When the National Labor Relations Act (NLRA), also known as the Wagner Act, was passed in 1935, it was intended to broadly promote workers’ rights to organize and bargain collectively. Even a cursory look at the labor landscape today can tell us that if it ever did adequately protect workers’ labor rights, it is certainly failing to do so now. This week, a new bill, the Protecting the Right to Organize (PRO) Act, aims to change that. How does it propose to make a difference? And will it succeed?
Restoring the NLRA to Its Original Strength—and Then Some
The NLRA was quite impactful at first. Indeed, in the twenty years following passage of the act, the number of union members in America increased from approximately 3.5 million to 17 million. However, anti-union groups, aided by conservative federal courts, responded to that surge by weakening the protections of the law. In 1938, the U.S. Supreme Court case Labor Board v. Mackay Radio & Telegraph Co. hollowed out the law’s strike protections by allowing employers to hire replacements. Not a decade later, the Taft–Hartley Act amended the NLRA by inserting a host of pro-employer provisions. And most recently, a federal judge ruled to strike down the Obama administration’s “persuader rule,” which would have required employers to disclose their use of union busters. These are but a few of the many instances where the law has been weakened so as to create a labor law regime that often does little to protect workers in their exercise of labor rights.
The PRO Act addresses the three major components of labor law that have been weakened over the decades, and at the same time creates new, and essential, mechanisms for workers to use in seeking a meaningful remedy when their labor rights have been violated.
The Protecting the Right to Organize Act—introduced on Monday by Representative Bobby Scott (D-VA) and over 100 cosponsors in the House, and Senator Patty Murray (D-WA) and thirty-nine cosponsors in the Senate—doesn’t provide a new vision for labor law, opting instead to plug the loopholes, weaknesses, and myriad faults that have developed in the law after eight decades of near constant attack. In this kind of restorative work, it goes a very long way. It does so by overturning several major Supreme Court decisions, reversing problematic provisions of the 1947 Taft–Hartley Act that allowed state “right to work” laws and limited solidarity actions, and, finally, by treating labor rights like other civil rights. In this way, the PRO Act addresses the three major components of labor law that have been weakened over the decades, and at the same time creates new, and essential, mechanisms for workers to use in seeking a meaningful remedy when their labor rights have been violated.
Breaking Down the PRO Act
Ensuring That All Included Workers Are Protected
The PRO Act fixes the issue of millions of workers simply being defined out of any protection from labor law at all. Specifically, the PRO Act would provide clear definitions and tests for when a worker is an employee, independent contractor, or supervisor, and when a boss is an employer. Employers often use complicated staffing arrangements, “straw bosses,” and misclassification of employees as independent contractors in an attempt to exclude workers from their rights to organize under the law—practices that affect millions of Americans. The results of these determinations can mean the difference between whether a worker will have the right to form a union, and whether that union will be able to effectively bargain with all of its members’ employers.
The National Labor Relations Board (NLRB) attempted to address these issues during President Obama’s second term by aligning labor law with traditional common law tests concerning the forms that control takes in the workplace, such as reserved and indirect control. However, the Trump NLRB has vigorously rolled back many of these tests and created narrower frameworks to replace them, so narrow that they exclude millions of workers. The PRO Act would formally adopt the Obama NLRB frameworks for determining who is an employee and who is an employer. Furthermore, though undocumented workers are technically covered under the NLRA, an unjust 2002 Supreme Court decision prohibited them from collecting backpay and other damages owed. The PRO Act would correct this problematic framework that encourages unscrupulous employers to violate these workers’ rights with impunity.
