When something’s broken, fix it

 Bill Knight column for 5-20, 21 or 22, 2021

 It’s not exactly newsworthy; just another annoying reminder:

FEDERAL LABOR LAW ISN’T WORKING.

That’s according to the Economic Policy Institute, whose April report shows that the current law’s useless – although the proposed Protecting the Right to Organize (PRO) Act would make a real difference for many Americans who’d like to unionize.

MIT researchers in 2018 found that almost half of nonunion workers (48%) would join a union if they could — about 58 million workers.

The PRO Act would empower them to do so.

Nevertheless, a likely Republican filibuster (and three Democratic Senators who haven’t agreed to support the bill) make passage difficult – so hard that unions recently confronted Democratic leaders about it.

The National Labor Relations Act (NLRA), signed into law in 1935, is supposed to protect Americans from retaliation in the pursuit of organizing and bargaining. However, it no longer does after Congress weakened it through the Landrum-Griffin and Taft-Hartley acts, a series of court and National Labor Relations Board (NLRB) rulings, and anti-union aggression by employers.

Other laws covering similar situations are more effective.

“Anti-retaliation protections and remedies in the NLRA are much weaker than anti-retaliation and whistleblower protections in other labor and employment laws,” say EPI’s Lynn Rhinehart and Celine McNicholas. “This right is largely hollow because of fundamental and structural weaknesses in the NLRA [which] provides no real deterrent to employers retaliating against workers and interfering with their rights.

Under the NLRA’s surviving “protections”:

* Employers face no monetary penalties for illegally retaliating against workers for exercising their labor rights, and workers receive no compensatory damages when victimized by retaliation.

* Workers cannot pursue their anti-retaliation cases on their own; they must depend on the NLRB, which is often slow or fails to act.

* Workers who file cases before the NLRB don’t get their jobs back on an interim basis while their cases are pending, which means workers whose rights have been violated can be jobless and without pay for months, and if they’re reinstated, deductions are taken out of the back pay they get.

 

“The cumulative effect of these three shortcomings is that workers asserting their rights under the NLRA are in a far worse position than workers alleging illegal retaliation for exercising their rights under other labor and employment laws and other whistleblower-protection laws,” says EPI in its report, titled “Shortchanged.”

 “Because of these and other substandard protections, workers have been shortchanged billions of dollars in back pay and damages after being illegally fired for exercising their federally protected labor-law rights,” the study adds. “The Protecting the Right to Organize (PRO) Act pending in Congress would raise the baseline of NLRA anti-retaliation protections to more closely resemble modern whistleblower laws, providing more of a deterrent against lawbreaking by employers and making a real difference in the pocketbooks and lives of workers.”

Under the measure, workers facing illegal retaliation would have access to full back pay without deductions for time out of work, “front pay” if reinstatement isn’t feasible, damages to compensate for harm caused by the violation, and double the amount of workers’ back pay as damages.

Next, the PRO Act directs the NLRB to seek preliminary reinstatement of workers through courts when officials believe there’s cause to believe that retaliation charges have merit.

Lastly, the PRO Act establishes a private right of action so workers can pursue their cases in court if the agency doesn’t act in a timely manner.

Elsewhere in Washington the day before EPI released its study, a group of unions told Democrats’ campaign arm Party that lawmakers who fail to support the PRO Act won’t get financial help from labor.

(The Senate’s three Democratic holdouts are Mark Kelly and Kyrsten Sinema of Arizona, and Mark Warner of Virginia. The measure has 47 Senate co-sponsors (45 Democrats and two independents), but needs 60 “yes” votes to overcome Republicans’ filibuster.

Losing campaign contributions from labor could be catastrophic for the Democratic Party, which received $244.8 million from organized labor in the 2014, 2016, 2018 and 2020 elections ($71.2 million last year alone), according to campaign disclosures compiled by the Center for Responsive Politics.

Labor-law reform has been a priority for unions and Democratic leaders for years.

The House passed the PRO Act 224-194 under Trump, but it wasn’t brought up in last year’s GOP-controlled Senate. This year, the House on again approved it, 225-206, and it’s stalled in a Senate committee.