Non-union employers historically have been little concerned by labor unrest. They will be in for a rude awakening if the Protecting the Right to Organize Act (PRO Act) is signed into law during a Biden administration. The sweeping rewrite of the National Labor Relations Act (NLRA) occasioned by the PRO Act has serious ramifications for union represented workforces as well. The PRO Act would remove the existing ban on secondary strikes, and remove the ban on recognitional strikes lasting over 30 days. The PRO Act would also legalize the intermittent strike and the partial strike. Additionally, the PRO Act bans the permanent replacement of strikers and prohibits terminating employees who engage in strikes. Below, we discuss several ways the passage of the PRO Act would change the labor landscape.

Secondary strikes

The PRO Act would allow secondary strikes. A secondary strike occurs when the union at an employer engages in picketing at that employer’s suppliers and customers. The union’s strategy is to so disrupt or cripple the suppliers or customers that they will pressure the employer to settle its labor dispute. In the years immediately following World War II, the disruption to the American economy caused by secondary strikes was so severe and widespread that Congress–on a bipartisan basis–overrode a presidential veto and banned them. Bans on secondary strikes are not uniquely American. Nearly all member countries of the European Union have prohibitions against some or all types of secondary strikes for the same reason–to protect innocent by-standers from labor unrest. A recent decision by the European Court of Human Rights upheld the United Kingdom’s ban on secondary strikes.

Unions view the secondary strike as a powerful weapon because customers are typically blind-sided and unprepared to manage the disruption caused by a strike. Customers react by exerting pressure on the employer to settle its labor dispute to avoid disruption at the employer’s own business. This removes an employer’s ability to weather a strike by stockpiling goods and places the employer in a vice between the demands of its union-represented workforce and its customer.

Permanent replacements

The PRO Act also bans hiring of permanent replacements, which has been lawful since 1938, shortly after the NLRA was adopted. When employees strike an employer over economic issues, the employer has been free to hire permanent replacements. Permanent replacements are so-called because they remain on the job after the strike ends. The strikers, in contrast, are placed on a preferential recall list for recall whenever a vacancy arises. The threat of permanent replacement has been one arrow in the employer’s quiver for use if economic warfare ensues during labor negotiations.

Intermittent strikes and partial strikes

In addition, the PRO Act legalizes intermittent strikes and partial strikes. These strikes are particularly disruptive as the employees do not lose any significant wages or benefit coverage during these strikes, so they have little to no incentive to end the strike before their demands are met. A partial strike occurs when employees refuse to perform some of their job duties but typically remain at work. Occasionally employees perform their assigned work but refuse to work overtime. Intermittent strikes typically last for an entire day but occur repeatedly over several weeks or months, always without notice.

Offensive lockouts

Offensive lockouts are banned under the PRO Act, meaning that an employer cannot lockout employees until after the union strikes. Unions have chaffed at offensive lockouts as they allow the employer to bring a labor dispute to a head during the employer’s slow season, when it is not likely to suffer as serious a rupture with its customers. Absent the offensive lockout, unions would have sole and exclusive control over the timing of the labor stoppage at any particular facility.

Recognitional strikes

A recognitional strike is a strike by a union to force an employer to recognize it as the employees’ representative. The PRO Act also legalizes the indefinite recognitional strike and eliminates the right of an employer to demand an expedited NLRB election amongst its employees. Another part of the bipartisan override of President Truman’s veto was a provision capping the length of a recognitional strike and granting employers an expedited election process. Typically the recognition occurred without proof the employees sought union recognition, and not infrequently was a form of labor racketeering. Consequently, Congress capped the duration of recognitional strikes at 30 days unless the union files an election petition and allows an employer to seek an immediate election. If the union loses the election it is banned from any further recognitional strike activity for one year. If the PRO Act is passed, all of these safeguards will be eliminated.

Termination for strike activity

Finally, the PRO Act adds another unfair labor practice: the termination of an employee who supported or participated in any strike activity. It is probably only small solace to employers, but this avenue for an employee to challenge a termination is not found in Section 8(a)(3) and thus does not give rise to a private right of action or the draconian and punitive remedies the PRO Act adopts for violating that section.

Key takeaways

If the PRO Act passes, non-union employers would be well-served to prepare contingency plans to ensure they can operate in a strike environment before picketers arrive at their entrances. Employers with union represented workforces should examine the no strike provision in their agreements and prepare for more confrontational labor negotiations. For help navigating labor and employment laws, please contact your Baker McKenzie employment attorney.