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116th Congress } { Report
HOUSE OF REPRESENTATIVES
1st Session } { 116-347
======================================================================
PROTECTING THE RIGHT TO ORGANIZE ACT OF 2019
_______
December 16, 2019.--Committed to the Committee of the Whole House on
the State of the Union and ordered to be printed
_______
Mr. Scott of Virginia, from the Committee on Education and Labor,
submitted the following
R E P O R T
together with
MINORITY VIEWS
[To accompany H.R. 2474]
[Including cost estimate of the Congressional Budget Office]
The Committee on Education and Labor, to whom was referred
the bill (H.R. 2474) 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, having considered the same, report favorably thereon
with an amendment and recommend that the bill as amended do
pass.
CONTENTS
Page
Purpose and Summary.............................................. 8
Committee Action................................................. 10
Committee Views.................................................. 16
Section-by-Section Analysis...................................... 39
Explanation of Amendments........................................ 46
Application of Law to the Legislative Branch..................... 46
Unfunded Mandate Statement....................................... 46
Earmark Statement................................................ 46
Roll Call Votes.................................................. 46
Statement of Performance Goals and Objectives.................... 78
Duplication of Federal Programs.................................. 78
Hearings......................................................... 78
Statement of Oversight Findings and Recommendations of the
Committee...................................................... 79
New Budget Authority and CBO Cost Estimate....................... 79
Committee Cost Estimate.......................................... 84
Changes in Existing Law Made by the Bill, as Reported............ 84
Minority Views................................................... 113
The amendment is as follows:
Strike all after the enacting clause and insert the
following:
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 two 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 two 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 nine 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 one 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 eight days after a notice of such hearing
is served on the labor organization; and
``(B) a post-election hearing under this subsection shall
begin not later than 14 days after the filing of objections, if
any.''; and
(2) in subsection (d), by striking ``(e) or'' and inserting
``(d) or''.
(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 five 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.
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.''.
SEC. 5. 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.
Purpose and Summary
The purpose of H.R. 2474, the Protecting the Right to
Organize (PRO) Act of 2019, is to strengthen the National Labor
Relations Act (NLRA) to safeguard workers' full freedom of
association and to remedy longstanding weaknesses that fail to
protect workers' rights to organize and collectively bargain.
These weaknesses have contributed to the decline of union
membership, which in turn has contributed to wage stagnation
and greater income inequality.
Section 7 of the NLRA states:
Employees shall have the right to self-organization,
to form, join, or assist labor organizations, to
bargain collectively through representatives of their
own choosing, and to engage in other concerted
activities for the purpose of collective bargaining or
other mutual aid or protection, and shall have the
right to refrain from any or all of such activities. .
. .\1\
\1\29 U.S.C. Sec. 157. The right to form or join a labor union is
also an internationally-recognized human right. Universal Declaration
of Human Rights, G.A. Res. 217 (III) A, U.N. Doc. A/RES/217(III), at
23(4) (Dec. 10, 1948).
However, the statutory remedies for violations of the law
are wholly inadequate. The NLRA does not adequately deter
violations because it cannot authorize civil monetary
penalties. Moreover, the National Labor Relations Board (NLRB),
the agency charged with enforcing rights under the NLRA, cannot
enforce its own orders, and instead must seek enforcement from
a United States Court of Appeals.\2\
---------------------------------------------------------------------------
\2\29 U.S.C. Sec. 160(e).
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Congress must update the NLRA to protect workers' rights to
organize, advocate, and collectively bargain, particularly in
the face of a fissuring workplace where employment
relationships are ``broken into pieces [and] often shifted to
subcontractors, third party companies, or . . . to individuals
who are treated as independent contractors.''\3\ Employers are
incentivized to misclassify employees as independent
contractors in order to deny workers NLRA protections and evade
joint employment liability while avoiding or frustrating union
organizing.\4\ Labor law needs to adapt to ensure that workers
in a fissured workplace can exercise the rights and protections
afforded to them under the NLRA.
---------------------------------------------------------------------------
\3\David Weil & Tanya Goldman, Labor Standards, the Fissured
Workplace, and the On-Demand Economy, Perspectives on Work 27 (2016),
http://www.fissuredworkplace.net/assets/Weil_Goldman.pdf.
\4\See Francoise Carre, (IN)dependent Contractor Misclassification
8 (2015), https://www.epi.org/files/pdf/87595.pdf; Josh Bivens et al.,
Econ. Policy Inst., How Today's Unions Help Working People 19 (2017),
https://www.epi.org/files/pdf/133275.pdf.
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Antiunion campaigns by some employers and weak penalties
for unlawful conduct have significantly contributed to a
decline in union membership.\5\ A well-documented consequence
of the decline in union membership is growing economic
inequality in our nation.\6\ According to a recent study, the
decline in union membership accounts for one-third of the rise
in wage inequality among men, and one-fifth among women.\7\ The
current unionization rate ``is as low as it was prior to the
passage of the National Labor Relations Act.''\8\ In fact, only
6.4 percent of private-sector workers are unionized\9\--a steep
decline from the 25 percent of private-sector workers who were
unionized in 1970s and the over 30 percent of private-sector
workers who had the benefit of a union in the 1950s.\10\
However, according to a 2018 Gallup poll, 62 percent of
Americans approve of labor unions,\11\ and data from a 2018 MIT
survey shows that ``nearly half of nonunionized workers would
join a union if given the opportunity.''\12\
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\5\Josh Bivens et al., Econ. Policy Inst., How Today's Unions Help
Working People 18-19 (2017), https://www.epi.org/files/pdf/133275.pdf.
\6\Taylor Telford, Income Inequality in America is the Highest It's
Been Since Census Bureau Started Tracking it, Data Shows, Washington
Post (Sept. 26, 2019, 3:57 PM), https://www.washingtonpost.com/
business/2019/09/26/income-inequality-america-highest-its-been-since-
census-started-tracking-it-data-show/; Josh Bivens et al., Econ. Policy
Inst., How Today's Unions Help Working People 7 (2017), https://
www.epi.org/files/pdf/133275.pdf.
\7\Bruce Western & Jake Rosenfeld, Unions, Norms, and the Rise in
U.S. Wage Inequality, 76 Am. Sociological Rev. 513 (2011).
\8\Protecting the Right to Organize: The Need for Labor Law Reform
Before the Subcomm. on Health, Employment, Labor, and Pensions of the
H. Comm. on Educ. and Labor, 116th Cong. (2019) (Testimony of Jake
Rosenfeld, Professor of Sociology at Washington University, St. Louis,
at 1) (reprinted as Serial 116-11), available at https://
edlabor.house.gov/imo/media/doc/RosenfeldTestimony032619.pdf
[hereinafter Rosenfeld Testimony].
\9\Bureau of Labor Statistics, Table 3. Union Affiliation of
Employed Wage and Salary Workers by Occupation and Industry, Econ News
Release (Jan. 18, 2019), https://www.bls.gov/news.release/
union2.t03.htm.
\10\Josh Bivens et al., Econ. Policy Inst., How Today's Unions Help
Working People 2 (2017), https://www.epi.org/files/pdf/133275.pdf.
\11\Lydia Saad, Labor Union Approval Steady at 15-Year High, Gallup
(Aug. 30, 2018), https://news.gallup.com/poll/241679/labor-union-
approval-steady-year-high.aspx.
\12\Thomas Kochan et al., Who Wants to Join a Union? A Growing
Number of Americans, MIT Mgmt. Blog (Sept. 2, 2018), https://
gcgj.mit.edu/whats-new/blog/who-wants-join-union-growing-number-
americans.
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To close the gap between the aspirations of workers to join
a union and the low rate of union membership, Congress must
address the full range of deficiencies in the NLRA. The PRO Act
is designed to lessen income inequality and support workers'
fundamental right to organize and collectively bargain.
Committee Action
115TH CONGRESS
On December 5, 2017, Congressman Robert C. ``Bobby'' Scott
(D-VA-3) introduced H.R. 4548, the Workplace Action for a
Growing Economy Act (WAGE Act). The WAGE Act amended the NLRA
to: require backpay and authorize additional liquidated damages
equal to double the amount of backpay to employees who were
terminated or experienced serious economic harm resulting from
unfair labor practices, require notice posting of the rights
guaranteed to workers under the NLRA, authorize civil monetary
penalties for violations of the NLRA that result in the
discharge of employees or other serious economic harm, prevent
the misclassification of employees as supervisors or
independent contractors, and streamline the process for
reaching initial collective bargaining agreements. H.R. 4548
was referred to the House Committee on Education and the
Workforce. No further action was taken on the bill.
On October 19, 2018, Congressman Scott (VA) introduced H.R.
6080, the Workers' Freedom to Negotiate Act of 2018. H.R. 6080
amended the NLRA to: make backpay without reduction available
as a remedy to employees who were terminated or experienced
serious economic harm resulting from unfair labor practices,
require notice posting of the rights guaranteed under the NLRA,
authorize civil monetary penalties for unfair labor practices
that result in the discharge of an employee or serious economic
harm, prevent the misclassification of employees as independent
contractors or supervisors, prevent employers from avoiding
their bargaining obligations as joint employers under the NLRA,
protect workers' right to engage in strike and boycott
activity, allow workers to bring civil actions against
employers for labor law violations in federal court, and
require bidders seeking federal contracts over $500,000 to
disclose administrative merit determinations of labor law
violations. H.R. 6080 was referred to the Committee on
Education and the Workforce and the Committee on Oversight and
Government Reform. No further action was taken on the bill.
