HOUSE PASSES THE “PROTECTING THE RIGHT TO ORGANIZE” ACT, PORTENDING A POTENTIAL SEA CHANGE IN AMERICAN LABOR LAW This month, the House of Representatives passed the Protecting the Right to Organize (PRO) Act. With the PRO Act, the bill’s sponsors seek to amend the National Labor Relations Act in a number of dramatic ways. Outlined below are some of the key provisions of the legislation. If the PRO Act passes the Senate, it will be the most significant change to United States labor law in decades. Even if it fails Senate passage, it is anticipated that when the NLRB gains a pro-labor majority this summer, the Board will begin implementing many of the main elements of the Act via rulemaking and case decisions. Eliminating State Right-to-Work Laws The PRO Act would preempt state “right-to-work” laws. Twenty-seven states have right-to-work laws, which prohibit unions from negotiating contracts with employers that would require employees to pay union dues or agency fees to maintain employment. Union advocates disfavor right-to-work laws because they create a “free-rider” problem, where employees receive the benefits of union representation but do not have to contribute union dues. The PRO Act specifies that any provisions in a union contract that “all employees in a bargaining unit shall contribute fees to a labor organization for the cost of representation, collective bargaining, contract enforcement, and related expenditures as a condition of employment shall be valid and enforceable notwithstanding any State or Territorial law.” The price for refusal to pay is steep: employees who decline to pay are subject to termination under the “union security clause.” “Quickie” Elections The PRO Act would also bring back many of the Obama-era “quickie” election procedures by reinstating controversial rules substantially reducing the period of time between the dates a petition for representation is filed and the ensuing election is held, placing employers at a significant disadvantage when it comes to educating workers on the facts they may need to make an informed decision. Significantly, the law would also prohibit employers from requiring employees to attend so-called “captive audience” group meetings in which the employer would express its views – even lawful ones – on the merits of unionization. A Return To “Micro” Units The PRO Act effectively bars employers from challenging union petitions for smaller, gerrymandered groupings of employees within a larger company facility that may be more sympathetic to union interests – representing a stark reversal of gains achieved by employers through the National Labor Relation Board’s 2017 decision in PCC Structurals, Inc. Under the PRO Act, unions have expanded rights to “cherry pick” the employees they wish to represent and exclude other “undesirable” employees despite having a community of interest. Likely Proliferation of Mail Ballot Elections The PRO Act gives deference to unions’ choice with regard to the type and location of NLRB elections. Currently, the timing and type of secret ballot elections is agreed to by the parties or determined by an NLRB regional director after an evidentiary hearing. In-person manual elections at, or near, the employer’s premises (and often on pay day) have traditionally been the preferred method of conducting NLRB elections, as they are most likely to maximize voter access and turnout. The PRO Act would amend the NLRA to provide that “[a]t the request of the labor organization, the Board shall direct that the election be conducted through certified mail, electronically, at the work location, or at a location other than one owned or controlled by the employer.” This change would require regional directors to accede to the union’s selection of both method and, if in-person, the location of an election. The concept of “secret ballot” employee decision-making could obviously be affected as well. Permitting Workers To Use Company Equipment to Organize The PRO Act would also restrict employer rights to control their own computers, equipment, and related electronic communications systems by establishing statutory employee rights to use them on premises for protected activities, absent compelling business considerations. Not only would employers be forced to allow workers to do so in union organizing campaigns, but they would also be limited in their ability to manage workplace dialogue via company-owned email, intranet, and other digital messaging platforms. Striking Employees Can No Longer Be Permanently Replaced Employers currently have the right to permanently replace employees who go on strike in support of their union. During strike situations, employers are often able to utilize replacement workers in order to maintain continuity of business operations during the strike. Under the PRO Act, employers will lose the right to permanently replace striking employees during collective bargaining. Instead, employees will be permitted to strike to obtain increased pay and benefits with the assurance that they can return to work whenever they want. The loss of the right to permanently replace employees is anticipated to give unions a distinct advantage in collective bargaining negotiations, especially since the PRO Act will also allow intermittent, partial, and other types of “wildcat” strikes.

While the PRO Act has passed the House, it still has to clear the Senate and receive President Biden’s signature to become law. While President Biden supports the Act, not all Senate Democrats match his support. Accordingly, with a narrow Democratic majority and the challenge of a Republican filibuster looming in the Senate (assuming the filibuster tool is not eliminated), the PRO Act may not become law, or may undergo significant changes before it does. Once again, however, this may ultimately become a moot point, since the new NLRB may well proceed with implementing the major portions of the PRO Act in any event.

With that in mind, nonunion employers may wish to begin preparing for the likelihood of either increased organizing activity, or an increased probability of a union victory in the event such activity occurs. As always, feel free to contact the Kullman attorney with whom you work with any legal questions you may have regarding this issue.