"If we want it, we’re going to have to fight like hell for it" - Labor faces an uphill battle to pass the PRO Act
by Luis Feliz Leon
SEIU Local 1 protest in 2012. Bartosz Brzezinski. Source: Flickr.
In New York City, after years of organizing fast-food workers, 32BJ SEIU won two ‘just cause’ laws protecting 67,000 workers from being fired arbitrarily. In California, after a 17-year battle for a union, 45,000 childcare providers finally won the “largest single union election America has seen in seven years.” New Mexico just became the ninth state—including California, New York, New Jersey, Illinois, Massachusetts, Oregon, Washington, and Maine—to create a pathway for mandatory recognition using card check, which makes it easier for workers to gain union recognition by submitting a majority of signed cards of workers rather than through a drawn-out election campaign where the employer can interrogate workers, hold captive audience meetings, and fire union supporters.
Despite these recent labor victories at the state level, the share of all workers belonging to a union continues to dwindle, at a nadir of 10.3 percent. With the share of private-sector workers in a union at 6.2 percent, the labor movement has effectively been beaten back to the dregs of the 1890s: the good-old days of the Gilded Age, when Andrew Carnegie and a coterie of plutocrats pillaged workers’ labor and amassed an obscene amount of wealth to make the headless Marie Antoinette’s nerve endings twitch in the grave.
With “right-to-work” laws all but banning the union shop in 27 states and Guam, the National Labor Relations Board packed by Donald Trump with lawyers from union-busting firms, and states gutting the bargaining rights of state employees, how can organized labor build power to win back lost ground?
The answer is to make it easier for workers to join unions. The Protecting the Right to Organize (PRO) Act, H.R. 2474, is a compendium of labor’s wish-list items. It would make it easier for workers to form unions, imposing consequence on union-busting employers who violate labor law, and weakening “right-to-work” laws. It passed the House last year by a vote of 224-194, signifying both Democrats wanting to burnish their pro-labor bona fides before the campaign season and the growing leftist bloc within its ranks. The Senate version garnered 42 co-sponsors, but Majority Leader Mitch McConnell blocked it.
If enacted, it would strengthen workers’ right to unionize by updating the 1935 National Labor Relations Act and reversing the damage of the anti-union Taft-Hartley Act of 1947, repealing its ban of secondary boycotts, and making it possible for unions to coordinate solidarity strikes as truck drivers represented by the Teamsters did last year when they refused to cross the picket during strikes at Stop & Shop organized by the United Food and Commercial Workers. The inclusion of the right to strike in solidarity with other unions in some Teamster contracts hearkens back to a legacy of labor militancy. It would also end the misclassification of workers as “independent contractors” using an ‘ABC’ test to determine whether they are genuinely independent businesspeople.
The PRO Act would set deadlines for workers to secure agreement on a first contract, overcoming a stalling tactic employers use to undermine unionizing efforts, and set up mediation to resolve disputes with employers. To discourage union-busting, it would ban employers from coercing workers from signing away their right to pursue litigation and prohibit permanently replacing workers who have gone on strike with strikebreakers. It also bars employers from forcing workers to attend “captive audience” meetings to discourage unionization and imposes stiff penalties on employers who violate workers’ rights.
These practices are common. Unions charge employers with violating federal law in 41.5 % of all union-election campaigns, according to a study by the Economic Policy Institute (EPI), a left-leaning think tank. “Given the data on employer conduct during union elections, it stands to reason that enabling workers to avoid a rigged process and win a union would make a difference in union density,” said EPI director of government affairs Celine McNicholas. “This is especially true when you consider how many private-sector workers say they would want a union if they could win one in their workplace.” Nearly 50 percent of all nonunion workers say they would vote for a union if given the chance, one recent poll found. The most recent Gallup poll shows that 65 percent of Americans have a favorable view of unions.
“Labor law is broken, often making the NLRB election process a hellish gauntlet for workers who want to form a union," said Daisy Pitkin, UNITE HERE’s laundry organizing director in Arizona from 2002 to 2009. “In order for workers to make it through that gauntlet, they and the union they're building have to be really strong to withstand the company’s attacks.”
“Industrial laundries are dangerous places to work," Pitkin continued. "Workers are routinely injured and burned by machinery, and in the factories that wash hospital linen, they are exposed to bodily fluids and waste, surgical tools, fluids bags and the like.”
One Phoenix hospital laundry the union was trying to organize, Sodexho Commercial Linen Exchange, was charged by the NLRB with 22 separate violations, according to Pitkin. Sodexho – now known as Sodexo – is a major international services chain, with contracts ranging from serving cafeteria food in colleges to prisons. The union was able to provide enough evidence of unfair labor practice violations, including firing workers during organizing drives, surveillance and other intimidation tactics, that the NLRB issued a Gissel bargaining order, forcing the employer to recognize and bargain with the union.
