Controversial Pro-union Pro Act Passed by House

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The Protecting the Right to Organize Act (the PRO Act) has been a long-term goal of organized labor.  It previously passed the House of Representatives last year, but the Democrats never had sufficient power in the Senate to bring the bill to a vote there.  On March 9, 2021, the House voted 225-206 to pass H.R. 842, the PRO Act.   This Bill has long been considered to be a "Christmas tree list" of demands by organized labor.  Among other things, this Bill as passed by the House would do the following.

  • Voids state "right-to-work" laws and allow union agreements to require all employees to pay fees to cover the cost of union activities as a condition of employment;
  • Stipulates that strikes could not be prohibited based on their "duration, scope, frequency, or intermittence," and repeal existing restrictions on "secondary" boycotts and picketing for recognition, as well as prohibit employers from permanently replacing an employee who strikes, prohibits locking out or otherwise withholding employment by employers to influence bargaining, prohibits misclassifying as independent contractor an employee covered by the Labor Act, and prohibits requiring employees to attend employer campaign activities unrelated to their job (so-called "captive audience meetings");
  • Requires the NLRB to award lost wages and damages to employees discharged or suffering economic harm because of an employer's Labor Act violation, and also allow additional amounts as liquidated damages;
  • Provides for such wages and damages even to workers residing in the U.S. illegally; 
  • Grants immediate temporary court relief to employees terminated or significantly affected by an employer's interference with labor rights, unless a court rules that there is not a reasonable likelihood that the claim will succeed;
  • Allows employees to bring a civil action against their employer in a federal district court after sixty (60) days of filing a claim with the NLRB, and the court could award lost wages, damages, and reasonable attorneys' fees;
  • Effectively reverses the Supreme Court ruling in Epic Systems allowing employers to enforce arbitration agreements with class-action waivers;
  • Authorizes the NLRB to impose penalties on employers, such as $50,000.00 if an employer's violation results in discharge or other serious economic harm which can be doubled to as much as $100,000.00 for multiple violations in the preceding five (5) years;
  • Provides a $500.00 penalty if an employer does not post a Notice of Employees Rights and Protections, and inform new employees of such information, or submit the bargaining unit voter list, plus a penalty of as much as $10,000.00 per day for an employer that does not comply with an NLRB order;
  • Requires the NLRB to consider a union's proposed bargaining unit to be appropriate if the employees share a "community of interest" that is sufficiently distinct from others;
  • Requires employers to provide unions with a list of all bargaining unit employees within two (2) business days after the NLRB approves an election;
  • Employers would not even have standing to participate in the representation case proceeding;
  • Allows the NLRB to certify a union and require bargaining with the union not only where employees vote in favor of the union, but also where they have not voted in favor of the union because of election interference by an employer but have signed authorization cards designating the union (the old "card-check" concept).
  • The NLRB would have to suspend the processing of an election petition until an unfair labor practice charge is remedied or dismissed, thus giving a union a lot of flexibility as to when to arrange a vote;
  • After union certification, the employer and union would have to start negotiating an initial bargaining agreement within ten (10) days of the union's written request, or within an additional period agreed by the parties - if there isn't an agreement after ninety (90) days of bargaining, the dispute would be referred to a three-member arbitration panel which would write a contract binding for two (2) years (first contract arbitration);
  • Broadens the definition of joint employer regardless of whether control is considered direct or indirect as well as whether control is exercised through reserved authority or not;
  • Verifies that workers performing any service would be considered employees and not independent contractors unless the workers is free from the employer's control, the services are outside the employer's usual course of business, and the worker is engaged in an independently established role related to the service (the so-called "ABC Test");
  • Modifies the definition of "supervisor" to state that such individual must engage in supervisory activities "for a majority of the individual's work time;"
  • Requires employers to disclose to the Labor Department arrangements with consultants or attorneys to indirectly persuade employees on their union rights (the so-called "Persuader Rule");
  • Appeals by employers to federal appeals courts would be limited.

This bill already has at least 40 co-sponsors in the U.S. Senate, where the Democrats now have a majority since the Vice President can break any tie.  Republicans will filibuster the bill, but the situation would change dramatically should the Democrats elect to remove the filibuster from the Senate procedures.

This is part of our April 2021 Newsletter.

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