Vice President, Labor Policy
May 07, 2019
On May 2, Democrats on the House Education and Labor Committee rolled out a bill that would radically rewrite American labor law in favor of organized labor. With 100 cosponsors in the House and 40 in the Senate, the proposal known as The Protecting the Right to Organize Act, or PRO Act, would amend the National Labor Relations Act (NLRA) in several important ways. For employers, the bill represents perhaps the single biggest threat in this area of the law since the “card check” bill was considered in 2009.
The PRO Act comes as little surprise, as unions and their allies made plain their objectives in the summer of 2018, prior to the midterm elections. The PRO Act reflects those objectives, which are, in short, to prop up labor unions at the expense of employers and employees.
Among the many pernicious provisions in the PRO Act, perhaps the worst would repeal right-to-work laws that have been adopted in 27 states. Those laws protect employees by preventing them from being fired for not providing monetary support to a union with which they do not wish to affiliate. Naturally, unions have detested those laws since the passage of the Taft-Hartley Act that allowed them because it deprives labor of the ability to coerce membership—and dues.
But that’s just the beginning. As the card check bill would have done, the PRO Act also undermines secret ballot elections. Currently, labor organizers must collect authorization cards showing employee support for a union, at which point the National Labor Relations Board (NLRB) conducts a secret ballot election to determine if workers really want to unionize. The PRO Act would give unions a viable means to overturn the results of those elections and allow them to unionize just by signed authorization cards—collected by motivated union representatives. Given that these cards can be signed in public, the tactics that might be used to gather them could be less than pleasant.
The PRO Act also would permit unions to engage in so-called secondary boycotts, which are a means of targeting neutral, third party employers doing business with the real target of a union campaign. The NLRA prohibits such behavior to protect employers (and their employees) from being dragged into labor disputes that have nothing to do with them.
In addition to allowing secondary boycotts, the PRO Act would adopt the expansive definition of joint employment laid out in the NLRB’s deeply flawed 2015 Browning-Ferris decision. Under that definition, an employer could be held liable for employees they do not actually employ simply by having an “influence” over their terms and conditions of employment, which is as open-ended as it sounds and could ensnare countless employers.
The PRO Act also eviscerates employers’ rights by stripping their standing in NLRB representation cases. In other words, an employer being targeted by a union organizing drive would have no right of recourse to the NLRB, no matter how disruptive union behavior gets. On the other side, the bill would impose personal liability on employers for alleged NLRA violations.
While those changes certainly would impact employers, the PRO Act also would impact workers by adopting a severely restrictive standard for determining independent contractor status. This new restrictive standard would take away many economic opportunities, particularly for those providing and receiving services in the gig economy. In addition, the bill would establish a mechanism to force first contracts on employers and workers. Not only would this saddle employers with a binding contract that might be unworkable, but employees would be denied a vote on the terms and conditions of their own employment—the very opposite of what the PRO Act purports to do. And finally, the bill encourages more lawsuits by asserting that class action litigation is actually a form of “concerted activity” protected by the NLRA.
These are just some of the highlights. Overall, the PRO Act lays out the most current wish list of organized labor and their allies, and it does not bode well for workers, employers, or the economy. It remains to be seen if there are enough votes for this bill in the House, but anyone who wants the economy to continue its upward trajectory should just say no.