Which federal laws and policies would you get rid of or modify in order to help the American labor movement.
I was looking through the labor law tag on my blog and your ask reminded me I haven't actually written a comprehensive post about this on Tumblr. (Indeed, you'd have to go back to my old, old policy blog from 2009...it's been a while.)
One silver lining of the Sisyphean struggle to restore American labor law that's been going on since the 1970s is that the labor movement and their allies in Congress, academia, think tanks, and progressive media have been thinking through this very issue of "what reforms would make a real difference" for a long time. I'm not going to say it's a solved question, but the research literature is pretty robust.
For the purposes of this post, I'm going to focus on the three most recent reform packages: the Employee Free Choice Act that was the main vehicle during the Obama years, Bernie Sanders' Workplace Democracy Act (which was introduced repeatedly between 1992 and 2018), and the Richard L. Trumka Protecting the Right to Organize Act (PRO Act) that is the current proposal of the Democratic legislative caucuses. There's going to be quite a bit of overlap between these proposals, because it's very much an iterative process where allies in the same movement are trading ideas with one another and trying to stay abreast of new developments, but I'll try to tease out some of the similarities and differences.
EFCA
While EFCA contained a number of provisions that sought to close various loopholes in U.S labor law, the three main provisions largely target the flaws that have made it extremely difficult to win a union through the National Labor Relations Act process devised in 1935 that has turned into a Saw-style gauntlet thanks to the professionalization of union-busting and the Federalist Society's strategy of death-by-a-thousand-cuts:
"Card check." Probably the most common pattern of union-busting in the workplace today is a war of attrition by management waged by an industry of specialized law firms. Generally what happens is that the union files for election with a super-majority of ~70% workers having signed union cards, then management delays the vote as long as possible to give their hired "union-avoidance" firm to systematically intimidate, surveil, propagandize, and divide workers, up to and including illegally firing pro-union workers pour encouragez les autres. Over several months, what happens is that the initial 70% of pro-union support starts to erode as workers decide it's just too dangerous to stick their necks out, until the vote happens and the union loses either by a squeaker or a landslide.
Card check short-circuits this process by just saying that if the union files with a majority of cards, you skip the election and the union is recognized. And for all the pearl-clutching by the right, this is actually how labor law works in many democratic countries, because the idea of a fair election that lets management participate is an oxymoron.
Arbitrated first contract. In the event that enough workers keep the faith and actually vote for a union, management's next move is to draw out collective bargaining for a year or more. After a year, the original vote is no longer considered binding and employers can push for a "decertification" vote, which they usually win because workers either give up hope or change jobs. So this provision says that if the two sides can't reach an agreement on a first contract within 120 days, a Federal arbitrator will just impose one, so that at least for two years there will be a union contract no matter what management wants.
Strengthening enforcement. As I said above, one of the problems with existing labor law is that there are basically no penalties for management knowingly breaking the law; companies literally just budget in a line-item and do it anyway. This provision would allow unions to file an injunction against employers for unfair labor practices or ULPs (at present, injunctions are only required for violations done by unions), and would add triple back pay for illegal firings and fines of $20,000 for each ULP. This would make union-busting much more expensive, because companies routinely rack up hundreds and hundreds of them during a campaign.
Workplace Democracy Act
Sanders' proposal includes the main proposals from EFCA, and adds a bunch of additional reforms, like mis-classifying workers as independent contractors, banning captive audience meetings, making "joint employers" liable for labor law violations by franchisees, legalizing secondary boycotts, and requiring employers to report to the NLRB on all anti-union expenditures during a campaign and barring anyone convicted of an unfair labor practice from being hired for anti-union campaigns and making "union-avoidance" consultants liable for fines for ULPs (which would kill the "union-avoidance" industry, because they commit ULPs for a living).
PRO Act
The PRO Act is very much an updating of the previous efforts we've talked about. It bans captive audience meetings, allows for secondary strikes and boycotts, massively increases fines and allows for compensatory damages, ends mis-classification, speeds up the election process, etc.
It also contains a couple new and ambitious proposals:
it allows unions to sue management in court instead of having to complain to the NLRB, which opens management up to a very expensive legal proceeding and discovery.
it bans "right-to-work" as established by the Taft-Hartley Act.
it requires that any worker who's fired for pro-union activity be immediately reinstated while their unfair labor practice process or civil lawsuit is going through the process. This would be enormous just on its own, because it changes the entire veto structure of illegal firing. As it stands, employers fire people and maybe maybe have to pay some back wages in a couple years when the worker has found another job and is unlikely to come back. This would reverse the balance of power, such that the worker is immediately back and other workers can see that they can speak up without getting fired, which makes illegal firings a giant waste of time and money for management.
In terms of stuff that's not on this list that I would add, I would say that an enormous difference could be made by simply making it illegal for management to lock-out their workers or hire scabs. You do that, and unions can win almost every strike.
