The Protecting the Right to Organize Act (H.R. 2474) on February 6, 2020 passed the U.S. House of Representatives by a vote of 224-194. Five Republicans voted for the bill and seven Democrats opposed it. It has been called the most pro-union legislation since the Wagner Act was passed in 1935. It is so pro-union, that many business interests have taken the legislation lightly, apparently feeling it could never pass. It has passed, at least in the House. There is a similar bill pending in the Senate (S. 1306), but Senator McConnell is unlikely to give it a floor vote.
Among other things, the Pro Act modifies the Obama-era National Labor Relations Board (NLRB) rulings and policies regarding accelerated union elections, turning over worker information to labor organizers, classifying independent contractors as employees, and putting in a broad test classifying separate entities as joint employers. It would nullify state "right-to-work" laws and basically allow bargaining agreements to require all employees to pay fees to cover the costs of union activities as a condition of employment. It would stipulate that a strike or series of strikes could not be prohibited based on their "duration, scope, frequency, or intermittence," and prohibit employers from permanently replacing or discriminating against an employee who strikes. It would prohibit an employer from requiring employee attendance for work meetings unrelated to their job, prohibiting the so-called "captive audience" employer presentations regarding information about union organizing. It would repeal restrictions on unions engaging in "secondary boycotts."
In addition to normal lost wages, it would allow the NLRB to impose additional amounts as liquidated damages or penalties against employers. It would allow such damages even to workers whose employment violated federal law as being unauthorized workers. It would require federal courts to grant temporary injunctions to employees negatively affected by an employer's interference with their union rights, unless the court rules there is not a reasonable likelihood that the claim will succeed. It would allow employees to bring an action in court as well as going to the NLRB for relief.
The Pro Act would also remove employer standing in election proceedings before the NLRB and allow the Board to basically accept the union's proposed bargaining unit, and allow the Board to short-circuit the current process and require an employer to begin collective bargaining when a majority of employees voted in favor of the union or haven't voted in favor of the union because of election interference by an employer and who have signed union authorization cards. Following a union certification, the employer and union would have to meet and begin negotiations within ten (10) days of the union's written request, and if there is no agreed-upon contract after ninety (90) days of bargaining, the Federal Mediation and Conciliation Service would refer the dispute to a three-member arbitration panel, which could ultimately render a binding decision on a contract for two (2) years. The bill would also require an employer to continue engaging in collective bargaining even after employees hold an election to decertify a union.
The bill would codify the Obama Administration's "persuader rule" which requires employers to disclose arrangements with consultants or attorneys who give employers advice that might relate to persuading employees on their union rights or concerted activities. The language is so broad as to cover even the drafting or revising of employer personnel policies, identifying employees for disciplinary action, and include training and the planning of employee meetings. The bill would even undo the Supreme Court ruling in Epic Systems v. Lewis, which had ruled that employers could enforce individual arbitration agreements with class-action waivers.
So how could a bill like this ever pass or become law? Well, it has already been endorsed by the leading candidates for the Democratic nomination, including Senators Bernie Sanders, Elizabeth Warren, and Amy Klobuchar, also former Vice President Joe Biden, and Mayor Pete Buttigieg. Unions have said that anyone wanting union support must vote for the bill. At least 38 Democrats in the Senate have already become co-sponsors of the Senate version of the bill.
The Pro Act has been called a "wish list" for unions, and is the most pro-union legislation proposed in the history of the federal labor laws. Even the Employee Free Choice Act, which came close to passing in 2007, was not near as strong. That bill became known as the "card check" law. Many say the current pro-union legislation shows how political times have changed. In 2007, the Democrats backed off of the card check bill at the last moment, but no one is backing off at the present time.
