ISSUE ADVISORY: Protect Your Right to Organize in the Workplace with the PRO Act
Employees of Amazon and Starbucks are making progress in their unionization efforts with these giant companies. The timing for bringing forward legislation in the Senate that would strengthen efforts of workers to organize is called for. In his State of the Union Message, President Biden called for passage of the PRO Act.
As we move forward from this global pandemic, it’s more important than ever that employees are able to make their voices heard. Unionization is an essential tool in the fight to close the gender and racial pay gap, as well as to ensure the physical safety and financial security of their workplaces. The Protecting the Right to Organize (PRO) Act aims to do just that by protecting all employees’ basic right to join a union and engage in collective bargaining for better pay, benefits, and conditions.
The PRO Act achieves this by revising National Labor Relations Board (NLRB) definitions of employee, supervisor, and employer to ensure that all those working for an organization are eligible to be a part of collective bargaining. It also limits employers’ ability to engage in union-busting tactics such as captive audience meetings and restores unions’ power to engage in secondary strikes and to prevent employer retaliation against unions that encourage participation in those strikes.
The Importance of Unions
Building strong unions is especially important in a feminist context because collective bargaining is the most powerful tool we have available to ensure gender and racial pay equality. According to the Bureau of Labor Statistics, in 2021, women who were not union members made 28 cents less per dollar on average than men in unions. Among non-union workers, nonunion women still made 17 cents less per dollar than nonunion men, and even among union workers, union women still made 10 cents less per dollar than union men on average. While there may still exist a pay gap in the average pay even among union jobs today, as Richard Trumka, the late president of the AFL-CIO, noted, “[i]f you have a union contract, everyone is making the same wages” for the same job. The bill may be opposed by some outspoken, wealthy freelancer women, but for the vast majority of women, workplace organizing is an essential step in the fight for equal pay.
The PRO Act is needed because current labor law severely limits the power (and therefore effectiveness) of unions to serve their members, and gives employers free reign to use union-busting tactics that unions have little recourse against. So-called right-to-work laws, which currently exist in 27 states, prohibit unions from requiring union dues to be paid by the employees they represent. This places strain on unions and may lead to reliance on outside funding, which creates a conflict of interest between outside investors and the people the union represents. Existing bans on secondary strikes (also known as solidarity strikes) limit the impact of strikes to single unions or companies, whereas secondary strikes allow for organizing across sectors and industries, which is much more effective at forcing employers to listen to the demands of their employees. Employers are also currently allowed to permanently replace employees who go on strike, which further incentivizes employers not to listen to the demands of their existing employees. Additionally, companies are given free rein to employ union-busting tactics in order to misinform workers about the benefits of union representation and to deter them from joining or supporting unions.
You may have heard about the poor working conditions at Amazon warehouses that have come to light over the past two years, and you may have heard about last year’s union defeat at an Amazon warehouse in Bessemer, Alabama. But you may not have known about Amazon’s history of union-busting activity. In its fight against unionizing in Bessemer, Amazon launched a website with the tagline “DoItWithoutDues”. This site implies repeatedly that it would be a waste to pay dues to a union when Amazon already pays a $15 minimum wage and has a competitive benefits package. The site, of course, does not mention Amazon’s astronomically high turnover rate, which provides none of the security of a union contract.
Even before the pandemic, Amazon “was losing about 3% of its hourly associates each week”, meaning that it “had to replace the equivalent of its entire workforce roughly every 8 months”. This is the result of Amazon’s unreasonably high expectations of workers coupled with flawed management systems. At the beginning of the pandemic, “[w]orkers who had applied for leaves were penalized for leaving work, triggering job-abandonment notices and then terminations” without warning or recourse.
The impact of this high turnover rate is twofold. It means that as of January, nearly half of the six thousand Amazon employees eligible to vote in the re-do unionization election are new employees, and thus did not vote in the original election. However, it also means that workers may be less likely to push for unionization because they don’t believe they will be at the company long enough for their voice to make an impact. It remains to be seen whether the second union push in Bessemer will be successful, but a similar push at the JFK8 warehouse on Staten Island was successful on April 1st, 2022, making it the first Amazon warehouse in the country to become unionized.
Prop 22 and the Gig Economy
Unionizing is not only important for warehouse workers like those at Amazon, it is also important for workers traditionally (and largely exploitatively) classified as independent contractors. In California in 2019, Assembly Bill 5 was passed to reclassify gig workers for companies like Uber, Instacart, and Postmates as employees, but those companies ignored that law and instead banded together to write California’s Proposition 22 in 2020, which would eliminate the possibility for any app-based gig workers to be considered employees of the companies they work for. This classification is “critical for the companies because the alternative could raise labor costs by at least 20%” and make the companies “legally liable for a broader range of their workers’ behavior”. With all that at stake, it’s no wonder that the “Yes on Prop 22” campaign spent $200 million to sway voters. One of the most alarming provisions of Proposition 22 is that it requires a supermajority vote of 7/8ths of the legislature to be overturned, a number designed to undermine the democratic process.
The PRO Act would overrule the effects of Proposition 22 using a similar test to AB 5 in determining whether workers are employees, and giving workers the right to organize for better pay, hours, and benefits. It is also important to note that being classified as an employee does not mean that a worker cannot have flexible hours, though this is often a central claim by opponents of the act. Notably, the PRO Act also gives independent contractors the right to organize both as an employee of a temp agency and of the company they do work for, ensuring that workers can hold their employers accountable for violations at all levels.
In the 2022 State of the Union, President Biden called on Congress to pass the PRO Act, along with the Paycheck Fairness Act and a call to increase the minimum wage, in order to remove barriers to well-paying jobs for all workers. Similarly, in a statement on March 9th, 2021, President Biden gave a statement in support of the PRO Act, saying that as America “works to recover from the devastating challenges of a deadly pandemic, an economic crisis, and reckoning on race that reveals deep disparities, we need to summon a new wave of worker power to create an economy that works for everyone” and that unions are a critical way of achieving this goal. He emphasizes that the intent of the NRLA was to encourage unions, not simply to tolerate them, and that “the PRO Act would take critical steps” restore that intent.
The PRO Act was introduced to Congress for a second time this year and passed the House on March 9th, 2021 in a 225-206 vote, with one Democrat voting against and five Republicans voting for it. In the Senate, it remains in committee even over a year later, and will likely need 60 votes to overcome a Republican filibuster to even come to a vote. This is exactly what Republican Senators have been threatening to do with the PRO Act, and we need your support to stop this undemocratic process from halting the progress of any more essential legislation.
J Beall, NOW Data Entry Associate
Why the US PRO Act Matters for the Right to Unionize: Questions and Answers | Human Rights Watch
13 Ways the PRO Act Helps Working People | AFL-CIO
Unions help reduce disparities and strengthen our democracy | Economic Policy Institute
“The Most Dangerous Law in My Lifetime” (Prop 22) | The Gravel Institute