116TH CONGRESS
On March 26, 2019, the Health, Employment, Labor, and
Pensions Subcommittee (HELP Subcommittee) of the House
Committee on Education and Labor (Committee) held a hearing
entitled ``Protecting Workers' Right to Organize: The Need for
Labor Law Reform'' (hereinafter March 26th Hearing). The
witnesses were: Jake Rosenfeld, Professor of Sociology at
Washington University, St. Louis, MO; Cynthia Harper, Former
Lamination Specialist at Fuyao Glass, Englewood, OH; Glenn
Taubman, Staff Attorney for the National Right to Work
Foundation, Springfield, VA; and, Devki K. Virk, Member of
Bredhoff & Kaiser, PLLC, Washington, DC. During the hearing,
members and witnesses identified the economic consequences of
declining union membership, the inadequacy of deterrents for
employer violations of the NLRA, and legislative solutions that
would strengthen the rights set forth in the law.
On May 2, 2019, Congressman Scott (VA) introduced H.R.
2474, the Protecting the Right to Organize Act of 2019 (PRO
Act). H.R. 2474 amends the NLRA to: require backpay without
reduction as a remedy to employees who were terminated or
experienced serious economic harm resulting from unfair labor
practices, require a notice posting of workers' rights under
the NLRA; authorize civil monetary penalties for violations of
workers' rights under the NLRA; guarantee workers free and fair
representation elections; prevent misclassification of
employees as independent contractors and supervisors; prevent
employers from evading their duties as joint employers under
the NLRA; protect workers' First Amendment rights; allow
workers to bring civil actions against employers for labor law
violations in federal court; and, provide a mechanism for
reaching a first collective bargaining agreement. The PRO Act
was referred to the Committee.
On May 8, 2019, the HELP Subcommittee held a legislative
hearing entitled ``Protecting the Right to Organize Act:
Deterring Unfair Labor Practices'' (hereinafter May 8th
Hearing). The witnesses were: Richard Trumka, President of the
AFL-CIO, Washington, DC; Jim Staus, Former Supply Clerk at
University of Pittsburgh Medical Center, Pittsburgh, PA; Philip
Miscimarra, Partner at Morgan, Lewis & Bockius LLP, Washington,
DC; and, Mark Pearce, Executive Director of the Workers' Rights
Institute at Georgetown University Law School and former
Chairman of the NLRB, Washington, DC. During the hearing,
members and witnesses explored the consequences of the NLRA's
weak enforcement scheme, the impacts of lacking penalties for
employer interference with worker organizing, the NLRB's
inability to enforce its own orders, and the remedies contained
in the PRO Act.
On July 25, 2019, the HELP Subcommittee held a legislative
hearing entitled ``Protecting the Right to Organize Act:
Modernizing America's Labor Laws'' (hereinafter July 25th
Hearing). The witnesses were: Charlotte Garden, Associate
Professor and Co-Associate Dean for Research and Faculty
Development at the Seattle University School of Law, Seattle,
WA; Josue Alvarez, Truck Driver for XPO Logistics, Bell
Gardens, CA; G. Roger King, Senior Labor and Employment Counsel
at the HR Policy Association, Washington, DC; and, Richard F.
Griffin, Jr., Of Counsel at Bredhoff & Kaiser, PLLC, and former
Member and General Counsel of the NLRB, Washington, DC. During
the hearing, members and witnesses examined the problems caused
by misclassification of employees as independent contractors or
supervisors, the NLRB's efforts to narrow the joint employer
standard, and undue restrictions on workers' First Amendment
right to strike or engage in peaceful picketing activity.
On September 25, 2019, the Committee met for a full
committee markup of H.R. 2474. The Committee considered as base
text an amendment in the nature of a substitute (ANS) offered
by Chairman Scott (VA). The ANS incorporated H.R. 2474 with the
following modifications:
A reinstatement of the NLRB's responsibility
to submit annual reports to Congress summarizing
significant case activities and operations.
A protection for good faith collective
bargaining to prevent employers from declaring an
impasse in bargaining and unilaterally implementing new
terms or conditions of employment.
A prohibition on unilateral employer
withdrawal of union recognition without a
decertification election.
A 14-day time limit within which labor
organizations and employers select members of
tripartite arbitration panels during first contract
negotiations.
A clarification that the NLRB's
representation election procedures require employers to
provide unions with employee contact information in a
searchable electronic format.
Protections for employee concerted activity
that occurs via workplace email or other employer-
provided electronic communication systems on non-
working time, unless the employer has a compelling
business rationale to prevent such use.
A requirement that the NLRB find proposed
bargaining units appropriate when labor organizations
demonstrate that the employees in the bargaining unit
share a community of interest. However, the NLRB is not
required to find proposed bargaining units appropriate
when there is a determination that excluded employees
share an overwhelming community interest with the
petitioned for unit of employees.
The following four amendments to the ANS were offered and
adopted during the markup:
Congresswoman Frederica Wilson (D-FL-24)
offered an amendment to specify that an employer
violates the NLRA by misclassifying an employee as
anything other than an employee under the NLRA. The
amendment was adopted by a vote of 25 ayes to 21 nays.
Congressman Andy Levin (D-MI-9) offered an
amendment to permit union representation elections to
be conducted either electronically, through certified
mail, at the employer's premises, or at a location
other than one owned or controlled by the employer. The
amendment was adopted by a vote of 27 ayes to 21 nays.
Congressman Josh Harder (D-CA-10) offered an
amendment to broaden the enforcement provisions in the
PRO Act by authorizing civil monetary penalties for all
violations of Section 8(a) of the NLRA. The amendment
was adopted by a vote of 27 ayes to 21 nays.
Congresswoman Lori Trahan (D-MA-3) offered
an amendment to prohibit offensive lockouts by making
it an unfair labor practice for an employer to lockout,
suspend, or otherwise withhold employment from
employees in order to influence the position of such
employees or their union in collective bargaining prior
to a strike. The amendment was adopted by a vote of 27
ayes to 21 nays.
The following 31 amendments to the ANS were offered, but
not adopted during the markup:
Congressman Rick Allen (R-GA-12) offered an
amendment to strike the provision in the ANS that
protects the right of unions and employers to negotiate
fair share fees notwithstanding any state laws. The
amendment was defeated by a vote of 21 ayes to 27 nays.
Congressman Allen offered an amendment to
allow employees to revoke their union dues
authorization at any time, rather than during
prescribed time periods. The amendment was defeated by
a vote of 21 ayes to 27 nays.
Congressman Glenn Thompson (R-PA-15) offered
an amendment to require that the notice of employees'
rights and protections included in the ANS must include
information on opting out of paying dues for labor
organizations' political activities and on opting out
of all dues payment in states that prohibit fair share
requirements. The amendment was defeated by a vote of
21 ayes to 27 nays.
Congressman Phil Roe (R-TN-1) offered an
amendment to prohibit employers from recognizing unions
on the basis of majority support in the form of card
check. The amendment was defeated by a vote of 21 ayes
to 27 nays.
Congressman Roe offered an amendment to
require mandatory union recertification elections when
turnover or mergers occur that impact over 50% of the
bargaining unit. The amendment was defeated by a vote
of 21 ayes to 27 nays.
Congressman Roe offered an amendment to
allow individuals who are not union members and are
covered by a collective bargaining agreement to vote on
collective bargaining agreements, strikes, or
participation in a multiemployer pension plan. The
amendment was defeated by a vote of 21 ayes to 27 nays.
Congressman Jim Banks (R-IN-3) offered an
amendment to require employees prove their legal status
in order to vote in a union representation election.
The amendment was defeated by a vote of 21 ayes to 27
nays.
Congressman Dusty Johnson (R-SD-At Large)
offered an amendment to allow employers to avoid
collective bargaining over raises that are not
specified in a collective bargaining agreement. The
amendment was defeated by a vote of 21 ayes to 27 nays.
Congressman Daniel Meuser (R-PA-9) offered
an amendment to establish an unfair labor practice for
labor organizations that fail to protect personal
information received during an organizing drive or to
use such information for any matter other than a
representation proceeding. The amendment was defeated
by a vote of 21 ayes to 27 nays.
Congressman William Timmons (R-SC-4) offered
an amendment to authorize civil penalties against
unions for violations of the secondary boycott
prohibitions under current law. The amendment was
defeated by a vote of 21 ayes to 27 nays.
Congressman James Comer (R-KY-1) offered an
amendment to strike the language repealing Section
8(b)(4) of the NLRA (covering secondary boycotts) from
the ANS. The amendment was defeated by a vote of 21
ayes to 27 nays.
Congressman Fred Keller (R-PA-12) offered an
amendment to strike the language repealing Section
8(b)(4) and 8(b)(7) of the NLRA (covering secondary
boycotts and recognitional picketing) from the ANS. The
amendment was defeated by a vote of 21 ayes to 27 nays.
Congresswoman Elise Stefanik (R-NY-21)
offered an amendment to strike the definition of an
independent contractor from the ANS. The amendment was
defeated by a vote of 21-27.
Congressman Steve Watkins (R-KS-2) offered
an amendment to prevent an arbitration panel's decision
regarding a first collective bargaining agreement from
being based on a requirement that employees in the
bargaining unit participate in a multiemployer pension
plan. The amendment was defeated by a vote of 21 ayes
to 27 nays.
