On Thursday, February 6, 2020 the U.S. House of Representatives passed the Protecting the Right to Organize Act, also known as the “PRO Act”.  The legislation (which can be viewed here), passed mostly along party lines, would provide sweeping changes to the NLRA that would enhance greatly the ability of unions to organize employees and permit the NLRB to impose penalties on employers who retaliate against those seeking to unionize. The PRO Act, if enacted, would be the most significant series of amendments to the 85 year-old National Labor Relations Act and is essentially a pro-labor “wish list” that unions have long-sought since the Taft-Hartley amendments passed in 1947.

However, the PRO Act is likely “dead on arrival” in the Republican-majority U.S. Senate. Indeed, the chairman of the Committee on Health, Education, Labor and Pensions already has stated that the Committee will not take up the bill this session. This said, the PRO Act clearly outlines the Democratic Party’s legislative goals in the area of labor relations, and many of the Democratic presidential candidates have endorsed the bill.  Should the balance of power in Washington change after the 2020 election, the PRO Act (or some form of it) would be more likely to pass.

Summary of the PRO Act

The PRO Act touches upon nearly every aspect of labor-management relations governed by the NLRA and reverses several recent employer-friendly rulings by the NLRB and the Supreme Court, and NLRB rulemakings.

Specifically, the PRO Act would:

  • Expand the protections of the NLRA to more workers by adopting a narrow criteria to classify a worker as an independent contractor. Under the PRO Act, more workers in the “gig economy” could potentially be classified as employees entitled to NLRA protection.
  • Require an employer to recognize a union based on a “card-check” authorization, in the event the union loses an election and the NLRB determines that an employer improperly interfered with the election. Currently, no such requirement exists.
  • Enable the NLRB to levy civil penalties against employers who commit unfair labor practices under NLRA Section 8(a) of up to $50,000 for each violation, and in certain cases, up to $100,000. Currently, no monetary penalties exist.
  • In first-contract negotiations, compel the employer and the union to mediation by the Federal Mediation and Conciliation Service in the event the parties fail to reach an agreement within 90-days of commencing collective bargaining negotiations. If mediation fails, the FMCS must refer any disputes to a three-person arbitration panel for interest arbitration. The panel would then by majority vote be able to set the terms of the agreement and would be binding on the parties for a period of two years, unless amended by the parties. Interest arbitration for contract disputes is common in the public sector, but not the private sector.
  • Supersede “right-to-work” laws by permitting employers and unions in all 50 states to agree upon a “fair share” clause, which would require all workers who are covered by a collective bargaining agreement to contribute union dues for the “cost of representation, collective bargaining, contract enforcement, and related expenditures.”
  • Permit workers to engage in secondary boycotts and prevent employers from permanently replacing strikers.
  • Grant workers the right to bring civil actions in federal district court against employers under Section 8(a)(1) or (3), after the expiration of a 60-day period following the filing of a charge with the NLRB, or if the NLRB determines not to issue a complaint. Further, employers would not be able to enter into agreements preventing employees from joining class or collective actions arising out of their employment relationship. Under the PRO Act, class and collective actions would be “protected activity” under Section 7.
  • Authorize employees to use an employer’s electronic communication devices and systems, including company computers, internet access, email, cell phones or “other company equipment” to engage in activities protected by Section 7.
  • Make required attendance at an employer’s organizing campaign meetings an unfair labor practice.

Stay tuned for all developments regarding the PRO Act.

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Photo of Mark Theodore Mark Theodore

Mark Theodore is a partner in the Labor & Employment Law Department. He has devoted his practice almost exclusively to representing management in all aspects of traditional labor law matters throughout the U.S. He is Co-Chair of Proskauer’s Labor-Management and Collective Bargaining Practice…

Mark Theodore is a partner in the Labor & Employment Law Department. He has devoted his practice almost exclusively to representing management in all aspects of traditional labor law matters throughout the U.S. He is Co-Chair of Proskauer’s Labor-Management and Collective Bargaining Practice Group.

