- Interview by
- Alex N. Press
Organized labor in the United States is currently pushing Congress to pass the Protecting the Right to Organize (PRO) Act. Unions are adamant that Joe Biden’s presidency and the Democratic Party’s slim majority in Congress present a rare opportunity to pass labor law reform now, not later.
This is a familiar dynamic in recent history. When the Democratic Party wins the White House and control of Congress, unions push for labor law reform. And every time, the push fails. The most recent example came in Barack Obama’s presidency: in the 2008 campaign, unions backed Obama, and he promised to push for the Employee Free Choice Act (EFCA), which would have made unionizing easier for tens of millions of currently unorganized workers. Once in the White House, Obama, like so many Democrats before him, quietly dropped his promise to working-class people. EFCA never became law.
This history suggests reason for skepticism when it comes to elected officials’ promises to the PRO Act’s proponents in the labor movement. Still, those leading the push say they’ve learned from that history, and have taken it into account in shaping both their strategy for pushing the bill and the specifics of the legislation itself. (For more on that, see what Jim Williams, vice president and director of organizing for the International Union of Painters and Allied Trades (IUPAT), the union leading the charge to pass the PRO Act, told Jacobin in a recent interview.)
The PRO Act is indeed wide-ranging. But so far there has been little discussion of the bill’s actual provisions. Jacobin’s Alex N. Press spoke with labor lawyer Brandon Magner about what exactly the PRO Act would do to make organizing easier for American workers. Magner writes about labor law on Substack, and has published at length about the bill.
Before we go into the specifics, let’s start at the top: what is the PRO Act?
The PRO Act is the first real comprehensive attempt at labor law reform in about forty years. When it comes to the history of labor law reform, most people know about Taft-Hartley. Some know about Landrum-Griffin, which was twelve years after Taft-Hartley. After that, there have been attempts at more pro-union reform, and all of those have been unsuccessful. With the exception of a late 1970s attempt under Jimmy Carter, all of them have been piecemeal. They have been trying to make small tweaks in the law: in the 1960s, they tried to repeal “right to work.” In the 1990s, they tried to outlaw the use of permanent striker replacements. And in the late 2000s, they tried to pass card check. All of those are good in and of themselves but they’re one component of labor law reform.
In the 1970s, they tried to pass a bill that would have beefed up the National Labor Relations Board’s (NLRB) enforcement mechanisms, and sped up the ways by which they process cases and did appeals. That was pretty comprehensive, but the PRO Act is the first where they’re going from point A to point Z, through everything that’s been seen to be wrong with the law, since Taft-Hartley at least. In fact, it even goes to the original Wagner Act: for example, they get rid of employer standing in representation hearings, which a lot of people have criticized from the beginning but no law has tried to get rid of until now.
That’s important because while you’ve had things like EFCA, which tried to make it easier to form a union and get to a first contract, and then you had things like the permanent striker replacement bill, which would have made it easier for already-unionized companies to get a successor contract (because the right the strike would have been a lot stronger at that point), I haven’t seen a bill that combines the idea of needing to form unions, and needing to be able to bargain and effectively wield the strike weapon to get later contracts.
The PRO Act also tries to bring in more employees under its jurisdiction, so it’s trying to make the NLRA apply to more sectors of the workforce. So when I say it’s comprehensive, I mean it; they’re looking at all of the angles of how labor law enforcement can be strengthened in this country.
Why did something more comprehensive come together now? What’s changed since, for example, EFCA?
I think some element of the political spectrum has been yanked at least a little bit to the left, so that’s part of it. The cynical part of me thinks that when we’re proposing good laws like this that are going to inevitably run into filibusters — the question of gutting the filibuster being a separate one — then we might as well go for broke. There’s no point in negotiating against yourself on this bill. There are no pieces of this law that are going to be bartered back and forth between Mitt Romney on one point, or Susan Collins on another one. They oppose every single piece of this so you might as well go for the whole wish list.
The other part is kind of ironic: when you talk about things like re-legalizing secondary boycotts, I would guess maybe 0.01 percent of the population knows what a secondary boycott is anymore. Back in the Taft-Hartley era, everyone did, because people were actually going out to work one day and would see one happening, or it would be covered in the news. Now, those things are so rare that nobody knows what they are.
So the growing irrelevance of organized labor has made some of its more radical asks and legislative reform easier because someone like Ted Cruz or Marco Rubio can’t go out and say, “They’re trying to re-legalize recognitional picketing!” Nobody has any idea what that means. The Chamber of Commerce is going to be all over it, but this is not going to be a priority for the broader conservative base to mobilize around. I don’t know if that means the bill will pass but it does mean that this bill is a lot less controversial than it would have been thirty or forty years ago.
So to get to the text itself: What are the most important changes in the PRO Act?
If you try to break it up, it has changes to the law that make it easier to form unions and then changes to the law that make unions stronger once they’re formed. It’s important when you’re talking about the bill to realize that those two things interplay with each other even if they look distinct. There are the laws that actually give the NLRB teeth when it comes to enforcing labor law violations: for example, it adds up to a $50,000 fine for each violation.
