A Proactive Look at the PRO Act

By Jessica D. Osborne & Dennis E. Westlind - Bullard Law

February 9, 2021

With the Democratic Party now holding a narrow majority in the Senate, the Protecting the Right to Organize Act (“PRO Act”) has newfound life nearly a year after dying upon passage by the House majority on February 10, 2020. The PRO Act seeks to revise the National Labor Relations Act (“NLRA”) in significant ways that will have a real impact on all employers, union and non-union alike. The bill reads like a wish list for big labor: it would reduce an employer’s ability to counteract union messaging, expand who and what is covered by the NLRA, and infuse personal liability and monetary damages against the employer and individual managers, amongst other changes.

We do not intend this alert to be fully inclusive of all provisions of the bill. Rather, we highlight some of those key changes below to prepare employers for the possible passage:

Who Would Be Covered By The Act?
The PRO Act expands several key definitions to expand the scope of the NLRA. It expands the definition of “employer” to include “joint employers” (separate entities that each have some degree of control over employees) and broadens the definition of “employee” to add many individuals that are currently considered to be independent contractors. Simultaneously, it narrows the definition of “supervisors” who are excluded from the NLRA and currently cannot be represented by a union.

What Would Be Protected?
The bill will make it lawful for employees to engage in secondary activities. This means that unions will be able to encourage employees to engage in solidarity strikes in support of other workers, as well as engage in intermittent strikes.

The bill will also allow unions to force mandatory membership fees, regardless of contrary state laws (27 states currently have “right to work” laws).

The bill will also require employers to post notices of employees’ rights under the NLRA, including the right to organize.

What Would Become Unlawful?
The bill would classify several currently lawful employer actions as unfair labor practices – including:
•    Required or “coerced” attendance at an employer’s meeting relating to the employer’s stance in opposition to union organizing;
•    Replacing or discriminating against employees who participate in strikes;
•    Requiring employees to enter into agreements that waive rights to pursue or join collective or class-action litigation.

What Would Be The Remedy?
The current NLRA provides limited “make whole” remedies.  Those typically include reinstatement, back pay, lost benefits, and interest.  The NLRA does not provide for penalties against the employer or leaders. Additionally, disputes under the NLRA do not provide an avenue for a private cause of action (i.e., an allegedly aggrieved employee cannot pursue a lawsuit for violations of the NLRA).

The PRO Act would provide the following:
•    Up to $100,000 in penalties for employers found to have committed an unfair labor practice under Section 8(a) of the NLRA;
•    Personal liability for individual officers or directors for unfair labor practices;
•    Liquidated damages up to double the finding for unfair labor practices;
•    Expands injunctive remedies, including reinstatement while an unfair labor practice charge is pending;
•    No reduction of back pay based on intermediary earnings for an employee damaged by an unfair labor practice.

How Would Procedures Change?
The PRO Act would also make several significant changes to current procedures before the NLRB. Specifically, it would:
•    Prohibit employers from participating in representation proceedings relating to union certification;
•    Impose tight bargaining timelines when the employer voluntarily recognizes a union;
•    Expands the ability of courts to provide injunctive relief upon petition by the NLRB;

In part due to the slim nature of the Democratic majority, we anticipate the PRO Act will face significant hurdles in the Senate, potentially from members of both parties, due to its sweeping and expansive changes to the NLRA. Curiously, many of the included policy positions could be enacted through Administrative Rulemaking and internal guidance through the Biden Administration’s National Labor Relations Board. Unless the Democrats end the filibuster, it is unlikely that the PRO Act as written will become law prior to the midterm elections, but it may pass in modified form. We will provide any updates should the PRO Act move forward more expediently than anticipated.