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.