The PRO Act — pro-union, but not pro-employee

By Douglas P. Seaton

The Protecting the Right to Organize (PRO) Act has attracted very little attention and even less scrutiny despite its authors’ aim to fundamentally alter the American workplace by giving Unions and government appointees unprecedented power over employers and employees, in many cases whether the employees want the unions or not.

Recent Union defeats, like the failed attempt to organize an Amazon warehouse in Bessemer, AL last spring, demonstrate how unnecessary and unwelcome Unions are in most workplaces around the country. Employees everywhere have concluded they have a better understanding than Union leaders about what’s right for them. That is largely why 93% of them are not represented by Unions.

But that hasn’t deterred Unions’ friends in Washington, DC. Their latest gameplan, as reported by POLITICO, is to tuck the PRO Act into the massive, partisan reconciliation bill that supporters call the American Family Plan.

The Members of Congress behind this plan have a problem, though. To be added to a reconciliation bill, a measure must have a budgetary consequence and satisfy complex parliamentary rules. The reconciliation process was, after all, intended to be a mechanism for plugging holes in the budget.

They believe they can solve their problem by overturning 85 years of labor law precedence.

As Michael Lotito of the Coalition for a Democratic Workplace and Glenn Spencer of the U.S. Chamber of Commerce have observed, the PRO Act would, for the first time in history, transform the National Labor Relations Act into a punitive law rather than a remedial law.

This dramatic change to the NLRA would empower the National Labor Relations Board to levy fines of $50,000 – $100,000 for each unfair labor practice charge against an employer whether the violation was committed knowingly or unknowingly. To put that into context, $100,000 is currently the maximum fine that can be issued against a child labor law violation. The PRO Act would elevate a technical violation like the misplacement of union election posters or asking employees how the employer can address their concerns to the level of illegally employing a 13-year-old child.

Since the inception of the NLRA, the law has always sought to remedy disputes between employers and Unions, but has functioned as an umpire to the three-way contention of employer, union and employee interests, not a one-sided proponent of one of the three.

Other commentators have and will address the shamelessly tilted amendments to the NLRA in the PRO Act, which favor unions and punish employers, all intended to give unions more leverage to impose union representation, despite employer and often employee wishes. But I’d like to focus on a subset of the proposed PRO Act changes which seek to reduce employee controls viz-a-viz Unions.

The NLRA was very well drafted to protect the democratic premise that employees may choose union representation freely in democratic, secret ballot elections.  A state’s voters and legislatures also get to determine if unions can require employers to deduct dues from employees’ paychecks once representation was chosen, or not.  These checks-and-balances for employees are all drastically curtailed or removed entirely under the PRO Act. 

Let me explain. The PRO Act would curtail secret ballot democratic votes for representation and expand the use of unsupervised card check signatures, often “witnessed” by union agents, to install unions. It would also repeal the authority of states’ voters to prohibit forced union dues deductions (which 27 states now do) by employers at Unions’ behest. Some related changes adverse to employees are requirements for increased personal information releases to Unions from employers, abolition of employer meetings for employees during union organizing, so unions would be the sole source of employee information (Unions can’t be sanctioned for misrepresentations in their information).

There are also some changes in the PRO Act with indirect adverse impacts on employees. Workers’ option to be independent contractors would be dramatically reduced by several changes, such that workers lose the opportunity to earn a living in the gig and franchise economies.  Further, independent contractors and franchisees are forced to become employees of their brands and subject to unionization.

Additionally, the PRO Act would lift NLRA restrictions on “secondary” boycott (picketing of other than the “primary” employer – the one facing organizing) and the 30-day limit on union picketing for recognition of the “primary employer.” These changes would mean that indirect union pressure could force unionization against the wishes of the affected employees.

At the very least, it would be nice to have an honest national debate about the merits of the PRO Act and not, to paraphrase Nancy Pelosi, find out what’s in the bill after Congress has already passed it, and both employers and employees have lost important rights and options.

Doug Seaton is the Founder and President of the Upper Midwest Law Center.

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