Congressman Tim Walberg (R-MI-7) offered an
amendment to delay union pre-election hearings for at
least 14 days. The amendment was defeated by a vote of
21 ayes to 27 nays.
Congressman Walberg offered an amendment to
require notice accompanying union authorization cards
declaring the purpose and disclosure of dues and fees.
The amendment was defeated by a vote of 21 ayes to 27
nays.
Congressman Walberg offered an amendment to
prevent human trafficking provisions from being taken
into account for purposes of determining joint employer
status. The amendment was defeated by a vote of 21 ayes
to 27 nays.
Congressman Bradley Byrne (R-AL-1) offered
an amendment to narrow the joint employer standard in
the ANS. The amendment was defeated by a vote of 21
ayes to 27 nays.
Congressman Byrne offered an amendment to
prevent the imposition of corporate social
responsibility requirements on third parties from being
used as evidence of a joint employer relationship. The
amendment was defeated by a vote of 21 ayes to 27 nays.
Congressman Lloyd Smucker (R-PA-11) offered
an amendment to expand civil monetary penalty
provisions in the ANS so that they apply to labor
organizations. The amendment was defeated by a vote of
21 ayes to 26 nays.
Congressman Smucker offered an amendment to
prohibit unions from preventing workers, regardless of
membership status in the union, from working during a
strike. The amendment was defeated by a vote of 21 ayes
to 26 nays.
Congressman Smucker offered an amendment to
require employees to provide 35-day advance approval of
any union expenditure for a purpose other than
collective bargaining. The amendment was defeated by a
vote of 21 ayes to 26 nays.
Congressman Brett Guthrie (R-KY-2) offered
an amendment to strike the provision in the ANS that
ends employer status as a party in representation
cases. The amendment was defeated by a vote of 21 ayes
to 26 nays.
Congressman Mark Walker (R-NC-6) offered an
amendment to strike the provision in the ANS that
clarifies the types of persuader activity that must be
disclosed under the Labor-Management Reporting and
Disclosure Act of 1959 (LMRDA). The amendment was
defeated by a vote of 21 ayes to 26 nays.
Congressman Russ Fulcher (R-ID-21) offered
an amendment to permit employees in a union, who have
been voluntarily recognized by their employer, to
petition for a decertification election within a 45-day
window after recognition and eliminate the need for the
NLRB to fully investigate and adjudicate an unfair
labor practice charge before conducting a
decertification election. The amendment was defeated by
a vote of 21 ayes to 26 nays.
Congresswoman Virginia Foxx (R-NC-5),
Ranking Member of the Committee, offered an amendment
to establish that an employee's violent conduct is a
violation of the NLRA, prevent reinstatement of any
violent employee and end union recognition based on the
violent conduct of an employee, and authorize the NLRB
to seek injunctions against labor organizations that
directly engage in or encourage violence. The amendment
was defeated by a vote of 21 ayes to 26 nays.
Ranking Member Foxx offered an amendment to
limit the voter contact information that unions receive
from an employer before a representation election to
only one form of contact for each employee. The
amendment was defeated by a vote of 21 ayes to 26 nays.
Ranking Member Foxx offered an amendment to
require collective bargaining over the full scope of
health benefits, notwithstanding any other provision of
law. The amendment was defeated by a vote of 21 ayes to
26 nays.
Ranking Member Foxx offered an amendment to
strike provisions of the ANS that provide mediation and
arbitration to ensure the employer and union conclude a
first collective bargaining agreement. The amendment
was defeated by a vote of 21 ayes to 26 nays.
Ranking Member Foxx offered an amendment to
mandate that unions file additional annual financial
reports regarding trusts such as training funds, strike
funds, and apprenticeship program budgets with the U.S.
Department of Labor as well as create whistleblower
protections covering employees of labor unions. The
amendment was defeated by a vote of 21 ayes to 26 nays.
Ranking Member Foxx offered an amendment to
rename the bill. The amendment was defeated by voice
vote.
The Committee voted to favorably report H.R. 2474, as
amended, to the House of Representatives by a vote of 26 ayes
to 21 nays.
Committee Views
The Committee is committed to protecting employees'
fundamental rights to freedom of association and collective
bargaining. The PRO Act deters violations of these rights by
authorizing civil monetary penalties, simplifying the
enforcement of remedies, and bolstering transparency. Moreover,
the PRO Act prevents employers from evading their obligations
under the NLRA, eliminates prohibitions on employees' First
Amendment rights, and safeguards employees' right to engage in
concerted activity.
UNIONS ARE ESSENTIAL FOR A THRIVING MIDDLE CLASS
Once a union is elected by a majority of employees, or
voluntarily recognized by an employer on the basis of a showing
of majority support for the union, workers have the right to
negotiate for better terms and conditions of employment.
Through this process of collective bargaining, unions can
secure gains including wage increases, healthcare and
retirement benefits, increased workplace safety, predictable
work schedules, and protections against discrimination.\13\
---------------------------------------------------------------------------
\13\See generally Josh Bivens et al., Econ. Policy Inst., How
Today's Unions Help Working People (2017), https://www.epi.org/files/
pdf/133275.pdf.
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A worker covered by a collective bargaining agreement earns
an average of 13.2 percent more in wages than a peer in the
same sector who has similar experience, education, and
occupational classification in a non-union workplace.\14\
Workers covered by a union contract are more than four times as
likely to have a defined benefit pension than nonunion
workers,\15\ and private sector workers covered by a union
contract are 28 percent more likely to be offered health
insurance through their employer.\16\
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\14\Id.
\15\Bureau of Labor Statistics, Retirement Benefits: Access,
Participation, and Take-Up Rates, Employee Benefits Survey (Mar. 2018),
https://www.bls.gov/ncs/ebs/benefits/2018/ownership/civilian/
table02a.htm.
\16\Bureau of Labor Statistics, Medical Care Benefits: Access,
Participation, and Take-Up Rates, Econ. News Release (Mar. 2018),
https://www.bls.gov/ncs/ebs/benefits/2018/ownership/private/
table09a.htm.
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Data show that union membership helps to narrow the racial
wealth gap.\17\ Union members of color have almost five times
the median wealth of their non-union counterparts.\18\
Moreover, union representation benefits all workers regardless
of race by ensuring that they have job stability and other
critical employment benefits.\19\
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\17\Christian E. Weller and David Madland, Union Membership Narrows
the Racial Wealth Gap for Families of Color, Center for American
Progress (Sept. 4, 2018, 8:00 AM), https://www.americanprogress.org/
issues/economy/reports/2018/09/04/454781/union-membership-narrows-
racial-wealth-gap-families-color/.
\18\Id.
\19\Id.
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Unions nearly close the gender wage gap. As Dr. Rosenfeld
testified at the March 26th Hearing, ``collective bargaining
agreements often include many key tools proven to reduce wage
inequality between men and women. They standardize wage rates,
promote pay transparency, and provide workers who feel they
have been unfairly treated with procedures to file formal
complaints.''\20\ Union contracts ensure equal pay for the same
job classification and seniority regardless of gender.\21\ For
women represented by unions, average hourly wages are 9.2
percent higher than for nonunionized women who have comparable
characteristics.\22\
---------------------------------------------------------------------------
\20\Rosenfeld Testimony at 5 (citing Elise Gould & Celine
McNicholas, Unions Help Narrow the Gender Wage Gap, Econ. Policy Inst.
(Apr. 3, 2017), https://www.epi.org/blog/unions-help-narrow-the-gender-
wage-gap/.
\21\Elise Gould & Celine McNicholas, Unions Help Narrow the Gender
Wage Gap, Econ. Policy Inst. (Apr. 3, 2017), https://www.epi.org/blog/
unions-help-narrow-the-gender-wage-gap/.
\22\Josh Bivens et al., Econ. Policy Inst., How Today's Unions Help
Working People 11 (2017), https://www.epi.org/files/pdf/133275.pdf.
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THE DECLINE OF UNION MEMBERSHIP HAS BEEN A MAJOR CAUSE OF WAGE
STAGNATION AND INCOME INEQUALITY
Despite the benefits of union membership, union density has
fallen from 33.2 percent of the workforce in 1956 to 10.5
percent in 2018.\23\ This decline in union density has
contributed to over 40 years of wage stagnation. Hourly wages
for the typical worker grew in lockstep with productivity
between the end of World War II and 1979, increasing by more
than 90 percent.\24\ Since 1979, however, wages have only grown
by 11.6 percent, adjusting for inflation, while workers'
productivity has increased by 69.6 percent.\25\
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\23\Id.; Bureau of Labor Statistics, Union Membership (Annual),
News Release (Jan. 19, 2018), https://www.bls.gov/news.release/
union2.htm.
\24\The Productivity-Pay Gap, Econ. Policy Inst., https://
www.epi.org/productivity-pay-gap/ (last visited Dec. 4, 2019) (updated
July 2019).
\25\Id.
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Loss of union density has also contributed to wage
stagnation for non-union workers, as non-union employers faced
less pressure to increase wages to match those in unionized
workplaces. At the March 26th Hearing, Dr. Rosenfeld testified
about research he conducted in 2016, which revealed that the
wages of non-union men would be more than $50 higher per week,
adjusting for inflation, if unions today remained as strong as
they were in the late 1970s.\26\
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\26\Rosenfeld Testimony at 2 (citing Jake Rosenfeld et al., Econ.
