Build Back Better Bill Contains Penalties for Union-Free Communications or Actions - American Society of Employers - Michael Burns

EverythingPeople this week!

EverythingPeople gives valuable insight into the developments both inside and outside the HR position.

Latest Articles

Build Back Better Bill Contains Penalties for Union-Free Communications or Actions

Build Back Better FrameworkTwo major facts are coming out from the Biden Administration’s massive Build Back Better legislation. It is so big it is hard to understand everything it addresses. It is also so big it contains some very pro-labor provisions intended to gag employers’ union-free communications.

Keep in mind this massive bill has already passed the U.S. House of Representatives (11/19/2021). The U.S. Senate is trying to figure out what this bill contains. One area that is not getting much media coverage is those provisions that would amend the National Labor Relations Act (NLRB). Jackson Lewis law firm in its NLRA, On The Hill reports these provisions “set new, severe employer penalties for unfair labor practices.” Unfair labor practices are violations of the NLRA. In many cases these UPP’s are usually around organizing activity.

Employers are often charged with a complaint for doing or saying something to a worker that is deemed anti-union during the organizing drive. These allegedly illegal acts or statements often revolve around untrained supervisors/managers allegedly engaging in threat or intimidation during the organizing drive but can involve some pretty innocuous communications as well.

Under decades old law if a worker was unlawfully fired, the employer would be responsible for backpay and reinstatement to remedy the unfair labor practice. If the employee alleged a communication that breached the law, the employer, or the union for that matter, would be forced to communicate the falsehood and state they will not do that going forward.

Under the applicable provisions of the Build Back Better bill under consideration, “civil penalties” would now be applicable but only to employers, not unions. This bill adds fines for company officers or directors who “directed or committed the violation, established the policy that led to the violation, or had actual or constructive knowledge of the events and the authority to prevent it, but did not act to prevent it.”

The fines outlined in the legislation are up to $50,000 for each violation. The fine under certain circumstances can be doubled to up to $100,000 if the alleged act resulted in the discharge or “serious economic harm” to the employee. Again, although union members can also state falsehoods during an organizing drive, they are not subject to the personal fines outlined above.

So, while one is watching and listening to the media around the cost of this bill ($Trillions), also keep in mind it contains some very pro-labor provisions deep in its text.

It is possible, due to parliamentarian rules, these pro-labor provisions could be jettisoned because they would prevent the bigger bill from being voted on as a budget reconciliation bill under rules allowing passage with a simple majority vote of the Senate. If these proposed pro labor provisions are deemed outside of budgetary matters, they would require a vote by a supermajority of the Senate – a much higher passage bar.

It’s not a surprise that the Biden Administration is pushing hard for changes to the NLRA. What is surprising is they bury these anti union-free provisions into a massive federal spending bill that nobody admits to knowing too much about.


Source: Jackson Lewis P.C. Labor and Collective Bargaining. Build Back Better Act Update: Committee Releases Labor Provisions for Inclusion in Senate Vote (12/13/2021)

Filter:

Filter by Authors

Position your organization to THRIVE.

Become a Member Today