[Congressional Bills 116th Congress]
[From the U.S. Government Publishing Office]
[H.R. 2474 Referred in Senate (RFS)]
<DOC>
116th CONGRESS
2d Session
H. R. 2474
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
February 10, 2020
Received; read twice and referred to the Committee on Health,
Education, Labor, and Pensions
_______________________________________________________________________
AN ACT
To amend the National Labor Relations Act, the Labor Management
Relations Act, 1947, and the Labor-Management Reporting and Disclosure
Act of 1959, and for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Protecting the Right to Organize Act
of 2019''.
SEC. 2. AMENDMENTS TO THE NATIONAL LABOR RELATIONS ACT.
(a) Definitions.--
(1) Joint employer.--Section 2(2) of the National Labor
Relations Act (29 U.S.C. 152(2)) is amended by adding at the
end the following: ``Two or more persons shall be employers
with respect to an employee if each such person codetermines or
shares control over the employee's essential terms and
conditions of employment. In determining whether such control
exists, the Board or a court of competent jurisdiction shall
consider as relevant direct control and indirect control over
such terms and conditions, reserved authority to control such
terms and conditions, and control over such terms and
conditions exercised by a person in fact: Provided, That
nothing herein precludes a finding that indirect or reserved
control standing alone can be sufficient given specific facts
and circumstances.''.
(2) Employee.--Section 2(3) of the National Labor Relations
Act (29 U.S.C. 152(3)) is amended by adding at the end the
following: ``An individual performing any service shall be
considered an employee (except as provided in the previous
sentence) and not an independent contractor, unless--
``(A) the individual is free from control and
direction in connection with the performance of the
service, both under the contract for the performance of
service and in fact;
``(B) the service is performed outside the usual
course of the business of the employer; and
``(C) the individual is customarily engaged in an
independently established trade, occupation,
profession, or business of the same nature as that
involved in the service performed.''.
(3) Supervisor.--Section 2(11) of the National Labor
Relations Act (29 U.S.C. 152(11)) is amended--
(A) by inserting ``and for a majority of the
individual's worktime'' after ``interest of the
employer'';
(B) by striking ``assign,''; and
(C) by striking ``or responsibly to direct them,''.
(b) Reports.--Section 3(c) of the National Labor Relations Act is
amended--
(1) by striking ``The Board'' and inserting ``(1) The
Board''; and
(2) by adding at the end the following:
``(2) Effective January 1, 2021, section 3003 of the Federal
Reports Elimination and Sunset Act of 1995 (Public Law 166-44; 31
U.S.C. 1113 note) shall not apply with respect to reports required
under this subsection.
``(3) Each report issued under this subsection shall include no
less detail than reports issued by the Board prior to the termination
of such reports under section 3003 of the Federal Reports Elimination
and Sunset Act of 1995 (Public Law 166-44; 31 U.S.C. 1113 note).''.
(c) Appointment.--Section 4(a) of the National Labor Relations Act
(29 U.S.C. 154(a)) is amended by striking ``, or for economic
analysis''.
(d) Unfair Labor Practices.--Section 8 of the National Labor
Relations Act (29 U.S.C. 158) is amended--
(1) in subsection (a)--
(A) in paragraph (5), by striking the period and
inserting ``;''; and
(B) by adding at the end the following:
``(6) to promise, threaten, or take any action--
``(A) to permanently replace an employee who
participates in a strike as defined by section 501(2)
of the Labor Management Relations Act, 1947 (29 U.S.C.
142(2));
``(B) to discriminate against an employee who is
working or has unconditionally offered to return to
work for the employer because the employee supported or
participated in such a strike; or
``(C) to lockout, suspend, or otherwise withold
employment from employees in order to influence the
position of such employees or the representative of
such employees in collective bargaining prior to a
strike; and
``(7) to communicate or misrepresent to an employee under
section 2(3) that such employee is excluded from the definition
of employee under section 2(3).'';
(2) in subsection (b)--
(A) by striking paragraphs (4) and (7);
(B) by redesignating paragraphs (5) and (6) as
paragraphs (4) and (5), respectively;
(C) in paragraph (4), as so redesignated, by
striking ``affected;'' and inserting ``affected; and'';
and
(D) in paragraph (5), as so redesignated, by
striking ``; and'' and inserting a period;
(3) in subsection (c), by striking the period at the end
and inserting the following: ``: Provided, That it shall be an
unfair labor practice under subsection (a)(1) for any employer
to require or coerce an employee to attend or participate in
such employer's campaign activities unrelated to the employee's
job duties, including activities that are subject to the
requirements under section 203(b) of the Labor-Management
Reporting and Disclosure Act of 1959 (29 U.S.C. 433(b)).'';
(4) in subsection (d)--
(A) by redesignating paragraphs (1) through (4) as
subparagraphs (A) through (D), respectively;
(B) by striking ``For the purposes of this
section'' and inserting ``(1) For purposes of this
section'';
(C) by inserting ``and to maintain current wages,
hours, and working conditions pending an agreement''
after ``arising thereunder'';
(D) by inserting ``: Provided, That an employer's
duty to collectively bargain shall continue absent
decertification of the labor organization following an
election conducted pursuant to section 9'' after
``making of a concession:'';
(E) by inserting ``further'' before ``, That where
there is in effect'';
(F) by striking ``The duties imposed'' and
inserting ``(2) The duties imposed'';
(G) by striking ``by paragraphs (2), (3), and (4)''
and inserting ``by subparagraphs (B), (C), and (D) of
paragraph (1)'';
(H) by striking ``section 8(d)(1)'' and inserting
``paragraph (1)(A)'';
(I) by striking ``section 8(d)(3)'' and inserting
``paragraph (1)(C)'' in each place it appears;
(J) by striking ``section 8(d)(4)'' and inserting
``paragraph (1)(D)''; and
(K) by adding at the end the following:
``(3) Whenever collective bargaining is for the purpose of
establishing an initial collective bargaining agreement following
certification or recognition of a labor organization, the following
shall apply:
``(A) Not later than 10 days after receiving a written
request for collective bargaining from an individual or labor
organization that has been newly recognized or certified as a
representative as defined in section 9(a), or within such
further period as the parties agree upon, the parties shall
meet and commence to bargain collectively and shall make every
reasonable effort to conclude and sign a collective bargaining
agreement.
