As we have discussed in previous posts (see here and here), the Protect the Right to Organize Act (“PRO Act”), which would drastically and fundamentally change the nature and scope of the National Labor Relations Act (“NLRA”) and labor-management relations in the private sector, has languished in the U.S. House of Representatives over the last couple of years, with uncertain (at best) hopes of advancing through the regular rules of the U.S. Senate under the current configuration of that legislative chamber.

In an effort to ensure that certain key aspects of the PRO Act become law, the House Education and Labor Committee, on September 8, 2021, released language that its members hope become part of the federal budget through the process known as “budget reconciliation.”   This process is a legislative measure relating to federal spending that only requires a majority of support in both the House and Senate, and cannot be stopped by a filibuster in the Senate.  If passed, these amendments will take effect on January 1, 2022.

The following represent the key aspects of the PRO Act that were included in the proposed language from the House Committee:

New liability for employers found to have committed unfair labor practices:

  • Civil penalties up to $50,000 per violation;
  • Civil penalties up to $100,000 per violation within the previous five years that resulted in discharge of or “serious economic harm to an employee”; and
  • Personal liability for directors and officers for unfair labor practices to be determined by the Board based on the particular facts and circumstances presented.

Perhaps, most significant, the budget reconciliation provisions would drastically eliminate a number of economic weapons or tools currently available to employers during labor disputes and/or organizing campaigns.  Specifically, if passed, it would be an unfair labor practice for employers to promise, threaten, or take the following actions:

  • Permanently replace strikers;
  • Discriminate against an employee who is working or has unconditionally offered to return to work because the employee participated in or supported a strike;
  • Lock out employees (prior to a strike);
  • Misrepresent to a worker that they are excluded from the definition of “employee” under the Act, such as misclassifying independent contractor or supervisor);
  • Require employees to attend so-called “captive audience” speeches or meetings during a union-organizing campaign; and
  • Enter into, attempt to enforce, coerce or retaliate against class/collective-action waiver agreements.

Notably, these new prohibitions would be enforced as if they were existing unfair labor practices under the NLRA. The enforcement would result in civil monetary penalties, rather than a requirement for a person or company to cease and desist from the prohibited behavior.

Based on the language proposed by the House Committee, it appears many of the key sweeping changes that advocates of the PRO Act sought in the recent iterations of the legislation have made it through to this proposed bill.

It is far from certain whether all of the amendments in the proposed language are appropriate for this legislative procedure, given many (if not all) of these proposed amendments significantly change substantive policy of federal labor law.  The Senate has a rule (called the Byrd Rule), intended to limit extraneous provisions from inclusion in reconciliation bills, such as legislative items not related to spending or taxes, including those with no budgetary effect.  Any Senator may raise a point of order that a provision of the reconciliation bill is extraneous, and ultimately, the Senate Parliamentarian decides whether a Byrd rule violation has occurred and those provisions can be struck.  (A Byrd rule objection can be waived by 60 votes from the Senate.)

We will of course closely monitor the progress of this bill through the budget reconciliation process, and keep you updated along the way.

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Photo of Steven Porzio Steven Porzio

Steven J. Porzio is a partner in the Labor & Employment Law Department and a member of the Labor-Management Relations Group. Steve assists both unionized and union-free clients with a full range of labor and employee relations matters. He represents employers in contract…

Steven J. Porzio is a partner in the Labor & Employment Law Department and a member of the Labor-Management Relations Group. Steve assists both unionized and union-free clients with a full range of labor and employee relations matters. He represents employers in contract negotiations, arbitrations, and representation and unfair labor practice cases before the National Labor Relations Board.

Steve has experience conducting vulnerability assessments and providing management training in union and litigation avoidance, leave management, wage and hour, and hiring and firing practices. He provides strategic and legal advice in certification and decertification elections, union organizing drives, corporate campaigns, picketing and union contract campaigns. Steve has represented employers in a number of different industries, including higher education, health care, construction and manufacturing in successful efforts against unions in election and corporate campaigns.

In addition to his traditional labor law work, Steve assists companies with handbook and personnel policy drafting and review, daily management of employee disciplines and terminations, and general advice and counsel on compliance with federal and state employment laws.

Steve’s litigation experience includes work on matters before state and federal courts, the Equal Employment Opportunity Commission, the Connecticut Commission on Human Rights and Opportunities, the New York State Division of Human Rights and various other administrative agencies. He has litigated matters involving age, race, national origin, gender and disability discrimination, wage and hour, whistleblower and wrongful termination claims.

While attending the Syracuse University College of Law, Steve served as the editor-in-chief of the Syracuse Science and Technology Law Reporter. He also received the Robert F. Koretz scholarship, awarded in recognition of excellence in the study of labor law.

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.

Photo of Dakota D. Treece Dakota D. Treece

Dakota is an associate in the Labor and Employment Law Department and a member of the Employment Litigation & Arbitration Group. She regularly defends employers in single-plaintiff actions involving discrimination, harassment and retaliation claims under statutes such as Title VII and the Americans…

Dakota is an associate in the Labor and Employment Law Department and a member of the Employment Litigation & Arbitration Group. She regularly defends employers in single-plaintiff actions involving discrimination, harassment and retaliation claims under statutes such as Title VII and the Americans with Disabilities Act, as well as under various Illinois state laws. She has handled such cases before state and federal courts, the U.S. Equal Employment Opportunity Commission, the Illinois Department of Human Rights, and the Illinois Department of Labor. In addition, Dakota conducts employment-related investigations.

Dakota also provides day-to-day counseling to employers to heighten compliance and minimize the risk of litigation.  Her counseling focuses on issues related to hiring and firing, personnel policies and leave and accommodation requests. She also has experience drafting employee handbooks and company policies. Dakota is a frequent contributor to Proskauer’s Law and the Workplace blog.

While in law school, Dakota served as a law clerk at the International Union, United Automobile, Aerospace, and Agricultural Implement Workers of America (UAW), where she worked on a variety of labor relations issues. She also was a member and published author in the DePaul Law Review.