by Phil Wilson
The son of EFCA is back, and it is MUCH worse than the original.
The PRO Act (Protecting the Right to Organize Act) was introduced in Congress on May 2, 2019. They have already held a hearing to consider the bill in the House and it already has 134 (all Democrat) co-sponsors. The PRO Act is essentially a “greatest hits” list of pro-union amendments to the NLRA and the LMRDA. It is much more sweeping than the Employee Free Choice Act. Among its provisions are:
- Cementing the Browning Ferris indirect control test for finding joint employer status – this provision is so sweeping that it allows a finding of joint employer exclusively based on indirect or reserved control;
- Eliminating permanent replacement of economic strikers (reversing an 80-year old Supreme Court precedent) and protecting intermittent strikes and secondary boycotts;
- Severely limiting who can be considered a “supervisor” under the Act, while broadly expanding the definition of “employee”;
- Reversing the recent Epic Systems Supreme Court decision and prohibiting class action waivers;
- Creating a new private right of action along with civil penalties on companies and their directors and officers that can amount to hundreds of thousands of dollars;
- Eliminating the right of employers to be a party or participate in any NLRB election case;
- Imposing first contract mediation and arbitration (this is straight out of EFCA);
- A notice posting requirement;
- Codifies the “snap election” 2-day voter list requirement;
- Prohibiting required meetings during NLRB election campaigns;
- Requiring so-called “persuader” reporting by attorneys and consultants for basically any assistance to an employer during an organizing campaign;
- Imposes “card-check” recognition in cases where the NLRB finds an employer violation during an election campaign; and
- Effectively outlawing right to work laws by allowing “fair share” provisions in all states.
The scope of this bill is massive. They literally took every terrible labor law reform idea over the last two decades and rolled it up into one reform package. The negative impact of these changes on the economy and job creation simply cannot be understated. The stated purpose of the bill is to reduce income inequality and protect middle class jobs. But encouraging employees to boycott, strike and sue their companies is the single best way to increase automation and outsourcing of every job possible. Companies will continue moving to places where the full power of the federal government isn’t put to use propping up dinosaurs like labor unions. It is safe to say that this Bill has no chance of becoming law during this session of Congress, but it should not be ignored. The exact same thing was said about the Employee Free Choice Act when it was initially proposed. Just a couple of years later it came within one vote of becoming law. And it was a miracle it didn’t pass. What can you do now to keep this terrible legislation from passing in the future? First, educate your top leaders on what’s being proposed. One of the biggest problems with the Employee Free Choice Act was that nobody paid any attention to it until it was nearly too late to stop it. The time to get this on the radars of your leaders is NOW. These days the number of people considered “moderate” (in both parties) you can probably fit around your dinner table. But if you happen to live in a state with a moderate in the House or Senate you should also make sure they are educated on this terrible legislation. This bill will be a litmus test for support from organized labor in every election cycle going forward. It is vitally important that moderates don’t co-sponsor or support this legislation. This especially applies to Democrats, but moderate Republicans in heavy union states are also targets of organized labor. Finally, continue to do all you can to create a positive workplace where employees are supported by approachable leaders. In the end, that is how you avoid all these problems. Here is the saddest thing about this legislation. It speaks volumes about just how horrible unions are at representing the smaller and smaller percentage of working people they represent today. The whole narrative around this bill is that the reason unions are in decline is because the law is too favorable to companies. Here’s the problem with this narrative. Many of these proposed rules have been in place before in some form over the last 20 years and unions have continued to decline. That’s because once a union gets into a company they sometimes kill the host – the company suffers from the dead-weight cost of a union and goes out of business or moves. Or in other cases the union is so ineffective that the members decide it’s a bad deal and either vote with their feet (move to a non-union company, which also makes the unionized company more vulnerable) or vote the union out. People aren’t stupid. If unions really delivered on their false promises everyone would want a union, and no amount of employer resistance or problems with the law would get in the way. The problem isn’t that it is too hard to organize a union. The problem is nobody wants one. Read the full text of the Act here.
