Organized Labor's Wish List Legislation — and a Reminder to Employers
February 18, 2020
By: Thomas M. Cunningham
On Thursday, February 6, 2020, the U.S. House of Representatives passed the Protecting the Right to Organize (PRO) Act. The PRO Act is what one commentator dubbed “a Frankenstein bill” that enacts a number of dangerous items from organized labor’s wish list – some new and some rejected by earlier Congresses – all with the goal of spurring greater unionization of the American workplace and dismantling most legal tools available to management to resist union organizing campaigns.
The PRO Act was introduced in the House in May 2019 and passed out of committee on September 25, 2019. The House now has passed the bill, mostly along party lines, 224-194. While the PRO Act currently is dead-on-arrival in the Senate, the ultimate fate of the legislation is likely dependent on whether the Democrats maintain control of the House and retake the Senate and White House in 2020. Regardless of whether the PRO Act in some form eventually becomes law, its passage in the House should serve as a reminder to employers: (a) to periodically assess their potential vulnerability, and their employees’ receptiveness, to a union organizing campaign, and (b) that unfair labor practice charges frequently are levied in the non-unionized workplace, often caused by management missteps or lack of training concerning employees’ NLRA Section 7 rights.
The PRO Act would fundamentally alter federal labor law by placing a heavy thumb on the legal scales, tipping them severely against business owners and management. The PRO Act:
- Codifies the NLRB’s 2015 “quickie” election rules. These rules greatly reduced the time period between the filing of the petition for election and the actual election, providing very little time in which employers can evaluate complex legal issues. The rules also required many legal issues and objections to go unaddressed and unresolved until after the election. The rules severely limit an employer’s rights under the NLRA and can often result in uncertainty about the validity of elections.
- Adopts “card check.” The PRO Act provides incentives for unions to avoid having traditional secret ballot elections in the first place. The PRO Act allows employees to gain union representation by a majority of employees signing union authorization cards without an election. This provides the means for employees and unions to conduct stealth organizing drives and then present to management a unionized workplace as a fait accompli.
- Abrogates state right-to-work laws. Twenty-seven states, including Iowa, currently have such laws, which prohibit employers and unions from requiring employees to join unions or pay union dues or fees to a union as a condition of employment.
- Codifies a number of NLRB rulings from the past ten years that either have been reversed or are the subject of pending legislation or notice of proposed rule-making. These include utilizing a broad test for joint employer status, adopting as a national standard California’s extremely narrow test for independent contractor status, and requiring employers to allow employees to utilize workplace email for organizing purposes under certain circumstances.
- Overrides the recent U.S. Supreme Court decision in Epic Systems Corp. v. Lewis and the Federal Arbitration Act by prohibiting class and collective action waivers in arbitration agreements. This will increase the availability of class action litigation.
- Codifies the U.S. Department of Labor’s 2016 Persuader Regulation, which would substantially undermine employers’ attorney-client privilege when dealing with unions by narrowing the scope of the “advice” exception of the Labor-Management Reporting and Disclosure Act and thus requiring labor lawyers to disclose substantial information about the services they provide their clients. A federal judge in 2016 enjoined enforcement of the Rule. The PRO Act also makes it an unfair labor practice by employers to require that employees attend persuader meetings.
- Creates a private cause of action for unfair labor practices, which may be pursued in federal court by individual employees, and broadens the NLRB’s authority by allowing it to levy punitive fines on employers who engage in an unfair labor practice; the NLRB’s remedial authority currently is limited to collecting back pay.
- Prohibits employers from hiring permanent replacements for strikers, overriding the Supreme Court’s 1938 decision in NLRB v. Mackay Radio & Telegraph Co., and outlawing an important option for management confronted with a strike. This prohibition would severely harm an employer’s ability to operate its business during a strike.
Knowing one house of Congress wants to enact the PRO Act should incentivize employers to assess their readiness sooner rather than later. The opportune time for a non-unionized employer to take steps to minimize the likelihood that a union would be accepted by its employees is not after the organizing drive is already underway. Nor is after receipt of an unfair labor practice charge the best time to try to educate supervisors and managers on how to effectively communicate with and discipline employees in a way that does not violate their Section 7 rights.
Open-door communication with employees is key to preventing and defending against union organizing. Front-line managers should be trained so that employees feel that they can raise workplace issues without fear of retaliation. If employees believe they have an engaged management and a voice at work, they are far less likely to seek a union to secure those things for them. Employers also should train supervisors on the “dos and don’ts” of responding to employee questions about unions, and review workplace policies to ensure they do not violate employees’ Section 7 rights. Many strategies exist to protect a business from unfair labor practice charges and to minimize the probability of success of any unionization campaign.
Nyemaster Goode’s Labor and Employment practice group regularly counsels employers on union avoidance strategies and organizational campaigns and represents management in NLRB proceedings and unfair labor practice complaints.
Clients with questions regarding the PRO Act or steps to take to minimize the likelihood of success of attempted unionization or an unfair labor practice charge should contact one of our labor and employment attorneys.