Nearly half (48%) of all nonunion workers surveyed say they would vote for a union if given the opportunity—a roughly 50% higher share than when a similar survey was taken 40 years earlier.1 And the 65% of Americans who approve of labor unions is higher than it has been since the early 2000s, with young workers ages 18–34 the most supportive.2 But the share of workers represented by a union was just 12.1% in 2020.3 If so many workers want union representation, why don’t they have it? The fact is that our current labor law—which is supposed to protect the right of workers in the private sector to organize—actually makes it very difficult for workers to win union representation.4 Workers face multiple hurdles when they try to organize5 and employers have too much leeway to interfere with workers’ free choice. Employers have many legal ways to intimidate and coerce workers, and when employers resort to illegal tactics such as firing workers for organizing, they incur no monetary penalties.6
[Related: PRO Act at a glance]
The Protecting the Right to Organize (PRO) Act addresses many of the major shortcomings with our current law. Passing the PRO Act would help restore workers’ ability to organize with their co-workers and negotiate for better pay, benefits, and fairness on the job. Passing the PRO Act would also promote greater racial economic justice because unions and collective bargaining help shrink the Black–white wage gap and bring greater fairness to the workplace.7
Problems that the PRO Act addresses
The National Labor Relations Act (NLRA) is supposed to protect the rights of private-sector workers to organize. But there are serious shortcomings in the current law—and in the operations of the National Labor Relations Board (NLRB) established to carry out key parts of the law. The weaknesses are exploited by anti-union employers and the union-busting consultants they hire, who intimidate workers seeking to unionize, stall union elections, and erect roadblocks to negotiating union contracts that improve pay and working conditions for workers.
Problem: Employers can fire pro-union workers with no real consequences
In one out of every five union organizing campaigns, employers fire pro-union workers, because employers know this will frighten employees and undermine the organizing campaign.8 This is illegal under the NLRA, but employers do it anyway. In fact, employers are charged with violating the law by firing activists, making illegal threats, and engaging in other unlawful conduct in 41.5% of all organizing campaigns.9
Employers know that under current labor law, they will face no real consequences for illegally firing workers. They just must comply with an order to rehire the worker and pay the back wages the worker would have earned anyhow, minus the wages the worker earned, or could have earned, in the interim. In other words, firing union supporters is just a cost of doing business. The law does not provide for monetary penalties against employers for illegally firing pro-union workers, or for damages to be awarded to employees for the hardships they face when they are fired illegally. Workers have no right to bring a civil lawsuit against their employer challenging their illegal discharge—for any recourse they must depend on the NLRB to pursue their case.
The lack of real remedies and recourse affects thousands of workers. In fiscal year 2019, employers were ordered to reinstate more than 1,431 workers who were fired illegally for exercising their rights.10
PRO Act solution: The PRO Act establishes civil penalties for employers who violate workers’ rights as well as individual liability for corporate officials. The PRO Act authorizes the award of monetary damages to workers who are illegally fired or suffer other serious economic harm. The legislation directs the NLRB to seek federal court injunctions to get illegally fired workers back in their jobs while their retaliation cases are pending. And it creates a private right of action so that illegally discharged workers can file civil lawsuits against their employers and are not wholly dependent on the NLRB to pursue their cases.
Problem: Employers interfere with the election process
When workers try to form a union with their co-workers, they collect petitions, cards, or other statements of support from workers in a chosen group (the “bargaining unit”), showing that workers want a union. Often workers will ask their employer to voluntarily recognize and bargain with their union once they have cards or other written support from a majority of employees in the bargaining unit. This method of forming a union— known as majority sign-up or card check recognition—has existed since even before the passage of the original NLRA in 1935. Thousands of employers have respected their workers’ choice and have recognized and bargained with unions after voluntary recognition.
But under current law, employers are not required to recognize and bargain with a union that is supported by a majority of workers. Instead, employers can refuse to recognize a union and require workers to go through the NLRB’s election process—a process that employers exploit to delay and undermine the union organizing drive.