``(B) If after the expiration of the 90-day period
beginning on the date on which bargaining is commenced, or such
additional period as the parties may agree upon, the parties
have failed to reach an agreement, either party may notify the
Federal Mediation and Conciliation Service of the existence of
a dispute and request mediation. Whenever such a request is
received, it shall be the duty of the Service promptly to put
itself in communication with the parties and to use its best
efforts, by mediation and conciliation, to bring them to
agreement.
``(C) If after the expiration of the 30-day period
beginning on the date on which the request for mediation is
made under subparagraph (B), or such additional period as the
parties may agree upon, the Service is not able to bring the
parties to agreement by conciliation, the Service shall refer
the dispute to a tripartite arbitration panel established in
accordance with such regulations as may be prescribed by the
Service, with one member selected by the labor organization,
one member selected by the employer, and one neutral member
mutually agreed to by the parties. The labor organization and
employer must each select the members of the tripartite
arbitration panel within 14 days of the Service's referral; if
the labor organization or employer fail to do so, the Service
shall designate any members not selected by the labor
organization or the employer. A majority of the tripartite
arbitration panel shall render a decision settling the dispute
and such decision shall be binding upon the parties for a
period of 2 years, unless amended during such period by written
consent of the parties. Such decision shall be based on--
``(i) the employer's financial status and
prospects;
``(ii) the size and type of the employer's
operations and business;
``(iii) the employees' cost of living;
``(iv) the employees' ability to sustain
themselves, their families, and their dependents on the
wages and benefits they earn from the employer; and
``(v) the wages and benefits other employers in the
same business provide their employees.'';
(5) by amending subsection (e) to read as follows:
``(e) Notwithstanding chapter 1 of title 9, United States Code
(commonly known as the `Federal Arbitration Act'), or any other
provision of law, it shall be an unfair labor practice under subsection
(a)(1) for any employer--
``(1) to enter into or attempt to enforce any agreement,
express or implied, whereby prior to a dispute to which the
agreement applies, an employee undertakes or promises not to
pursue, bring, join, litigate, or support any kind of joint,
class, or collective claim arising from or relating to the
employment of such employee in any forum that, but for such
agreement, is of competent jurisdiction;
``(2) to coerce an employee into undertaking or promising
not to pursue, bring, join, litigate, or support any kind of
joint, class, or collective claim arising from or relating to
the employment of such employee; or
``(3) to retaliate or threaten to retaliate against an
employee for refusing to undertake or promise not to pursue,
bring, join, litigate, or support any kind of joint, class, or
collective claim arising from or relating to the employment of
such employee: Provided, That any agreement that violates this
subsection or results from a violation of this subsection shall
be to such extent unenforceable and void: Provided further,
That this subsection shall not apply to any agreement embodied
in or expressly permitted by a contract between an employer and
a labor organization.'';
(6) in subsection (g), by striking ``clause (B) of the last
sentence of section 8(d) of this Act'' and inserting
``subsection (d)(2)(B)''; and
(7) by adding at the end the following:
``(h)(1) The Board shall promulgate regulations requiring each
employer to post and maintain, in conspicuous places where notices to
employees and applicants for employment are customarily posted both
physically and electronically, a notice setting forth the rights and
protections afforded employees under this Act. The Board shall make
available to the public the form and text of such notice. The Board
shall promulgate regulations requiring employers to notify each new
employee of the information contained in the notice described in the
preceding two sentences.
``(2) Whenever the Board directs an election under section 9(c) or
approves an election agreement, the employer of employees in the
bargaining unit shall, not later than 2 business days after the Board
directs such election or approves such election agreement, provide a
voter list to a labor organization that has petitioned to represent
such employees. Such voter list shall include the names of all
employees in the bargaining unit and such employees' home addresses,
work locations, shifts, job classifications, and, if available to the
employer, personal landline and mobile telephone numbers, and work and
personal email addresses; the voter list must be provided in a
searchable electronic format generally approved by the Board unless the
employer certifies that the employer does not possess the capacity to
produce the list in the required form. Not later than 9 months after
the date of enactment of the Protecting the Right to Organize Act of
2019, the Board shall promulgate regulations implementing the
requirements of this paragraph.
``(i) The rights of an employee under section 7 include the right
to use electronic communication devices and systems (including
computers, laptops, tablets, internet access, email, cellular
telephones, or other company equipment) of the employer of such
employee to engage in activities protected under section 7 if such
employer has given such employee access to such devices and systems in
the course of the work of such employee, absent a compelling business
rationale.''.
