Democrats set to implement hefty fines for unlawful union violation
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It can ultimately cost employers something to illegally break unions.
Congressional Democrats and the White House on Thursday reached a tentative deal on a reduced but still historic $ 1.75 trillion spending program that would expand the social safety net and tackle climate change. While still subject to change, the current version of the Build Back Better framework includes a potentially significant labor law reform: financial penalties for union breakdown.
The latest version of the bill released Thursday by House and Senate leaders would fine employers up to $ 50,000 for each “unfair labor practice” and up to $ 100,000 in cases where a worker was unlawfully dismissed. An unfair labor practice – commonly referred to as ULP – is a violation of the National Labor Relations Act, the New Deal-era law that protects the right of workers to form unions or band together to improve their conditions of work.
“These fines will make the law real. “
– Rebecca Givan, Rutgers University
These fines would have a big impact because currently there is almost no harm in breaking the law. If it turns out that an employer has unlawfully dismissed union supporters, all they have to do is offer reinstatement and retroactive payment. And retroactive pay is “mitigated” – meaning any other wages the worker earned elsewhere after being fired would be subtracted from what the scofflaw employer owes the person they fired.
In many cases, an employer convicted of committing PULs need only hang up a poster in the workplace acknowledging that they have done so. With penalties this low, employers act rationally when they break the law, which is why ULPs are so common in the organization of campaigns.
But with monetary penalties, employers could make a different calculation.
“These fines will finally give a fairly toothless law some enforcement power. Employers were able to break the law with impunity, ”said Rebecca Givan, associate professor of social studies at Rutgers University. “These fines will make the law real and force employers to follow rules that have been in place for more than half a century.”
Sanctions have a place in the Democrats’ spending bill because they increase revenue. To survive under the rules of budget reconciliation – the process Democrats use to pass legislation on a party line vote – a provision must have some kind of fiscal effect.
But the real idea behind the sanctions isn’t to make money – it’s to prevent employers from breaking the law and making it easier for workers to organize. This is why the sanctions are included in another radical plan of the Democrats: the Law on the Protection of the Right to Organize, or PRO Law, which aims to strengthen labor rights. Sanctions would be the most important element of the PRO law to be part of the Build Back Better framework.
Union membership in the United States is near all-time lows, especially in the private sector, where only 6.3% of workers now belong to a union. In the years following World War II, about a third of American workers were unionized. President Joe Biden has pledged to help turn the labor movement around, promising to be “the most pro-union president you’ve ever seen.”
Benjamin Sachs, professor of labor law at Harvard Law School, said the inclusion of labor law reforms in Biden’s signing bill would show that collective bargaining is part of the larger vision of the administration for economic equity.
“The Biden administration understands why organizational rights are essential to rebuilding the economy. These things are related to each other, ”Sachs said.
Like many other experts, Sachs argued for a complete reconstruction of labor law to give workers more leverage, arguing that the current system has essentially failed to create a necessary counterweight to employers.
“We need a real overhaul of labor law, and that’s not it,” he said of anti-union sanctions. “But in terms of fixes to the current system, that’s a big step forward.”
According to a 2019 analysis by the Economic Policy Institute, employers were accused of committing ULPs in 41.5% of union elections overseen by the National Labor Relations Board in 2016 and 2017. The employer was accused of unlawfully dismissing workers workers in almost 20% of cases and for coercing or threatening employees. in almost 30%.
The researchers warned that their findings “likely underestimate the extent of employer aggression against unions,” as many violations go unreported.
The NLRB often changes rules and precedents by making conditions more or less favorable for organizing workers, depending on whether there is a Democratic or Republican majority on the board. But amendments to the law like the one currently being considered by Congress are extremely rare, said Kate Bronfenbrenner, director of workplace education research at Cornell’s Industrial and Labor Relations School. A notable example would be when Congress extended collective bargaining rights to nonprofit healthcare workers in 1974.
“The way the process works now, they tend to work out because the penalties are just pieces of paper.… But when those penalties start to have value, the unions aren’t going to fix them. much more important.
– Kate Bronfenbrenner, Cornell School of Industrial Relations and Labor
Bronfenbrenner’s research has shown that employers have become more aggressive in tackling unionization campaigns in recent decades, which she says is a major factor in the decline in union density.
She warned that there are still large and powerful employers who would even consider a $ 100,000 fine as the “cost of doing business.” She cited Amazon, which launched a strong anti-union campaign to defeat an organizing drive at its Bessemer, Alabama warehouse earlier this year.
A labor council official called this election be rerun because Amazon went to great lengths to install a U.S. Postal Service mailbox for ballots on the warehouse grounds. Amazon also settled a case involving allegations of unfair labor practices regarding the dismissal of two workers who had criticized the company over climate change.
But most employers will have to take the fines seriously, she said. And unions may be less likely to seek settlements when meaningful penalties are attached to cases.
“The way the process works now, they tend to work out because the penalties are just pieces of paper. For the union, the penalties aren’t that important because they don’t do anything,” said Bronfenbrenner. “But when these sanctions start to matter, the unions are not going to fix them. It will become much higher stakes.”
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