Issue
Should the United States Congress enact legislation that compiles the failed legislative and regulatory efforts of Big Labor under the guise of “leveling the playing field” through the Protecting the Right to Organize, or “PRO”, Act (H.R. 2474)?
Discussion
Over the past ten years, the AFL-CIO and their member organizations have proposed a litany of legislative and regulatory initiatives which they claim are necessary to “level the
playing field” between employers and unions seeking to organize American workers. Big Labor points to the fact that unions now represent a mere 10% of the American workforce when
they have previously represented upwards of 33% of workers as evidence that employers coercively suppress union organizing and the will of workers.
The PRO Act is a collection of legislative and regulatory initiatives Big Labor has supported over the past ten years, and which have been rejected in Congress or the Courts, with one glaring exception.
Persuader Activity:
In 2016, the Obama Administration implemented a new regulation with enhanced reporting obligations for “persuader activity” by employers and their agents along with an
expanded definition of what “persuader activity” involves. The Kennedy Administration defined persuader activity as communication between an employer’s agent – an attorney
or a consultant – directly with employees designed to influence the employees’ perceptions of unions. That definition remained in place until 2016. The new definition erased
the requirement for direct communication and included any legal advice or composition of messaging intended to be communicated to employees. A U.S. District Court in Texas
prohibited enforcement of the regulation anywhere as it shattered the attorney-client privilege and was unconstitutional.
The PRO Act would codify these unconstitutional provisions into law.
Employee Free Choice Act:
EFCA, or “card check”, would permit unions to be certified by the National Labor Relations Board without an election. Rather, all unions would need to do would be to present signed
authorization cards from a majority of a “unit” of an employer’s employees. Supporters introduced a bill to legislate the EFCA in the first Obama Administration.
The bill was never passed despite the significant majority of the supporting party in the House and Senate of Congress. The bill was seen as anti-democratic as it denied workers
the right to a secret ballot election.
Ban Right to Work Laws:
Since the National Labor Relations Act was passed in 1935 states have enacted legislation prohibiting unions and employers from agreeing to language in collective bargaining agreements
requiring employees to be members of unions as a condition of employment. The federal law expressly recognizes the right of a state to create these laws called “right-to-work” laws as
they guarantee employees the right to work regardless of whether they join a union or not. A majority of the states have enacted right-to-work laws.
Big Labor demands that a state’s right to enact a right-to-work law be stripped and that federal law ties the hands of state legislatures from guaranteeing workers the protection from
termination. The unions want to guarantee that the parties to a contract can force employees who choose not to pay dues be fired. Big Labor has never successfully revoked or prohibited
right-to-work laws from being enforced in the courts.
Give Contractors the Right to Bargain along with Permanent Employees:
During the Obama Administration, the National Labor Relations Board gave contractors the right to join bargaining units with permanent employees for purposes of collective bargaining.
For a small business that needs to replace a roof, this could result in the roofer’s employees securing collective bargaining rights with, for example, a bakery. During the Trump
Administration, the National Labor Relations Board vacated this decision and implemented a regulation which reinstated the historic test for when the employees of an “independent”
contractor have standing to join an existing collective bargaining unit. The primary aspect of the test is that the contractors are not truly “independent” from the contracting employer.
Big Labor desires to codify the earlier NLRB decision and bypass the current regulation.
Legalize Secondary Boycotts:
Currently, unions are only protected when they strike an employer that they are collectively bargaining with on behalf of employees. If the union strikes a customer of that
employer – or a “secondary” employer – or boycotts that secondary employer to gain leverage against the primary employer, the union violates federal labor law and can be enjoined
and be held liable for damages to the innocent secondary employer.
Now, for the first time, Big Labor wants the right to strike secondary employers. Under the PRO Act, a union could strike a small diner and put it out of business with a picket line
if the diner purchases food from a delivery company which has a primary strike with a union, without any liability attaching to the union.
The Chamber's Position
The West Virginia Chamber of Commerce opposes passage of all provisions within the PRO Act:
- The Persuader Activity prohibitions are unconstitutional and un-American as they vaporize attorney-client privilege;
- The Employee Free Choice Act is anti-democratic as it will fully deprive workers of the right to a secret ballot election;
- The Prohibition of State laws to protect a worker’s choice to be represented by a union – or not – is an indefensible power grab by the federal government;
- Providing temporary contract workers with the right to bargain along with permanent employees is illogical and unworkable and will extinguish hundreds of small business; and
- Giving Big Labor the right to strike innocent secondary employers as collateral damage to a primary strike is heinous and disrespectful to the workers employed by the secondary employer.
All but one of these components of the labor omnibus bill have failed before the legislative or federal branches of our government.
Most fundamentally though, the reason unions have lost the support they enjoyed in the 1950s has nothing to do with coercion by employers creating an imbalanced playing field.
Unions have recourse today through the NLRB for coercive conduct by an employer in an organizing campaign. Those unions who have lost membership since the 1950s where employees have
not voted for them have lost those elections because the employees did not choose to be represented by them.
It is not the role or the function of federal government to choose a union for an employee accomplished through unconstitutional regulation, undemocratic and un-American elections, usurping states’
rights to legislation and exonerating the destruction of innocent businesses by expanding the right to strike.
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