Policy Inst., Union Decline Lowers Wages of Nonunion Workers 12 (2016),
https://www.epi.org/files/pdf/112811.pdf).
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The decline in union membership also widened income
inequality.\27\ If workers are not able to collectively
bargain, then they are unable to negotiate for a fair share of
the wealth they create. As the chart below from the Economic
Policy Institute demonstrates, while union density steadily
declined from 25.4 percent in 1979 to 11.1 percent in 2015, the
share of income in the United States received by the wealthiest
10 percent of Americans increased from 32.3 percent to 47.8
percent during that same period.\28\
---------------------------------------------------------------------------
\27\Bruce Western and Jake Rosenfeld, Unions, Norms, and the Rise
in U.S. Wage Inequality, 76 Am. Sociological Rev. 513 (2011).
\28\Josh Bivens et al., Econ. Policy Inst., How Today's Unions Help
Working People 11-12 (2017), https://www.epi.org/files/pdf/133275.pdf.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
WEAK LABOR LAWS AND INTENSIFIED EMPLOYER OPPOSITION ARE MAJOR CAUSES OF
THE DECLINE IN UNION MEMBERSHIP
The low rate of union membership is not a product of worker
choice; survey results show that just under half of all non-
union workers would join a union if they had the opportunity to
do so.\29\ The gap between workers' desire to form a union and
their ability to do so is largely attributable to the NLRA's
failure to deter employers from violating their employees'
rights to organize and bargain.\30\
---------------------------------------------------------------------------
\29\Thomas Kochan et al., Who Wants to Join a Union? A Growing
Number of Americans, MIT Mgmt. Blog (Sept. 2, 2018), https://
gcgj.mit.edu/whats-new/blog/who-wants-join-union-growing-number-
americans.
\30\At the March 26th Hearing, Dr. Rosenfeld rebutted the claim
that automation and outsourcing have been major causes of the decline
in union density; he did so by comparing the dramatic decline in union
membership across industries, noting that the decline has been equally
great in industries like transportation and construction, which have
not been greatly affected by automation and outsourcing. Rosenfeld
Testimony at 5-6.
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A 2009 study on employer conduct during union elections
found that, in 96 percent of elections, employers conducted
anti-union campaigns during representation elections that
consisted ``of threats, interrogation, surveillance,
harassment, coercion, and retaliation.''\31\ That study found
that employers threatened to close the plant in 57 percent of
representation elections, and that employers threatened to cut
wages in 47 percent of union representation elections.\32\ The
study also found that 90 percent of employers forced their
employees to attend captive audience meetings--mandatory anti-
union meetings--prior to a representation election, and 77
percent had supervisors conduct one-on-one meetings with
workers where the employees were threatened and/or interrogated
about their union activity.\33\ To make matters worse, the law
does not prohibit employers from requiring employees to attend
such meetings,\34\ except in the 24 hours immediately preceding
the election.\35\ The error in this policy is that captive
audience meetings are just as coercive at any time before an
election as they are the day before.\36\
---------------------------------------------------------------------------
\31\Kate Bronfenbrenner, Econ. Policy Inst., No Holds Barred: The
Intensification of Employer Opposition to Organizing 9-10 (2009),
https://www.epi.org/files/page/-/pdf/bp235.pdf.
\32\Id.
\33\Id. at 12.
\34\J.P. Stevens & Co., 219 NLRB 850, 854 (1974).
\35\Peerless Plywood Co., 107 NLRB 427 (1953) (ruling that captive
audience speeches are unlawful if they occur within 24 hours of the
election).
\36\See Tumka Testimony at 3; see also Michael M. Oswalt, The
Content of Coercion, 52 U.C. Davis L. Rev. 1585, 1626 (2019) (noting
that, when the NLRB provided a rationale for prohibiting captive
audience meetings 24 hours before an election, the NLRB never explained
``why a thirty-six, forty-eight, or even fifty-six hour cooling-off
period would not have been psychically better'').
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Despite the frequent use of intimidation tactics against
employees, unions only reported 40 percent of cases of illegal
behavior to the NLRB because the administrative process is
``fraught with delays and risks to the worker, with extremely
limited penalties for the employer, even in the most extreme
cases.''\37\ Such tactics, coupled with the firing of union
supporters during elections, effectively stymie employees'
right to choose a union in an environment free of coercion.
---------------------------------------------------------------------------
\37\Kate Bronfenbrenner, Econ. Policy Inst., No Holds Barred: The
Intensification of Employer Opposition to Organizing 3 (2009), https://
www.epi.org/files/page/-/pdf/bp235.pdf.
---------------------------------------------------------------------------
At the March 26th Hearing, Ms. Virk testified about how the
NLRA fails to deter employers from violating the law:
The NLRB investigates hundreds of charges of illegal
firings and retaliation each year. In fiscal year 2018,
the NLRB obtained 1,270 reinstatement orders from
employers for workers who were illegally fired for
exercising their rights under labor law, and the NLRB
collected $54 million in back pay for workers.\38\ But
because there are no significant monetary penalties
against employers who illegally fire workers--only the
back pay that the employer would have been paying the
worker all along, minus any wages the worker did or
could have earned in the meantime--employers just keep
on firing workers when they try to organize a
union.\39\
---------------------------------------------------------------------------
\38\NLRB, FY 2018 Performance and Accountability Report 15 (2018),
https://www.nlrb.gov/sites/default/files/attachments/basic-page/node-
1674/nlrbpar2018508.pdf.
\39\Protecting Workers' Right to Organize: The Need for Labor Law
Reform Before the Subcomm. on Health, Employment, Labor, and Pensions
of the H. Comm. on Educ. and Labor, 116th Cong. (2019) (written
testimony of Devki Virk, Member at Bredhoff & Kaiser, PLLC, at 10-11)
(reprinted as Serial 116-11) [Hereinafter Virk Testimony].
Taken together, employer antiunion tactics and the NLRA's
deficiencies actually have the effect of incentivizing
employers to commit unfair labor practices. As Mr. Pearce
---------------------------------------------------------------------------
explained at the May 8th Hearing:
The employer can take full advantage of violating the
law with minimum repercussions. You terminate an
individual . . . and kill the organizing drive. You
could possibly put the backpay owed to that individual
in a low interest savings account and, by the time
there is a determination that you have to pay, and you
subtract the interim earnings from that, you have made
money on your wrongdoing.\40\
---------------------------------------------------------------------------
\40\Subcomm. on Health, Employment, Labor, and Pensions of the H.
Comm. on Educ. and Labor, Protecting the Right to Organize Act:
Deterring Unfair Labor Practices, YouTube (May 8, 2019), https://
www.youtube.com/watch?v=ns7zq9WLwvs (answer of Mr. Pearce at 1:28:26).
---------------------------------------------------------------------------
THE PRO ACT WOULD DETER EMPLOYERS FROM VIOLATING WORKERS' RIGHT TO
ORGANIZE
Congress Must Amend the NLRA to Provide for Civil Penalties and
Meaningful Remedies for Violations
The NLRA's weaknesses are contrary to the statute's
explicit purpose of ``encouraging the practice and procedure of
collective bargaining'' and ``protecting the exercise by
workers of full freedom of association.''\41\ As Mr. Pearce
explained at the May 8th Hearing, Section 10(c) of the NLRA
limits remedies for an unfair labor practice to a cease-and-
desist order, a notice posting, and, in the event of an
unlawful termination, reinstatement with backpay.\42\ Because
the NLRB is only empowered to award backpay, employers can
commit serious violations of the NLRA--such as threats, rules
in the employee handbook that prohibit protected concerted
activity, or surface bargaining with no intent to reach an
agreement--and avoid paying any monetary amount because the
violation did not directly cause an individual monetary
harm.\43\ The NLRA is so weak that, in particularly egregious
cases, the NLRB's ``extraordinary'' remedy is not a monetary
penalty, but an order for the employer to read the notice aloud
to the employees.\44\
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\41\29 U.S.C. Sec. 151.
\42\Protecting the Right to Organize Act: Deterring Unfair Labor
Practices Before the Subcomm. on Health, Employment, Labor, and
Pensions of the H. Comm. on Educ. and Labor, 116th Cong. (2019)
(written testimony of Mark Gaston Pearce, Executive Director of the
Workers' Rights Institute at Georgetown University Law Center, at 2)
[Hereinafter Pearce Testimony]; see also 29 U.S.C.Sec. 160(c).
\43\Virk Testimony at 11, 19.
\44\Ishikawa Gasket Am., Inc., 337 NLRB 176, 176 (2001) (declining
to require employer to read notice where employer violated NLRA by
discharging employee for union activities, decreasing an annual bonus
because of union activity, soliciting an employee to surveil employees'
union activities, and requiring an employee to sign a separation
agreement where the employee waives their right to engage in protected
activities in exchange for a settlement payment); see also Virk
Testimony at 11.
---------------------------------------------------------------------------
In this sense, the NLRA is unlike other federal labor and
employment laws. For example, an employee may receive
compensatory and punitive damages for a violation of Title VII
of the Civil Rights Act of 1964,\45\ and employees under the
Fair Labor Standards Act (FLSA) can recover liquidated damages
in addition to unpaid minimum wages and overtime.\46\
---------------------------------------------------------------------------
\45\Pearce Testimony at 2; see also 42 U.S.C. Sec. 1981a(a)(1).