Maybe for Amazon one of those fines is not a big deal — though a lot of what they’re doing, even in this current union election, would be unfair labor practices (ULPs) under this bill, so if they’re running those practices at a wide scale at facilities all over the country, they can easily rack up a very large bill. But for a small- or medium-sized employer, $50,000 is nothing to sneeze at, and could change their behavior.
So it makes it easier to form the union, and then you can’t bargain the union to death under this law, like you otherwise can. You currently can rack up as many violations as you want after the union has won the election, trying to prevent them from getting the first contract, because as long as you drag out the process under the current law, the passage of time without a contract and without any hard-won wages and benefits that you can show to the people who voted for the union, will eventually lose you support. People retire, people change employers, people drop out, and five years later, the union is going to look a lot different.
The difference here is that it has stringent requirements to begin bargaining for a first contract, and the employer can’t just walk away and then implement the contract that it wanted the whole time. Because, first, there’s interest arbitration, which means they’re going to install a three-person panel to eventually reach an agreement. Then, second, it makes it unlawful for an employer to do that, to bargain an impasse and then implement its contract. That’s huge. In so many of the big strikes of the 1980s and ‘90s — Caterpillar, Hormel — the union was broken and never regained its strength because the employer was able to bargain them to impasse, then implement its awful contract and threaten them with permanent replacements.
So after the union’s formed here, the employer cannot use permanent replacements in an economic strike. Right now, it’s only prohibited during a ULP strike but you have to have shown that they committed a ULP. A smart employer who hires smart lawyers is going to be able to keep them in a scenario where they’re hard-bargaining the union and not committing what would be viewed as ULPs. They’re going to be able to get away with anything they want to do. Here, you can’t use that tactic because you can’t try to maneuver the union into a lockout, as that’s a ULP.
So a lot of the strongest weapons of the employer [would now be] ULPs. The NLRB tried to ban these practices and the Supreme Court, which is historically to the right of the NLRB, said employers needed those weapons for the sake of fairness. For example, they equalized the strike with the lockout — which is a complete joke, because today, no one goes on strike, but employers use lockouts all the time. But the old employer weapons are gone now.
Even before first contracts and organizing, it’s going to be easier to qualify under the NLRA because they expand the definition of “employee” with the ABC test. They narrow the definition of “supervisor” — and that’s big for nurses, for example, where they make it seem as if any nurse who has oversight over a fellow nurse is a supervisor, even if she or he still has zero input into managerial processes. Then, as the workplace continues to fissure, joint-employer definitions become a lot more potent. Janitors and other people who are in contracting situations often have no idea who they’re working for anymore because Company X contracts to Company Y to do a service for Company Z. That would be made a little clearer with the joint-employer decision from the Obama NLRB being codified.
All these parts of the law interlock with each other. It’s easier now to know who your employer is, and to strike the bigger company that’s contracting out without that being seen as a secondary boycott. But there’s also a change here to make secondary boycotts legal, which helps people who are trying to organize whether for their first contract, their second contract, or who have been organized for forty years and are trying to keep the employer from bargaining concessions.
You referenced the definition of “employee” and the ABC test. Can you walk me through how that’s addressed in this bill?
The way that “employee” versus “independent contractor” situations usually play out is that under the law you go to what’s called a common law test, which is [based on] the evolution of doctrine over hundreds of years. The problem with labor and employment law is it’s always evolving and it looks completely different than what it did, say, a hundred years ago. But we still use an “employee” versus “independent contractor” test that’s ten factors long and based on incredibly old doctrine. The ABC test modernizes how we look at these situations. There didn’t used to be all these contracting-out maneuvers that employers use, and the fissuring of the workplace.
They call it the “ABC test” because it’s just as simple as that: part A, part B, part C, and if you satisfy all of those, then you’re an independent contractor. Those parts are that your work is done without the control of the employer, is done outside the employer’s usual course of business, and is done by someone who has their own independent business or trade. It presumes that people are employees, and then only if you satisfy these criteria can you be an independent contractor. The default assumption under the law should absolutely be that you’re an employee.
The PRO Act overrides a lot of Supreme Court decisions. One recent such decision is the Epic Systems case, which concerns mandatory arbitration. What’s in the PRO Act that counters that decision?
Mandatory arbitration is as simple as: your employer wants to keep you out of court. In the non-union context, arbitration means that you’re signing away your right to go to court over things that are really important to you. It can keep you from joining together with your coworkers to file class-action lawsuits against your employer.
The employer doesn’t want you to go to court because then you can get a jury who will hear your side, and you might actually get real damages against the employer. In an arbitration context, I still need to hire a lawyer, but I don’t get any public context to my discrimination claim or whatever I’m filing a grievance over. It’s a means for employers to shield workplace grievances away from the public. It internalizes all of the conflicts, and in a way that keeps you atomized from your coworkers. So me, my buddy, his buddy, and his friend all may have the same claim against the employer, but we all have to file our own separate claims. We all go to a separate arbitrator, which only considers our separate situations.
