The Protecting The Right To Organize (Pro) Act - A Major Step Toward Restoring The Right To Organise For US Workers

Abstract

US labour law has failed American workers seeking to organise unions at their workplaces and bargain collectively with their employers. The National Labor Relations Act was adopted in 1935 with great promise, establishing as national labour policy the encouragement of organising and collective bargaining by private sector workers. But the law was weakened by the passage of the 1947 TaftHartley Act, and employers quickly realised the law had no teeth and could be violated without consequence. As a result, employers learned to fight and defeat worker organising with a variety of tactics both legal and illegal1, knowing that they would face no real penalty if they were found to have violated the law. Other changes adopted by Congress and the courts gave employers greater leverage in the collective bargaining process. Courageous workers are still able to overcome a system that is stacked against them and organise unions, but many more are stymied by employer anti-union campaigns. As a result, only one in 12 private sector workers in the United States is represented by a union – the lowest level since the passage of the NLRA. Yet nearly half of all private sector workers say they would join a union if given the chance. There is a 400% gap2 between the percentage of workers who want a union and the percentage of workers who have one. The US labour movement is unified in supporting and promoting the Protecting the Right to Organize (PRO) Act to correct some of the fundamental flaws and weaknesses in the NLRA. The PRO Act is by far the most significant and comprehensive piece of labour law legislation in decades. It is far more comprehensive than the Employee Free Choice Act (EFCA), which failed to pass during the presidency of Barack Obama (although the PRO Act does not contain the majority sign up/card check recognition provision that was a centrepiece of EFCA). The PRO Act addresses major structural flaws in the NLRA on both the organising process and the bargaining process, as summarised below. Preventing Employer Interference in the Election Process and Putting Workers and the NLRB in Charge One of the major flaws in current US labour law is that it fails to rein in employer interference in the election process. As a result, workers do not have a free and fair choice over whether to form a union – their choice is made in an environment where employers hold too much sway and control. Take as just one recent example Amazon’s conduct during the organising campaign in Bessemer, Alabama. Amazon forced workers to attend numerous mandatory meetings where the company delivered its anti-union message. Meanwhile, union organisers had no similar access to workers and had to reach them outside the warehouse. Amazon went so far as to persuade county officials to change the timing on traffic lights outside the facility to give union organisers less time to talk with workers when they were driving to and from work. Amazon also manipulated the election process by insisting on adding thousands of workers to the bargaining unit3, which delayed the process and diluted the union’s support. Amazon fought the union’s request for a mail ballot election, arguing that the election should be on-site under Amazon’s watchful eye. Even though Amazon lost that argument, it persuaded the US Postal Service to install a mailbox at the Bessemer facility, and there is evidence that Amazon representatives had keys to the mailbox – thus undermining any notion of a free, secret ballot election for workers. These tactics are all too common. Employers hold captive audience meetings in 9 out of 10 organising campaigns, and they are charged with breaking the law in four out of 10 campaigns. Employers risk breaking the law because they know there are no real consequences. There are literally no financial penalties in current labour law for violations, and no compensatory damages for workers who are illegally fired for being pro-union. The PRO Act remedies this situation in a number of ways. It bans captive audience meetings, and establishes real penalties – including individual liability for corporate officials – when employers break the law. It makes clear that the timing and mechanics...