Employers Beware: The Pro Act is a Dramatic Change to Current Labor Laws

On March 9, 2021, The House of Representatives passed legislation named The Protecting the Right to Organize Act (PRO Act) by a margin of 225 to 206, with five Republicans joining Democrats in favor.  President Biden announced his strong support for the Pro Act the day before the House vote. Now it’s up to the Senate to decide whether this legislation will become the law of the land, and Republicans are expected to garner strong opposition.

If passed, the PRO Act will be the most significant shift in labor law in the last 90 years, by far.  This proposed legislation dramatically enhances the tools available to labor unions during organizing and collective bargaining, while simultaneously undermining or obliterating current and long standing employer rights.

Among other changes, the PRO Act would:

• Undermine Right To Work Laws. Currently, 27 states have right to work laws. Right to work states prohibit union contracts that require union membership as a condition of employment. The PRO Act would enable unions in right to work states to force employees to pay their “fair share” of the cost of union representation.  In effect, those are forced dues for employees unwilling to join.
• Decimate Employer Free Speech. Employers have always enjoyed freedom under the National Labor Relations Act (NLRA) to declare their preference for remaining union free, and to inform employees about the potential negative implications of union representation.  The PRO Act prohibits employers from holding mandatory captive audience meetings with employees.   
• Diminish the Role of Employers’ Labor Counsel. The PRO Act will force law firms to publish their fee income, and client names, if they counsel employers on how to respond to union organizing.  Like all privately held businesses, law firms do not publish their fees, or their client’s names, in publicly accessible records.  If forced to do so, they are less likely to provide labor counsel to employers who need it most – those in the midst of time sensitive and legally complex organizing drives.
• Compromise Employee Privacy. The PRO Act mandates that once petitions for a secret ballot elections have been filed, the employer must disclose employees’ home phone numbers, personal cell phones, and personal email addresses to the union.  As we’ve all learned with unwanted calls and spam emails, once your information goes public, solicitations never stop.
• Redefines Supervisors. Currently, employees with supervisory authority are ineligible for union representation.  The justification for this exclusion is the employer’s need to depend on this group to carry out management prerogatives and directives.  The PRO Act narrows this exclusion to only those supervisors who spend “a majority of [their] work time” engaged in supervisory activity.  Also, “assigning” or directing the work of others would no longer qualify as supervisory authority.  The practical impact of this change is fewer supervisors, and less “front line” agents carrying the employer’s message.
• Authorize Use of Company Equipment for Organizing Purposes. Currently, employees do not have the right to use company email for organizing activity, although the National Labor Relations Board has changed it position in this area three times in the last 15 years.  The PRO Act gives employees who have “access” …in the course of” their work, the right to use company computers, laptops, tablets, email and telephones for organizing purposes absent a “compelling business rationale…”
• Empower Third Parties to Mandate the Terms of Initial Collective Bargaining Agreements. Unions and employers are currently required to bargain in good faith, but both parties are free to disagree with a particular proposal, or to refuse to make any concession.  Under the PRO Act, unsuccessful first contract negotiations are subject to binding arbitration.  That means a third party would dictate  to employers the wages, benefits and other terms of employment they must provide when negotiations fail after a union is newly certified.
• Dramatically Increase Fines for Employer Violations. Currently, the NLRA is designed to makes employees whole for any lost income caused by a wrongful discharge.  For violations that do not cause economic harm, the NLRA requires employers to post a notice admitting wrongdoing, and prospectively comply with the law.  The PRO Act expands the potential penalties to include $50,000 fines for each failure to comply with a Board order, and includes individual liability for directors and officers.  The PRO Act also includes reinstatement even while litigation over an alleged wrongful discharge is pending.

These are just a few of the significant implications of the PRO Act.  The list goes on, and includes multiple other shifts in long established rules of engagement.  They will hurt employers — badly. 

Most employers are likely unaware of this potential seismic change.  Only time will tell whether public awareness and backlash will change the PRO Act’s current trajectory.

As always, we will keep you posted.