What’s Old is New Again for Employers on the Labor Front

by Karen J. Williams, Esq.

California,  Hot Topics,  Labor Relations

Any time there is a new administration in the White House the enforcement posture changes. Employers may remember the enforcement posture during Obama Administration relating to labor and employee relationsEmployee handbooks came under scrutiny for confidentiality provisionsExecutive Orders issued by the then President Obama impacted workplace rules and imposed more restrictions on employers.   

During the Trump Administration, Executive Orders changed. Neutrality agreements signed with a union would be subject to strict scrutiny; employer handbooks were afforded less scrutiny, and employers worried less about policies and handbooksWe now have a new White House administration and unsurprisingly, there is stronger enforcement.  This echoes the enforcement of the Obama Administration.  

On February 4, 2021, the PRO Act of 2021 (Protecting the Right to Organize Act) was reintroduced into the House and passed two days later with votes almost entirely along party lines (224-194) A very similar version of the bill previously passed the House in February 2020 and was forwarded to the Senate, where it was read twice and then referred to CommitteeNo further action on this bill was taken in 2020The 2021 Act is supported by key members of the Senate’s leadership, including Majority Leader Schumer, and we expect that there will be a significant push in the Senate to approve much of this billTo pass, however, the Senate will need 60 Senate votesWhile passage might be challenging, it is not impossible.  

The 2021 PRO Act would overhaul the National Labor Relations Act. The Act would permit unions to more easily organize workers, remove restrictions on union strikes and union overt pressure tactics, weaken employers’ ability to resist unionization, and impose fines and penalties on employers who violate the law 

The PRO Act, considered “the most significant worker empowerment legislation since the Great Depression,” contains more than 50 changes to the 70-year old National Labor Relations ActSome of the more significant parts of this Act are detailed below  

The PRO Act of 2021, if passed, would: 

  • Ban All Right to Work Laws that prohibit non-union members from having to pay dues – 27 states are currently RTW states;  
  • Ban employers from replacing workers during an economic strike; 
  • Provide unions the sole determination of how elections will be conducted (mail, electronic, off-site, or on-site); 
  • Codify the joint-employer rules, making it easier to find two parties jointly responsible for labor violations; 
  • Allow a second bite of the apple when a union loses an election if unfair labor practice charges are filed, the union may then resort to after-election card check forcing the employer to recognize the union (“stealth card-check rule”); 
  • Re-implement micro-unions which allow organizing smaller units even with a larger group of employees have communities of interest;  
  • Allow the use of workplace e-mail for organizing purposes; 
  • Prohibit mandatory arbitration agreements;  
  • Allow unions to demand that companies not do business with non-union companies (“hot cargo agreements”); 
  • Require interest bargaining if employers and unions cannot agree upon a collective bargaining agreement;  
  • Codify the former “Ambush Rules” for elections – shortening the amount of time employers had to educate employees;  
  • Codify the “Persuader Rule,” which requires disclosure of an employer’s use of labor attorneys;  
  • Impose new civil penalties on employers and personal liability on directors and officers for labor law violations; 
  • Provide a private cause of action for unfair labor practices that are outside of the NLRB’s jurisdiction, or which the NLRB dismisses;  
  • Codify the California-decided “ABC Test” for determining whether a person is an independent contractor or an employee;  
  • Authorize secondary boycotts to target any company through picketing and protests, even if the employer is not involved in a labor dispute;  
  • Allow partial strikes, intermittent strikes, and slow-down strikes; 
  • Remove all time limits on picketing for recognition (the never-ending collection of cards); 
  • Codify the requirement that employer must post a notice informing employees of their rights to organize;  
  • Require employers to rehire terminated employees pending resolution if the union alleges the termination was unlawful; 
  • Allow for “front pay,” which is twice the employee’s amount of back pay as liquidated damages, in addition to consequential and punitive damages;  
  • Impose a daily fine of $10,000 for non-compliance with an NRLB Order; 
  • and,  . . . 

The PRO Act of 2021 would significantly interfere with an employer’s ability to control its operations. Unions, however, would be provided with unprecedented access and freedom to organize, force collective-bargaining agreements, and place significant pressure on the company while essentially hand-cuffing an Employer’s opposition to an organizing drive. 

Employers Council’s labor attorneys will explain how the PRO Act of 2021 and other recent NLRB changes may impact your business in the near futureOur attorneys can help you work through the challenges that exist in today’s union-friendly environment and provide you with practical legal and business advice that will allow you to maintain your operations. 

Interested in learning more about the labor landscape in 2021 and beyond?  Please join us for our webinar: The NLRB Under the Biden Administration – What’s Changing? on April 29, 2021. The webinar is free to members

About the author
Karen J. Williams, Esq.

Karen J. Williams, Esq., is licensed in Arizona, California and New York and has spent much of her career serving as Corporate Counsel for large corporations, both unionized and not. She has represented management in labor negotiations, arbitrations, ULPs and in NLRB Trials. She has also served on Industry Committees providing management perspectives to Senate and House Members.