June 03, 2021 POINT COUNTERPOINT: The PRO Act

The PRO Act

Permanently Remove Obstacles for Organizing

BY MICHAEL J. HANLON AND BENJAMIN L. SHECHTMAN

The Protecting the Right to Organize Act (“PRO Act”) is a dramatic overhaul to federal labor law, reflecting organized labor’s wish list to regain its steadily declining membership. The PRO Act is intended to remove any obstacles to union organizing efforts by granting the National Labor Relations Board (“NLRB”) new powers, quashing employer opposition to organizing, and extending new union rights. The filibuster and opposition by a few Senators leaves its passage uncertain.

The PRO Act would totally alter the landscape for organizing, overturning decades of existing law. Among the most significant changes, the Act would make it an unfair labor practice for an employer to require employees, while on the clock, to attend meetings where the employer provides attendees with information regarding unionization. Employers would effectively be gagged while union supporters would be permitted to use company systems to engage in persuasion. The PRO Act also would:

  • Eliminate standing for employers to participate in pre-election process, which would speed up the election process, open up the process to micro-units, prohibit “captive audience” meetings and prohibit permanent strike replacements;
  • Redefine who is considered a supervisor under the NLRA, which will result in more supervisors being included in bargaining units with employees they supervise;
  • Increase who would be considered employers by adopting the NLRB’s former joint employer test (set forth in Browning Ferris Industries) as well as California’s AB5 test for independent contractor status;
  • Certify a union despite a union election loss if the union has a majority of cards and the employer engages in any objectionable conduct, which the NLRB will presume would make a re-run election impossible (back-door card check);
  • Legalize and protect intermittent and partial strikes, which would create chaos;
  • Legalize secondary picketing and boycotts, allowing unions to attack an employer’s customers and suppliers that have nothing to do with the labor dispute;
  • Impose first contract interest arbitration, with terms lasting up to two years;
  • Invalidate right to work laws and arbitration agreements with class action waivers;
  • Impair the attorney-client privilege and make it more difficult for employers to comply with constantly changing labor laws by eliminating the advice exception to the Labor-Management Reporting Disclosure Act’s reporting requirements
  • Overhaul the NLRB’s remedies, including liquidated damages, civil penalties and individual liability for managers, officers and directors; and
  • Allow a private right of action, which would provide charging parties with an alternative path to litigate claims under the NLRA by going directly to court.

Amazon’s recent union election in Bessemer, Alabama received unusual press coverage and substantial public and political support for the union. The Retail, Wholesale and Department Store Union conducted a months-long campaign among the nearly 6,000 employees at Amazon’s fulfillment center in Bessemer, contending that Amazon’s monitoring of workers infringes on workers’ dignity and that wages failed to compensate workers for the pressure that they felt as a result of such monitoring. Both the RWDSU and Amazon ran hard-fought campaigns. In Bessemer, Amazon defeated the union, which won only 738 votes to 1,798 cast against it. Despite 5,805 eligible voters, the NLRB received only 3,215 ballots. This 55% turnout represents a low turnout for a union election of this profile, and one in which employees cast mail-in ballots. If the PRO Act were in place:

  • The election would have been held more quickly with fewer potential voting employees (the union wanted a fragmented unit; Amazon argued for a wall-to-wall unit);
  • Amazon would have been prohibited from conducting campaign/informational meetings with its employees;
  • Amazon would have faced far greater consequences for any objectionable or unlawful conduct, which might have impacted its campaign strategy;
  • The union could have engaged in economic warfare not just against Amazon but also against anyone that does business with Amazon, including major customers;
  • If the NLRB had determined Amazon engaged in unlawful or objectionable conduct, it could have certified the win for the union if it had a majority of authorization cards; and
  • Finally, the overall power dynamic might have been different had Alabama’s right to work law not been in place, as unions generally would have more power and dedicated funding.

Proponents of the PRO Act almost certainly will contend that the outcome in Bessemer increases the urgency for its passage. What is clear is that as the number of workers represented by unions in the private sector continues to decline, unions will seek to eliminate any involvement of the employer in the process and impose a collective bargaining agreement if one is not agreed upon.  

Michael J. Hanlon

Cozen O’Connor

Michael J. Hanlon is a members with the Philadelphia, PA office of Cozen O’Connor.

Benjamin L. Shechtman

Cozen O’Connor

Benjamin L. Shechtman is a member with the Philadelphia, PA office of Cozen O’Connor.