Last month, the United States House of Representatives voted 225 to 206 to pass the Protect the Right to Organize Act ("PRO Act"). If enacted into law in its current form, the PRO Act would implement sweeping changes to the National Labor Relations Act ("NLRA"), intended to strengthen workers' rights to unionize and bargain collectively. The bill was sent to the United States Senate, and referred to the Senate Committee on Health, Education, Labor, and Pensions. Although support for the PRO Act has grown recently in the Senate, many experts predict that it will fail to garner enough bipartisan support to overcome a Republican filibuster, effectively stalling the legislation.
Overview of Key Provisions
The PRO Act includes a wide array of union-friendly provisions that range from expanding the number of workers covered by the NLRA, to implementing fines against employers deemed to interfere with workers' efforts to organize, to overriding state right-to-work laws. Some of the key provisions of the PRO Act include:
- Authorizing the National Labor Relations Board ("NLRB") to impose monetary penalties against employers and executives for retaliating against workers based on organizing or other protected activities, or for otherwise interfering with workers' rights under the NLRA;
- Compelling mediation and arbitration in first contract negotiations where agreement is not reached within 90 days;
- Overriding state right-to-work laws that currently allow employees to opt out of paying dues in unionized workplaces, and allowing unions to collect union dues from all employees in the workplace to cover the cost of collective bargaining and administration of the contract;
- Prohibiting employers from holding mandatory meetings with their employees to discuss organizing activities or union elections (e.g., "captive audience" meetings);
- Authorizing union elections off the employer's premises (e.g., mail or electronic ballots);
- Adopting the stringent "ABC test" to determine whether a worker is an employee covered by the NLRA, as opposed to an independent contractor, with the goal of expanding the number of workers covered by the NLRA;
- Codifying the broad Browning-Ferris "joint employer" standard, which would expand the circumstances under which a company would be deemed an employer of another company's employees;
- Permitting employees to participate in strikes initiated by employees represented by a different labor organization (i.e., secondary strikes); and
- Preventing employers from permanently replacing economic strikers.
Status of the PRO Act
Democrats attempted to pass the PRO Act last year, but without sufficient Republican support, were unable to secure a vote on the legislation in the Senate. This year, Democrats narrowly control the Senate, and proponents of the bill have been able to secure key endorsements. President Biden officially endorsed the PRO Act on March 9, 2021, and urged his allies to do the same. Senator Joe Manchin (D-WV) and Senator Angus King (I-ME) both recently signed on as co-sponsors, leaving only three Democratic senators who have yet to back the bill. Senate Majority Leader Chuck Schumer has pledged to bring the PRO Act for a vote on the Senate floor if it can secure at least 50 co-sponsors. However, no Republican Senators have announced an intent to vote for the PRO Act, and many experts predict that it will fail to secure the 60 votes needed in the Senate to overcome a filibuster by Republican opponents.
We will continue to monitor any further developments on this issue. If you have any questions about the PRO Act or this article, please contact the authors.