Mike is the Chair of Obermayer’s Labor Relations and Employment Law Department and a member of Obermayer’s Management Committee. Mike is an accomplished attorney known for his tireless advocacy on behalf of...Read More by Author
Unionize, Organize, and Penalize: The “PRO” Act and What Employers Should Expect Under a Biden Administration
Second in a Series of Blogs Regarding the Presidential Transition
On Saturday, November 7, 2020, all major media outlets called the 2020 presidential election in favor of Joe Biden and Kamala Harris, and President-elect Biden has already begun transition plans. Given the President-elect’s outward commitment to strengthening unions overall, the union-employee paradigm may see its biggest shift since the passage of the National Labor Relations Act (NLRA), the federal law that grants employees the right to choose whether they will form or join unions or engage in activities to address working conditions, in 1935.
In large part, the President-elect’s legislative labor plan is premised on the “Protecting the Right to Organize Act,” otherwise known as the PRO Act, which was passed in the House of Representatives in early 2020. The Act proposes significant amendments to the NLRA. The seven most notable and far reaching provisions of the PRO Act, all of which would significantly strengthen worker protections and pose challenges for employers, are discussed below.
In the event an employer is found to have illegally interfered with the election process, the PRO Act would implement a process known as “card check,” which merely requires workers to recruit a majority of individuals to sign authorization cards allowing a union to represent them without a secret ballot election. President-elect Biden would take this PRO Act measure a step further by allowing workers to use this process as a means of forming a union at the outset regardless of the employer’s actions. Although facially beneficial to employees, this process poses significant concerns regarding worker privacy and will inevitably result in an increase in successful union organization.
“Ambush” Election Rules Are Back.
The PRO Act would codify the initial version of the “Ambush Election Rules,” which were passed under President Obama and scaled back during Trump’s Presidency. Reimplementation of the Obama-era version of these rules (in union organizing efforts that do not utilize card check) will again significantly shorten the timeframe between the filing of a union election petition and the election itself to an average of 21 days (or less). This shortened timeframe will make it even more difficult for employers to effectively communicate with employees prior to an election. As it stands now, unions win approximately 70 percent of elections that are conducted by the NLRB.
Captive Audience Meetings.
Employers are currently allowed to hold mandatory meetings with their employees during a union campaign to discuss their views on unionization. The PRO Act would ban this practice.
The Persuader Rule Returns.
The PRO Act would codify the “persuader rule,” which was introduced during the Obama Administration but was later rescinded by the Trump Administration. As explained previously by HR Legalist, the persuader rule requires an employer to report if it hires a lawyer or consultant to help with union organizing. The reintroduction of this rule will make it more difficult for employers to seek advice from lawyers and consultants regarding union-related activity.
In first-contract negotiations, the PRO Act would compel the employer and the union to engage in mediation if the parties are unable to reach an agreement within 90 days of commencing collective bargaining negotiations. Should the mediation fail, the matter will be referred to a three-person arbitration panel for interest arbitration (a form of arbitration used to resolve bargaining impasses). By a majority vote, the panel will set the terms of the agreement, which will be binding on the parties for two years unless the agreement is amended. Significantly, the panel would be authorized to include terms in the agreement that the employer has previously rejected.
Strikes and Secondary Boycotts.
Frequent and short duration “intermittent strikes” and “secondary boycotts” would be legalized under the PRO Act, and employers would be banned from hiring permanent strike replacements during economic strikes. Secondary boycotts, or boycotts by union members against their employer in order to induce the employer to bring pressure on another company involved in a labor dispute with the same union, are currently illegal under the NLRA.
Monetary Penalties, Personal and Criminal Liability.
Last but not least, under the PRO Act, employers who are found to have violated the NLRA could face significant monetary penalties, and corporate officers and directors could be held personally liable for such violations. Individuals and unions would also be authorized to sue employers in federal court for NLRA violations and—if successful—recover attorney’s fees. President-elect Biden would take these penalties a step further and impose criminal liability where an employer intentionally interferes with organization efforts.
While the PRO Act is unlikely to receive support in a Republican-controlled Senate, the Senate’s composition will remain unsettled until the Georgia runoff elections are held in early January. If the Democratic party ultimately gains control of the Senate, the PRO Act could be passed into law. If Republicans retain control of the Senate, the PRO Act is unlikely to pass. However, President-elect Biden’s support of a robust version of the PRO Act signals his willingness to enact employee-friendly policies through other means, such as by making changes to the composition of the National Labor Relations Board (“NLRB”) or engaging in new rulemaking regarding labor law. Accordingly, as inauguration day approaches, employers should begin preparing for significant shifts in labor law at the federal level.
Stay tuned to HR Legalist as we continue our series on potential changes to labor and employment law under President-elect Biden.
The information contained in this publication should not be construed as legal or medical advice, is not a substitute for legal counsel or medical consultation, and should not be relied on as such.