Policy Impact Series Examines Potential Rewrite of American Labor Laws

By Dan Yager posted 10-02-2020 14:53


A potential change in control of Congress, if accompanied by the elimination of the Senate filibuster, could lead to a total overhaul of American labor law, taking it back to its pro-labor 1935 origins.  Members explored this and more during our weekly Election Policy Impact Series.

Protecting the Right to Organize (PRO) Act:  Discussed at length was the PRO Act, passed by the House in 2019 and strongly supported by presidential candidate Joe Biden.  Future Workplace Policy Council Chair and CHRO of Pitney Bowes Johnna Torsone, Sutter Health Vice President, Workforce and Labor Relations Michele Dewyea and Duke Energy Vice President, Employee and Labor Relations Stan Sherrill joined Senior Workplace Policy Advisor Dan Yager and Senior Labor and Employment Counsel Roger King.  All agreed the measure goes well beyond the controversial 2009 Employee Free Choice Act (EFCA, the so-called “card check bill”) as it compounds EFCA provisions with a plethora of other changes.

Employer rights stripped:  Like EFCA, the bill would rely on third party arbitration to decide the initial labor contract after union representation is established.  In the NLRB election process, the employer would be deprived of any role in NLRB procedures to determine critical questions like the makeup of the unit of employees to be voting and the determination of exempt supervisors.  Employers would be prohibited from requiring employees to attend meetings to discuss the unionization question.  Yet unions, unlike employers, would still be free to visit employees in their homes.

Protection of neutral employers and employees denied:  The numerous changes in the law made it difficult for King to pinpoint the most objectionable one, but he noted that the elimination of the ban on secondary boycotts would be a “third rail” for management lawyers.  The ban, the cornerstone of the 1947 Taft-Hartley Act, protects employers and their employees from becoming immersed in the labor disputes of a separate employer.  Thus, if lifted, a union could picket and call a strike among the employees of a supplier or customer of an employer with which it has a dispute.

Changes ahead:  A rewrite of American labor law is one among many of the Association’s priority areas that will be impacted by the November election results.  In the weeks ahead, we will examine pay equity (October 7), expanded employer liability (October 14), health care (October 21), and executive compensation (October 28).

For the slides used on the labor policy call and an overview of what CHROs need to know, click here.