(e) Representatives and Elections.--Section 9 of the National Labor
Relations Act (29 U.S.C. 159) is amended--
(1) in subsection (c)--
(A) by amending paragraph (1) to read as follows:
``(1) Whenever a petition shall have been filed, in accordance with
such regulations as may be prescribed by the Board, by an employee or
group of employees or any individual or labor organization acting in
their behalf alleging that a substantial number of employees (i) wish
to be represented for collective bargaining and that their employer
declines to recognize their representative as the representative
defined in section 9(a), or (ii) assert that the individual or labor
organization, which has been certified or is being recognized by their
employer as the bargaining representative, is no longer a
representative as defined in section 9(a), the Board shall investigate
such petition and if it has reasonable cause to believe that a question
of representation affecting commerce exists shall provide for an
appropriate hearing upon due notice. Such hearing may be conducted by
an officer or employee of the regional office, who shall not make any
recommendations with respect thereto. If the Board finds upon the
record of such hearing that such a question of representation exists,
it shall direct an election by secret ballot and shall certify the
results thereof. The Board shall find the labor organization's proposed
unit to be appropriate if the employees in the proposed unit share a
community of interest, and if the employees outside the unit do not
share an overwhelming community of interest with employees inside. At
the request of the labor organization, the Board shall direct that the
election be conducted through certified mail, electronically, at the
work location, or at a location other than one owned or controlled by
the employer. No employer shall have standing as a party or to
intervene in any representation proceeding under this section.'';
(B) in paragraph (3), by striking ``an economic
strike who are not entitled to reinstatement'' and
inserting ``a strike'';
(C) by redesignating paragraphs (4) and (5) as
paragraphs (6) and (7), respectively;
(D) by inserting after paragraph (3) the following:
``(4) If the Board finds that, in an election under paragraph (1),
a majority of the valid votes cast in a unit appropriate for purposes
of collective bargaining have been cast in favor of representation by
the labor organization, the Board shall certify the labor organization
as the representative of the employees in such unit and shall issue an
order requiring the employer of such employees to collectively bargain
with the labor organization in accordance with section 8(d). This order
shall be deemed an order under section 10(c) of this Act, without need
for a determination of an unfair labor practice.
``(5)(A) If the Board finds that, in an election under paragraph
(1), a majority of the valid votes cast in a unit appropriate for
purposes of collective bargaining have not been cast in favor of
representation by the labor organization, the Board shall dismiss the
petition, subject to subparagraphs (B) and (C).
``(B) In any case in which a majority of the valid votes cast in a
unit appropriate for purposes of collective bargaining have not been
cast in favor of representation by the labor organization and the Board
determines that the election should be set aside because the employer
has committed a violation of this Act or otherwise interfered with a
fair election, and the employer has not demonstrated that the violation
or other interference is unlikely to have affected the outcome of the
election, the Board shall, without ordering a new election, certify the
labor organization as the representative of the employees in such unit
and issue an order requiring the employer to bargain with the labor
organization in accordance with section 8(d) if, at any time during the
period beginning 1 year preceding the date of the commencement of the
election and ending on the date upon which the Board makes the
determination of a violation or other interference, a majority of the
employees in the bargaining unit have signed authorizations designating
the labor organization as their collective bargaining representative.
``(C) In any case where the Board determines that an election under
this paragraph should be set aside, the Board shall direct a new
election with appropriate additional safeguards necessary to ensure a
fair election process, except in cases where the Board issues a
bargaining order under subparagraph (B).''; and
(E) by inserting after paragraph (7), as so
redesignated, the following:
``(8) Except under extraordinary circumstances--
``(A) a pre-election hearing under this subsection shall
begin not later than 8 days after a notice of such hearing is
served on the labor organization and shall continue from day to
day until completed;
``(B) a regional director shall transmit the notice of
election at the same time as the direction of election, and
shall transmit such notice and such direction electronically
(including transmission by email or facsimile) or by overnight
mail if electronic transmission is unavailable;
``(C) not later than 2 days after the service of the notice
of hearing, the employer shall--
``(i) post the Notice of Petition for Election in
conspicuous places, including all places where notices
to employees are customarily posted;
``(ii) if the employer customarily communicates
with employees electronically, distribute such Notice
electronically; and
``(iii) maintain such posting until the petition is
dismissed or withdrawn or the Notice of Petition for
Election is replaced by the Notice of Election;
``(D) regional directors shall schedule elections for the
earliest date practicable, but not later than the 20th business
day after the direction of election; and
``(E) a post-election hearing under this subsection shall
begin not later than 14 days after the filing of objections, if
any.'';
(2) in subsection (d), by striking ``(e) or'' and inserting
``(d) or''; and
(3) by adding at the end the following new subsection:
``(f) The Board shall dismiss any petition for an election with
respect to a bargaining unit or any subdivision if, during the
preceding 12-month period, the employer has recognized a labor
organization without an election and in accordance with this Act.''.
(f) Prevention of Unfair Labor Practices.--Section 10(c) of the
National Labor Relations Act (29 U.S.C. 160(c)) is amended by striking
``suffered by him'' and inserting ``suffered by such employee: Provided
further, That if the Board finds that an employer has discriminated
against an employee in violation of paragraph (3) or (4) of section
8(a) or has committed a violation of section 8(a) that results in the
discharge of an employee or other serious economic harm to an employee,
the Board shall award the employee back pay without any reduction
(including any reduction based on the employee's interim earnings or
failure to earn interim earnings), front pay (when appropriate),
consequential damages, and an additional amount as liquidated damages
equal to two times the amount of damages awarded: Provided further, no
relief under this subsection shall be denied on the basis that the
employee is, or was during the time of relevant employment or during
the back pay period, an unauthorized alien as defined in section
274A(h)(3) of the Immigration and Nationality Act (8 U.S.C.