\46\Pearce Testimony at 2; see also 29 U.S.C. Sec. 216.
---------------------------------------------------------------------------
Further undermining the NLRA's remedies is that the NLRB
must reduce any backpay award by the amount of income the
employee has earned while their case is pending before the
NLRB. At the May 8th Hearing, Mr. Staus testified as to how
this negatively impacted his case, where the NLRB found that
University of Pittsburg Medical Center unlawfully fired him for
union organizing:
Although the federal government twice found that UPMC
wrongly fired me, six years later I still haven't
returned to work at UPMC and I still haven't seen a
penny of back-pay. In fact, under current law,
everything I earn since I was fired is deducted from
what UPMC owes me. By trying to provide for my family
at another job, I am working off UPMC's debt.\47\
---------------------------------------------------------------------------
\47\Protecting the Right to Organize Act: Deterring Unfair Labor
Practices Before the Subcomm. on Health, Employment, Labor, and
Pensions of the H. Comm. on Educ. and Labor, 116th Cong. (2019)
(written testimony of Jim Staus, at 3).
The PRO Act resolves these defects by awarding monetary
penalties of up to $50,000 for any unfair labor practice, which
is determined based upon the gravity of the unfair labor
practice, the impact of the violation, and the gross income of
the employer. The NLRB must double this penalty if the
violation involves an employee's discharge or serious economic
harm and if the employer committed another such violation
within the preceding five years. To further deter employers
from retaliating against employees, the PRO Act awards backpay
plus an amount equal to two times the backpay award, without
any reduction for interim earnings.
The NLRB Must Be Able to Enforce Its Own Orders
The NLRB is further limited by weaknesses in its own
administrative procedure. For example, as early as 1969, the
Administrative Conference of the United States (ACUS) observed
that the NLRB is unlike other federal enforcement agencies in
that its orders are not self-enforcing.\48\ Instead, an
employer can simply refuse to obey the order, requiring the
NLRB to apply for enforcement from a United States Court of
Appeals, which further delays remedies for an employee.\49\
ACUS concluded that this procedure ``serves no useful purpose
but operates to delay the effectiveness of NLRB orders and
impose unnecessary costs on the Board.''\50\
---------------------------------------------------------------------------
\48\Judicial Enforcement of Orders of the National Labor Relations
Board, Administrative Conference of the United States, https://
www.acus.gov/recommendation/judicial-enforcement-orders-national-labor-
relations-board (last visited Dec. 4, 2019) (recommendation No. 69-2,
published on October 22, 1969).
\49\29 U.S.C. Sec. 160(e).
\50\Judicial Enforcement of Orders of the National Labor Relations
Board Administrative Conference of the United States, https://
www.acus.gov/recommendation/judicial-enforcement-orders-national-labor-
relations-board2 (last visited Dec. 4, 2019) (recommendation No. 69-2,
at 238, published on October 22, 1969).
---------------------------------------------------------------------------
Fifty years after ACUS recommended that the NLRB should be
authorized to issue self-enforcing orders similar to those of
other federal agencies, the PRO Act implements that
recommendation. The ACUS report points to the Federal Trade
Commission as a model.\51\ Under the PRO Act, NLRB orders would
be effective upon issuance, and the PRO Act allows the
aggrieved party 30 days to petition for review from a United
States Court of Appeals.
---------------------------------------------------------------------------
\51\Id; see also 15 U.S.C. Sec. 45(l) (establishing penalties for
violation of an order by the Federal Trade Commission). The PRO Act
also adopts enforcement provisions that govern the Federal
Communications Commission. See 47 U.S.C. Sec. 401(b).
---------------------------------------------------------------------------
Workers Must Be Able to Secure Temporary Reinstatement for the Duration
of Their NLRB Proceedings
Despite the fact that employees confront lengthy delays in
securing reinstatement and backpay, the NLRB ``sparingly'' uses
its authority to seek court injunctions for temporary
reinstatement when an employer fires workers for union
organizing.\52\ As Mr. Pearce explained at the May 8th Hearing,
``In fiscal year 2018, the Board only authorized 22 injunctions
. . . By contrast, during my years as Chairman, the Board
authorized an average of 43 injunctions per year.''\53\
Although the NLRA's stated purpose is to protect employees'
freedom of association,\54\ the NLRB is not mandated to seek an
injunction requiring temporary reinstatement while the
employee's case is pending, but it must do so if an employer
alleges that a union engages in unlawful secondary activity or
recognitional picketing.\55\ This disparity in the treatment of
workers lacks a reasoned basis.
---------------------------------------------------------------------------
\52\Pearce Testimony at 6; see also 29 U.S.C. Sec. 160(j).
\53\Id.
\54\29 U.S.C. Sec. 151.
\55\Compare id. Sec. 160(j) (permitting the NLRB's General Counsel
to seek injunctive relief for the duration of a proceeding) with id.
Sec. 160(l) (requiring the General Counsel to seek injunctive relief
against a union charged with violating Section 8(b)(4), Section 8(e),
or Section 8(b)(7) of the NLRA).
---------------------------------------------------------------------------
NLRB enforcement proceedings often continue for years after
the employee is fired and may have found other work, and they
almost always conclude long after an organizing drive is over.
As Ms. Virk noted in her written testimony: ``The Board's
remedies are . . . ineffective deterrents . . . practically, as
employees never get to see an unlawfully fired employee made
whole by returning to the workplace at a time when it still
matters for an organizing drive.''\56\
---------------------------------------------------------------------------
\56\Virk Testimony at 11.
---------------------------------------------------------------------------
The PRO Act requires the NLRB's General Counsel to seek
injunctive relief whenever an employee suffers a violation of
the NLRA involving discharge of other serious economic harm. As
Mr. Griffin explained at the July 25th Hearing, ``These
provisions will make the Board much more capable of addressing
unfair labor practice violations quickly and effectively, and
will strengthen the Board's hand in settlement negotiations as
well.''\57\
---------------------------------------------------------------------------
\57\Protecting the Right to Organize Act: Modernizing America's
Labor Laws Before the Subcomm. on Health, Employment, Labor, and
Pensions of the H. Comm. on Educ. and Labor, 116th Cong. (2019)
(written testimony of Richard Griffin, Member of Bredhoff & Kaiser
PLLC, at 12-13) [Hereinafter Griffin Testimony].
---------------------------------------------------------------------------
Workers Need a Private Right of Action if the NLRB Does Not Offer
Recourse
The PRO Act also authorizes a private right of action in
instances where the NLRB's General Counsel fails to prosecute
an employee's unfair labor practice charge. Under current law,
the General Counsel has exclusive discretion whether to
prosecute a violation,\58\ and, if they decline to prosecute,
then the employee alleging a violation has no recourse
whatsoever.\59\ Under the PRO Act, if an employee files an
unfair labor practice charge with the NLRB alleging discharge
or serious economic harm, they may take their claim to federal
district court if the General Counsel does not pursue an
injunction to protect them within 60 days. This avenue for
recourse strikes a balance between the NLRB's expertise in
matters of labor relations, to which courts should defer, and
the employee's right to due process if they do not receive
recourse from the agency.
---------------------------------------------------------------------------
\58\Under the current Administration, this discretion has been used
in an increasingly partisan way. For example, the current General
Counsel, Peter Robb, has dismissed employees' charges against employers
at a far greater rate than his predecessor, leaving those employees
without opportunities for recourse. Robert Iafolla, Top Trump Labor
Lawyer Seeking Pro-Union Findings to Overturn, Bloomberg Law (May 2,
2019, 6:30 AM) https://news.bloomberglaw.com/daily-labor-report/trumps-
top-labor-lawyer-seeking-pro-labor-findings-to-overturn-1.
\59\29 U.S.C. Sec. 153(d).
---------------------------------------------------------------------------
THE PRO ACT WOULD SAFEGUARD FREE AND FAIR UNION REPRESENTATION
ELECTIONS
The NLRA Provides Employers Imbalanced Power to Shape Union
Representation Elections, and They Are Not Even on the Ballot
Union representation elections under current law are
fraught with opportunities for employers to chill the
environment against employees' right to exercise ``full freedom
of association.''\60\ Elections are typically conducted on the
employer's premises, even if the employer campaigns against the
union, holds captive audience meetings, or requires employees
to submit to one-on-one meetings with supervisors about union
organizing.\61\ The PRO Act remedies this problem by requiring
the NLRB to conduct the election electronically, by mail
ballot, or at a neutral location at the request of the union.
---------------------------------------------------------------------------
\60\29 U.S.C. Sec. 151.
\61\Kate Bronfenbrenner, Econ. Policy Inst., No Holds Barred: The
Intensification of Employer Opposition to Organizing 12 (2009), https:/
/www.epi.org/files/page/-/pdf/bp235.pdf.
---------------------------------------------------------------------------
The PRO Act undermines employers' disproportionate power
over union representation elections by specifying that an
employer commits an unfair labor practice when it holds a
captive audience meeting and forces employees to listen to
antiunion speech.\62\ Criticism that this provision ``would
eliminate the right of employers . . . to express opinions
regarding union representation issues'' is false.\63\ As Mr.
Trumka explained to the Committee in a supplemental statement
after the May 8th Hearing, this provision prohibits employers
from requiring or coercing employees into listening to employer
speech, rather than the expression of any views.\64\ Indeed,
the Supreme Court has recognized that ``no one has a right to
press even good' ideas on an unwilling recipient.''\65\ The PRO
Act does not prohibit meetings that are truly voluntary.