The bill also addresses the issue of proposed bargaining units. There was a micro-unit rule that was overturned by the Trump NLRB, and that gives the employer more say in determining who is and isn’t going to be in a union, and stops unions from getting a foothold among a subset of workers in one facility and building from there. This ruling came up during the Amazon union election, when the company argued for a larger unit. What does the PRO Act do to address this?
This goes hand in hand with the idea that the PRO Act removes employer standing from representation proceedings. That’s important because it turns the question of workers trying to seek a union into their own concern rather than acting as if the employer should have a say in how their unions form. The employer can fight the union through other means but the question of determining what the union will look like should be a question of the union’s own interest.
In the history of union organizing, except for a small time during the CIO’s renaissance in the 1930s, organizing on a wall-to-wall basis in a facility — from janitors to machinists to laborers or whoever in one unit — has been extremely difficult because the Wagner Act and all of its amendments have been predicated on having majority support. When you have these mega-facilities like Amazon, or Boeing, or Volkswagen, where, say, the mechanics want to organize but that sentiment isn’t arising from the people who are working on the line, you file on a narrow basis. The employer’s strategy is to inflate the size of the unit to make it harder to win. If you have to organize five thousand people instead of just the five hundred you wanted, that means you need more resources for organizers, for pamphlets, than you originally planned on.
The PRO Act makes that question of how to get a win easier in general, but also on this question specifically it stops the games that employers can play in the representation process of trying to gerrymander the unit. If you look at this philosophically, if a hundred out of two thousand people want to be in a union, why should the law stop that? The question shouldn’t automatically be, “What about those other 1,900?” The response should be that these are people who are filing the petition, and the employer shouldn’t necessarily get to stop them from exercising those rights.
Maybe there is some point where, if you’re trying to organize twenty out of the hundred mechanics, and the other eighty mechanics all do the exact same work, maybe that’s arbitrary and less defensible. But the micro-unit rule is predicated on the employer not being able to gerrymander the unit in a way that cuts down on organizing success. Smaller units can often be easier to organize and the PRO Act recognizes that. This is where the board gets criticized for being “too biased” but it says in the very first section of the NLRA that the NLRA’s purpose as enforced by the board is to further collective bargaining. If you make it more possible for unions to win elections, that’s one way to fulfill that purpose.
Right, if you take a step back, what this is countering is the assumption that employers have the right to stop workers from exercising their rights.
The last thing I want to ask you about the PRO Act’s details is about how it addresses labor law’s shortcomings for undocumented workers.
It’s great that the PRO Act focuses on that problem because it recognizes something that people who are organizing units that often have a lot of Hispanic workers have to deal with, which is probably the worst Supreme Court decision in labor law, at least in a long time.
It’s called Hoffman Plastic Compounds. The court basically read immigration laws broadly enough to say that even if I prove a ULP happened against an undocumented worker, there’s nothing we can get out of it. I can’t get any back pay. So, I’ve been fired, I could have had a hundred ULPs committed against me, but I can’t receive anything for the employer’s unlawful activity. What that effectively does is make workers less able to organize. The employer has free rein to commit as many unlawful acts as possible in the organizing context and there’s nothing that can be done to economically punish the employer for those acts. So this bill restores the NLRB’s ability to order relief in these situations. It’s as simple as one clause in one sentence, which says that undocumented workers can’t be excluded.
Is there anything else in the PRO Act that deserves more discussion?
It has everything that could potentially mobilize people. It touches on more recent Obama-era stuff but it also gets rid of right to work laws. There are twenty-seven states with those laws on the books and there’s nothing taking them off the books unless you pass a bill that overrides it. A lot of those laws in the South are written into states’ constitutions, so those are here to stay for a long time otherwise.
I’d also mention that the PRO Act broadens the right to strike not only through the permanent replacement situation — which is a little esoteric because it assumes that you already have a union there — but by broadening the meaning of strikes beyond the old-school context where the whole union goes out on strike for an indefinite period of time. It broadens it to include quickie strikes, intermittent strikes, slowdowns — which is a big one because you can cause a lot of economic damage to your employer if you’re remaining on the site and getting paid to work but you’re not giving your all.
Right now, under the law, that would remove you from protections and your employer can discipline you. Otherwise, that’d be a ULP, but currently you’re unprotected for that activity because conservative boards and courts have interpreted it to mean that you can’t do slowdowns, you can’t do intermittent strikes or quickie strikes.
You see this in situations like what fast-food workers do, or what OUR Walmart did: workers walk out for one day. The Trump board tried to say that because that’s not a traditional strike, it shouldn’t be protected. So even though Section 7 makes no distinction between these smaller situations and full-scale strikes, this bill broadens the tools that workers can use to create or extract leverage from their employer. All these economic weapons have been written on the books for a century but if you broaden what’s possible, who knows what cutting-edge organizers in the future will be able to think of doing.