Protect the Right to Organize Freely

In 2025 the U.S. union membership rate was 10.0 percent, down from 20.1 percent in 1983, the first year of comparable Bureau of Labor Statistics data. Private-sector membership fell to 5.9 percent. Over the period studied by the Economic Policy Institute, employers were charged with violating federal labor law in 41.5 percent of all union election campaigns, and at least one in five elections involved a charge that an employee was illegally fired for union activity. The National Labor Relations Act limits remedies to reinstatement and net back pay and does not authorize civil penalties for retaliation.

What current law does

The National Labor Relations Act (NLRA), 29 U.S.C. §§ 151–169, codifies the right of private-sector workers to form unions, bargain collectively, and engage in concerted activity. Section 8 enumerates unfair labor practices and assigns enforcement to the National Labor Relations Board. Public-sector workers are governed by separate statutes — the Federal Service Labor-Management Relations Statute for federal employees, and state law for state and local employees — and significant categories of private-sector workers, including agricultural workers, domestic workers, supervisors, and most independent contractors, fall outside NLRA coverage entirely.

Where the NLRA applies, the remedy structure is limited. The Board cannot impose civil penalties. When an employer fires a worker for union organizing, the standard order is reinstatement plus net back pay, reduced by interim earnings the employee earned or, with reasonable diligence, would have earned. Over the decade 2011–2020 the Board secured reinstatement orders for 18,001 workers and approximately $621 million in back pay. Annual employer expenditures on union-avoidance consultants over the same period are estimated at roughly $340 million. The Act has not been substantively amended in this respect since the Landrum-Griffin Act of 1959.

The statute

The Richard L. Trumka Protecting the Right to Organize Act of 2025 (H.R. 20 / S. 852, 119th Congress) would amend the NLRA. Its provisions include:

• Establishes civil fines per unfair-labor-practice violation. Fines are doubled for repeat or willful violators. Directors and officers who participate in or direct violations are personally liable.
• Authorizes consequential damages, front pay, and double back pay as liquidated damages for workers fired for union activity, with a private right of action in federal court if the Board does not act.
• Permits the Board to seek immediate injunctive relief in district court when an employer’s unlawful conduct threatens an organizing campaign.
• Codifies a card-check route to recognition where an employer’s unfair labor practices have made a fair election impossible. The Board may certify the union based on signed authorization cards from a majority of the bargaining unit. This codifies the framework adopted by the Board in its 2023 Cemex Construction Materials Pacific decision, the bargaining-order remedy of which was subsequently set aside by the Sixth Circuit.
• Bans mandatory captive-audience meetings designed to discourage union membership.
• Bans pre-dispute mandatory arbitration of employment claims and class-action waivers.
• Repeals Section 14(b) of the NLRA, ending the state-level right-to-work exception that prohibits union security clauses in twenty-six states.
• Reclassifies misclassified independent contractors as employees for NLRA purposes using the ABC test, and broadens the joint-employer standard to include indirect and reserved control.
• Permits secondary strikes under defined conditions and prohibits permanent replacement of economic strikers.

Precedent

The NLRA is the direct precedent. Signed by President Roosevelt on July 5, 1935, the Act was the first federal statute to recognize private-sector collective bargaining as a national policy and to establish unfair-labor-practice categories codified at 29 U.S.C. § 158. Congress has substantively amended the Act twice — by the Taft-Hartley Act of 1947, which added Section 14(b) and the unfair-labor-practice categories applicable to unions, and by the Landrum-Griffin Act of 1959, which added union financial-disclosure rules. No subsequent amendment has updated the remedy structure for retaliation against organizers.

State and international comparators are relevant. Michigan repealed its 2012 right-to-work statute in March 2023 through Public Acts 8 and 9. Illinois codified card-check recognition for public employees in 2003. Trade union density in Denmark, Finland, and Sweden — countries that operate Ghent-system labor law, in which unemployment insurance is administered through union locals — has remained above 60 percent for decades. The OECD median union density is approximately 15 percent. The United States, at 9.9 percent in 2025, is below the OECD median and is the lowest among large advanced economies. Union density across OECD countries varies widely under similar economic conditions.

First 100 days

Day one. The President directs the Department of Labor and the National Labor Relations Board to prioritize organizing-campaign retaliation cases for expedited investigation and to coordinate referrals where the same conduct may also violate the Fair Labor Standards Act, the Occupational Safety and Health Act, or whistleblower statutes administered by OSHA.

Day thirty. The Department of Labor restores the 2024 independent-contractor rule under the Fair Labor Standards Act, applying an economic-realities multi-factor test for FLSA coverage. The Solicitor of Labor and the NLRB General Counsel issue a coordinated enforcement memorandum on captive-audience meetings, joint-employer determinations, and successor-employer obligations. The Office of Federal Contract Compliance Programs issues guidance on labor-peace and project-labor-agreement standards for federal contracts and grants above a defined threshold.

Day ninety. The President signs the Richard L. Trumka Protecting the Right to Organize Act into law. Companion appropriations fund an increase in NLRB regional-office staffing, restore the Office of Labor-Management Standards investigative budget, and establish a Worker Voice grant program in the Department of Labor for state-level enforcement of organizing rights.

Effect of the statute

The statute alters the cost structure of unfair labor practices. Conduct currently remediable only through reinstatement and back pay becomes subject to civil penalties. Consequential damages are added to the available remedies. Directors and officers who participate in or direct violations are personally liable. An employer that fires a worker for organizing faces financial liability above the existing back-pay obligation. Workers covered by an NLRA election can secure recognition without the pre-election campaign period in which the Economic Policy Institute data show retaliation charges concentrated. Workers misclassified as independent contractors are reclassified as employees under the ABC test for NLRA purposes. The state-level right-to-work exemption ends. The remedy structure for unfair labor practices is brought into alignment with the remedy structures of Title VII, the FLSA, and other federal employment statutes.