By Samuel Dobre, Esq. & Michael Kratochvil
While the Biden administration has quickly ushered in a number of changes to the administrative side of the National Labor Relations Board (NLRB), Congress has been considering an even more consequential labor matter: the Protecting the Right to Organize (PRO) Act.
This bill has already made it through the House of Representatives but faces an uphill battle in the Senate because of its significant implications for labor relations throughout the country.
Specifically, the PRO Act promises a number of changes to the National Labor Relations Act (NLRA), a statute that has governed labor relations in the United States since the 1930s. While the NLRA has been relatively unaltered since the 1947 Taft-Hartley Amendments, the PRO Act presents a new effort to shift the balance of power from employers to employees and unions. The following details four key potential changes, among others:
The NLRA has been criticized by many individuals in the labor field for lacking the “teeth” that many other administrative statutes have. Currently, the NLRA only permits (1) make-whole remedies (i.e., reinstatement, back pay, etc.); (2) informational remedies (i.e., the posting of signs concerning conduct that violates the NLRA); and (3) injunctive relief.
With the PRO Act, employees would be able to receive monetary damages for violations of the NLRA. In addition, the NLRB would be able to assess further penalties for noncompliance with NLRB orders. Adding damages and civil penalties (potentially ranging from $50,000 to $100,000 for unlawful discharge or “other serious economic harm to an employee” if the employer has committed a similar violation within the preceding five years) would significantly raise the stakes of labor relations to a level never before seen in this country’s history.
Eliminating “Right-To-Work” Laws
In 28 states, employees laboring as a part of a unionized workforce are not obligated to pay union dues. In other words, even if a union has been duly elected to represent a group of workers, any employee in that group would have the right to refuse to pay union dues while still retaining the representation of that union. The PRO Act would eliminate this ability to opt out of paying union dues.
Currently, independent contractors, supervisors, and other management staff are largely unprotected by the NLRA. The PRO Act would alter the definition of employees, supervisors, and employers to include more individuals under the gamut of the NLRA.
Altering Rights of Employees and Employers
There are a number of other changes impacting the rights of employees and employers:
The PRO Act would reverse long-standing case law and permit secondary strikes, meaning that unions could picket a neutral employer for the purpose of coercing it to stop doing business with the primary employer.
The PRO Act would prohibit certain conduct by employers in an effort to increase the power of employees in the following ways:
(I) Employers would be prevented from permanently replacing employees who participated in strikes.
(II) Employers would no longer be able to limit an employee’s right to pursue or join collective or class-action litigation.
(III) Employers would be prohibited from taking adverse action against an employee, including those with management responsibilities, in response to that employee participating in protected activities related to the enforcement of the prohibitions against unfair labor practices. To put it in simpler terms, whistleblower protections would be expanded considerably.
(IV) The dynamics of union elections would be altered by (a) preventing employers from requiring or coercing employees to attend employer meetings designed to discourage union membership and (b) permitting employees to vote in such elections remotely by telephone or the internet.
The future of the PRO Act is undetermined. Nevertheless, employers and employees should remain on notice given the widespread legal implications of these potential changes.
Please contact Bond, Schoeneck & King’s labor and employment attorneys if you have any questions or would like additional information regarding the potential scope of exposure, mitigation, and/or other legal developments arising in labor relations.