PRO Act: Congress considers fundamental changes to federal labor law | Fox Rothschild LLP


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Congress may be on the verge of passing legislation that would dramatically transform labor law. This proposed law has potentially disastrous consequences for private sector employers nationwide.

The Right to Organize Protection Act (the PRO Act) would essentially rewrite the National Labor Relations Act (NLRA) to favor unions and employees seeking to organize unions, while removing important employer protections. If passed, this legislation is likely to spark a wave of unionization and launch a wave of lawsuits affecting employers of all sizes and from all sectors.

Breathtakingly wide, the PRO law targets several long-standing features of existing law that are perceived by unions and union activists as unfair to workers and too favorable to employers. The proposed legislation is essentially a catch-all of grievances that the labor movement has compiled over decades and sought to change through legislation and before the National Labor Relations Board (NLRB) without success in the past.

Among other things, the PRO Act would make the following structural changes to the NLRA:

  • Expand the penalties available to employers for violations of the NLRA, including civil penalties against employers with individual liability for officers and directors.
  • Impose arbitration of disputes, which would impose a first collective agreement on employers if the initial discussions did not result in a contract within 90 days of the union winning the election.
  • Extend the status of “co-employer” by applying labor law to several employers who share control over employees, even if control is indirect or reserved in contractual agreements.
  • Allow employees to engage in disruptive intermittent strikes of short duration.
  • Ignore “right to work” laws, which are currently permitted under the NLRA to allow states to ban employment conditional on payment of union dues.
  • Reverse the decades-long ban on secondary boycotts, which means unions would be able to pressure neutral employers and trap them in labor disputes with independent companies.
  • Include contractors as employees covered by the NLRA, unless they pass a strict “ABC” test that only excludes people who have their own business, which is separate from the employer’s business, and which is not controlled by the employer.
  • Include supervisors who assign and direct work to other employees as employees covered by the NLRA. This would allow many front line supervisors to unionize.
  • Abolish individual arbitration agreements that prohibit class actions (overturning the Supreme Court’s decision in Epic systems against Lewis).
  • Prohibit employers from permanently replacing economic strikers or locking out employees.
  • Codify the “rule of persuasion” requiring employers to report payments for labor relations advice to the Department of Labor, which would even include legal advice from attorneys in some cases.

The PRO Act would also help facilitate the unionization of non-unionized employees by fundamentally changing the union election process and the rights of unions and employers during organizing campaigns in the following ways:

  • Strangling employers’ voices in union election procedures by prohibiting employers from making any contribution with the NLRB. Decisions in electoral matters, such as employee eligibility and certain job titles, would be determined solely on the basis of the union’s submission to the NLRB.
  • Help unions in electoral campaigns, in particular by:
    • allow employees to use employers’ email systems to organize themselves;
    • give unions the right to choose the method of election (elections in person, by mail or by email); and
    • allowing “micro-units” – small groups of employees targeted for union elections based primarily on union choice and selection
  • Prohibit “captive audience” meetings, where employers communicate their views on unionization directly to employees.

In addition to upsetting the decades-long union-management balance, the PRO Act would also expose employers to costly litigation in federal courts. Specifically, the PRO Act would allow unions and employees to take legal action if the NLRB dismisses the complaint after an initial review. These claims would allow:

  • fixed damages equal to twice the amount of the actual economic damages;
  • arrears without compensation for the employee’s intermediate income;
  • attorney fees; and
  • punitive damages.

These remedies are currently not available under the NLRA, which historically granted aggrieved employees comprehensive redress, including reinstatement, payment arrears and other corrective measures.

If passed, the PRO law would be a game-changer for ALL employers, regardless of size. As of this writing, the bill has passed the House of Representatives and is pending in the Senate, where 45 Senators have signed on as co-sponsors, and, this week, Senator Manchin of Virginia- Occidentale added its support. Given that the PRO law is unlikely to garner Republican support, the real question is whether the Senate will seek to change or remove filibuster or add it to legislation that can pass a vote to simple majority. Either way, cautious employers will start planning for its potential move now, as some of its provisions could also be implemented by the NLRB in the near future.

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About Michael S. Montanez

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