Feb 12, 2021

The PRO Act Would Change Labor Laws for Non-Union and Unionized Employers

Right to Organize

On February 4, 2021, House and Senate Democrats introduced the Protecting the Right to Organize (PRO) Act.  A version of the bill was introduced in 2018 and 2019, but the current version extends beyond the union organizing efforts targeted in the previous bill.  Non-union and unionized employers must understand the scope of the proposed changes to labor laws and the potential impact on their operations should the PRO Act become law.

The National Labor Relations Act (NLRA) applies to non-union and union employers.  As discussed in earlier SGR client alerts, the National Labor Relations Board (NLRB) has applied the NLRA more broadly in non-union settings.  For example, over the past few decades, the NLRB has ruled that non-union employers’ handbooks, arbitration agreements, and e-mail systems must comply with the NLRA.

Although the PRO Act includes more than 50 changes to current law, the following are some of the most significant:

  • Overturn “right to work” laws in 27 states.
  • Levy fines up to $50,000 per violation against employers that violate workers’ rights.
  • Expand Unfair Labor Practice (ULP) remedies, including personal liability for directors and officers.
  • Codify the “ABC test” for determining when independent contractors are in fact “employees” covered by the NLRA.
  • Redefine “supervisor” to include more frontline leaders as “employees” covered by the NLRA.
  • Restore the NLRB’s 2015 controversial joint employer test found in the Browning-Ferris case. (The test broadly interprets joint employer status to include situations involving “direct and indirect control” including “reserved authority” in contracts and conduct.) During the previous administration the NLRB reversed Browning-Ferris, codifying its decision in a formal rule.  (NLRB Rules & Regulations, Section 103.40)
  • Make it illegal to permanently replace striking workers and to lockout strikers.
  • Establish “quickie” elections and allow the union to decide if an election will be in-person or by mail ballot.
  • Workers would be compensated for damages they experience when they are retaliated against, not just the back pay and reinstatement that they are currently entitled to.
  • Force employers into collective bargaining agreements via interest arbitration.

States’ Right-to-Work Laws Would Be Eliminated

Right-to-work laws in twenty-seven states provide that employees cannot be required to join or pay dues to a union as a condition of their employment.  The PRO Act states 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.” Contributing these fees will be a term and condition for employees keeping their jobs.

Employers’ Rights During Organizing Campaigns Would Be Restricted

The PRO Act would prohibit employers from requiring employees to attend meetings regarding the employer’s views on the union.  There is no comparable restriction on unions.  The PRO Act removes the NLRA’s prohibition against “secondary boycotts” so unions could boycott or picket customers and vendors to advance union organizing efforts.  The PRO Act states that “No employer shall have standing as a party or to intervene in any representation proceeding under this section.”  This means that employers would be denied input on the appropriateness of the bargaining unit, which employees are eligible to vote, where the election would be held if it is an in-person election, and whether the election will be conducted by mail.

Compulsory Interest Arbitration

The PRO Act mandates negotiations not more than 10 days after a union requests to bargain, unless the parties agree to a different time period.  Then the parties must bargain collectively for 90 days.  If no agreement is reached, then binding interest arbitration of contract terms is required, resulting in a panel of arbitrators determining the terms of a two-year collective bargaining agreement.  The PRO Act eliminates the employees’ right to ratify a collective bargaining agreement.

SGR’s Labor and Employment attorneys will continue to track and provide updates regarding the PRO Act.

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