The PRO Act contains some of the most significant changes to labor law in decades. But with genuine shortcomings, including no “card check,” the legislation should be seen as an important part of a broader suite of pro-labor reforms.
United Auto Workers members and supporters on a picket line in Chicago, Illinois, on September 30, 2023. (Taylor Glascock / Bloomberg via Getty Images)
Earlier this year, a wave of high-profile strikes ushered unions back into the national spotlight. But as the United States’ so-called “hot labor summer” gives way to an equally enthusiastic fall, we must contend with the reality that while union activity is higher than it’s been in years, union density remains dismally low. The share of employees who belong to unions has been falling for decades and reached an all-time low of 10.1 percent in 2022. The share in the private sector was even lower — at just 6 percent.
In the last few years, organized labor has coalesced around the Protecting the Right to Organize (PRO) Act as a way to restore union density and, with it, worker power. The PRO Act aims to be a comprehensive reset of US labor law, making it easier for workers to organize and maintain their unions. Previous iterations failed to advance, in part because of the Senate filibuster. The act was reintroduced this year as the Richard L. Trumka Protecting the Right to Organize (PRO) Act of 2023 and made its way out of committee in June.
The PRO Act is an ambitious piece of legislation. Its cosponsors tout the bill as a vehicle to revitalize unions by ensuring that US workers can actually exercise their constitutional right to organize and bargain collectively. The bill includes some of the most significant revisions to the National Labor Relations Act (NLRA) since the latter ushered in much of the United States’ current labor-relations framework in 1935. If passed, it would be the most pro-labor piece of legislation the United States has seen in decades. Since it is clear that deficiencies in US labor law have contributed to the current state of labor decline in the United States, it is worth asking whether and to what extent the PRO Act would effectively address them.
Some commentators have cautioned labor not to pin all of its hopes on the PRO Act. It’s not that such critics are concerned about the act’s contents, but rather that they seek to encourage non-legislative strategies, especially given that they believe the bill’s chances of passing are slim. These are important and well-taken points, but it is also worth taking a closer look at the contents of the act itself. When we do, we can see how the legislation would radically overhaul labor law, creating an environment where labor can flourish. We also see the bill’s shortcomings, encouraging us to think more holistically about labor movement strategy.
To understand how our political and legal specificities come to bear on labor’s prospects, it is clarifying to compare the situation in the United States with that in other countries. As labor scholar Barry Eidlin notes in his 2018 book Labor and the Class Idea in the United States and Canada, Canada is the obvious choice because of similarities in the way unions function in the United Staes and Canadian legal environment.
Canadian labor law was to some extent modeled on US law; at the time, the latter was considered more pro-labor. The two countries share the concept of the bargaining unit, whereby workers at a specific individual worksite who share a “community of interest” may seek union certification for their group of workers. This is in contrast with the sectoral bargaining model that dominates most of Europe, where the bargaining unit consists of an entire industry, occupation, or sector, rather than being limited to one employer or worksite.
Despite their similarities, Canada has enjoyed significantly higher union density than the United States for decades, with even the lowest-density Canadian province surpassing the highest-density US state in 2022. At 28.4 percent, the share of employees who were union members in 2022 in Canada was nearly triple the share in the United States that year.
Canada and the United States have functionally distinct approaches to enforcing and adjudicating labor law disputes. Historically in Canada, the primary motivation has been to contain industrial conflict. Meanwhile, in the United States, the narrowly individual conceptualization of rights has resulted in repeated discounting of collective labor rights. While Canadian courts tend to treat union activity as an expression of individuals’ constitutionally protected right to freedom of association, cases in the United States are more likely to be decided based on their ramifications for individuals’ right to free speech.
In practice, all of this means that Canadian courts are more likely to find in favor of workers and their unions, while US courts often effectively take the side of employers. Eidlin concludes that these countries’ diverging trajectories can be largely explained by the erosion of the United States’ labor law system.
We can use the Canadian experience to evaluate how successful the PRO Act could be. Given that the policy environment is a main driver of union decline in the United States, a successful PRO Act should ultimately result in a United States that looks more like its northern neighbor in terms of union membership density. In his book, Eidlin identifies several key items that appear to have an outsize impact on union outcomes while stressing that no one policy is solely responsible for shaping labor’s destiny. It’s useful to enumerate these items and evaluate whether and to what extent the PRO Act addresses them. They are as follows:
1) Certification. As the official starting point for union bargaining representation, rules governing the certification process play a significant role. In the United States, the National Labor Relations Board (NLRB) oversees union certification elections, the outcomes of which decide whether a union will be officially recognized. This process tends to be long and drawn out and is fraught with undue pressure from, and interference by, employers, much of which is already illegal.
