According to news reports, the upcoming budget reconciliation bill will likely contain some portions of the PRO Act, which is a piece of proposed pro-union legislation. As detailed in a prior post, the PRO Act would dramatically change federal labor law. The details of the reconciliation bill are not yet public, but reportedly include electronic voting in union elections and the ability for the NLRB to issue fines against employers.
Currently, the NLRB has the power to order employers to reinstate employees, pay backpay to employees who are unlawfully terminated, and grant other remedies like cease and desist orders to prevent future violations of the National Labor Relations Act. It does not, however, have the authority to issue monetary fines against employers. The possible provision in the reconciliation bill would change this and allow the NLRB to order employers to pay civil fines up to $100,000.00, depending on the nature of the violation.
It is unclear whether parts of the PRO Act will survive the reconciliation process, which involves a ruling by the Senate Parliamentarian on issues that are arguably non-budgetary. However, it is expected that Congressional Democrats will push for PRO Act items to be included in the final reconciliation bill, as that bill is a priority of the Biden Administration and the Democratic Party as a whole. In addition, regardless of the outcome of the reconciliation process, prudent employers will begin planning for its potential passage now because some of its provisions may also be implemented by the NLRB in the near future.
Andrew MacDonald is a partner in the firm’s Labor and Employment Department, resident in its Philadelphia office.