A Possible Future for the PRO Act

The Protecting the Right to Organize Act, or PRO Act, would significantly change the landscape of unionization, strengthen protections and the bargaining position of workers, and create a better balance in the employer-employee relationship. But as it currently stands, the PRO Act's sponsors have not been able to advance the bill beyond the 60-vote threshold needed to defeat a Senate filibuster. Is there a way forward for the legislation?

The PRO Act could pass with a simple majority in the Senate if the current majority eliminated the filibuster. However, current Senate Majority Leader Chuck Schumer and other senators in leadership positions have said that they have no interest in doing so. But there may be several ways around this seemingly impenetrable roadblock.

One suggestion is to split the provisions of the PRO Act into multiple pieces of legislation, use the budget reconciliation process to give the National Labor Relations Board (NLRB) the ability to levy civil penalties in response to Unfair Labor Practices, and pass certain applicable provisions at a state level.

Boosting civil penalties through budget reconciliation

The National Labor Relation Act (NLRA) gives the NLRB woefully inadequate power to address employer violations, which can be seen in the current Starbucks fight against unionization.

Administrative Law Judge Michael Rosas noted in a recent decision that Starbucks has violated workers’ rights hundreds of times in “egregious and widespread misconduct.” Starbucks has fired and constructively discharged union employees, threatened and spied on employees, and disproportionately enforced disciplinary policies on union or union-sympathizing employees.

Starbucks, though “egregious,” is not alone in its willing disregard of labor law, as employers across the country repeatedly violate employees’ organizing, unionizing, and concerted activity efforts (see the NLRB’s list of 8(a)(3) Board Decisions for examples). These violations occur in large part because the NLRA does not allow the NLRB to issue civil penalties for violations.

That brings us to the PRO Act and the budget reconciliation process. Under the Byrd rule, a provision may be included in budget reconciliation and pass with a simple majority vote if it is deemed not to be “extraneous.” A provision is deemed extraneous:

1. if it does not produce a change in outlays or revenues;
2. if it produces an outlay increase or revenue decrease when the instructed committee is not in compliance with its instructions;
3. if it is outside the jurisdiction of the committee that submitted the title or provision for inclusion in the reconciliation measure;
4. if it produces a change in outlays or revenues which is merely incidental to the nonbudgetary components of the provision;
5. if it would increase the deficit for a fiscal year beyond those covered by the reconciliation measure (usually a period of 10 years); or
6. if it recommends changes in Social Security.

Given those definitions of extraneousness, levying civil penalties would qualify for inclusion in budget reconciliation. Under definition (1), empowering the NLRB to collect civil fines for labor violations would clearly impact revenues, and definitions (2) and (3) are satisfied by the procedure enacted.

Under definition (4), Congress has passed bills in the past that have met the “merely incidental” test when addressing the imposition or revision of civil monetary penalties. This can be seen in the Omnibus Budget Reconciliation Act of 1989, in which civil monetary penalties were imposed for the failure to furnish, file, and comply with reporting requirements of the Employee Retirement Income Security Act. It may also be seen in the Omnibus Budget Reconciliation Act of 1990, in which civil monetary penalties were altered for OSHA and the FSLA.

Under definition (5), the ability to levy civil penalties would not increase, but rather reduce, the federal deficit. And finally, under definition (6), Social Security would not be impacted by such a proposal.

Though empowering the NLRB to assess and collect civil penalties would not violate the Byrd Act and could go forward under budget reconciliation as soon as a simple majority of worker-supporting House and Senate members is achieved, which is currently not the case with the slim Republican House majority.

Passing pieces of the PRO Act on the state level

Not only should Congress eventually pass the civil penalties portion of the PRO Act through the budget reconciliation process, but state lawmakers should also take up portions of the legislation.

One piece of the PRO Act ripe for state policymaking are its provisions on captive audience meetings. Captive audience meetings are meetings in which the employer requires that employees listen to arguments on why they shouldn't join a union, so long as the employer doesn’t violate Section 8(c) of the NLRA by making promises, threats, or engaging in surveillance or interrogations.

The PRO Act would prohibit captive audience meetings, which cannot be done on the state level because the National Labor Relations Act preempts states from enacting such bans. However, states could alter what is considered a captive audience meeting and how companies deal with employees who do not attend them, which has been done by two states already.

In Connecticut, the state legislature passed SB183, which states that an employer may communicate “any information that the employer is required by law to communicate, but only to the extent of such legal requirement… [and] necessary for such employees to perform their job duties….” Accordingly, captive audience meetings that dissuade unionization do not fall into the category of “necessary to job duties.”

In Oregon, ORS 659.785 states that an employer may not discharge an employee “who declines to attend or participate in an employer-sponsored meeting or communication… if the primary purpose of the meeting or communication is to communicate the opinion of the employer about religious or political matters.” The Oregon courts have taken “political matter” to include the employer’s opinion on things such as unionization. Employer lawsuits on the validity of the law have been summarily dismissed.

As the entirety PRO Act remains buried as a viable federal option, the civil penalties portion should eventually be passed under the budget reconciliation process, and states should pass laws such as the ones in Connecticut and Oregon to restrict what constitutes a captive audience meeting and what employers may do if an employee chooses not to attend them.