Ex-NLRB Counsel Urges a "PRO Act Plus" After Midterms

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A former top federal labor enforcer wants Democrats to aim higher now that Tuesday's midterm results point to majorities in both chambers of Congress. Jennifer Abruzzo, who served as National Labor Relations Board general counsel during the Biden administration, says the party should push for a "PRO Act plus" instead of another run at the old bill.

Four areas beyond the old bill

Abruzzo named a few places to start. They are tighter regulation of artificial intelligence, bans on captive audience meetings, bans on restrictive covenants, and protections for sectoral bargaining.

In plain terms, captive audience meetings are sessions where workers must listen to their employer, and restrictive covenants are contract terms such as non-competes that limit a worker's next move. Sectoral bargaining means negotiating across a whole industry rather than company by company.

Her stated aims are to address wage stagnation and income inequality and to increase worker voices and representation.

Why she is done with the old bill

The Protecting the Right to Organize Act is a signature Democratic bill to amend the National Labor Relations Act. Party lawmakers have repeatedly failed to pass it. A Democratic House majority narrowly approved it in 2021, but it did not clear the Senate.

Abruzzo said she was "tired of hearing about the PRO Act." She spoke on Thursday at the American Bar Association's annual labor and employment law section conference in Washington.

A Republican warning about a split system

Marvin Kaplan, a former Republican NLRB member, shared the stage with her. He worried about state boards taking on authority in areas the NLRB has traditionally covered. One reason the agency exists, he said, is to give all workers equal protection through one federal system.

"Bifurcating these systems the way these state systems imply we should be creates this dysfunction and uncertainty in a way that I don't think is easy to pull back," Kaplan said.

Yet he showed interest in state efforts elsewhere. One example is a Pennsylvania bill that would stop employers from ending the healthcare benefits of striking workers.

How the states got involved

The NLRB lost its quorum last year. California and New York then enacted laws that would have let their Public Employment Relations Boards handle unfair labor practice charges. The NLRB swiftly challenged both, and federal courts blocked them. The agency and New York agreed in July to dismiss their lawsuit.

Abruzzo said Congress could spell out that states remain free to add to workers' protections in other ways. Some already do. Vermont voters approved a ballot initiative guaranteeing a right to organize on Tuesday. Other state laws set out how a dispute is resolved if the NLRA is declared unconstitutional, or if the NLRB lacks jurisdiction.

A patchwork worries her too. Widely varying readings of labor rights under a decentralized system, Abruzzo said, are "a problem."

She also accepted that a common national standard is needed. Federal law, she said, must be "the floor from which states can augment or go above, but cannot go below."

The NLRB itself, she noted, lacks the resources to offer more NLRA guidance to states and parties to disputes. She has long said it is short of staff and funding, and made the same point at the 2022 edition of this event.

Source: HR Dive