Why the Protecting the Right to Organize Act (PRO Act) Keeps us Awake at Night

McNees Wallace & Nurick LLC
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McNees Wallace & Nurick LLC

The United States House of Representatives has passed the PRO Act, which now moves to the Senate for consideration.  If passed, the PRO Act would probably be the most radical, and union friendly, change to U.S. labor law since the passage of the National Labor Relations Act (Act)  in 1935. And it is keeping us awake at night!

The PRO Act contains about 20 separate proposed modifications to the Act. Many of the changes would codify decisional law adopted by the National Labor Relations Board during the Obama administration.  The Obama Board was viewed by many as the most union and employee friendly Board in history.  A slew of Obama era decisions were reversed by the Trump Board.

However, if the PRO Act is passed, the following would become law:

  • Browning Ferris decision expanding the joint employer test
  • Specialty Healthcare decision allowing micro-units
  • Purple Communications decision allowing employees to use the employer’s email system for union organizing efforts
  • ABC test for determining independent contractor status, which is much more narrow than current test

But wait, there is more, the PRO Act would also:

  • Require interest arbitration if the parties could not reach terms for a new collective bargaining agreement (this is a huge change and its consequences and negative repercussions are hard to fathom)
  • Ban individual arbitration requirements and mandatory arbitration agreements
  • Bring back the “Quickie” or Ambush election rules
  • Require employers to post a notice of employee rights under the NLRA
  • Prohibit employers from permanently replacing striking workers
  • Allow secondary boycotts
  • Establish a private cause of action for violations of the NLRA
  • Provide for individual liability for managers and executives who commit unfair labor practices

Some of these changes are fundamental reversals of long-standing labor law that would significantly upset the balance of power between employers and labor unions.  We simply cannot overstate how significant these changes would be for employers.

But there is still more!  Perhaps the most devastating change to be wrought by the PRO Act would be the elimination of “Right to Work” laws.  A majority of states in the U.S. have adopted laws that prohibit an employer and a labor union from requiring to compulsory union membership.  In other words, under state law, employees cannot be forced to pay union dues.  The PRO Act would make such laws illegal, and thus, employees could be forced to pay union dues nation-wide.

Any guesses who would benefit the most from that change?

While we are hopeful that the PRO Act dies in the Senate, it is very possible that it will pass or some modified version of it will eventually pass.  What does that mean for employers?  Well, now is the time for non-unionized employers wishing to stay that way to adopt proactive strategies to remain union free.  Unionized employers should also take steps now to evaluate the impact of the PRO Act on collective bargaining strategy, policies, and practices.

For union and non-union employers, thought should be given to worker classification and supervisor and manager training.  The time to be proactive is now, and that is another reason we are not getting any sleep!

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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