If you hear a clinking noise in the distance, that may be the sound of organized labor hoisting its mugs to toast the Democratic majority in Congress.
The House of Representatives’ Committee on Education and Labor announced a number of proposed changes last week to the National Labor Relations Act, which House and Senate Democrats will attempt to pass along party lines as part of a $3.5 trillion infrastructure package. The proposed changes include (spoiler alert: employers won’t like them):
- A new prohibition against the hiring of replacement workers in the event of a strike.
- A new prohibition against employer lockouts.
- A new prohibition against requiring employees to attend informational meetings on what it means to be represented by a union and the potential impact of unionizing (commonly referred to as “captive audience” meetings).
- A new prohibition against advising an employee that he/she is an independent contractor, if he/she is not properly classified as such.
- A new prohibition against class action waivers (which currently are a common feature of individual arbitration agreements across multiple industries).
- Civil penalties of $50,000 to $100,000 for employer unfair labor practices and/or violations of the new prohibitions listed above, with potential personal liability for directors and officers.
Demonstrating an unfailing commitment to evenhandedness (to be read with a heavily sarcastic tone), the new proposed civil penalties will apply only against employers. Penalties against unions will remain the same as they currently exist. Sure, that seems fair.
These changes are not yet a sure thing, however. Democratic Sen. Joe Manchin from West Virginia has called for a “strategic pause” on the $3.5 trillion infrastructure package, although he previously voiced his support for labor law reform. Moreover, to avoid the possibility of a Republican filibuster, Democrats will attempt to pass the package as a budget reconciliation measure that isn’t subject to the filibuster rule. That means they’ll have to sell the Senate parliamentarian on the notion that the changes are sufficiently budget related.
In fact, that’s likely the reason that the new prohibitions would not become unfair labor practices, even if passed. Rather, employers who violate the new prohibitions will be subject to civil penalties only, and not to the cease-and-desist remedy that the Board typically orders.
Whether the Senate parliamentarian will agree that these changes are budget-related remains to be seen. But, whatever the outcome, it’s clear that organized labor has a very sympathetic congressional ear.
Bottom Line: The House Committee’s proposed NLRA amendments would constitute the most sweeping federal labor law changes in the past 60 years and would impact both union and nonunion employers alike. We’ll continue to update our readers on this critical issue as new information becomes available.