On March 31, newly appointed Acting General Counsel of the National Labor Relations Board (NLRB), Peter Sung Ohr, issued a memorandum to all Regional Directors advising that his office plans to robustly enforce workers’ rights under Section 7 of the National Labor Relations Act (NRLA), including the right to engage in concerted activities for mutual aid or protection.
This memorandum comes on the heels of the recent passage of the PRO Act - Protecting the Right to Organize Act (H.R. 842) - by the Democratic controlled House of Representatives, which now awaits its fate in the Senate. A sweeping piece of legislation, the PRO ACT is aimed at substantially amending the NLRA in an effort to make it easier for workers to unionize, as well as to broaden both the powers of unions and the rights of workers. Although the Democrats narrowly control the Senate, they are not expected to garner enough votes to overcome a filibuster, and therefore, the PRO Act is not likely to come to fruition.
However, passage of the PRO Act by the House and the recent NLRB memorandum do offer useful insight into the Biden Administration’s labor priorities and hints at the future direction of the NLRB once a Democratic majority of appointed members is achieved, which is expected to occur in August 2021.
Given the government’s obvious shift to a more worker and union-friendly agenda, it will be important for employers to stay abreast of new legislation and NLRB policy changes impacting their businesses. To that end, we offer the following synopsis of both the PRO Act and the NLRB memo:
PRO Act’s Key Provisions:
Expanded Definition of Employee
The Pro Act would revise the definition of “employee” and implement the “ABC test,” a stringent test already used in some states, including Massachusetts, to determine who can be classified as an independent contractor as opposed to an employee. By classifying more individuals as employees, including some members of the burgeoning gig economy, more workers will come under the umbrella of NLRA protections.
Joint Employer Liability
Currently, for one organization to be deemed a joint employer of another entity’s employees, the organization must possess “substantial direct and immediate control” over the employees of the other entity. Under the Pro Act, indirectly exercising control, or simply reserving authority to control the terms and conditions of employment of the employees, would expose an organization to NLRA-imposed bargaining obligations and potential liability for any unfair labor practices of the other entity.
Modification of Election Rules
The PRO Act would codify the NLRB’s rules pertaining to accelerated timelines for holding elections. It would also (1) allow petitions for smaller units, known as “micro-units,” (2) permit unions to determine election procedures (e.g., location and voting method), (3) prohibit employers from requiring employees to attend employer-sponsored meetings aimed at educating employees relative to their options and rights during union organizing drives, and (4) require employers to provide labor organizations with employees’ personal information in a searchable electronic format.
Mandatory Mediation and Arbitration for Initial Contract
Often, negotiations relative to a newly-formed union do not result in an initial collective bargaining agreement and can lead to union decertification efforts. The PRO Act would change this by requiring mediation upon the request of the employer or union and permitting a tripartite arbitration panel to determine the terms of the initial collective bargaining agreement if the employer and union fail to reach an agreement within 120 days from the commencement of negotiations. The resultant contract would be binding on the parties for 2 years unless they otherwise agree in writing.
Ban of Right-to-Work Laws
Twenty-seven (27) states have right-to-work laws and two other states are considering legislation this year. Right-to Work laws prohibit requiring employees to join unions or pay union dues or administrative fees as a condition of their employment. The PRO Act would allow unions to side-step these laws and bargain for provisions compelling covered employees to pay union dues or administrative fees to obtain or keep their jobs.
Employer Electronic Communication Systems
The PRO Act would give employees the right to use an employer’s electronic communication devices and systems, including computers, laptops, tablets, internet access, email, and mobile phones to engage in union organizing and other protected activities.
In the event of a strike, the PRO Act would prohibit employers from permanently replacing or discriminating against workers who participate, and further, would allow intermittent and possibly partial strikes and slowdowns, all of which could be extremely disruptive for the workplace. Pre-strike lockouts by employers would also be prohibited.
Currently, the NLRA allows picketing that is directed at the employer with which the employees have a legal dispute (primary picketing), but disallows picketing aimed at a neutral company (secondary picketing). The PRO Act would allow secondary picketing against neutral companies to persuade them to cease doing business with the employer who is the primary picketing target, thereby giving employees and the union leverage in the bargaining process.
Persuader Rule Resurfaces
The PRO Act would codify the so-called “persuader rule” requiring employers to report payment for labor relations advice and services they receive from consultants and attorneys.
Enhanced Remedies, Penalties, and Private Lawsuits
Under the PRO Act, individual employees would be allowed to bring civil lawsuits in federal court and recover back pay, front pay, consequential damages, liquidated damages, punitive damages and attorneys’ fees for unfair labor practice claims alleging discrimination or retaliation. Corporate directors and officers also could be held personally liable for any NLRA violations.
NLRB Memorandum of March 2021
NLRB Acting GC Ohr made it clear that he will not only take a more expansive view of employee activities protected under the NLRA, but also, will vigorously pursue actions against employers who retaliate against workers for engaging in protected activities. Specifically, he noted that concerted activity need only involve one speaker and one listener and that the discussion need not lead to union organizing or even contemplated group action to be protected. He also intimated that he would broaden the scope of discussions considered to be “inherently concerted” to include discussions relative to workplace health and safety and racial discrimination.
The legal environment in the area of labor relations is sure to change under the Biden Administration, tipping the scales in favor of workers and unions and away from employers. Monitoring it and ensuring proper management practices will be key to reducing employers’ risks and averting adverse actions. If you have any questions or would like additional information, please feel free to contact Lorna Hebert at email@example.com or 617-512-8401.
Lorna Hebert (New England team) is an employment, labor, higher education, and litigation attorney with nearly 30 years of experience handling a broad range of complex employment and labor matters. Lorna advises clients on a wide range of employment matters, including workplace investigations, dispute resolution, hiring, performance management, discipline, terminations, reorganizations, accommodations, employee benefits, wage and hour issues, discrimination claims, policies and procedures, and training.