If we were asked to pick out what is the worst legislative proposal being considered by Congress at this time, there definitely would be real competition for the title, but a prime candidate for employers would have to be the Protecting the Right to Organize Act (PRO Act).
In fact, it‘s safe to say that this is one of the worst pieces of legislation ever offered. If enacted in its present form, it would repeal much of the Taft-Hartley Act, decades-old reforms and enshrine in law a total imbalance in the relationship between organized labor and employers.
“While claiming to be pro-worker, we firmly believe today’s legislation is a grab-bag of harmful policies that would deprive millions of workers of their privacy and fundamentally alter our nation’s system of labor relations,” states Glenn Spencer U.S. Chamber of Commerce’s senior vice president of its Employment Policy Division.
Putting it a bit more mildly, Colleen Naumovich and David Pryzbylski, attorneys with the law firm of Barnes & Thornburg, don’t hesitate to point out that even employers who are currently non-union will be in trouble if it is enacted.
“Whether you are a unionized or non-union organization, there are many provisions within the act that would decrease your management flexibility on a number of fronts,” they say.
What the legislation proposes to do:
- End all state right-to-work laws that allow employees the right to not join a union.
- Adopt as federal law California’s “ABC” test reclassifying all those independent contractors as employees if they work in the same line of business as their employers (for example, truck drivers and trucking companies).
- Prohibit mandatory arbitration agreements in employment contracts, including those with individual employees.
- Require interest arbitration if the union and employer cannot agree on a collective bargaining agreement.
- Authorize secondary boycotts – allowing unions to target any companies through picketing and protests, even those who are unrelated to a labor dispute.
- Ban employers from permanently replacing strikers.
- Institute a “stealth” card check – which also would allow unions to challenge election results and get certified automatically under certain circumstances
- Provide a private cause of action for unfair labor practices outside of the National Labor Relations Board’s jurisdiction.
- Introduce new civil penalties for labor law violations, including personal liability.
That’s just the tip of the iceberg. The bill also would permanently reverse all NLRB decisions limiting union power that were made during the Trump era, and codify all of the pro-union NLRB decisions from the Obama era.
This includes “ambush” election rules which shorten the time between filing for an organizing petition and voting; broadening the definition of joint-employers; expanding definitions of bargaining units and “micro units;” and requiring attorneys and advisors to disclose proprietary information about relationships with employers.
Just how bad is the bill? “The policies embedded in the PRO Act are beyond the pale of reasonable workplace policy,” declares David French, senior vice president for government relations for the National Retail Federation. “The legislation puts the interests of labor organizers and powerful unions before the rights of employees and employers.”
The Coalition for a Democratic Workplace, which represents hundreds of business organizations, adds, “In an attempt to increase union membership at any cost, the bill would make radical changes to well-established law, diminish employees’ rights to privacy and association, destroy businesses, particularly small ones, and threaten entire industries that have fueled innovation, entrepreneurship and job creation.”
The unions need all the help they can get. In 2020, private sector union membership rose slightly to 6.3% from 6.2% in 2019 – but that is way down from 35% in the 1970s. Vowing to help the unions, President Biden already has endorsed the PRO Act.
This bill passed the House last year and this year was re-introduced in the House and the Senate. However, the Democrat majority in the House shrank in the last election and is paper thin in the Senate. The party remains financially dependent on labor and the House majority has shifted further left since a similar bill failed in 2009 when Democrats controlled the White House, the House and enjoyed a super-majority in the Senate. This time it could be stopped by a handful of Senators – or just one.
