Why U.S. Labor Laws Need a Major Update—The PRO Act Is a Great Start

Yves here. The fine points of labor law, as well as relevant precedents, are not on my regular beat. So it’s possible that my skepticism of the Biden Administration on its proposed labor law revision is overdone. After all, the Administration, per CNN, is “pushing” for a $15 minimum wage, which is the biggest single step it could take to help American workers. Or is it? From Water Cooler yesterday:

UPDATE “Don’t expect a $15 federal minimum wage: Goldman Sachs” [Yahoo News]. “President Biden has swung the door wide open on the minimum wage debate in the early days of his presidency. He called for it to be included in a new $1.9 trillion stimulus plan designed to fight the COVID-19 pandemic, although he has recently backed off on having it stuffed into the recovery plan.” • Wait. You’re telling me Biden backed off on something?

On the PRO Act, it’s good to see measures to prevent employers from interfering with union organizing campaigns. But I’m not sure how the provision to prevent employers from “permanently replacing workers hired during labor disputes,” as in scabs brought in during strikes. I would assume a strike presupposes a union, which would put the dispute in a collective bargaining context. But what about, say, an employer lockout before union organizing got going, and the employer then replacing what it saw as the troublemakers? In other words, this section needs to be very tightly drafted not to be circumvented in many cases.

The law also supposedly creates more protections for gig economy workers. Again the details will be very important.

By Tom Conway, the international president of the United Steelworkers Union (USW). Produced by the Independent Media Institute

When workers at Orchid Orthopedic Solutions tried to form a union, the company quickly brought in five full-time union-busters to torment them day and night.

The hired guns saturated the Bridgeport, Michigan, plant with anti-union messages, publicly belittled organizers, harangued workers on the shop floor and asked them how they’d feed their families if the plant closed.

The months of endless bullying took their toll, as the company intended, and workers voted against forming the union just to bring the harassment to an end.

“Fear was their main tactic,” recalled Duane Forbes, one of the workers, noting the union-busters not only threatened the future of the plant but warned that the company would eliminate his colleagues’ jobs and health care during a labor dispute. “Fear is the hardest thing to overcome.”

Legislation now before Congress would ensure that corporations never trample workers’ rights like this again.

The Protecting the Right to Organize (PRO) Act, introduced on February 4, will free Americans to build better lives and curtail the scorched-earth campaigns that employers wage to keep unions out at any cost.

The PRO Act, backed by President Joe Biden and pro-worker majorities in the House and the Senate, will impose stiff financial penalties on companies that retaliate against organizers and require the National Labor Relations Board (NLRB) to fast-track legal proceedings for workers suspended or fired for union activism. It also empowers workers to file their own civil lawsuits against employers that violate their labor rights.

The legislation will bar employers from permanently replacing workers during labor disputes, eliminating a threat that companies like Orchid Orthopedic often use to thwart organizing campaigns.

And the PRO Act will empower the NLRB to force corporations into bargaining with workers if they interfere in union drives. That means an end to the mandatory town hall meetings that employers regularly use to disparage organized labor and hector workers into voting against unions.

Orchid Orthopedic’s union-busters forced Forbes and his colleagues into hour-long browbeating sessions once or twice a week for months—and that was on top of the daily, one-on-one bullying the workers endured on the production floor.

“There was nowhere to go,” Forbes, who’s worked at Orchid Orthopedic for 22 years, said of the relentless intimidation. “You couldn’t just go to work and do your job anymore.”

A growing number of Americans, many of whom saw unions step up to protect members during the COVID-19 pandemic, seek the safe working conditions and other protections they can only achieve by organizing.

That includes Forbes and his colleagues, who endured years of benefit cuts but still put their lives on the line for the company during the pandemic.

They launched an organizing drive to secure a voice in the workplace. They also sought job protections to prevent the company from discarding them “like a broken hammer”—as one worker, Mike Bierlein, put it—when it’s done with them.

