Delivering for Best-in-Class Wholesaler-Distributors
November 1, 2019

On May 2, 2019, Democrats on the House Education and Labor Committee introduced the Protecting the Right to Organize (PRO) Act, H.R. 2474.  A companion bill, S. 1306, was introduced in the Senate.  This radical legislation is a smorgasbord of pro-Union legislation written to increase union membership at any cost, including attempts to implement policies that have been rejected by the judicial system, opposed on a bipartisan basis in congress, and/or abandoned by the agencies asked to enforce them.

Specifically, the PRO Act would:

  • Enact so-called “card check” taking away workers’ right to a secret ballot in a union certification election and stripping away their privacy rights;
  • Codify into law the NLRB’s controversial Browning-Ferris Industries joint-employer standard to subject more companies to union organizing activities;
  • Curb opportunities for people to work independently through traditional independent contractor roles;
  • Eliminate Right-to-Work protections for workers across the country, including in the twenty-seven states that have passed Right-to-Work laws;
  • Interfere with attorney-client confidentiality and make it harder for businesses to secure legal advice on complex labor law matters;
  • Prohibit arbitration agreements in employment contracts;
  • Infringe on the due process rights of employers; and
  • Strip away “secondary boycott” protections that prevent unions from using their anti-trust exemptions and immunity from certain state laws to target businesses for anti-competitive purposes other than organizing.

The PRO Act would codify the shortened representation election time frames created by the Obama-era National Labor Relations Board (NLRB).  These shortened time frames serve no purpose than to silence debate about the possible disadvantages of unionization generally or the specific union in question.  The PRO Act would also eliminate employers’ ability to challenge union misconduct during elections and greatly expand the Board’s power to foist union representation on employers and employees without an election.  Additionally, the bill mandates employers provide to union organizers the contact information for all employees without prior approval from the employees themselves.  Employees would not be able to opt out of this requirement and would not have a say in which contact information is provided, needlessly exposing them to potential harassment and intimidation tactics.

The PRO Act would codify the NLRB’s controversial 2015 Browning-Ferris Industries (BFI) decision (described above) nullifying any effort by the current NLRB to roll back the Obama-era decision.

The PRO Act includes a provision that would eliminate freedom of contract by mandating compulsory, binding arbitration on the employer and employees if the two parties do not reach a collective bargaining agreement within the first 120 days of negotiations.  Under the PRO Act an arbitrator, who would be unfamiliar with the business’ operations, would impose terms that are binding upon both parties, even if one or both find those terms unacceptable.  Employees are not even provided with the opportunity to vote on whether they approve of their new contract.  Furthermore, employers would have very limited avenues for redress if they cannot afford the terms imposed.  Thus, if an arbitrator miscalculates what wages or benefits the company can afford or forces the company into failing multiemployer pension plans, the employer may simply be forced out of business.

The House bill currently has the bipartisan support of 217 co-sponsors.  This strong co-sponsorship places it one co-sponsor away from having a majority of support in the House of Representatives.  Meanwhile, the Senate bill currently has 41 Democratic co-sponsors.

It should be noted that the current Republican controlled Senate is likely to block this radical legislation should it pass out of the House of Representatives.  However, should the Democratic party regain unified control of the House, Senate, and Presidency, this type of pro-labor legislation is likely to become the law of the land.

The Coalition for a Democratic Workplace (CDW), which NAW serves on the management and steering committees, is working diligently to fight back against this legislation.  The coalition is currently conducting polling and impact studies throughout the country to highlight to Congress how devastating this union handout will be on business across the nation.

 

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