1324a(h)(3)) or any other provision of Federal law relating to the
unlawful employment of aliens''.
(g) Enforcing Compliance With Orders of the Board.--
(1) In general.--Section 10 of the National Labor Relations
Act (29 U.S.C. 160) is further amended--
(A) by striking subsection (e);
(B) by redesignating subsection (d) as subsection
(e);
(C) by inserting after subsection (c) the
following:
``(d)(1) Each order of the Board shall take effect upon issuance of
such order, unless otherwise directed by the Board, and shall remain in
effect unless modified by the Board or unless a court of competent
jurisdiction issues a superseding order.
``(2) Any person who fails or neglects to obey an order of the
Board shall forfeit and pay to the Board a civil penalty of not more
than $10,000 for each violation, which shall accrue to the United
States and may be recovered in a civil action brought by the Board to
the district court of the United States in which the unfair labor
practice or other subject of the order occurred, or in which such
person or entity resides or transacts business. No action by the Board
under this paragraph may be made until 30 days following the issuance
of an order. Each separate violation of such an order shall be a
separate offense, except that, in the case of a violation in which a
person fails to obey or neglects to obey a final order of the Board,
each day such failure or neglect continues shall be deemed a separate
offense.
``(3) If, after having provided a person or entity with notice and
an opportunity to be heard regarding a civil action under subparagraph
(2) for the enforcement of an order, the court determines that the
order was regularly made and duly served, and that the person or entity
is in disobedience of the same, the court shall enforce obedience to
such order by an injunction or other proper process, mandatory or
otherwise, to--
``(A) restrain such person or entity or the officers,
agents, or representatives of such person or entity, from
further disobedience to such order; or
``(B) enjoin such person or entity, officers, agents, or
representatives to obedience to the same.'';
(D) in subsection (f)--
(i) by striking ``proceed in the same
manner as in the case of an application by the
Board under subsection (e) of this section,''
and inserting ``proceed as provided under
paragraph (2) of this subsection'';
(ii) by striking ``Any'' and inserting the
following: ``
``(1) Within 30 days of the issuance of an order, any'';
and
(iii) by adding at the end the following:
``(2) No objection that has not been urged before the Board, its
member, agent, or agency shall be considered by a court, unless the
failure or neglect to urge such objection shall be excused because of
extraordinary circumstances. The findings of the Board with respect to
questions of fact if supported by substantial evidence on the record
considered as a whole shall be conclusive. If either party shall apply
to the court for leave to adduce additional evidence and shall show to
the satisfaction of the court that such additional evidence is material
and that there were reasonable grounds for the failure to adduce such
evidence in the hearing before the Board, its member, agent, or agency,
the court may order such additional evidence to be taken before the
Board, its member, agent, or agency, and to be made a part of the
record. The Board may modify its findings as to the facts, or make new
findings, by reason of additional evidence so taken and filed, and it
shall file such modified or new findings, which findings with respect
to questions of fact if supported by substantial evidence on the record
considered as a whole shall be conclusive, and shall file its
recommendations, if any, for the modification or setting aside of its
original order. Upon the filing of the record with it the jurisdiction
of the court shall be exclusive and its judgment and decree shall be
final, except that the same shall be subject to review by the
appropriate United States court of appeals if application was made to
the district court, and by the Supreme Court of the United States upon
writ of certiorari or certification as provided in section 1254 of
title 28, United States Code.''; and
(E) in subsection (g), by striking ``subsection (e)
or (f) of this section'' and inserting ``subsection (d)
or (f)''.
(2) Conforming amendment.--Section 18 of the National Labor
Relations Act (29 U.S.C. 168) is amended by striking `` section
10(e) or (f)'' and inserting ``subsection (d) or (f) of section
10''.
(h) Injunctions Against Unfair Labor Practices Involving Discharge
or Other Serious Economic Harm.--Section 10 of the National Labor
Relations Act (29 U.S.C. 160) is amended--
(1) in subsection (j)--
(A) by striking ``The Board'' and inserting ``(1)
The Board''; and
(B) by adding at the end the following:
``(2) Notwithstanding subsection (m), whenever it is charged that
an employer has engaged in an unfair labor practice within the meaning
of paragraph (1) or (3) of section 8(a) that significantly interferes
with, restrains, or coerces employees in the exercise of the rights
guaranteed under section 7, or involves discharge or other serious
economic harm to an employee, the preliminary investigation of such
charge shall be made forthwith and given priority over all other cases
except cases of like character in the office where it is filed or to
which it is referred. If, after such investigation, the officer or
regional attorney to whom the matter may be referred has reasonable
cause to believe such charge is true and that a complaint should issue,
such officer or attorney shall bring a petition for appropriate
temporary relief or restraining order as set forth in paragraph (1).
The district court shall grant the relief requested unless the court
concludes that there is no reasonable likelihood that the Board will
succeed on the merits of the Board's claim.''; and
(2) by repealing subsections (k) and (l).
(i) Penalties.--
(1) In general.--Section 12 of the National Labor Relations
Act (29 U.S.C. 162) is amended--
(A) by striking ``sec. 12. Any person'' and
inserting the following:
``SEC. 12. PENALTIES.
