On March 9, 2021, the House of Representatives passed the PRO Act by a vote of 225 – 206. It now heads to the Senate. The Act’s fate in the Senate is uncertain; however, President Biden has voiced his support for the bill. The PRO Act, if passed, would make sweeping changes to the National Labor Relations Act (NLRA) and tilt the playing field decidedly in favor of organized labor.
One area of significant change is with regard to the coverage of the NLRA. The PRO Act, as passed by the House, revises the joint employer standard to broaden the definition of employee by incorporating the California ABC test. This would make it easier for the National Labor Relations Board (Board) to find joint employment, and individuals who have previously been deemed to be independent contractors will instead be classified as employees. The PRO Act also narrows the definition of supervisor to make many first line supervisors eligible to be unionized.
The PRO Act would also significantly change the nature of collective bargaining. Currently, the NLRA does not set any time limit for the completion of collective bargaining and neither side is required to agree to any proposal advanced by the other side. Furthermore, the NLRA gives to both the employer and the union equal economic tools to use during the course of collective bargaining. The PRO Act, on the other hand, sets a firm period for the completion of collective bargaining. If the parties do not reach an agreement within that timeframe, the parties are forced into binding interest arbitration. The Act also eliminates the ability of an employer to permanently replace an economic striker, eliminates the ability of an employer to preemptively lock out employees, and allows intermittent and secondary strikes. Finally, the Act allows bargaining over mandatory fair share payments, even in right to work states.
Unions will also gain advantages in campaigns and elections under the PRO Act in a number of significant ways. Unions will be able to seek representation of employees in micro-units while at the same time, employers will lose their standing to participate in representation hearings. The timeframe between the filing of a representation petition and the holding of an election will be shortened, and during campaigns, employees will be able to use employer’s electronic equipment to engage in organizing activity. In addition, employers will lose the ability to hold mandatory employee meetings to discuss the realities of collective bargaining and unionization.
Last, but not least, the PRO Act would create new remedies and causes of action. Currently the NLRA is remedial in nature. If a violation is found, the Board restores the status quo. The PRO Act provides for civil damages, civil penalties (including the potential for director and officer personal liability), and it will allow an employee to bring a civil action which seeks back pay, front pay, consequential damages, liquidated damages, punitive damages and attorney’s fees. The PRO Act also bars class and collective action waivers.
While the PRO Act in its current form is not likely to pass the Senate, passage of all or parts of the PRO Act will likely lead to an increase in organizing activity. As a result, now is a good time for union-free employers to update their union-free training and policies. In addition, employers with unions in place should begin to think about how the potential changes will influence their approach to collective bargaining. In addition, with the potential changes in remedies and causes of action, all employers should review their HR policies and practices to ensure compliance with the NLRA.
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