The PRO Act Is the Most Ambitious Labor Law Reform Bill in Generations

Bizar Male

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.

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