But as more Americans seek the benefits of union membership, employers’ escalating attacks on labor rights make the PRO Act ever more important.

Corporations drop hundreds of millions of dollars every year on “union-avoidance consultants”—like the ones Forbes and Bierlein encountered—to coach them on how to thwart organizing drives.

The higher the stakes, the dirtier employers play. Tech giants Google and Amazon used their vast technology and wealth to propel union-busting to a new level.

Google not only electronically spied on workers it suspected of having union sympathies, but rigged its computer systems to prevent them from sharing calendars and virtual meeting rooms.

Amazon developed plans for special software to track unions and other so-called “threats” to the company’s well-being. In Alabama, where thousands of Amazon warehouse workers just began voting on whether to unionize, the company showed anti-union videos and PowerPoints at mandatory town hall meetings, posted propaganda in bathroom stalls and sent multiple harassing text messages to every worker every day.

“It really opened my eyes to what’s going on,” Bierlein, who’s worked at Orchid Orthopedic for 18 years, said of the unfair tactics his company employed against organizers. “The deck is stacked against workers.”

The PRO Act will help to level the playing field and arrest the decades-long erosion of labor rights that significantly accelerated under the previous, anti-worker presidential administration.

It will require employers to post notices informing workers of their labor rights, helping to ensure managers respect the law. The legislation will enable prospective union members to vote on union representation on neutral sites instead of workplaces where the threat of coercion looms.

And the PRO Act will make it more difficult for employers to deliberately misclassify employees as contractors with fewer labor rights. That change will give millions of gig workers, including those driving for shared-ride and food-delivery companies, the opportunity to form unions and fight for better futures.

Right now, employers often stall negotiations for a first contract to punish workers for organizing or frustrate them into giving up. The PRO Act will curb these abuses by requiring mediation and binding arbitration when companies drag talks out.

Orchid Orthopedic’s campaign of intimidation and deception lasted until the very end of the union drive.

As the vote on organizing neared, Forbes said, the company promised it would treat workers better in the future if they decided against the union.

Instead, after the vote fell short, the company quickly increased the cost of spousal health insurance. That left Forbes more convinced than ever that workers need changes like those promised in the PRO Act to seize control of their destinies.

“I’m all about right and wrong,” Forbes said, “and the way we were treated was wrong.”

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  1. doug

    ‘Republicans and major business groups have opposed it, making its passage in the Senate doubtful.’

    that is a quote from a linked article as 1 of 3 key points.

    I guess the D’s are safe then, nothing substantial will change?…

  2. Anonymous

    “The deck is stacked against workers.”

    Yes and ever has been since government privileges, explicit and implicit, for private credit creation – which you support Yves.

    That and no limits to land ownership – both of which are contrary to the Bible.

  3. Synoia

    Put unions on the Bord. The workers have more invested in the company than the shareholders. The workers and the management should be equally invested in the success of the company.

    The relationship is too adversarial. All the people at the company are vested in its success. The people at fault for making it adversarial are the senior management.

    Having the workforce fear the management is abuse, plain and simple. It is identical to race and gender discrimination.

  4. XXYY

    Hair-raising stories, though certainly neither new, nor unique.

    Relying on the NLRB for enforcement seems like a really weak reed here. Most of the stuff that goes on now should be shut down according to current labor law, but without enforcement, big financial penalties, or risk of jail time for execs, it flourishes, even in plain sight and at the biggest US employers like Amazon and Google.

    I like to think the best of this, but if existing labor law isn’t being enforced, what good will more laws do?

    Maybe giving the NLRB 10x the budget and staff would help. Adding the ability to file civil suits against employers (as this appears to do) may also help; most employers are highly tuned to avoid civil litigation.

