The Excel Dryer factory in East Longmeadow, Mass., Oct. 25, 2019.

Photo: tim aeppel/Reuters

The Protecting the Right to Organize Act, or PRO, is a radical piece of legislation that would rewrite our nation’s labor laws in at least 51 different ways. Passed by the House earlier this year, the bill has 47 co-sponsors in the Senate, all Democrats. Unions and their allies aren’t waiting for more support. Instead, they are determined to change the National Labor Relations Act by inserting the penalty provisions of the PRO Act into the $3.5 trillion budget bill.

Congress passed the NLRA in 1935, forming the core of U.S. labor law. Congress deliberately avoided punitive measures, such as civil penalties, against either labor or management. In Republic Steel v. NLRB, the Supreme Court held in 1940 that Congress intended the act to be a remedial law focused on making employees whole, not a punitive one designed to penalize employers should they (knowingly or unknowingly) violate it.

Amending the NLRA to include civil penalties would fundamentally overturn 85 years of precedent. For employers, fines could range from $50,000 to $100,000 for each charge of unfair labor practices. That’s over and above any actual injuries claimed by workers or unions.

It isn’t unusual for a union to file several unfair labor practice claims against a business during a labor dispute or organizing campaign. Many of these claims have nothing to do with pay or benefits or even core working conditions, but instead concern technical violations of the NLRA. They can be as minor as an employee-handbook provision that the National Labor Relations Board feels is worded in such a way as to disfavors unions.

If the civil-penalty scheme becomes law, employers will worry about speaking out on labor issues or enforcing workplace policies for fear of incurring potentiality millions of dollars in civil penalties. Suppose, for example, a supervisor who isn’t familiar with labor laws says to five employees: “If you walk off the job because you don’t like our Covid policies, you can get in trouble.” The employees could then file an unfair labor practice charge with the NLRB. After a hearing, the board might find that three of the company’s handbook rules are “overbroad.” Additionally, the board might say it believes the supervisor threatened the five employees in violation of their rights to engage in concerted activities. The board could conclude that since eight unfair labor practices have been committed, the company is liable for at least $400,000 in penalties.

It may be tempting to view the addition of penalties as simply an enhanced deterrent to ensure compliance, but reshaping the nature of the NLRA from focusing on remedies to focusing on punishment will have effects on employers that go far beyond fines. The lure of high-dollar penalties will embolden organized labor and likely result in a dramatic increase in unfair labor practice filings at an astronomical cost to employers and consumers.

This isn’t speculation; we’ve seen this result from other changes to enforcement of federal labor law. When the NLRB adopted a broad new standard of joint employment liability in 2014, unfair labor practice claims skyrocketed. In the franchise industry alone this led to a 57% increase in filings, which ultimately resulted in lost economic output of $33 billion, according to the International Franchise Association.

Using legislative procedures designed to address budget issues to make fundamental, substantive changes in labor law is wrong-headed and will have profound consequences. The proposed changes will result in lost jobs, increased litigation and reduced productive business behavior. Converting the National Labor Relations Act into a punitive statute is perhaps as radical and far-reaching change to our labor laws as one can imagine. Congress should reject it.

Mr. Lotito is a management-side labor lawyer who provides counsel to the Coalition for a Democratic Workplace. Mr. Spencer is senior vice president of the employment policy division at the U.S. Chamber of Commerce

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