NLRB Could Adopt Many Proposed Changes in PRO Act

​The Protecting the Right to Organize (PRO) Act has little chance of being passed by Congress this year, but the National Labor Relations Board (NLRB) still has the power to adopt many of the legislation's proposed changes.

If enacted, the bill would "skew the amended laws drastically in favor of organized labor," said James Redeker, an attorney with Duane Morris in Philadelphia.

However, the bill "is not going to pass" for the time being, said Michael Lotito, an attorney with Littler in San Francisco. He explained, "While it passed the House twice when under a Democratic majority, it would not pass now under Republican leadership. Nor would it pass the Senate given filibuster rules."

Moreover, several Democratic senators would likely oppose the PRO Act, Lotito said.

Provisions that the NLRB Could Advance

Still, there are numerous PRO Act provisions that the NLRB has the power to implement, Redeker said.

Some of the proposed changes would:

• Prohibit employers from hiring permanent replacements for strikers.
• Bar employers from engaging in "offensive lockouts"—locking employees out before an impasse in bargaining for the purpose of putting pressure on the employees to agree to the employer's positions on issues.
• Prohibit "captive audience" speeches and conversations.
• Ban employers from declaring an impasse in bargaining an initial contract and then implementing new terms and conditions of employment.
• Prohibit employers from unilaterally withdrawing recognition of a union based on evidence of a lack of majority support.
• Prohibit agreements with employees that bar participation in a class action relating to employment. The NLRB could also prohibit using coercion to obtain such an agreement and retaliating against or threatening an employee who refuses to enter into such an agreement.
• Require employers to post for all employees and provide new employees with a notice of employee rights under Section 7 of the National Labor Relations Act.
• Permit electronic voting in representation elections.
• Streamline election procedures.

In addition, Redeker said the board might decide that if a union loses an election and the NLRB determines the employer committed an unfair labor practice or otherwise interfered with the election, the burden shifts to the employer to prove the conduct did not interfere with the election—a difficult showing. Failing that proof, if a majority of the employees signed authorization cards during the period beginning one year before the election and the date the board determines there has been interference, the employer might be required to recognize and deal with the union.

However, David Pryzbylski, an attorney with Barnes & Thornburg in Indianapolis, said that NLRB General Counsel Jennifer Abruzzo may not have enough cases to overturn many labor law precedents she is seeking to undo.

Moreover, if the NLRB acts, its decisions might be changed by a subsequent board, resulting in a "Ping-Pong game" of rulings, Redeker noted.

Unions have tried to achieve many of the PRO Act's provisions through NLRB decisions over the years, said Phillip Wilson, president and general counsel with the Labor Relations Institute in Broken Arrow, Okla.

"Many of these changes will likely be overruled by circuit courts because they are so out of step with the National Labor Relations Act," he added. "That's why they are trying to rewrite the statute with these provisions."

Keeping an Eye on the Legislation

John Ring, an attorney with Morgan Lewis in Washington, D.C., and former NLRB chairman, said the PRO Act "is worth watching carefully," even though it is unlikely to pass soon.

"Many of the dynamics and trends that created the desire for certain reforms continue to accelerate," Ring said. "With a changing economy, a tight labor market and increased employee activism, the push for labor law reform has been on the front burner."

He said the PRO Act would change much of established labor law, noting several provisions that would:

• Eliminate the guaranteed right of employees to a secret vote on whether to unionize and replace this right with a card-check system or mandatory employee recognition upon union demand.
• Require employees to pay union dues or risk losing their jobs, regardless of whether they want to be union members.
• Take away employers' right to communicate with employees about unionization and their views about having a union in the workplace.
• Allow unions more avenues to engage in picketing, including secondary boycotts against employers' customers and contractors.
• Impose first labor contracts if an employer and union are unable to reach an agreement within a set time period.
• Change the standards for independent contractor status and joint employers to make it easier for workers to be considered employees and designate more joint employers, which would especially affect the gig economy and the franchise model.

"The NLRB's authority to take much of this action is questionable without a change in the law by Congress," Ring said. "However, the NLRB has in the past taken actions in the absence of legislation and, while courts ultimately concluded that the board lacked the authority, employers were forced to deal with the uncertainty and litigation until the matters were finally resolved."

Carrie Hoffman, an attorney with Foley & Lardner in Dallas, said the PRO Act also would:

• Increase remedies for violations of workers' rights.
• Require increased transparency in labor relations.
• Abolish right-to-work laws.

Ultimately, if enacted, the PRO Act "would upend labor relations in many areas," Pryzbylski said. "It would cause virtually all private-sector companies to rethink their labor relations strategies."