Problem: Employers stall the election to buy time to campaign against the union
If an employer refuses to voluntarily recognize a union that has the support of a majority of employees, employees must file a petition for a representation election with the NLRB. The NLRB investigates the petition and schedules an election. Employers exploit the law to drag out the scheduling of the election, and they then use the time between the petition and the election to campaign against the union.
One of the tactics frequently used by employers to delay the election is to challenge the makeup of the bargaining unit—the group that is voting on union representation. Employers argue that certain employees’ jobs are different, that more workers should be included, or that certain employees are supervisors. The election process is delayed while hearings are scheduled and held on the employer’s arguments, even when the arguments affect only a small percentage of voters.
During the Obama Administration, the NLRB tried to streamline the election process, limit the ability of employers to challenge workers’ proposed bargaining units, and reduce litigation and delay caused by these employer tactics. But the Trump NLRB reversed many of these changes, and the time between an election petition and an election increased as a result.11
PRO Act solution: The PRO Act addresses employer delay tactics by restoring the Obama-era changes to the representation election process and making clear that the decision over the proper bargaining unit is to be made by workers and the NLRB, not manipulated by employers.
Problem: Lopsided communications controlled by employers means workers hear only anti-union messages
Employers use their access to workers and control of the workplace to make sure workers understand the employer’s views about unionization. Anti-union messages are included in orientation materials for new employees, and employers use company email to broadcast anti-union messages. Nine in 10 employers require employees to attend mandatory captive-audience meetings—meetings delivering anti-union messages that employees must attend or else be disciplined or fired.12 Two-thirds of employers require employees to meet one-on-one with their supervisors at least weekly during organizing campaigns.13 Meanwhile, employers legally are allowed to keep union organizers out of the workplace so that organizers are unable to talk directly with employees on the job. The Trump NLRB gave employers even more power to exclude organizers and off-duty employees from their property.14 As a result, under current law, workers are bombarded by the employer’s message and deprived of the ability to hear from the union at their workplace.
PRO Act solution: The PRO Act bans captive audience meetings so workers will no longer be coerced into hearing their employer’s anti-union messages. It requires employers to allow workers to use company email systems for organizing purposes unless there are compelling business reasons for disallowing this use.
Problem: Employers hire union-busters to push back on workers’ power
Instead of leaving the decision of whether to form a union to their employees and respecting their choice, employers regularly hire third-party anti-union consultants, who craft and carry out communications and campaign plans to discourage workers from forming unions. Three out of every four employers hire third-party union-busters to help them with their campaigns, sometimes spending hundreds of thousands of dollars, or more.15 Employers overall spend at least $340 million each year on anti-union consultants.16 Workers often are kept in the dark about who their employer is hiring and how much money the employer is spending on third-party union-busters. Public reports disclosing activities and expenditures are only filed months after the activity takes place, if then. A huge legal loophole allows employers and union-busters to avoid reporting completely if the union-buster stays in the background and avoids direct contact with workers.
PRO Act solution: The PRO Act requires prompt disclosure of union-busting activities and closes the loophole through which employers and consultants have evaded reporting.
Problem: Employers stall progress toward initial collective bargaining agreements
When workers make it through the NLRB election labyrinth and vote to form a union, employers drag their feet in bargaining over a collective agreement. More than half of all workers who vote to form a union still are without a collective bargaining agreement a year later.17 Two years after an election, 37% of newly formed private-sector unions still have no labor agreement.18
Too often, employers slow-walk the bargaining process and fail to bargain in good faith, and the law is too weak to deter this conduct. In other cases, employers take advantage of current law, which allows them to refuse to bargain if they are challenging an issue related to the original election, like the composition of the bargaining unit. This process can take years, and in the meantime, the workers’ decision to form a union is thwarted. This creates a discouraging situation for workers and allows employers to foster a sense of futility in the process.
PRO Act solution: The PRO Act establishes a mediation and, if necessary, arbitration process to ensure that workers and employers obtain an initial collective bargaining agreement when workers first organize. The act requires employers to bargain in good faith when a new union is recognized or certified so that employers cannot stall the bargaining process over legal technicalities.
