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Transportation Brief: The PRO Act – Dropping Barriers for Unions

by Shannon M. Cohen, A. Jack Finklea, Prasad Sharma

June 2, 2021

In a sea of legislation threatening business interests, the Protecting the Right to Organize Act (PRO Act or Act) stands out as particularly harsh, making it easier for unions to represent workers. This is at the expense of the minimal protections the National Labor Relations Act (NLRA) currently affords employers and makes it exceedingly expensive when labor law violations are found. With the recent Amazon vote to reject union representation typifying a longer-term trend among workers, Democrats in Congress seek to re-write the rules according to what many have characterized as a union’s wish list.

The NLRA protects an employee’s right to join a union and engage in other concerted activities. The PRO Act would significantly expand the universe of trucking industry workers entitled to that protection, implementing, for the first time in a federal statute, the restrictive version of the ABC test with its problematic B prong. Regardless of union organizing status, the Act would make worker misclassification a stand-alone violation, subject to monetary penalties. The statute would also prohibit pre-dispute arbitration agreements with class waivers, and it would nullify the Right-to-Work laws of 27 states, forcing all workers in a shop represented by a union to become union members.

With respect to organizing, the Act contains several provisions designed to speed up the election process, reduce an employer’s ability to communicate with its employees, and bypass the election process altogether. Importantly, the Act prohibits an employer from hiring permanent strike replacements when workers walk off the job. What is more, the Act contains newly-imposed, debilitating penalties on violations. The deck would be stacked in favor of the unions.

The House has already passed the PRO Act, but its future in the Senate is uncertain because it is highly unlikely to garner the 60 votes needed to survive a filibuster. The discussion has therefore turned to including the Act in budget legislation, which can be enacted through special budget reconciliation rules requiring only 50 votes. This approach may not be feasible because those rules require that the budgetary effect of the legislation cannot be merely incidental to the non-budgetary policy change. Additionally, there are currently only 47 Democratic senators who have expressed their support for the Senate version of the PRO Act, so obtaining 50 votes may still be problematic – a problem that would exist even if the filibuster rules were changed. The PRO Act should nevertheless be monitored closely, because some of its provisions may be implemented by the NLRB through policy and case law decisions when Democratic members become the majority later this fall.

 


Scopelitis’ Transportation Brief® is intended as a report to our clients and friends on developments affecting the transportation industry. The published material does not constitute an exhaustive legal study and should not be regarded or relied upon as individual legal advice or opinion.
 
 
 
 
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