---------------------------------------------------------------------------
\62\Subcomm. on Health, Employment, Labor, and Pensions of the H.
Comm. on Educ. and Labor, Protecting the Right to Organize Act:
Deterring Unfair Labor Practices, YouTube (May 8, 2019), https://
www.youtube.com/watch?v=ns7zq9WLwvs (answer of Mr. Pearce at 2:31:11)
(explaining how the PRO Act would allow employees to choose not to
participate in an employer's campaign against the union, including
through meetings, through ride-alongs where an agent of the employer
sits next to an employee-driver urging them to oppose the union,
through new technology, or through other methods).
\63\Protecting the Right to Organize Act: Deterring Unfair Labor
Practices Before the Subcomm. on Health, Employment, Labor, and
Pensions of the H. Comm. on Educ. and Labor, 116th Cong. (2019)
(written testimony of Philip A. Miscimarra, Partner at Morgan Lewis &
Bockius LLP, at 7).
\64\Protecting the Right to Organize Act: Deterring Unfair Labor
Practices Before the Subcomm. on Health, Employment, Labor, and
Pensions of the H. Comm. on Educ. and Labor, 116th Cong. (2019)
(supplemental statement of Richard L. Trumka, President of the AFL-
CIO).
\65\Id. (quoting Rowan v. United States Post Office Dept., 397 U.S.
728, 738 (1970)); see also Frisby v. Schultz, 487 U.S. 474, 487 (``The
First Amendment permits the government to prohibit offensive speech as
intrusive when the captive' audience cannot avoid the objectionable
speech.'').
---------------------------------------------------------------------------
Unnecessary procedural delays have historically enabled
employers to have more time to campaign against the union
through lawful or unlawful means.\66\ In 2014, the NLRB
streamlined many of its representation election procedures to
prevent unnecessary delays, such as by requiring that the pre-
election hearing occur no later than eight days after the
notice of a hearing.\67\ The PRO Act codifies the timelines in
the 2014 Election Rule.
---------------------------------------------------------------------------
\66\Kate Bronfenbrenner, Econ. Policy Inst., No Holds Barred: The
Intensification of Employer Opposition to Organizing 12 (2009), https:/
/www.epi.org/files/page/-/pdf/bp235.pdf.
\67\Representation Case Procedures, 79 Fed. Reg. 74307 (Dec. 15,
2014) (codified at 29 C.F.R. pts. 101-03).
---------------------------------------------------------------------------
NLRB procedures have long allowed employers to participate
as a party in union representation cases--even though the NLRA
does not grant employers this right. This policy undermines
employees' freedom of association: employers are never on the
ballot, and only the unions are. Section 9 of the NLRA requires
that, once a union files a petition for an election, the NLRB
must determine, ``in order to assure to employees the fullest
freedom in exercising the rights guaranteed by this Act, the
unit appropriate for the purposes of collective
bargaining.''\68\ Section 9 also requires the NLRB to hold a
hearing prior to directing an election.\69\ In the legislative
history of the NLRA, Congress did not contemplate giving
employers standing as parties in representation procedures,
because these procedures are investigative, not adversarial, in
nature.\70\
---------------------------------------------------------------------------
\68\29 U.S.C. Sec. 159(b).
\69\Id. Sec. 159(c).
\70\1 Legislative History of the National Labor Relations Act,
1425-26 (1949) (from Hearings before the Senate Committee on Education
and Labor from March 11th-14th , 1935, 74th Congress on S. 1958).
---------------------------------------------------------------------------
As a result of NLRB procedures developed after the passage
of the NLRA, when a union files a petition for a representation
election, the employer has standing as a party to litigate
issues prior to and after the election. These issues include
the scope of the bargaining unit and whether certain ballots
should be excluded from the tally of votes.\71\ This remains
true today.\72\
---------------------------------------------------------------------------
\71\Craig Becker, Democracy in the Workplace: Union Representation
Elections and Federal Labor Law, 77 Minn. L. Rev. 495, 506-24 (1993)
(detailing how NLRB procedures evolved to provide employers party
standing in representation procedures).
\72\29 C.F.R. Sec. 102.1(h).
---------------------------------------------------------------------------
Although the NLRB has acquiesced to standing in
representation cases, courts do not consider employers as
having any due process right to litigate representation issues
before the NLRB. ``Board supervision and Board investigation
with no provision for a hearing on employer complaints would be
perfectly consistent with due process for employers.''\73\ When
the U.S. Chamber of Commerce challenged the NLRB's 2014
Election Rule, the United States District Court for the
District of Columbia rejected the challenge and found that
employers have no due process rights to be heard in NLRB
representation procedures.\74\
---------------------------------------------------------------------------
\73\NLRB v. ARA Services, Inc., 717 F.2d 57, 67 (3d Cir. 1983); see
also American Cable & Radio Corp. v. Douds, 111 F. Supp. 482, 485
(S.D.N.Y. 1952) (``Since [the employees] are to choose their
representative unhindered by the employer, [the employer] is at most a
nominal party to the proceeding. Of course the employer has an obvious
ultimate interest in who the collective bargaining representative is to
be . . . But it has no such immediate legal interest in as to authorize
its appearance, as a matter of right, clothed with all the armor of due
process . . .'').
\74\Chamber of Commerce v. NLRB, 118 F. Supp. 3d 171, 202 (D.D.C.
2015) (internal citations omitted) (``A procedural due process
violation occurs when an official deprives an individual of a liberty
or property interest without providing appropriate procedural
protections. And as the Chamber conceded during oral argument, the
Chamber plaintiffs were unable to direct the Court to any case that
identifies a due process interest in what takes place during a
representation election proceeding.'').
---------------------------------------------------------------------------
Under the Railway Labor Act,\75\ which covers employees in
the airline and railway industries, employers have no standing
as parties before the National Mediation Board (NMB). The
Supreme Court explicitly blessed this denial of employer
standing, noting that the NMB has sole discretion to permit
employers to litigate representation issues.\76\
---------------------------------------------------------------------------
\75\45 U.S.C. Sec. 151.
\76\Brotherhood of Railway Clerks v. Assoc. for the Benefit of Non-
Contract Employees, 380 U.S. 650, 666-67 (1965) (``Whether and to what
extent carriers will be permitted to present their views on craft or
class questions is a matter that the Act leaves solely in the
discretion of the Board . . . [W]hile the Board's investigation and
resolution of a dispute in one craft or class rather than another might
impose some additional burden upon the [employer], we cannot say that
the latter's interest rises to a status which requires the full panoply
of procedural protections.'').
---------------------------------------------------------------------------
As Mr. Trumka explained at the May 8th Hearing, granting
employers party status ``is like Canada trying to influence
your election because it is involved in trade negotiations with
the U.S.''\77\ In order to prevent employers from exploiting
NLRB representation proceedings, the PRO Act removes employers'
standing as parties to representation elections. Doing so
returns representation proceedings to their original purpose of
being investigative, rather than adversarial, in nature.
---------------------------------------------------------------------------
\77\Protecting the Right to Organize Act: Deterring Unfair Labor
Practices Before the Subcomm. On Health, Employment, Labor, and
Pensions of the H. Comm. On Education and Labor, 116th Cong. (2019)
(written testimony of Richard L. Trumka, President of the AFL-CIO, at
5) [Hereinafter Trumka Testimony].
---------------------------------------------------------------------------
One consequence of granting employers the right to
participate in representation proceedings is that doing so
empowers them to gerrymander union representation elections.
When the NLRB determines whether a unit of employees is
appropriate for union representation and collective bargaining,
its traditional analysis examined whether the employees in the
unit share a community of interest,\78\ and the NLRB can add
other employees into the bargaining unit only if they share an
``overwhelming community of interest'' such that there ``is no
legitimate basis upon which to exclude certain employees from
it.''\79\ The NLRB's 2011 Specialty Healthcare decision
clarified this standard, and eight U.S. Courts of Appeals
upheld the decision as articulating longstanding precedent.\80\
However, on December 15, 2017, the NLRB overturned the
``overwhelming community of interest'' standard\81\ and
replaced it with a standard where the NLRB will only exclude
the addition of other employees if the union can prove that the
proposed unit's employees share distinct interests from those
outside the unit.\82\ This departure allows employers to
gerrymander union elections by litigating to require additional
employees be included in the unit, even though the added
employees have never expressed interest in joining the union.
The PRO Act requires that, in the NLRB's determination of
whether a bargaining unit is appropriate, it must apply the
test articulated in Specialty Healthcare.
---------------------------------------------------------------------------
\78\Specialty Healthcare, 357 NLRB 934 (2011) (identifying factors
including similarity of wages, hours, terms and conditions of work,
supervision, whether the workers are organized into a separate
department, whether the workers have distinct skills and training, and
interchange with other employees), enforced sub nom. Kindred Nursing
Centers East, LLC v. NLRB, 727 F.3d 552 (6th Cir. 2013).
\79\Id. at 944.
\80\Rhino Northwest, LLC v. NLRB, 867 F.3d 95, 101-02 (D.C. Cir.
