By Jeff Jones
Special to the UCBJ
The Protecting the Right to Organize Act (“PRO Act”), which has passed the House and is now before the Senate, contains a great many changes that favor unions and restrict or punish employers. This article discusses some of the provisions of the proposed law in the following areas: elections, bargaining, enforcement and other takeaways.
Elections. The PRO Act would expand the number of persons eligible to vote in elections in two ways. Note first that persons who are “employees” may vote, but “employees” does not include supervisors or independent contractors.
1. Provisions in the PRO Act would narrow the definition of supervisor, thus making more persons “employees” who may vote. Adoption of the more narrow definition of supervisor would also impact the employer’s campaign abilities as supervisor are frequently important in delivering the desired message to employees who will vote.
2. The PRO Act would also substantially narrow the definition of independent contractor. It proposes use of the ABC test. That test provides, in short, that one is not an independent contractor unless all three of the following are met: (1) the worker is free from the control and direction of the hiring entity in connection with performing the work; (2) the worker performs work that is outside the usual course of the hiring entity’s business; and (3) the worker is customarily engaged in an in an independently established trade, occupation or business of the same nature as the work performed. This definition clearly excludes “gig” workers from qualifying as independent contractors, along with a host of others.
The PRO Act also provides that in the course of an organizing campaign, employers may not “require or coerce” employees to attend employer meetings. This would be a huge change. For decades, one method that employers have used in communicating with employees during an organizing campaign is via meetings. In context of such meetings the employer explained its views and positions and commonly provided education about the union involved, the industry in which the employer was engaged and other relevant subjects. If the PRO Act becomes law the employer’s ability to meet with its own employees would be infringed upon substantially in context of organizing campaigns.
In addition, union petitions for “micro-units” will commonly be accepted. The question of what is an “appropriate unit for bargaining” has long been a contested one. The definition of employees who will be in the unit determines which employees are allowed to vote. The National Labor Relations Board (“Board”) for years used a variety of factors around the concept of determining which employees shared a community of interest. In the manufacturing setting, for example, this commonly resulted in a production and maintenance unit. Under the PRO Act a union could apply to represent a small sub-set of the workforce, such as only machine operators, for example. The practical impact is that this would make it easier for unions to get their foot in the door.
Bargaining. The PRO Act contains several requirements relative to bargaining for an initial collective bargaining agreement (“CBA”). These requirements apply only when an initial agreement is involved.
Bargaining must begin within ten (10) days after a written request, unless the parties agree to a different date. If a contract is not reached within ninety (90) days either party may request assistance from the Federal Mediation and Conciliation Service (“FMCS”). If no agreement is reached within thirty (30) days after the FMCS begins assisting, or a longer time agreed upon by the parties, FMCS will refer the matter to arbitration.
This is where the sea-change comes. From the beginning of the National Labor Relations Act until present the parties have always had to agree for a collective bargaining agreement to exist. This was sometimes difficult, with strikes, lock outs, or long bargaining times. But no agreement was imposed on the parties.
Under the PRO Act if the matter is referred to arbitration, then each side picks an arbitrator and the parties agree upon a third. The arbitration panel receives evidence from each side and considers matters such as the employer’s financial status, the employees’ cost of living, and industry wages and benefits. At the end of the day the arbitration panel sets wages and benefits for a two-year period. In other words, a set of third parties who have no interest in the employer or its success would impose terms of employment, including wages and benefits, on the employer for a two-year period.
Enforcement. The changes in enforcement are too numerous and wide-ranging to include here. A brief description of some of the more significant changes is set out below.
If an employer is found to have discharged an employee because of the employee’s union sympathies or activities, the employee may receive: backpay with no reduction for interim earnings; front pay; consequential damages; and liquidated damages equal to two times the damage award. In the past, such an employee would have received back pay reduced by interim earnings, and that would have been it.
Previously, all such matters were processed via the Board and heard by administrative law judges. Under the PRO Act for certain types of charges employees can bring an action on their own in federal court where they can require a jury trial. In this setting also the enhanced damages are available.
The PRO Act creates a new action for whistleblowers. In those claims also an employee has a path to bring a private action in federal court and to be heard via a jury trial. These claims also include enhanced remedies for employees whose claims are proven.
The PRO Act creates a greatly enhanced set of fines for employers, which are in addition to the multiple and far larger remedies that employees may recover. Failure to comply with a Board order results in a civil penalty up to $10,000.
And if you think the last one was tough, an employer found to have discharged an employee in violation of certain provisions of the National Labor Relations Act can be fined up to $50,000. If the employer has committed such violations in the last five (5) years that amount is doubled.
Other Takeaways. The PRO Act would make it easier to establish joint employment. There is an express provision to the effect that indirect and reserved control can be sufficient to establish joint employment status.
The PRO Act provides that employers may not replace economic strikers, which are currently and for many years have been distinguished from unfair labor practice strikers.
The PRO Act would preclude employers from requiring employees to sign an agreement preventing them from bringing a claim via joining a class action – unless agreed to in a CBA.
The PRO Act would permit “fair share” agreements whereby employees are required to pay the cost of union representation activities such as collective bargaining and grievance processing. This section of the proposed law would permit such agreements even in “right-to-work” states, resulting in a situation where employees could not be forced to join a union but could be forced to pay money to a union.
The proposed law would revise the “persuader rule” such that attorneys who provide legal advice to an employer in connection with opposing union organizing would have to register as persuaders. As a result, both the attorney and their client would be required to file reports of the attorney’s activities and the cost of their services.
In summary, the PRO Act is designed to make organizing easier and opposing organizing harder, to deter employer management actions by enacting high rewards for employees found to have been mistreated and harsh punishments for employers found to have violated the labor law, and to in a variety of other ways favor employees and restrict employers. About the only good news is that there is still time to oppose this action toward employers. Contact your federal senators and tell them to vote against this bill.