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The PRO Act: Common Sense Updates to Weak American Labor Laws

The Protecting the Right to Organise or PRO Act is a proposed update to America’s National Labor Relations Board Act - last updated in 1947, for the 21st Century. It has passed the House three times but has never been floored by the Senate. Although a strong majority of Americans support the bill, and President Biden has indicated he will sign it, the Act is unlikely to pass with Senate division. Union membership in America hovers at 10 percent of the workforce, down 20 percent since 1980. The decline is attributed to the reduction of manufacturing jobs which typically feature higher union membership as well as the rise of an un-unionised service sector and independent contracting jobs. Additionally, major corporations have been frequently reported for illegal anti-unionisation actions. The PRO Act updates and enforces labor laws to protect legal and democratic unionisation efforts.

The PRO Act proposes banning captive audience meetings, mandating clearer reporting on corporations using anti-union consultants and updating unionisation election procedures. Proponents argue this strengthens protections for joining and organising within unions and empowers the National Labour Relations Board (NLRB) to punish employers found breaking the law. On the other hand, detractors argue the Act hurts businesses and employers, gives unions excessive power and exposes private employee information. Importantly the Act’s proposals are not unique to the labor laws of developed countries, including America’s. It does not significantly change United States labor law but enforces existing legislation by punishing illegal and unethical corporate behaviour.

The captive audience meeting ban would prevent companies from holding mandatory anti-union information sessions and from retaliating against employees who do not attend or participate. Workforces attempting to unionise are frequently the targets of these meetings which have no obligation to accurately describe or portray specific unions or unionisation in general. Existing law permits firing and disciplining workers for non-attendance or even raising questions. Although previously illegal in America, the only current restriction on captive audience meetings is a 24-hour limit immediately before unionisation votes. Unions are not permitted to represent themselves at such meetings and face heavy restrictions on worksite activity. Captive audience meetings propagate one-sided information to detained workforces. They are an unfair advantage of employers over workforces, undermining democratic unionisation efforts and violating freedom of association.

Another major component of the PRO Act, and one of its most consistent criticisms, regards updating unionisation voting procedures. NLRB unionising procedures start with petitioning workers for support, also known as a card check, and when 30 percent favour unionization a vote can be held. Above 50 percent workplace support, unionisation elections are bypassed if employers accept the union’s representation. Voting occurs, held in secret ballots at the worksite, and is organised and monitored by the NLRB, although employers and union representatives may be present. The PRO Act expands voting options to electronic and vote-in ballots, allowing the NLRB to automatically recognise unions that express over 50 percent support in initial card checks. PRO Act detractors argue electronic and mail-in union voting is subject to fraud and that card checks are subject to union intimidation. Card check opponents argue that secret ballots are the only way to ensure workers are not unionising under threat.

Claims that electronic and mail voting is subject to mass fraud, identical to claims in government elections, are completely without merit. NLRB is already responsible for certifying that election and card check results are valid and occur in a fair and non-coercive environment. These responsibilities would carry over to expanded ballot methods which have been proven to be secure. However, unionisation votes do feature widespread coercion from one party: employers. From 2016 to 2017, U.S. employers were charged with illegally interfering in 41.5 percent of all union elections, averaging around 40 percent for other years. Employees were illegally coerced, threatened, discipline, or fired for engaging in protected unionisation efforts in one-third of all elections. Unionisation elections absolutely occur in an environment hostile to democracy not from unions but from company coercion. Employer violations, even if reported, frequently go unpunished since the NLRB has no power to issue punitive fines. The NLRB can only order for affected employees to receive back pay and reinstatement from the offending firm. Under the PRO Act, behaviour including firing employees with suspected union sympathies would result in $50,000 fines, raised to $100,000 in repeat offences. The PRO Act empowers the NLRB to do its foundational job of investigating and punishing labor violations, fighting predatory corporate behaviour.

Unionisation efforts by Amazon workers at the Bessemer Alabama warehouse summarise several labor offences that passing the PRO Act would prevent. Employee interest in unionisation rose during the COVID-19 pandemic in response to unsafe working conditions, restrictions to bathrooms and lack of water; organisers cited at least 19 worker deaths from unsafe conditions in American Amazon workplaces since 2013. Initial card checks indicated over half the workforce desired to unionise, leading to a NLBR-monitored election. During the campaign, Amazon hired private union-busting consultants to run captive audience meetings 18-hours a day, six days a week. In an election which featured Amazon-branded ballot boxes and company security cameras watching employees vote, the workforce voted two-to-one against unionisation. The NLRB concluded Amazon’s actions unfairly affected the election as company-branded and monitored polling places created a fear of company retaliation which unfairly discouraged workers from voting; less than half of eligible voters cast a ballot. Amazon denies allegations of illegal voter intimidation but admits to holding captive audience meetings, putting anti-union campaign posters in the warehouse and sending employees anti-union text messages while not working. A new NLBR election has been scheduled, however unionisation efforts will struggle due to deliberate Amazon policies of high turnover and captive audience propaganda.

The right to unionise in America today is undermined by unethical and illegal employer actions which are rarely punished under existing framework. The PRO Act enforces existing labor laws and protects the democratic expression of workplaces to unionise. Opponents of the PRO Act say it attacks democratic workplaces but this is only a very narrow meaning of democracy: an onsite “secret” ballot, hosted by companies that routinely cheat and intimate voters. They oppose workers securely voting from home, away from company eyes, and disregard the democratic expression of unionisation card check petitions. The right of people to freely associate into trade unions faces heavy restrictions thanks to current laws. The PRO Act bans and punishes unfair employer interference in workforce unionisation efforts. It protects the right to organise.


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