An EPI chart listing some of the major problems in current labor law and how the PRO Act addresses them can be found here.
Endnotes
1. Thomas A. Kochan et al., “Worker Voice in America: Is There a Gap Between What Workers Expect and What They Experience?” ILR Review 72, no. 1 (January 2019): 3–38. https://journals.sagepub.com/doi/10.1177/0019793918806250.
2. Megan Brenan, “At 65%, Approval of Labor Unions in U.S. Remains High,” Gallup website, Sept. 3, 2020.
3. Celine McNicholas, Heidi Shierholz, and Margaret Poydock, Union Workers Had More Job Security During the Pandemic, But Unionization Remains Historically Low: Data on Union Representation In 2020 Reinforce the Need For Dismantling Barriers to Union Organizing, Economic Policy Institute, January 2021.
4. Celine McNicholas et al., Unlawful: U.S. Employers Are Charged with Violating Federal Law in 41.5% of All Union Election Campaigns, Economic Policy Institute, December 2019.
5. Gordon Lafer and Lola Loustaunau, Fear at Work: An Inside Account of How Employers Threaten, Intimidate, and Harass Workers to Stop Them from Exercising their Right to Collective Bargaining, Economic Policy Institute, July 2020
6. Gordon Lafer and Lola Loustaunau, Fear at Work: An Inside Account of How Employers Threaten, Intimidate, and Harass Workers to Stop Them from Exercising their Right to Collective Bargaining, Economic Policy Institute, July 2020; Celine McNicholas et al. Unlawful: U.S. Employers Are Charged with Violating Federal Law in 41.5% of All Union Election Campaigns. Economic Policy Institute, December 2019.
7. The decline of unionization over the last four decades has played a significant role in the expansion of the Black-–white wage gap. See Valerie Wilson and William M. Rodgers III, Black–White Wage Gaps Expand with Rising Wage Inequality. Economic Policy Institute, September 2016.
8. Celine McNicholas et al., Unlawful: U.S. Employers Are Charged with Violating Federal Law in 41.5% of All Union Election Campaigns. Economic Policy Institute, December 2019.
9. Celine McNicholas et al., Unlawful: U.S. Employers Are Charged with Violating Federal Law in 41.5% of All Union Election Campaigns. Economic Policy Institute, December 2019.
10. National Labor Relations Board (NLRB, Reinstatement Offers (webpage), accessed on February 1, 2021.
11. Ian Kullgren, “Union Elections Took Longer in 2020, but Virus Not Only Factor,” Bloomberg Law, January 4, 2021.
12. Kate Bronfenbrenner, No Holds Barred: The Intensification of Employer Opposition to Organizing, Economic Policy Institute, May 2009.
13. Kate Bronfenbrenner, No Holds Barred: The Intensification of Employer Opposition to Organizing, Economic Policy Institute, May 2009.
14. Celine McNicholas, Margaret Poydock, and Lynn Rhinehart, Unprecedented: The Trump NLRB’s Attack on Workers’ Rights, Economic Policy Institute, October 2019.
15. Kate Bronfenbrenner, No Holds Barred: The Intensification of Employer Opposition to Organizing, Economic Policy Institute, May 2009.
16. Celine McNicholas et al. Unlawful: U.S. Employers Are Charged with Violating Federal Law in 41.5% of All Union Election Campaigns, Economic Policy Institute, December 2019.
17. David Madland and Karla Walter, “The Bottom Line in Labor Law Negotiations,” Center for American Progress Action Fund, June 3, 2009
18. Josh Bivens, Lora Engdahl, Elise Gould, Teresa Kroeger, Celine McNicholas, Lawrence Mishel, Zane Mokhiber, Heidi Shierholz, Marni von Wilpert, Valerie Wilson, and Ben Zipperer, How Today’s Unions Help Working People: Giving Workers the Power to Improve Their Jobs and Unrig the Economy. Economic Policy Institute, August 2017.
