Federal

Given the variety and complexity of tasks associated with operations management, automated systems, including those utilizing artificial intelligence (AI), are increasingly deployed by businesses to improve overall efficiencies. As part of this effort, the use of AI or related automated systems to track and monitor production, including employee activities, is becoming widespread. A 2022 New York Times survey revealed that eight out of the 10 largest private U.S. employers track individual workers, many in real time, to assess their productivity. Any process that utilizes electronic devices capable of being connected via network technology suddenly becomes a trove of data points that can be used to monitor or improve the process—or the employees engaged in the process.

The Protecting the Right to Organize (PRO Act) (H.R. 842) is a sweeping effort to amend longstanding labor laws to facilitate union and employee organizing efforts. The union-friendly legislation would make the most significant modifications to the National Labor Relations Act since the Taft-Hartley Act restricted union power in 1947. The proposed changes would give workers and unions more power in disputes at work, add monetary penalties for companies that retaliate against workers who organize and expand collective bargaining rights for many workers.  The PRO Act would also weaken “right-to-work” laws in more than half of the states that give employees the right to choose not to join or pay dues to unions.

These efforts to tip the balance in favor of union organizing are not new. We have seen many of these proposed changes show up in past legislative efforts. Similar changes were part of the Employee Free Choice Act introduced before the election of, and supported by, President Obama. The PRO Act passed the Democratic controlled House last year but was never taken up by the then GOP majority Senate. This year the Democrats narrowly control the Senate, but not by enough votes to overcome a filibuster, which ordinarily means that the measure is likely dead again.

Below is a summary of a several provisions of the PRO Act:

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On September 18, 2020, a three-judge panel of the Ninth Circuit U. S. Court of Appeals held in SEIU Local 121RN v. Los Robles Regional Medical Center, DBA Los Robles Hospital and Medical Center (Los Robles) that the power to decide whether a grievance is arbitrable in labor cases resides with the federal court and not the arbitrator absent “clear and unmistakable” evidence to the contrary. The Los Robles decision overturns the Ninth Circuit decision, United Bhd. Of Carpenters & Joiners of Am., Local No. 1780 v. Desert Palace, Inc. (Desert Palace), which held that in labor cases, an arbitrator must decide the issue of arbitrability if the agreement includes a broad arbitration clause even though the parties failed to specify their intent. The Los Robles decision is consistent with the unanimous U.S Supreme Court decision, Granite Rock Co. v. Int’l Bhd. of Teamsters (Granite Rock) which applied the same arbitrability framework to labor and commercial arbitration disputes, and rejected the assertion that the Federal Arbitration Act (FAA) “pro-arbitration policy” required that labor disputes be arbitrated “where evidence of the parties’ agreement to arbitrate the dispute [was] lacking.”

On January 25, 2013, the D.C. Circuit Court invalidated President Obama’s three appointments to the National Labor Relations Board.   The decision in Canning v. NLRB not only calls into question the “recess appointment” power of the President, but could paralyze the NLRB by putting hundreds of decisions in jeopardy.

Presidents have made so-called recess appointments…