Under federal law, employers can’t be fined for illegal delays or bargaining in bad faith. The proposed protecting the right to organize (Pro) act sought to overcome lengthy delays by providing that if the two sides failed to reach a contract within 120 days of a new union’s being certified, a panel of arbitrators should be appointed to decide on the terms of a first two-year contract. The Pro act would also allow for substantial fines against employers that violate the law when fighting unions. The House of Representatives approved the Pro act in March 2021, but, facing a filibuster and unanimous Republican opposition, the legislation went nowhere in the Senate.
Sachs says corporations have sizable incentives to violate the law when battling against unions because the National Labor Relations Act doesn’t provide for any fines for illegal actions. “We need to fundamentally change the incentive structure facing employers during union drives,” he said. “You can change the incentive structure in different ways. Consumers can do it if there is a national boycott of Starbucks or Apple or Chipotle or REI. That would have a huge impact. The other way to change the incentive structure would be to have massive monetary damages for anti-union violations. That would require not only legislative change, but the courts to order damage awards – and that would be a slow process.”