``(a) Violations for Interference With Board.--Any person''; and
(B) by adding at the end the following:
``(b) Violations for Posting Requirements and Voter List.--If the
Board, or any agent or agency designated by the Board for such
purposes, determines that an employer has violated section 8(h) or
regulations issued thereunder, the Board shall--
``(1) state the findings of fact supporting such
determination;
``(2) issue and cause to be served on such employer an
order requiring that such employer comply with section 8(h) or
regulations issued thereunder; and
``(3) impose a civil penalty in an amount determined
appropriate by the Board, except that in no case shall the
amount of such penalty exceed $500 for each such violation.
``(c) Civil Penalties for Violations.--
``(1) In general.--Any employer who commits an unfair labor
practice within the meaning of section 8(a) shall, in addition
to any remedy ordered by the Board, be subject to a civil
penalty in an amount not to exceed $50,000 for each violation,
except that, with respect to an unfair labor practice within
the meaning of paragraph (3) or (4) of section 8(a) or a
violation of section 8(a) that results in the discharge of an
employee or other serious economic harm to an employee, the
Board shall double the amount of such penalty, to an amount not
to exceed $100,000, in any case where the employer has within
the preceding 5 years committed another such violation.
``(2) Considerations.--In determining the amount of any
civil penalty under this subsection, the Board shall consider--
``(A) the gravity of the unfair labor practice;
``(B) the impact of the unfair labor practice on
the charging party, on other persons seeking to
exercise rights guaranteed by this Act, and on the
public interest; and
``(C) the gross income of the employer.
``(3) Director and officer liability.--If the Board
determines, based on the particular facts and circumstances
presented, that a director or officer's personal liability is
warranted, a civil penalty for a violation described in this
subsection may also be assessed against any director or officer
of the employer who directed or committed the violation, had
established a policy that led to such a violation, or had
actual or constructive knowledge of and the authority to
prevent the violation and failed to prevent the violation.
``(d) Right to Civil Action.--
``(1) In general.--Any person who is injured by reason of a
violation of paragraph (1) or (3) of section 8(a) may, after 60
days following the filing of a charge with the Board alleging
an unfair labor practice, bring a civil action in the
appropriate district court of the United States against the
employer within 90 days after the expiration of the 60-day
period or the date the Board notifies the person that no
complaint shall issue, whichever occurs earlier, provided that
the Board has not filed a petition under section 10(j) of this
Act prior to the expiration of the 60-day period. No relief
under this subsection shall be denied on the basis that the
employee is, or was during the time of relevant employment or
during the back pay period, an unauthorized alien as defined in
section 274A(h)(3) of the Immigration and Nationality Act (8
U.S.C. 1324a(h)(3)) or any other provision of Federal law
relating to the unlawful employment of aliens.
``(2) Available relief.--Relief granted in an action under
paragraph (1) may include--
``(A) back pay without any reduction, including any
reduction based on the employee's interim earnings or
failure to earn interim earnings;
``(B) front pay (when appropriate);
``(C) consequential damages;
``(D) an additional amount as liquidated damages
equal to two times the cumulative amount of damages
awarded under subparagraphs (A) through (C);
``(E) in appropriate cases, punitive damages in
accordance with paragraph (4); and
``(F) any other relief authorized by section 706(g)
of the Civil Rights Act of 1964 (42 U.S.C. 2000e-5(g))
or by section 1977A(b) of the Revised Statutes (42
U.S.C. 1981a(b)).
``(3) Attorney's fees.--In any civil action under this
subsection, the court may allow the prevailing party a
reasonable attorney's fee (including expert fees) and other
reasonable costs associated with maintaining the action.
``(4) Punitive damages.--In awarding punitive damages under
paragraph (2)(E), the court shall consider--
``(A) the gravity of the unfair labor practice;
``(B) the impact of the unfair labor practice on
the charging party, on other persons seeking to
exercise rights guaranteed by this Act, and on the
public interest; and
``(C) the gross income of the employer.''.
(2) Conforming amendments.--Section 10(b) of the National
Labor Relations Act (29 U.S.C. 160(b)) is amended--
(A) by striking ``six months'' and inserting ``180
days''; and
(B) by striking ``the six-month period'' and
inserting ``the 180-day period''.
(j) Limitations.--Section 13 of the National Labor Relations Act
(29 U.S.C. 163) is amended by striking the period at the end and
inserting the following: ``: Provided, That the duration, scope,
frequency, or intermittence of any strike or strikes shall not render
such strike or strikes unprotected or prohibited.''.
(k) Fair Share Agreements Permitted.--Section 14(b) of the National
Labor Relations Act (29 U.S.C. 164(b)) is amended by striking the
period at the end and inserting the following: ``: Provided, That
collective bargaining agreements providing that all employees in a
bargaining unit shall contribute fees to a labor organization for the
cost of representation, collective bargaining, contract enforcement,
and related expenditures as a condition of employment shall be valid
and enforceable notwithstanding any State or Territorial law.''.
SEC. 3. CONFORMING AMENDMENTS TO THE LABOR MANAGEMENT RELATIONS ACT,
1947.
The Labor Management Relations Act, 1947 is amended--
(1) in section 213(a) (29 U.S.C. 183(a)), by striking
``clause (A) of the last sentence of section 8(d) (which is
required by clause (3) of such section 8(d)), or within 10 days
after the notice under clause (B)'' and inserting ``section
8(d)(2)(A) of the National Labor Relations Act (which is
required by section 8(d)(1)(C) of such Act), or within 10 days
after the notice under section 8(d)(2)(B) of such Act''; and
(2) by repealing section 303 (29 U.S.C. 187).