Some recent highlights of his career include:

  • Successfully defended client against allegations that it had terminated a union supporter and isolated another. T-Mobile USA, Inc., 365 NLRB No. 15 (2017).
  • Successfully appealed NLRB findings that certain of client’s written policies violated the National Labor Relations Actions Act.  T-Mobile USA, Inc., 363 NLRB No. 171 (2016), enf’d in part, rev’d in part 865 F.3d 265 (5th Cir. 2017).
  • Represented major utility in NLRB proceedings related to organizing of planners.  Secured utility-wide bargaining unit. Bargained on behalf of grocery chain.  After negotiations reached an impasse, guided the company through lawful implementation of five year collective bargaining agreement.
  • Coordinated employer response in numerous strike situations including a work stoppage across 14 western states of the client’s operations.

Mark has extensive experience representing employers in all matters before the NLRB, including representation petitions, jurisdictional disputes and the handling of unfair labor practice charges from the date they are filed through trial and appeal. Mark has acted as lead negotiator for dozens of major companies in a variety of industries, including national, multi-unit, multi-location, multi-employer and multi-union bargaining. Mark has handled lockout and strike situations, coordinating the clients efforts.

In addition, Mark has handled hundreds of arbitrations involving virtually every area of dispute, including contract interest arbitration, contract interpretation, just cause termination/discipline, benefits, pay rates, and hours of work.

Photo of Joshua Fox Joshua Fox

Joshua S. Fox is a senior counsel in the Labor & Employment Law Department and a member of the Sports, Labor-Management Relations, Class and Collective Actions and Wage and Hour Groups.

As a member of the Sports Law Group, Josh has represented several…

Joshua S. Fox is a senior counsel in the Labor & Employment Law Department and a member of the Sports, Labor-Management Relations, Class and Collective Actions and Wage and Hour Groups.

As a member of the Sports Law Group, Josh has represented several Major League Baseball Clubs in all aspects of the salary arbitration process, including the Miami Marlins, Boston Red Sox, Los Angeles Dodgers, Kansas City Royals, San Francisco Giants, Tampa Bay Rays and Toronto Blue Jays. In particular, Josh successfully represented the Miami Marlins in their case against All-Star Catcher J.T. Realmuto, which was a significant club victory in salary arbitration. Josh also represents Major League Baseball and its clubs in ongoing litigation brought by current and former minor league players who allege minimum wage and overtime violations. Josh participated on the team that successfully defended Major League Baseball in a wage-and-hour lawsuit brought by a former volunteer for the 2013 All-Star FanFest, who alleged minimum wage violations under federal and state law. The lawsuit was dismissed by the federal district court, and was affirmed by the U.S. Court of Appeals for the Second Circuit.

Josh also has extensive experience representing professional sports leagues and teams in grievance arbitration proceedings, including playing a vital role in all aspects of the grievance challenging the suspension for use of performance-enhancing drugs of then-New York Yankees third baseman Alex Rodriguez. Josh also has counseled NHL Clubs and served on the trial teams for grievances alleging violations of the collective bargaining agreement, including cases involving use of performance-enhancing substances, domestic violence issues, and supplementary discipline for on-ice conduct. He has played a key role in representing professional sports leagues in all aspects of their collective bargaining negotiations with players and officials, including the Major League Baseball, National Hockey League, the National Football League, Major League Soccer, the Professional Referee Organization, and the National Basketball Association,.

In addition, Josh has extensive experience representing clients in the performing arts industry, including the New York City Ballet, New York City Opera, Big Apple Circus, among many others, in collective bargaining negotiations with performers and musicians, the administration of their collective bargaining agreements, and in grievance arbitrations.

Josh also represents a diverse range of clients, including real estate developers and contractors, pipe line contractors, hospitals, hotels, manufacturers and public employers, in collective bargaining, counseling on general employment matters and proceedings before the National Labor Relations Board, New York State Public Employment Relations Board and arbitrators.

Josh has also recently served as an adjunct professor at Cornell University’s School of Industrial Labor Relations for the past two years, teaching a course regarding Major League Baseball salary arbitration.

Prior to joining Proskauer, Josh worked for a year and a half at the National Hockey League, where he was involved in all labor and employment matters, including preparations for collective bargaining, grievance arbitration, contract drafting and reviewing and employment counseling. Josh also interned in the labor relations department of Major League Baseball and at Region 2 of the National Labor Relations Board. He was a member of the Brooklyn Law Review and the Appellate Moot Court Honor Society and served as president of the Brooklyn Entertainment and Sports Law Society.