Removing Obstructions to Union and Organizing Activity
The PRO Act restores fairness to the union representation election process so that workers can exercise their right to form a union of their choosing. It does this by eliminating the most common union-busting techniques used by employers: the delaying of elections, while hiring anti-union consultants; forcing workers to attend anti-union meetings and presentations; and committing unfair labor practices against workers who are active in the organizing drive, such as surveilling, disciplining, threatening, and firing these workers. The PRO Act addresses these issues by codifying into law a set of rules passed by the Obama administration’s NLRB, rules that streamlined election rules, prohibited employers from holding anti-union captive audience meetings, required employers to disclose their use of union-busters, and further empowered the NLRB to require employers to recognize and bargain with the union when the employer’s interference has tainted the election. The PRO Act would also take away the current incentives for employers to fail to reach a collective bargaining agreement with a new union—the fact that if no agreement is reached, they are not required to change their practices in any way—by imposing mediation and then arbitration when the parties cannot reach agreement on their own.
Protecting All Organizing Activity—Including Strikes
The PRO Act also restores workers’ rights to strike and fully engage in concerted activity. Though the right to strike was enshrined in the NLRA, that aspect of the law has in many ways been a hollow promise ever since the 1938 Mackay Radio Supreme Court decision interpreted the provision as allowing the employer to hire permanent replacements for the striking workers. Therefore, in many instances, workers lose their jobs when they exercise this fundamental right. The PRO Act would prohibit employers from permanently replacing striking workers. Furthermore, it would restore workers’ long denied right to engage in secondary or solidarity strikes in support of other workers. The PRO Act would also recognize class actions as concerted activity and prohibit employers from requiring workers to waive their right to form a class action, thereby reversing the Supreme Court’s detrimental 2018 decision in Epic Systems.
Treating Labor Rights as a Civil Right
Perhaps most importantly, the PRO Act would treat labor rights as civil rights and provide workers access to courts when their rights are violated and the NLRB fails to act. Currently, unlike in discrimination cases, wage and hour cases, and most other workplace rights violations, workers cannot bring a case alleging violation of labor rights to court: they can only bring a charge before the NLRB. The NLRB then chooses whether to bring a complaint to court on the workers’ behalf, and if a complaint does not issue, the workers are then left without a route to vindicating their claims. For this reason, Richard D. Kahlenberg and I have advocated the idea of reforming the law so that labor rights are treated as civil rights.
The PRO Act would adopt this recommendation and allow workers to have their cases heard before a judge, providing them the legal discovery, remedies, and attorney’s fees that are available for violations of civil rights at work. Employers have shown that they neither fear the NLRB or see labor law, as currently administered, as any disincentive to violating workers’ rights. However, employers do fear civil rights litigation. They know the disruption that is caused by having to turn over records and submit high level personnel to depositions. They know the bad publicity that comes with having multiple or class action civil rights suits filed against a company. And they know that if they lose, they will have to pay significant monetary damages, as well as attorney’s fees for the labor side’s attorneys.
This provision would create greater stability at the Labor Board by not leaving to the party of the president in power the ultimate decision over when certain cases are brought forward. And it would remove from certain anti-union congressmen their influential ability to threaten to defund the NLRB for acting in a manner that promotes collective bargaining, because workers would no longer absolutely need the NLRB to vindicate their rights for them.
The PRO Act would provide real teeth to labor law by entitling workers who suffer unfair labor practices full back pay, appropriate front pay, consequential damages, and liquidated damages equal to twice the damages awarded.
The act goes even further, though, than these policies of providing workers and unions an alternate track to relief: it also provides real damages for workers who have their labor rights violated. Currently, workers are only entitled to backpay (reduced by what they earned or could have earned), if they prevail. The PRO Act would provide real teeth to labor law by entitling workers who suffer unfair labor practices full back pay, appropriate front pay, consequential damages, and liquidated damages equal to twice the damages awarded.
The Bill That Labor Deserves
The reforms proposed in the PRO Act would provide workers greater tools and protections to organize unions and bargain collectively. For too long, workers have had to risk everything—their jobs, health insurance, livelihoods—to organize a union or go on strike. And though the NLRA broadly promised that workers have the right to organize a union, bargain collectively, and engage in concerted activities, these promises have been hollowed out over the decades. The PRO Act would go a long way in fulfilling these original promises.
Cover Photo: Teamsters union members march on May Day, also known as International Workers Day, in Los Angeles, California.