SEC. 4. AMENDMENTS TO THE LABOR-MANAGEMENT REPORTING AND DISCLOSURE ACT
OF 1959.
(a) In General.--Section 203(c) of the Labor-Management Reporting
and Disclosure Act of 1959 (29 U.S.C. 433(c)) is amended by striking
the period at the end and inserting the following ``: Provided, That
this subsection shall not exempt from the requirements of this section
any arrangement or part of an arrangement in which a party agrees, for
an object described in subsection (b)(1), to plan or conduct employee
meetings; train supervisors or employer representatives to conduct
meetings; coordinate or direct activities of supervisors or employer
representatives; establish or facilitate employee committees; identify
employees for disciplinary action, reward, or other targeting; or draft
or revise employer personnel policies, speeches, presentations, or
other written, recorded, or electronic communications to be delivered
or disseminated to employees.''.
(b) Whistleblower Protections.--The Labor-Management Reporting and
Disclosure Act of 1959 (29 U.S.C. 401 et seq.) is further amended--
(1) by redesignating section 611 (29 U.S.C. 531) as section
612; and
(2) by inserting after section 610 (29 U.S.C. 530), the
following new section:
``whistleblower protections
``Sec. 611. (a) In General.--No employer or labor organization
shall terminate or in any other way discriminate against, or cause to
be terminated or discriminated against, any applicant, covered
employee, or former covered employee, of the employer or the labor
organization by reason of the fact that such applicant, covered
employee, or former covered employee does, or the employer or labor
organization perceives the employee to do, any of the following:
``(1) Provide, cause to be provided, or is about to provide
or cause to be provided, information to the labor organization,
the Department of Labor, or any other State, local, or Federal
Government authority or law enforcement agency relating to any
violation of, or any act or omission that such employee
reasonably believes to be a violation of, any provision of this
Act.
``(2) Testify or plan to testify or otherwise participate
in any proceeding resulting from the administration or
enforcement of any provision of this Act.
``(3) File, institute, or cause to be filed or instituted,
any proceeding under this Act.
``(4) Assist in any activity described in paragraphs (1)
through (3).
``(5) Object to, or refuse to participate in, any activity,
policy, practice, or assigned task that such covered employee
reasonably believes to be in violation of any provision of this
Act.
``(b) Definition of Covered Employee.--For the purposes of this
section, the term `covered employee' means any employee or agent of an
employer or labor organization, including any person with management
responsibilities on behalf of the employer or labor organization.
``(c) Procedures and Timetables.--
``(1) Complaint.--
``(A) In general.--An applicant, covered employee,
or former covered employee who believes that he or she
has been terminated or in any other way discriminated
against by any person in violation of subsection (a)
may file (or have any person file on his or her behalf)
a complaint with the Secretary of Labor alleging such
violation. Such a complaint must be filed not later
than either--
``(i) 180 days after the date on which such
alleged violation occurs; or
``(ii) 180 days after the date upon which
the employee knows or should reasonably have
known that such alleged violation in subsection
(a) occurred.
``(B) Actions of secretary of labor.--Upon receipt
of such a complaint, the Secretary of Labor shall
notify, in writing, the person named in the complaint
who is alleged to have committed the violation, of--
``(i) the filing of the complaint;
``(ii) the allegations contained in the
complaint;
``(iii) the substance of evidence
supporting the complaint; and
``(iv) opportunities that will be afforded
to such person under paragraph (2).
``(2) Investigation by secretary of labor.--
``(A) In general.--Not later than 60 days after the
date of receipt of a complaint filed under paragraph
(1), and after affording the complainant and the person
named in the complaint who is alleged to have committed
the violation that is the basis for the complaint an
opportunity to submit to the Secretary of Labor a
written response to the complaint and an opportunity to
meet with a representative of the Secretary of Labor to
present statements from witnesses, the Secretary of
Labor shall--
``(i) initiate an investigation and
determine whether there is reasonable cause to
believe that the complaint has merit; and
``(ii) notify the complainant and the
person alleged to have committed the violation
of subsection (a), in writing, of such
determination.
``(B) Grounds for determination of complaints.--The
Secretary of Labor shall dismiss a complaint filed
under this subsection, and shall not conduct an
investigation otherwise required under paragraph (2),
unless the complainant makes a prima facie showing that
any behavior described in paragraphs (1) through (5) of
subsection (a) was a contributing factor in the
unfavorable personnel action alleged in the complaint.
``(3) Burdens of proof.--
``(A) Criteria for determination.--In making a
determination or adjudicating a complaint pursuant to
this subsection, the Secretary, an administrative law
judge or a court may determine that a violation of
subsection (a) has occurred only if the complainant
demonstrates that any conduct described in subsection
(a) with respect to the complainant was a contributing
factor in the adverse action alleged in the complaint.
``(B) Prohibition.--Notwithstanding subparagraph
(A), a decision or order that is favorable to the
complainant shall not be issued in any administrative
or judicial action pursuant to this subsection if the
respondent demonstrates by clear and convincing
evidence that the respondent would have taken the same
adverse action in the absence of such conduct.