In some parts of Canada, an alternate, more efficient means of certification known as card check recognition is used. This process involves employees signing authorization cards to indicate their desire to join a union. If a majority of the workers sign cards, the union is recognized as the representative of the employees. Eidlin cites evidence that suggests that card check makes a substantial difference. Elections give employers ample opportunity to put their foot on the scale against the union, and many take the opportunity to mount vigorous anti-union campaigns.
By leaving elections in place rather than establishing card check recognition as the default, the PRO Act falls short in addressing employer involvement in the determination process. While the PRO Act tackles some of the coercive delay and obstruction tactics favored by employers, the closest it comes to implementing card check is making card check certification a penalty for employers that fail to abide by these new election rules.
There is no particular reason why an election is needed if the majority of employees have already stated they want a union. Nor is there any reason for the employer — which does not have the right to vote against an employee union, much less veto it entirely — to be notified before such an election takes place. While the doomed Employee Free Choice Act did address this structural flaw, the PRO Act disappointingly opts to work within the election structure rather than replace it.
2) Securing First Contracts. Securing first contracts is essential to union success. Union workers enjoy substantial wage and benefit advantages through collective bargaining agreements. What’s more, in the absence of an agreement, US employers can move to decertify the union a year after an election has taken place. This gives employers a great deal of incentive to drag out the bargaining process. An obvious example of this is Starbucks, which has defied the law by more or less refusing to bargain with its employees’ union, and Starbucks Workers United is now facing several decertification campaigns.
While current US law requires that employers bargain in good faith with their employees’ unions, it is largely toothless to stop employers that decide not to do so. By contrast, Canadian employers that fail to reach an agreement risk having one imposed upon them. The PRO Act shines in this regard, amending the NLRA to give unions recourse in the face of bad faith behavior by employers, and ultimately giving either party a path to mandatory binding arbitration.
3) Right to Strike. The PRO Act broadly succeeds in safeguarding union security by protecting the right to strike. The ability to withhold labor is fundamental to worker power; without it, employees have little leverage when negotiating with their employers. Among the most profound changes that the PRO Act makes are eliminating an employer’s ability to permanently replace striking workers and expanding the scope of protected strike activity.
4) “Right to Work.” So-called right-to-work laws limit unions’ ability to recoup costs from everyone who uses union resources. These laws undermine unions’ financial security by allowing those who benefit from union representation on the job but opt not to become members to avoid reimbursing the union for representation and enforcement.
While states with such laws do have lower levels of unionization, it is not necessarily clear that this is a direct result of right-to-work laws. It is also worth noting that the Supreme Court’s 2018 ruling in Janus v. AFSCME effectively rendered every state in the United States a right-to-work state for the public sector. This is especially important given that union membership shares are much higher in the public sector than in the private sector. The PRO Act would amend the NLRA, which governs private sector labor relations, but a true overhaul of US labor law must address the plight of public sector workers as well.
5) Enforcement and Legitimacy. More than any one policy, the underlying system and the perceived “legitimacy of the framework” have played a significant role in Canadian organized labor’s success relative to their US counterparts. In the United States, employers are incentivized and empowered to deny workers their organizing rights. Lackluster penalties and delays in processing charges are successfully weaponized to chip away at workers’ resolve. While the PRO Act attempts to remedy some of this by mandating faster case treatment and increasing employer fines, it doesn’t go far enough.
Even the increased fines in the PRO Act are unlikely to deter large multinationals, which still stand to lose far more should a union organizing campaign prove successful. Moreover, absent provisions that ensure adequate resources for the NLRB, which would be charged with enforcing these new rules, said rules arguably amount to an unfunded mandate for an already stretched federal agency. The PRO Act does improve on the current enforcement system by allowing complainants to file civil suits, but this is not enough to give the rules the teeth they’d need to become norms.
The PRO Act does make a critical change by giving the NLRB the power to enforce its own orders and levy civil penalties. The NLRB currently lacks this type of statutory enforcement power and must instead rely on the US Court of Appeals, a setup that often results in delays that benefit the employer.
It is clear from this accounting that there are many places where the PRO Act succeeds in putting forth the type of transformative revisions needed to enable workers to exercise their rights to organize and bargain collectively with their employers. The enthusiasm of its supporters is understandable, and its numerous strong points make it worth organizing around.
However, it is also important to be clear-eyed about its limitations. This assessment of its potential to make the kind of comprehensive change to which it aspires finds it wanting in some important ways. Passing the PRO Act would represent a monumental step forward for organized labor. What it is not, however, is a standalone legislative panacea. While the act would remedy some of the deficiencies in the current US labor system, it would leave certain critical shortcomings in place. To be truly comprehensive, the PRO Act would need to be expanded or accompanied by a broader suite of labor law reforms.
While a momentous first step, the PRO Act alone will not be enough to fully revitalize the US labor movement. Passing the PRO Act should instead be billed as an important part of a larger labor call to action. The Left would do well to continue to urge lawmakers to pass the PRO Act — but without losing sight of how much else also needs to happen to make the act’s ambitions a reality.Original post