PRO Law: Congress Must Consider Significant NLRA Changes


Last month, the US House of Representatives voted 225 to 206 to pass the Right to Organize Act (“PRO Act”). If enacted in its current form, the PRO Act would implement sweeping changes to the National Labor Relations Act (“NLRA”), aimed at strengthening workers’ rights to organize and bargain collectively. The bill was sent to the United States Senate and referred to the Senate Committee on Health, Education, Labor and Pensions. Although support for the PRO law has increased recently in the Senate, many experts predict that it will fail to garner enough bipartisan support to overcome Republican obstruction, effectively blocking the legislation.

Overview of key provisions

The PRO Act includes a wide range of pro-union provisions that range from increasing the number of workers covered by the NLRA, to imposing fines against employers deemed to interfere with workers’ efforts to organize, to derogation from state laws on the right to work. Some of the key provisions of the PRO Law include:

  • Authorize the National Labor Relations Board (“NLRB”) to impose financial penalties on employers and executives for retaliation against workers on the basis of the organization or other protected activities, or for any other infringement of workers’ rights in under the NLRA;
  • Compelling mediation and arbitration in first contract negotiations when agreement is not reached within 90 days;
  • Ignore state right-to-work laws that currently allow employees to not pay dues in unionized workplaces and allow unions to collect union dues from all employees in the workplace to cover the cost. cost of collective bargaining and contract administration;
  • Prohibit employers from holding mandatory meetings with their employees to discuss organizing activities or union elections (eg, “captive public” meetings);
  • Authorize union elections outside of the employer’s premises (eg, mailed or electronic ballots);
  • Adopt the strict “ABC test” to determine if a worker is an employee covered by the NLRA, as opposed to an independent contractor, with the aim of increasing the number of workers covered by the NLRA;
  • Codify the open sea Browning-Ferris the “co-employer” standard, which would expand the circumstances in which a company would be considered the employer of employees of another company;
  • Allow employees to participate in strikes initiated by employees represented by another trade union organization (i.e. secondary strikes); and
  • Prevent employers from permanently replacing economic strikers.

PRO law status

Democrats attempted to pass the PRO law last year, but without sufficient Republican support they couldn’t get a vote on the legislation in the Senate. This year, Democrats have tight control of the Senate, and supporters of the bill have been able to secure key approvals. President Biden officially approved the PRO law on March 9, 2021 and urged his allies to do the same. Senator Joe Manchin (D-WV) and Senator Angus King (I-ME) both recently signed on as co-sponsors, leaving just three Democratic senators who have yet to support the bill. Senate Majority Leader Chuck Schumer has pledged to put the PRO Act to a Senate vote if he can get at least 50 co-sponsors. However, no Republican senator has announced plans to vote for the PRO law, and many experts predict that it will fail to secure the 60 votes needed in the Senate to overcome the obstruction of Republican opponents.

About Michael S. Montanez

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