``(C) Notice of relief available.--If the Secretary
of Labor concludes that there is reasonable cause to
believe that a violation of subsection (a) has
occurred, the Secretary of Labor shall, together with
the notice under subparagraph (A)(ii), issue a
preliminary order providing the relief prescribed by
paragraph (4)(B).
``(D) Request for hearing.--Not later than 30 days
after the date of receipt of notification of a
determination of the Secretary of Labor under this
paragraph, either the person alleged to have committed
the violation or the complainant may file objections to
the findings or preliminary order, or both, and request
a hearing on the record. The filing of such objections
shall not operate to stay any reinstatement remedy
contained in the preliminary order. Any such hearing
shall be conducted expeditiously, and if a hearing is
not requested in such 30-day period, the preliminary
order shall be deemed a final order that is not subject
to judicial review.
``(E) Procedures.--
``(i) In general.--A hearing requested
under this paragraph shall be conducted
expeditiously and in accordance with rules
established by the Secretary for hearings
conducted by administrative law judges.
``(ii) Subpoenas; production of evidence.--
In conducting any such hearing, the
administrative law judge may issue subpoenas.
The respondent or complainant may request the
issuance of subpoenas that require the
deposition of, or the attendance and testimony
of, witnesses and the production of any
evidence (including any books, papers,
documents, or recordings) relating to the
matter under consideration.
``(4) Issuance of final orders; review procedures.--
``(A) Timing.--Not later than 120 days after the
date of conclusion of any hearing under paragraph (2),
the Secretary of Labor shall issue a final order
providing the relief prescribed by this paragraph or
denying the complaint. At any time before issuance of a
final order, a proceeding under this subsection may be
terminated on the basis of a settlement agreement
entered into by the Secretary of Labor, the
complainant, and the person alleged to have committed
the violation.
``(B) Available relief.--
``(i) Order of secretary of labor.--If, in
response to a complaint filed under paragraph
(1), the Secretary of Labor determines that a
violation of subsection (a) has occurred, the
Secretary of Labor shall order the person who
committed such violation--
``(I) to take affirmative action to
abate the violation;
``(II) to reinstate the complainant
to his or her former position, together
with compensation (including back pay
with interest) and restore the terms,
conditions, and privileges associated
with his or her employment;
``(III) to provide compensatory
damages to the complainant; and
``(IV) expungement of all warnings,
reprimands, or derogatory references
that have been placed in paper or
electronic records or databases of any
type relating to the actions by the
complainant that gave rise to the
unfavorable personnel action, and, at
the complainant's direction,
transmission of a copy of the decision
on the complaint to any person whom the
complainant reasonably believes may
have received such unfavorable
information.
``(ii) Costs and expenses.--If an order is
issued under clause (i), the Secretary of
Labor, at the request of the complainant, shall
assess against the person against whom the
order is issued, a sum equal to the aggregate
amount of all costs and expenses (including
attorney fees and expert witness fees)
reasonably incurred, as determined by the
Secretary of Labor, by the complainant for, or
in connection with, the bringing of the
complaint upon which the order was issued.
``(C) Frivolous claims.--If the Secretary of Labor
finds that a complaint under paragraph (1) is frivolous
or has been brought in bad faith, the Secretary of
Labor may award to the prevailing employer or labor
organization a reasonable attorney fee, not exceeding
$1,000, to be paid by the complainant.
``(D) De novo review.--
``(i) Failure of the secretary to act.--If
the Secretary of Labor has not issued a final
order within 270 days after the date of filing
of a complaint under this subsection, or within
90 days after the date of receipt of a written
determination, the complainant may bring an
action at law or equity for de novo review in
the appropriate district court of the United
States having jurisdiction, which shall have
jurisdiction over such an action without regard
to the amount in controversy, and which action
shall, at the request of either party to such
action, be tried by the court with a jury.
``(ii) Procedures.--A proceeding under
clause (i) shall be governed by the same legal
burdens of proof specified in paragraph (3).
The court shall have jurisdiction to grant all
relief necessary to make the employee whole,
including injunctive relief and compensatory
damages, including--
``(I) reinstatement with the same
seniority status that the employee
would have had, but for the discharge
or discrimination;
``(II) the amount of back pay, with
interest;
``(III) compensation for any
special damages sustained as a result
of the discharge or discrimination,
including litigation costs, expert
witness fees, and reasonable attorney
fees; and
``(IV) expungement of all warnings,
reprimands, or derogatory references
that have been placed in paper or
electronic records or databases of any
type relating to the actions by the
complainant that gave rise to the
unfavorable personnel action, and, at
the complainant's direction,
transmission of a copy of the decision
on the complaint to any person whom the
complainant reasonably believes may
have received such unfavorable
information.
``(E) Other appeals.--Unless the complainant brings
an action under subparagraph (D), any person adversely
affected or aggrieved by a final order issued under
subparagraph (A) may file a petition for review of the
order in the United States Court of Appeals for the
circuit in which the violation with respect to which
the order was issued, allegedly occurred or the circuit
in which the complainant resided on the date of such
violation, not later than 60 days after the date of the
issuance of the final order of the Secretary of Labor
under subparagraph (A). Review shall conform to chapter
7 of title 5, United States Code. The commencement of
proceedings under this subparagraph shall not, unless
ordered by the court, operate as a stay of the order.
An order of the Secretary of Labor with respect to
which review could have been obtained under this
subparagraph shall not be subject to judicial review in
any criminal or other civil proceeding.
