, Mr. Philip A. Miscimarra, Partner at Morgan Lewis & Bockius LLP and former Chairman of the NLRB, explained how the consequences of H.R. 2474’s expansion of strikes will be even more painful in the 21st century because American businesses and workers are competing in an increasingly globalized and technologically-advanced economy:
[T]he biggest problem with the PRO Act is the expansion of economic weapons and economic injury, which have been the engine driving collective bargaining under the NLRA. Increasing the scope of these economic weapons, and making them more destructive, will have a destabilizing impact on U.S. employees, employers, the general public, and unions. This is especially true in the global economy that exists today, which was unimaginable when the NLRA was enacted in the 1930s during the Great Depression. . . . [H.R. 2474] does not recognize the significant risks to U.S. employment that are already posed by automation, artificial intelligence and other dramatic advances in technology. Inevitably, the PRO Act’s expansion of employment-related costs and conflict will magnify increased investments of every business in new technology rather than people. For this reason, the PRO Act will not enhance employment policy. To the contrary, it will place U.S. employees at a more severe disadvantage, in comparison to new technology, with the greatest negative impact on many of the most vulnerable employees, including minority members, employees in manufacturing, and high school graduates who lack college degrees, among others. This will produce additional spillover negative consequences on families, communities, state and local governments, and the unions who hope to benefit from this legislation.
The right to strike and picket provides federally-protected leverage for unions in labor-management relations and theoretically exists to win concessions that ultimately leave workers better off. But the strike provisions in H.R. 2474 are so radical that they will leave workers worse off. Allowing unions to harass and disrupt businesses to the extent permitted in H.R. 2474—including picketing and boycotting businesses that unions are not even trying to organize—does not empower workers. It merely increases the costs, burdens, and risks of investing in American workers and expands the pain of union confrontation to affect nearly every single business and consumer in the country.
Decades of balance in American labor law have allowed the economy to flourish and provide workers with higher wages and greater opportunities. The future of work in the modern economy should be aimed at harmonizing relationships between workers and businesses and ultimately making the United States a more attractive place to do business than our global competitors like China. H.R. 2474 does the opposite, sacrificing economic stability that leads to progress and growth in order to promote economic strife while enriching and empowering labor unions at the expense of employers, workers, and consumers.
