You should take more care before accusing someone of being “false” – especially when you are dealing with the area of their expertise. The National Law Review article you cite is no substitute for the law itself, and that article doesn’t even say what you claim it does. If you want to know the current law, you need to look at the law itself, as interpreted by the highest court with jurisdiction. If you want to know what a bill would due, you need to look at the bill itself, in light of the current law. Here is what the current law is, and what the PRO-Act would do:

Under current law, nobody can be forced to join a union. It is true that, under the original enactment of the National Labor Relations Act (NLRA), July 5, 1935, ch. 372, § 8, 49 Stat. 452, it was legal to enter into contracts requiring membership in a union – what is known as a “closed shop.” See McKay v. Retail Auto S. L. Union No. 1067, 16 Cal.2d 311 (1940), cert. denied, 313 U.S. 566 (1941). This was changed with what are known as the Taft-Hartley Amendments of 1947, Ch. 120, title I, § 101, 61 Stat. 140. Among other things, those amendments added a proviso to the “membership” requirements in Section 8(a)(3) of the NLRA, 29 U.S.C. § 158(a)(3), limiting it to “the failure of the employee to tender the periodic dues and the initiation fees uniformly required as a condition of acquiring or retaining membership.”

This has been interpreted by the Supreme Court, in light of the legislative history of the Taft-Hartley amendments, to mean that employees may not be required to be, or become, union members under a “closed shop,” but they may be required to pay the equivalent of union dues. See NLRB v. General Motors Corp., 373 U.S. 734 (1963). This is what is referred to as the “union” or “agency fee” shop.

As the Supreme Court explained in Marquez v. Screen Actors Guild, Inc., 525 U.S. 33 (1998), “an employee can satisfy § 8(a)(3)'s ‘membership’ condition merely by paying to the union an amount equal to its initiation fees and dues, NLRB v. General Motors Corp., 373 U.S. 734, 742–743, 83 S.Ct. 1453, 10 L.Ed.2d 670, and that § 8(a)(3) does not permit unions to exact dues or fees over the objection of nonmembers for activities that are not germane to collective bargaining, grievance adjustment, or contract administration, Communications Workers v. Beck, 487 U.S. 735, 745, 762–763.”

What exactly are the fees and dues necessary to “performing the duties of an exclusive representative of the employees in dealing with the employer on labor-management issues” under Beck has been the subject of many back-and-forth cases since then. But it is still the law that only certain fees and dues, not membership can be required.

What you call “right to work” has nothing to do with the right to work, but is instead a provision allowing states to make it illegal to even require the minimal fee payments in Beck. This is in 29 U.S.C. § 164, part of the Taft-Hartley amendments.

It is important to note that, whether you are a member or not, whether you pay any dues or not, a union certified as the bargaining representative of your workplace has a legal obligation to represent you. See Steele v. Louisville & N.R. Co., 323 U.S. 192 (1944). This is called the “Duty of Fair Representation.” That is why what you call “right to work” we call the “free rider” provision, since it allows people to enjoy the higher wages, benefits and job protections of a union contract, without contributing at all.

The PRO-Act (Protecting the Right to Organize Act of 2021 – HR 842) adds no requirement to join a union, or diminish the duty of fair representation. Here is the current version of the PRO-Act.

What the PRO-Act does do is get rid of the state option to make it illegal to require any fee at all be paid to a union. In particular, Section 111 of the PRO-Act amends 29 U.S.C. § 164(b), discussed above, as follows:

SEC. 111. FAIR SHARE AGREEMENTS PERMITTED.

Section 14(b) of the National Labor Relations Act (29 U.S.C. 164(b)) is amended by striking the period at the end and inserting the following: “: Provided, That collective bargaining agreements providing that all employees in a bargaining unit shall contribute fees to a labor organization for the cost of representation, collective bargaining, contract enforcement, and related expenditures as a condition of employment shall be valid and enforceable notwithstanding any State or Territorial law.”

As to elections for union representations, the PRO-Act does not eliminate secret ballot elections in favor of card checks, as you imply. Rather, what it does, in Section 105 of the bill, is to allow the National Labor Relations Board (NLRB) to certify a union which has previously demonstrated a majority support, if after a full hearing, it determines that “the employer has committed a violation of this Act or otherwise interfered with a fair election, and the employer has not demonstrated that the violation or other interference is unlikely to have affected the outcome of the election.”

I have been personally involved in many NLRB elections, both as an NLRB agent conducting the election and as a representative of the union petitioning for the election. I can tell you from that experience that employers commonly use all the tools at their disposal, legal and illegal, to make the election unfair. They delay the proceedings as much as possible, hoping that the fervor for the union will die out. They will require employees to attend anti-union presentations, and watch closely how each employee reacts. They will then fire union supporters under any pretext. They will hire new employees just before the election, just to pack the ballots. The above provision of the PRO-Act just gives the NLRB one more tool to remedy these violations of the law.

You are also incorrect in claiming card checks “forces employees to publicly declare their position.” First of all, “card checks” already occur, under current law, in a petition to hold an election. All the personal information of employees in those cards and in the list required to be produced by the employer, is protected under NLRB rules from disclosure. The parties are prohibited from using that information “for purposes other than the representation proceeding, Board proceedings arising from it, and related matters.” See, e.g., 29 C.F.R. § 102.62(d). Nothing in the PRO-Act changes that.

It is the employer, not the union, which already has all this information. It is the employer, not the union, which has the power to hire, fire and discipline employees at its will. The PRO-Act is designed to balance this procedure and make it more fair.

I understand you hate unions. If you are an employer, this is rational – unions will make you pay your employees more and treat them better. If you are a worker, your hatred is irrational and self-defeating. The Labor Movement brought you the weekend, overtime, minimum wages, health, pension and vacation benefits, and protections from unfair treatment by your employer. You can read more about it in my book on the subject:

Lucile Eaves and J. David Sackman, A History of California Labor Legislation: Revised and Updated Centennial Edition (Queen Calafia Publishing 2012).

Representing the Working Class as a lawyer since 1982. Questioning everything, especially myself.

Representing the Working Class as a lawyer since 1982. Questioning everything, especially myself.