Pitkin led organizing campaigns at nine industrial laundries across Arizona alongside “mainly women workers in this deep-red, right-to-work, Arpaio country,” referring to Sheriff of Maricopa County Joe Arpaio, the neo-fascist blowhard nationally known for blustering displays of cruelty to immigrants and incarcerated people.
UNITE HERE organized three by card check, another after workers went on a spontaneous strike due to safety concerns, and five through drawn-out elections. Ultimately, it was able to claim 65% percent union density in the state’s industrial-laundry sector.
“Our theory was that if we could organize midrange companies, then clean up the market by going after the smaller, local and regional players, we could raise industry standards for wages and health and safety even before organizing the big national and international corporations,” said Pitkin. "This partially proved true: when we got to above 50% density, we were able to bring the floor up for wages across the state."
The challenge has been less workers’ lack of interest in joining a union than the roadblocks making it difficult to do so. For the last decade, the labor movement has tried to remove these barriers, but largely failed. The PRO Act’s key provisions are a throwback to Sen. Bernie Sanders’ Workplace Democracy Act, which would have repealed state "right-to-work" laws that drain union coffers by allowing non-union members to benefit from the benefits of union representation, or “free ride,” without paying dues.
The Employee Free Choice Act (EFCA), which died in the Senate during President Barack Obama’s first term, had similar potential to increase union membership, as it would have enabled workers to get union representation if a majority signed union cards (“card check”) rather than through an election. It died because Obama was unwilling to put political capital behind it to overcome opposition from Republicans and center-right Democrats.
“EFCA was very close to becoming law. At the end of the day, in my view, the Obama administration did not put the necessary political capital into securing its passage,” said EPI's McNicholas.
“The Obama administration decided to focus on ‘bipartisan’ and ‘reach across the aisle’ type solutions to the 2008 financial crisis, and thus didn't care about EFCA in the face of the anti-EFCA mobilization by strong ‘antis’ like the Chamber of Commerce,” says Susan Kang, a professor of political science at John Jay College who studies political economy, labor, and human rights. “Basically, labor was swept aside by the Obama administration … at the exact moment when he had the strongest mandate and political capital.”
Another issue, said Patrick Burke, an organizer with United Auto Workers Local 2322 in Massachusetts, was that EFCA's card-check provisions, when framed as a replacement for elections, “became very easy to demonize and difficult to explain to people not already familiar with labor law.”
“The short story is that the EFCA was doomed from a few moderate Dems not being willing to go through with card check once actually in power to enact it. The long story is that the labor movement's disappearance from the ‘adult table’ of Democratic politics has cyclical downward effects. They're less able to convince Dems to go out on the limb for them and to prioritize their legislative requests,” said Brandon Magner, a labor lawyer in Indiana.
Despite a history of betrayal and rejection, labor and immigrant rights organizations, coalesced around Biden, a self-professed “union guy,” after the primaries and helped deliver him to the White House in the hope that doing so would lead to executive action on immigration and labor law reform.
“We call on Congress to pass and Biden to sign the Protecting the Right to Organize (PRO) Act early in 2021 to make sure every worker who wants to form or join a union is able to do so freely and fairly,” AFL-CIO President Richard Trumka said in a statement after the election.
But union organizers, researchers, and labor lawyers see dim prospects for winning significant labor reform during the Biden administration.
“The PRO Act is obviously dead in the Senate unless Mitch McConnell gets knocked into the minority, but I don't see it being passed without full-throated support for gutting the filibuster from Biden, Harris, Schumer, Durbin, and more,” said Magner, the labor lawyer, adding that “the history of failed labor law reform efforts indicates you need 60 votes to pass anything.”
That is particularly true of Democrats in “right-to-work” states like South Carolina where U.S. Rep. Joe Cunningham was a reliable opponent in the House. But the greatest liability might be Biden himself. “The few times that Biden met McConnell at the negotiating table during the Obama years, McConnell left with Biden’s wallet,” dryly observed The Intercept’s Ryan Grim.
“Even if the Democrats capture the Georgia Senate seats, their margin will be too small to overcome a Republican filibuster or, if they change the rules, more than one Democrat will break ranks, and no Republicans will support the act,” said Friedman.
Even if Biden were to somehow outmaneuver McConnell’s chicanery, there would be fierce opposition to contend with on the corporate side from the likes of Americans for Tax Reform, which has used Georgia runoff elections as an opportunity to fearmonger on the PRO Act, and, when backed against the wall, Biden may revert to his timeworn moderate instincts and not go to bat for labor reform unless forced to.
“Prospects for major labor law reform under the Biden administration are directly tied to unions’ and union federations’ willingness to hold the administration’s feet to the fire. They are not going to do it on their own – if we want it, we’re going to have to fight like hell for it,” said Pitkin, the former UNITE HERE organizer.
“The biggest question is whether there is enough street heat and organizing to prioritize legislation like this," said Burke, the UAW organizer. “Workers in motion spur labor-law reforms, not the other way around.”
Luis Feliz Leon is an organizer, journalist, and independent scholar making good trouble in New York City.