    1. Jeremy Grimm

      Biden started promising $2000, which became $1400 and great concern went into limiting who might receive that great bounty. The PRO Act — does anyone in Government realize how infantile these phony acronyms appear to many members of the public? The PRO Act starts off with $15/hour which would become $10.50/hour using the previous Biden promise de-rating factor of 0.7. I suppose the PRO Act will take pains to limit as much as possible just who might receive this bounty. And as XXYY notes above laws without enforcement do little. And the way other recent Acts have tended to wrap a few pages of goodies around hundreds of pages reeking of spoiled fish, I do not expect to be pleasantly surprised by Biden’s PRO Act.

  5. baldski

    I would look to Denmark as a model for labor laws. I believe they were implemented before 1900 and have been in effect ever since. They even have special labor courts to settle labor strife.

  6. HotFlash

    I do not understand why unions do not spend more time organizing and more time educating ‘the public’ or even their own members. As a self-employed person, I am not a union member, as the only union that will have me is the National Farmers Union of Ontario,(NFU-O) and that is only as an associate. Even the Wobblies wouln’t have me — I don’t have an employer. WTF?

    Please, union organizers, please, understand that you can and should organize *the rest of us* so you can get support for strikes, Buy Union programs, and everywhere that everyone can help all of us get the payment for our labour that we deserve. Some projects where The Rest of Us being in solidarity might help unions: not using self-checkout. I tell the groc store staff that are trying to herd me to the self-checkout, “No, I won’t use it, I believe my neighbours deserve good jobs.” I write letters to the store manager and to the head office. You can do tht, too. If I could get on a mailing list so I knew where people were striking or doing other actions (teachers and Covid, Amazon workers trying to organize, LCBO workers told not to wear masks) whatever, wherever, — how can I help??

    Even union members are ignorant of their legacy. When I thank my posties for 4% vacation pay and maternity leave, they are usually confused. The Cdn Union of Postal employees (CUPE) got 4% vacation pay for *everyone*, and maternity* leave for *everyone*. Why don’t postal employees know their history better?

    A brief summary: https://canadianlabour.ca/uncategorized/why-unions-history-labour-canada/

    Labour no longer has the punch they used to have. But union and non-union people, I speak to you — solidarity, solidarity, solidarity!! The only thing that is going to give us mopes any power is solidarity.

    *now covers maternity, paternity, and adoptive leave.

    1. Felix_47

      I grew up in the US in a total Union environment. You could call someone a S… or a N…. or whatever but that did not bother anyone. The worst thing someone could be was a scab. And some of them were severely injured in those days and no one cared. In those days we did not have a reserve army of unemployed undocumented Mexicans or Hondurans. The Unions forgot their roots and the executives of the Unions were bought off by business and the politicians.

  7. rc

    Unions are great in concept, but they can some times became damaging. Auto companies couldn’t even run their own factories because of onerous work rules.

    Comprehensive reform and corporate governance reform (Elizabeth Warren’s wasn’t bad) may be a better route.
    1. Cradle to grave universal healthcare should be accomplished at 50% of today’s cost–it can be done privately too. It is good business, because it makes people healthier and productive and the economy competitive.
    2. New forms of pensions/retirement separate from employers ought be developed–401(k)/IRA/Social Security isn’t a bad combination but there need to be higher contribution levels for everyone across the board. Transfer payments are effective here.
    3. Corporate charters are a good concept. Public benefit corps, too.
    4. Taxation on the very large companies could be very effective. Tax % revenue on a graduated basis. <$1 billion = 0% ratchet up 1% every $2 billion up to 7% of revenue. Operating margins on the S&P 500 are approx 15% and net margins are closer to 10% (near a record high). This avoids a lot of abuses like AMZN running billions of losses over a decade and driving many small companies out of business. Wal-Mart's 3-5% net margin would mean that it would likely have to break up. Corporate taxes as a % of GDP are near lows. Small business are getting hammered by regulations, crap trade agreements, CCP subsidized competition,… This may even the playing field.

    Unions will not get American workers where they ought and need to be.

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