The PRO Act – A Wish List For Revival Of Unions

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The Protecting the Right to Organize (PRO Act) (H.R. 842) is a sweeping effort to amend longstanding labor laws to facilitate union and employee organizing efforts. The union-friendly legislation would make the most significant modifications to the National Labor Relations Act since the Taft-Hartley Act restricted union power in 1947. The proposed changes would give workers and unions more power in disputes at work, add monetary penalties for companies that retaliate against workers who organize and expand collective bargaining rights for many workers.  The PRO Act would also weaken “right-to-work” laws in more than half of the states that give employees the right to choose not to join or pay dues to unions.

These efforts to tip the balance in favor of union organizing are not new. We have seen many of these proposed changes show up in past legislative efforts. Similar changes were part of the Employee Free Choice Act introduced before the election of, and supported by, President Obama. The PRO Act passed the Democratic controlled House last year but was never taken up by the then GOP majority Senate. This year the Democrats narrowly control the Senate, but not by enough votes to overcome a filibuster, which ordinarily means that the measure is likely dead again.

Below is a summary of a several provisions of the PRO Act:

Change Union Election Rules.  The accelerated rules for holding elections would become codified. Elections could be held as soon as 13 days from the filing of a petition. Under the PRO Act, unions could petition for smaller units of employees and the union would have the say as to where an election would be held, including by mail or other electronic means. The employer would no longer have a voice in NLRB election proceedings and could not require employees, as part of a campaign, to attend meetings to educate them about their options and rights with respect to the union election or what it means to be part of a union.

Allow for use of Employer Communication Systems.  Authorize employees to use an employer’s electronic communication devices and systems, including company computers, internet access, email, cell phones or “other company equipment” to engage in union organizing and other activities protected by Section 7.

Weaken or Eliminate Right-to-Work Laws.  Twenty-seven states have established right-to-work protections that prohibit employees from being compelled to join unions or pay union dues or fees as a condition of their employment. The PRO Act would allow unions to bargain around these protections and insist upon labor agreement provisions compelling all employees in a bargaining unit to pay union dues or fees, even if they do not want to.

Economic Strikers.  The PRO Act would eliminate an employer’s right to permanently replace economic strikers.

Picketing Could Increase.  The NLRA permits picketing only when it is directed at a primary employer with which the union has a lawful dispute. The PRO Act would permit secondary picketing, meaning that unions could picket a neutral employer not involved in a labor dispute for the purpose of pressuring it to cease doing business with the employer that has a dispute with the union. The PRO Act also would expressly permit intermittent strikes that are quite disruptive.

Expand Bargaining Rights to Many.  The PRO Act expands the definition of an “employee” by narrowing the definition of supervisors and independent contractors. The PRO Act would redefine who qualifies as a supervisor and an independent contractor expanding the potential group of employees who are covered by the law.

Expand Joint Employer Liability.  A joint employer is held jointly and severally liable for the unfair labor practices committed by an employer if the joint employer possesses “substantial direct and immediate control” over the employer’s employees. The PRO Act would expand this liability for joint employers by basing liability on the mere existence of reserved or indirect control over the employer’s employees and not on whether such control has been exercised.

Mandate Binding Dispute Resolution for Initial Contracts.  Collective bargaining on an initial labor contract often does not result in a labor contract and opens the door for a union decertification effort. The PRO Act would change that by requiring mediation and allowing an arbitration panel to decide the terms of an initial collective bargaining agreement if the union and employer fail to reach an agreement within as little as 120 days. Those initial terms would be binding for two years.

Resurrects Persuader Rules.  The PRO Act would require employers to report any arrangement, including an engagement with consultants and with law firms, that “directly or indirectly” attempts to persuade employees on how to exercise their rights under the NLRA.

Enhanced Remedies and Monetary Penalties.  The PRO Act would allow the NLRB to award liquidated damages, civil penalties and statutory remedies for cases of discrimination and retaliation. Under the Act, the NLRB could also hold directors and officers liable for civil penalties in situations where they directed or committed the violation, had established a policy that led to such a violation, or had actual or constructive knowledge of and the authority to prevent the violation and failed to do so.

Many Americans say they like unions, but very few belong to one. Unionization in the work force remains low but that may change if the PRO Act becomes law. The provisions summarized above are significant changes that, if enacted, will undoubtedly tip the scales in favor of unions and employees and away from employers. We will continue to monitor this legislation.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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