2017); Macy's Inc. v. NLRB, 824 F.3d 557, 567 (5th Cir. 2016);
Constellation Brands, Inc. v. NLRB, 842 F.3d 784, 792 (2d Cir. 2016);
FedEx Freight, Inc. v. NLRB, 839 F.3 636, 639 (7th Cir. 2016); NLRB v.
FedEx Freight, Inc., 832 F.3d 432, 442 (3d Cir. 2016); Nestle Dreyer's
Ice Cream Co. v. NLRB, 821 F.3d 489, 500 (4th Cir. 2016); FedEx
Freight, Inc. v. NLRB, 816 F.3d 515, 523 (8th Cir. 2016), reh'g and
reh'g en banc denied (May 26, 2016); Kindred Nursing Centers East, LLC,
727 F.3d 552, 561 (6th Cir. 2013).
\81\PCC Structurals, Inc., 365 NLRB No. 160 (2017).
\82\Boeing Co., 368 NLRB No. 67 (2019).
---------------------------------------------------------------------------
Employees Must Be Able to Have the Opportunity to Communicate with Each
Other During Organizing Campaigns
Since the NLRB's Excelsior Underwear decision over 60 years
ago,\83\ the NLRB has required employers to provide a list of
employee names and home addresses prior to a representation
election. The reason for this mandate is to address the problem
where only one side--the employer--has the opportunity to
communicate by mail with all workers prior to the election, and
the union does not have an equivalent ability to respond. The
employer, unlike the union, is also free to contact employees
one-on-one in the workplace. Given the employer's advantages in
contacting employees during a union election, the voter
registration list attempts to level the playing field.
---------------------------------------------------------------------------
\83\156 NLRB 1236 (1966).
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The NLRB's 2014 Election Rule updated what contact
information employers must provide a union before an election
to include, in addition to employees' names and home addresses,
their work locations, shifts, job classifications, available
personal email addresses, and available home and cell phone
numbers. The PRO Act codifies this update to representation
election procedures. Although Republicans alleged at the July
25th Hearing that this would enable unions to harass
employees,\84\ nothing supports this claim. In fact, the NLRB
informed the Committee on February 15, 2018, that no union has
ever been alleged to have abused information in the voter
registration list since the 2014 Election Rule was enacted.\85\
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\84\Subcomm. on Health, Employment, Labor, and Pensions of the H.
Comm. on Educ. and Labor, Protecting the Right to Organize Act:
Modernizing America's Labor Laws, YouTube (July 25, 2019), https://
www.youtube.com/watch?v=UA3vxNxKi_c (exchange between Rep. Foxx and Mr.
King at 58:04).
\85\Letter from Marvin Kaplan, Chairman, NLRB, and Peter Robb,
General Counsel, NLRB to Pat Murray, Senator, Robert C. ``Bobby'' Scott
(VA), Congressman, Kilili Sablan, Congressman, and Donald Norcross,
Congressman (Feb. 15, 2018) (on file with addressee), available at
https://edlabor.house.gov/imo/media/doc/2.15.2018%20-
%20NLRB%20Response%20to%20Congress%20-
%202014%20Election%20Rule%20Data.pdf; Subcomm. on Health, Employment,
Labor, and Pensions of the H. Comm. on Education and Labor, Protecting
the Right to Organize Act: Deterring Unfair Labor Practices, YouTube
(May 8, 2019), https://www.youtube.com/watch?v=ns7zq9WLwvs (exchange
between Ms. Hayes and Mr. Trumka at 2:28:56).
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Remedies for Employer Interference in Elections Must be Strengthened
The NLRB's representation process is further hampered by
its limited remedies in the event of employer interference. In
the most serious instances, the NLRB may issue a Gissel order
requiring that the employer bargain with the union when the
employer has committed unfair labor practices that have made
the holding of a fair rerun election unlikely or have
undermined the union's majority support.\86\ However, employers
can appeal these bargaining orders, thus extending the process
for years and ultimately denying their employees their right to
form a union. Moreover, employers who engage in these dilatory
tactics do not face fines and are not required to pay employees
for any monetary losses, even after a reviewing court upholds
the Gissel order.\87\
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\86\NLRB v. Gissel Packing Co., Inc., 395 U.S. 575, 611-18 (1969).
\87\Kate Bronfenbrenner, Econ. Policy Inst., No Holds Barred: The
Intensification of Employer Opposition to Organizing 18 (2009), https:/
/www.epi.org/files/page/-/pdf/bp235.pdf.
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The PRO Act reforms this precedent by requiring that, when
a labor organization loses a representation election where it
previously had majority support, and when the employer
committed a violation of the NLRA or otherwise interfered with
the election, the NLRB shall presume that the employer's
conduct affected the election outcome. Unless the employer
rebuts that presumption, the NLRB must certify the union and
order the employer to bargain. This will deter employers from
unlawfully interfering in elections. If an employer commits an
unfair labor practice before an election, the PRO Act is clear
that the employer can be subject to both the NLRB's procedures
for remedying unfair labor practices and the NLRB's
consideration on whether to issue a bargaining order.
Employers Should Not Cease Recognition of a Union Without a
Decertification Election
Under current law, even though an employer can require an
election in order for the union to be certified, the employer
can withdraw recognition of a union without an election.\88\
The NLRB embraced this asymmetry on July 3, 2019, when it held
that an employer may withdraw recognition from a union
regardless of whether the union has the support of a majority
of workers at the time of withdrawal.\89\ Under this new
standard, an employer may announce that it will withdraw
recognition of a union within 90 days prior to the expiration
of a collective bargaining agreement based on evidence that the
union has lost majority support, such as signatures in a
petition, and may suspend bargaining for the new agreement.
Such an announcement would force the union to file for a new
representation election within 45 days in order to regain
recognition, and it would not prevent the employer from
withdrawing recognition of the union at the expiration of the
agreement if the election is not scheduled before then, even if
the union has evidence of majority support at the close of the
agreement.
---------------------------------------------------------------------------
\88\Johnson Controls, Inc., 368 NLRB No. 20 (2019).
\89\Id.
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This new standard permits an employer to withdraw
recognition of the union before an election occurs, even if the
union can demonstrate majority support before the election. The
PRO Act remedies this problem by specifying that an employer's
duty to bargain continues unless employees decertify the union
in an election.
THE PRO ACT WOULD SAFEGUARD THE RIGHT TO COLLECTIVELY BARGAIN
Even when workers manage to win voluntary recognition of
their union, or certification by the NLRB, the victory often
proves hollow. For workers, the purpose of organizing is to
negotiate and finalize a collective bargaining agreement with
the employer. However, in almost half of all elections where a
union is certified as the bargaining representative, a union is
unable to conclude a first contract with an employer within one
year of the election.\90\
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\90\Kate Bronfenbrenner, Econ. Policy Inst., No Holds Barred: The
Intensification of Employer Opposition to Organizing 3 (2009), https://
www.epi.org/files/page/-/pdf/bp235.pdf; see also Pearce Testimony at 8.
---------------------------------------------------------------------------
Under existing law, the Federal Mediation and Conciliation
Service (FMCS) may proffer mediation and conciliation services
upon its own motion or upon request of one or more of the
parties to the dispute, whenever it believes that the dispute
threatens a substantial interruption to commerce. The NLRA
currently does not provide for the use of binding arbitration
to resolve disputes. When an employer bargains in bad faith or
otherwise unlawfully refuses to bargain, the NLRA's sole remedy
is an order from the NLRB to direct the party to resume good
faith bargaining.
The PRO Act helps establish a bargaining relationship, and
provide for more meaningful good faith bargaining when
negotiating the first collective bargaining agreement. It would
do so in several steps. First, the employer and the union would
have 90 days to bargain, after which either the union or the
employer can request mediation services from FMCS. If the
employer and union fail to reach an agreement through mediation
after 30 days, or for a longer period as the employer and union
may agree, either the union or the employer may request an
arbitration panel. The selection of the arbitration panel would
allow the employer and union to each select one arbitrator, and
a third, neutral member would be appointed by agreement of the
two parties. To protect good faith collective bargaining and
address situations where an employer declares an impasse and
unilaterally implements its preferred terms and conditions of
employment,\91\ the PRO Act requires employers to maintain the
status quo ante pending an agreement with the union.
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\91\CalMat Co., 331 NLRB 1084, 1097 (2000) (``[A]fter bargaining to
an impasse an employer does not violate the Act by making unilateral
changes that are reasonably comprehended within his preimpasse
proposals.'') (internal citations omitted).
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THE PRO ACT WOULD FACILITATE TRANSPARENCY IN LABOR-MANAGEMENT RELATIONS
Employees Deserve to Know Their Rights
Many employees are not aware of their rights under the
NLRA, or that the NLRA's protections extend beyond union
organizing and collective bargaining. The NLRA also protects
the right to engage in other ``concerted activities for the
purpose of . . . mutual aid or protection.''\92\ Protected
activity encompasses two or more employees' acting together to
improve their terms and conditions of employment with or
without a union, such as advocating for a raise or a sexual
harassment policy. As Mr. Griffin explained at the July 25th
Hearing, ``[e]mployees who are unaware of their rights are not
in a position to enforce them, and employers who are ignorant
of employee rights are not in a position to conform their
conduct to what the law requires.''\93\
---------------------------------------------------------------------------
\92\29 U.S.C.Sec. 157.
\93\Griffin Testimony at 5.