``(5) Failure to comply with order.--
``(A) Actions by the secretary.--If any person has
failed to comply with a final order issued under
paragraph (4), the Secretary of Labor may file a civil
action in the United States district court for the
district in which the violation was found to have
occurred, or in the United States district court for
the District of Columbia, to enforce such order. In
actions brought under this paragraph, the district
courts shall have jurisdiction to grant all appropriate
relief including injunctive relief, compensatory and
punitive damages.
``(B) Civil actions to compel compliance.--A person
on whose behalf an order was issued under paragraph (4)
may commence a civil action against the person to whom
such order was issued to require compliance with such
order. The appropriate United States district court
shall have jurisdiction, without regard to the amount
in controversy or the citizenship of the parties, to
enforce such order.
``(C) Award of costs authorized.--The court, in
issuing any final order under this paragraph, may award
costs of litigation (including reasonable attorney and
expert witness fees) to any party, whenever the court
determines such award is appropriate.
``(D) Mandamus proceedings.--Any nondiscretionary
duty imposed by this section shall be enforceable in a
mandamus proceeding brought under section 1361 of title
28, United States Code.
``(d) Unenforceability of Certain Agreements.--Notwithstanding any
other provision of law, the rights and remedies provided for in this
section may not be waived by any agreement, policy, form, or condition
of employment, including by any predispute arbitration agreement.
``(e) Savings.--Nothing in this subsection shall be construed to
diminish the rights, privileges, or remedies of any employee who
exercises rights under any Federal or State law or common law, or under
any collective bargaining agreement.''.
SEC. 5. RULE OF CONSTRUCTION.
The amendments made under this Act shall not be construed to amend
section 274A of the Immigration and Nationality Act (8 U.S.C. 1324a).
SEC. 6. GAO REPORT ON SECTORAL BARGAINING.
(a) In General.--Not later than 2 years after the date of enactment
of this Act, the Comptroller General, in consultation with the persons
described in subsection (b), shall prepare and submit to the Committee
on Education and Labor of the House of Representatives and the
Committee on Health, Education, Labor, and Pensions of the Senate a
report, that--
(1) identifies and analyzes the laws, policies, and
procedures in countries outside the United States governing
collective bargaining at the level of an industry sector,
including the laws, policies, and procedures involved in--
(A) the administrative system facilitating such
bargaining;
(B) how collective bargaining agreements are
rendered binding on all firms in an industry sector;
(C) defining an industry sector;
(D) the relationship between collective bargaining
at the level of an individual employer or group of
employers and at the level of an industry sector;
(E) the designation of representatives for
collective bargaining at the level of an industry
sector;
(F) the scope of collective bargaining and impasses
at the level of an industry sector; and
(G) the provision or administration of benefits by
labor organizations (such as unemployment insurance),
or union security at the firm level or the level of an
industry sector, to cover the costs of collective
bargaining at the level of an industry sector;
(2) conducts a comparative analysis of the laws, policies,
and procedures specified in paragraph (1) that have been
enacted in countries outside the United States;
(3) to the extent practicable, identifies the effects of
such laws, policies, and procedures on--
(A) the wages and compensation of employees;
(B) the number of employees, disaggregated by full-
time and part-time employees;
(C) prices, sales, and revenues;
(D) employee turnover and retention;
(E) hiring and training costs;
(F) productivity and absenteeism; and
(G) the development of emerging industries,
including those that engage their workforces through
technology; and
(4) describes the methodology used to generate the
information in the report.
(b) Expert Consultation.--The persons described in this subsection
are--
(1) workers and the labor organizations representing such
workers;
(2) representatives of businesses;
(3) the National Labor Relations Board;
(4) the International Labor Organization; and
(5) the International Labor Affairs Bureau of the
Department of Labor.
(c) Congressional Assessment and Recommendations.--Not later than
60 days after the date on which the report is submitted under
subsection (a), the Committee on Education and Labor of the House of
Representatives and the Committee on Health, Education, Labor, and
Pensions of the Senate shall--
(1) assess the findings of such report; and
(2) make recommendations with respect to actions of
Congress to address the findings of such report.
SEC. 7. RULE OF CONSTRUCTION.
The amendments made under this Act shall not be construed to affect
the definitions of ``employer'' or ``employee'' under the laws of any
State that govern the wages, work hours, workers' compensation, or
unemployment insurance of employees.
SEC. 8. RULE OF CONSTRUCTION.
The amendments made under this Act shall not be construed to affect
the privacy of employees with respect to voter lists provided to labor
organizations by employers pursuant to elections directed by the Board.
SEC. 9. RULE OF CONSTRUCTION.
The amendments made by this Act shall not be construed to affect
the jurisdictional standards of the National Labor Relations Board,
including any standards that measure the size of a business with
respect to revenues, that are used to determine whether an industry is
affecting commerce for purposes of determining coverage under the
National Labor Relations Act (29 U.S.C. 151 et seq.).
SEC. 10. AUTHORIZATION OF APPROPRIATIONS.
There are authorized to be appropriated such sums as may be
necessary to carry out the provisions of this Act, including any
amendments made by this Act.
Passed the House of Representatives February 6, 2020.
Attest:
CHERYL L. JOHNSON,
Clerk.
Protecting the Right to Organize Act of 2019
#2474 | HR Congress #116
Policy Area: Labor and Employment
Last Action: Received in the Senate and Read twice and referred to the Committee on Health, Education, Labor, and Pensions. (2/10/2020)
Bill Text Source: Congress.gov
Summary and Impacts
Original Text