Maria Ortiz Pineda is a 2L at American University Washington College of Law. She graduated from George Mason University in 2018 where she majored in Government and International Politics. She is interested in labor and employment, civil rights, and tax law.

 

Over the summer, we saw historic battles in the labor movement with the Writers Guild of America: the Screen Actors Guild, and the Teamsters Union mobilizing for wage increases, better benefits, and job protections.[1] It is estimated that about 300,000 workers caused work stoppages nationwide this year.[2] Nearly 3 out of every 4 Americans were aware of the Hollywood strikes, and public approval of organized labor is approximately 70 percent, which is the highest level since 1965.[3] The federal Bureau of Labor Statistics stated that union election petitions had increased 57 percent in the first half of the 2022 fiscal year.[4] Although the labor movement is on the rise, the current labor laws and legal landscape need to be updated and made more effective.[5] In 2019, the Protecting the Right to Organize (PRO) Act was introduced as a comprehensive proposal protecting workers’ rights to bargain and organize a union.

If passed, the legislation would be the most complete union and worker empowerment legislation since the National Labor Relations Act (NLRA) of 1935.[6] The proposal seeks to close current loopholes companies and employers use by creating stricter guidelines.[7] The legislation seeks to nullify the dozens of states implementing “right-to-work “ laws that hinder strikes and collective bargaining power by allowing individuals to opt out of paying union fees.[8]

Several provisions of the Pro Act would drastically change the legal landscape: (1) it allows unions to override right-to-work laws in states; (2) interference and influence by the employer in union elections would be forbidden; (3) it establishes monetary penalties on employers and executives that violate workers’ rights and; (4) it allows a newly certified union to seek arbitration and mediation to settle impasses in negotiations to secure a first contract.[9] Additionally, the Pro Act would reverse the Supreme Court’s decision in Hoffman Plastic Compounds, Inc. v. NLRB by allowing undocumented workers to seek relief if the employer violates their labor rights.[10] In the Hoffman Plastic case, the court held undocumented workers were not entitled to damages if they were illegally fired in retaliation for organizing their workplace.[11] The Pro Act would significantly expand workers’ rights to organize in their workplace and protect unions’ existence.[12]

The legislation has the support of over 100 labor unions, advocacy organizations, and political groups like the AFL-CIO, SEIU, and Public Citizen.[13] On the other hand, it has around 150 business groups opposing it, like the National Restaurant Association, the US Chamber of Commerce, and the National Retail Federation.[14] The proposal has been introduced a handful of times in the House but has been unable to advance beyond the 60-vote threshold needed to defeat a Senate filibuster.[15] Many supporters of the Pro Act see a few paths forward for the bill.[16] One would be eliminating the filibuster and passing the proposal with a simple majority. Still, Senate Majority Leader Chuck Schumer has thrown out the idea of eliminating the filibuster.[17] Another path would be to split the provision of the Pro Act into multiple pieces of legislation and attach it to the budget reconciliation process.[18] Given the current political landscape, it is unlikely that the pro-union legislation will advance the Senate hurdle.[19]

 

[1] Tyler Foggatt, The Historic Battles of “Hot Labor Summer”, The New Yorker (July 27, 2023).

[2] Helen Li, Hot labor summer, by the numbers, Los Angeles Times (Sept. 1, 2023),   https://www.latimes.com/california/newsletter/2023-09-01/hot-labor-summer-by-the-numbers-essential-california.

[3] Id.; John Ramos, Union organizers talk about “Hot Labor Summer” on Labor Day weekend, CBS News Bay Area (Sept. 2, 2023), https://www.cbsnews.com/sanfrancisco/news/union-organizers-talk-about-hot-labor-summer-on-labor-day-weekend/.

[4] Office of Public Affairs, Union Elections Petitions Increase 57% in First Half of Fiscal Year 2022, National Labor Relations Board (Apr. 6, 2022), https://www.nlrb.gov/news-outreach/news-story/union-election-petitions-increase-57-in-first-half-of-fiscal-year-2022.

[5] Sarah Jones, The Pro Act Could Do More Than Revive Unions, New York Magazine (Mar. 13, 2021), https://nymag.com/intelligencer/2021/03/what-is-the-pro-act.html.

[6] Why the US Pro Act Matters for the Right to Unionize: Questions and Answers, Human Rights Watch (Apr. 29, 2021), https://www.hrw.org/news/2021/04/29/why-us-pro-act-matters-right-unionize-questions-and-answers.

[7] See generally Celine McNicholas et al., Why workers need the Protecting the Right to Oraganize Act, Economic Policy Institute (Apr. 29, 2021) (Explaining the loopholes employers currently use under the National Labor Relations Act where they fire pro-union workers, interfere with the union election process, and stall any progress towards a collective bargaining agreement).

[8] Achilles Frangos, To reduce worker exploitation and abuse, we must embrace the Pro Act, Columbia Spectator (Oct. 16, 2023), https://www.columbiaspectator.com/opinion/2023/10/16/to-reduce-worker-exploitation-and-abuse-we-must-embrace-the-pro-act/; Amary Wiggin, Why is Collective Bargarining Good for Workers, Emergency Workplace Organizing (Aug. 31, 2023) (Explaining how collective bargaining helps solve day-to-day workplace problems, improve wages and benefits, and holds employers accountable).

[9] Don Gonyea, House Democrats Pass Bill That Would Protect Worker Organizing Efforts, NPR (Mar. 9, 2021), https://www.npr.org/2021/03/09/975259434/house-democrats-pass-bill-that-would-protect-worker-organizing-efforts.

[10] Why the US PRO Act Matters for the Right to Unionize: Questions and Answers, supra note 4.

[11] Hoffman Plastic Compounds, Inc. v. N.L.R.B., 535 U.S. 137 (2002).

[12] Richard L. Trumka, Protecting the Right to Organize Act of 2023, H.R. 20, 118th Cong. (2023).

[13] Coalition letter in support of the Protecting the Right to Organize Act, Economic Policy Institute (Mar. 9, 2021), https://www.epi.org/publication/coalition-letter-in-support-of-the-protecting-the-right-to-organize-act/.

[14] Caitlin Oprysko, Business orgs ask lawmakers to oppose labor bill, Politico (Mar. 3, 2021), https://www.politico.com/newsletters/politico-influence/2021/03/03/business-orgs-ask-lawmakers-to-oppose-labor-bill-793763; Stop the PRO Act, U.S. Chamber of Commerce (2021) (Arguing that the PRO Act would trap employers in unrelated labor disputes, fire workers who do not want to join a union, and disrupt the economy).

[15] Conor Klerekoper, A Possible Future for the Pro Act, Center for Progressive Reform (July 24, 2023), https://progressivereform.org/cpr-blog/a-possible-future-for-the-pro-act/.

[16] Id.

[17] Id.

[18] Id.

[19] See Eleanor Mueller & Holly Otterbein, Unions warn Senate Democrats: Pass the Pro Act, or else, Politico (Apr. 22, 2021) (explaining the political landscape in the Senate and what key politicans are blocking the passage of the PRO Act).