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In 2011, citing research demonstrating employees' lack of
awareness of their rights, the NLRB promulgated a regulation
requiring employers to post and maintain a notice detailing
employees' rights under the NLRA.\94\ However, two United
States Courts of Appeals vacated the rule on the grounds that
the NLRB lacked specific statutory authority to promulgate the
notice posting rule and enforce it.\95\ Other federal
employment laws require employers to post notices of employee
rights.\96\ By codifying the 2011 rulemaking, the PRO Act would
ensure that employees and employers are aware of their rights,
would prevent violations, and would help the NLRB more
effectively redress injustices.\97\
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\94\Notification of Employee Rights Under the National Labor
Relations Act, 76 Fed. Reg. 54006 (Aug. 30, 2011) (to be codified at 29
C.F.R. 104).
\95\Chamber of Commerce v. NLRB, 721 F.3d 152 (4th Cir. 2013);
Nat'l Ass'n of Mfrs. v. NLRB, 717 F.3d 947 (D.C. Cir. 2013).
\96\Title VII of the Civil Rights Act of 1964, 42 U.S.C.Sec. 2000e-
10; Age Discrimination in Employment Act, 29 U.S.C.Sec. 627;
Occupational Safety and Health Act, 29 U.S.C.Sec. 657(c)(1); Americans
with Disabilities Act, 42 U.S.C.Sec. 12115; Family and Medical Leave
Act, 29 U.S.C.Sec. 2619; 29 C.F.R. 516.4 (U.S. Department of Labor
Regulation requiring notice posting of rights under the FLSA).
\97\Pearce Testimony at 8.
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Congressional Oversight Requires the Restoration of the NLRB's
Reporting Requirements
For the NLRB's entire history until 2009, it submitted
annual reports to Congress containing a detailed breakdown of
its casehandling, as required by Section 3 of the NLRA.\98\ The
NLRB ended this practice after Congress discontinued numerous
agency reporting requirements.\99\ Because much of the data in
these annual reports cannot be found anywhere else, the PRO Act
restores these requirements. Such information is necessary for
Congress to conduct oversight into whether the NLRB is
fulfilling the purposes of the NLRA.\100\ In cases where a
Member of the NLRB has a conflict of interest in a precedent-
setting case, this data can also aid Congress in understanding
how the NLRB's handling of cases is affected by Members'
conflicts of interest, due to the reports' detailed data on
adjudication.\101\
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\98\29 U.SC. 153(c).
\99\Federal Reports Elimination and Sunset Act of 1995, Pub. L. No.
166-44, 109 Stat. 707; 31 U.S.C.Sec. 1113.
\100\Letter from Robert C. ``Bobby'' Scott (VA), Congressman, and
Frederica Wilson, Congresswoman, to Peter Robb, General Counsel, NLRB
(Aug. 12, 2019) (on file with author) available at https://src.bna.com/
KAt?_ga=2.239243715.1351935645.1572188739-123486428.1563191824
(requesting data on the General Counsel's processing of unfair labor
practice cases).
\101\See, e.g., Memorandum from David P. Berry, National Labor
Relations Board Inspector General, Notification of a Serious and
Flagrant Problem and/or Deficiency in the Board's Administration of its
Deliberative Process and the National Labor Relations Act with Respect
to the Deliberation of a Particular Matter, (Feb. 9, 2018) available at
https://www.nlrb.gov/sites/default/files/attachments/basic-page/node-
5976/OIG%20Report%20Regarding%20Hy_Brand%20Deliberations.pdf (detailing
effect of Member William Emanuel's conflict of interest on case
adjudication and a decision to seek remand of a decision pending
review).
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Labor Law Must Shed Light on the Anti-Union Persuader Industry
Section 203 of the LMRDA requires employers to disclose to
the U.S. Department of Labor (DOL) arrangements in which a
consultant ``undertakes activities where an object thereof,
directly or indirectly, is to persuade employees'' regarding
the exercise of their right to organize.\102\ Similarly,
consultants must disclose their arrangements to DOL.\103\ The
LMRDA exempts employers and consultants from reporting
requirements when consultants merely give employers
``advice.''\104\ Although the statute does not define the term
``advice,'' the DOL has read the LMRDA's exemption of
``advice'' activities so broadly as to exclude all indirect
persuader activities.\105\
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\102\29 U.S.C. Sec. 433(a).
\103\Id. Sec. 433(b).
\104\Id. Sec. 433(c).
\105\Memorandum from Charles Donohue, Solicitor of Labor, regarding
``modification of Position Regarding Advice' under Section 203(c)'' of
the LMRDA to John L. Holcombe, Commissioner, (Feb. 19, 1962).
---------------------------------------------------------------------------
Studies show that employers hire union avoidance persuaders
to consult them in up to 87 percent of union elections.\106\
Although these consultants engage in considerable indirect
persuasion--including producing anti-union literature, writing
speeches for captive audience meetings, and identifying
employees for discipline or reward--DOL's interpretation
shields all of these antiunion expenditures from disclosure.
---------------------------------------------------------------------------
\106\Persuader Rule, 81 Fed. Reg. 15924, 12933 n.10 (Mar. 24,
2016).
---------------------------------------------------------------------------
On March 24, 2016, DOL promulgated the Persuader Rule to
finally close this loophole.\107\ As Mr. Griffin explained in
response to a Question for the Record after the July 25th
Hearing, closing this loophole provides employees with
important information regarding their employers' activities and
spending during an organizing campaign.\108\ Nevertheless, DOL
rescinded the rule on August 17, 2018.\109\
---------------------------------------------------------------------------
\107\Id.
\108\Protecting the Right to Organize Act: Modernizing America's
Labor Laws Before the Subcomm. On Health, Employment, Labor, and
Pensions of the H. Comm. On Educ. and Labor, 116th Cong. (2019)
(answers to questions for the record by Richard Griffin, Member of
Bredhoff & Kaiser PLLC).
\109\83 Fed. Reg. 33826 (Aug. 17, 2018).
---------------------------------------------------------------------------
The PRO Act codifies the Persuader Rule by specifying that
the LMRDA cannot exempt arrangements between an employer and a
consultant for the consultant to plan or conduct employee
meetings, train supervisors, coordinate activities, establish
employee committees, identify employees for discipline or
reward, or draft the employer's messaging on union organizing.
This reform would foster transparency and inform employees
about how their employer spends money in response to union
organizing.\110\ Republicans erroneously contended at the May
8th Hearing that this provision would require the reporting of
communications otherwise protected by attorney-client
privilege.\111\ However, as noted in a letter Mr. Griffin
submitted in response to a Question for the Record after the
July 25th Hearing, which was signed by over 500 attorneys
(including 244 members of the American Bar Association),
nothing in the Persuader Rule required the reporting of
privileged information or legal advice.\112\ The same is true
of the PRO Act.
---------------------------------------------------------------------------
\110\Protecting the Right to Organize Act: Deterring Unfair Labor
Practices Before the Subcomm. on Health, Employment, Labor, and
Pensions of the H. Comm. on Educ. and Labor, 116th Cong. (2019)
(answers to questions for the record by Richard L. Trumka, President of
the AFL-CIO).
\111\Subcomm. on Health, Employment, Labor, and Pensions of the H.
Comm. on Educ. and Labor, Protecting the Right to Organize Act:
Deterring Unfair Labor Practices, YouTube (July 25, 2019), https://
www.youtube.com/watch?v=UA3vxNxKi_c (question and answer between Mr.
Taylor and Mr. Miscimarra at 2:17:08).
\112\Letter from Labor Attorneys to John Kline, Congressman, and
Robert C. Bobby Scott (VA), Congressman (May 17, 2017) (on file with
addressee).
---------------------------------------------------------------------------
THE PRO ACT PREVENTS EMPLOYERS FROM AVOIDING THEIR LEGAL
RESPONSIBILITIES UNDER THE NLRA
The Definition of Employee Requires Clarification
The NLRA only protects workers' rights to organize and
collectively bargain if those workers are employees and not
independent contractors.\113\ Employers seeking to avoid union
organizing have an incentive to misclassify their employees as
independent contractors. This problem is increasingly pervasive
with the rise of ridesharing,\114\ but is also common in many
industries including trucking, entertainment, and
construction.\115\ In 2015, a study by the Economic Policy
Institute concluded that ``between 10 and 20 percent of
employers misclassify at least one worker as an independent
contractor.''\116\
---------------------------------------------------------------------------
\113\29 U.S.C.Sec. 152(3). see also Annual Reports, NLRB https://
www.nlrb.gov/reports/nlrb-performance-reports/annual-reports (last
visited Dec. 4, 2019).
\114\Michael Hitzik, Uber and Lyft Try to Blunt a Court Ruling that
their Drivers are Employees, Los Angeles Times (July 11, 2019, 7:13
AM), https://www.latimes.com/business/hiltzik/la-fi-hiltzik-uber-lyft-
dynamex-20190711-story.html.
\115\Francoise Carre, Econ. Policy Inst., (In)dependent Contractor
Misclassification 1 (2015), https://www.epi.org/files/pdf/87595.pdf.
\116\Id.
---------------------------------------------------------------------------
Under the Trump Administration, the NLRB further enables
employers to misclassify employees as independent contractors
in order to evade their obligations under the NLRA. The
question of whether a worker is an employee or an independent
contractor has historically been governed by the common law as
articulated in the Restatement (Second) of Agency, which
involves weighing 10 non-exhaustive factors.\117\ In the NLRB's
SuperShuttle decision on January 25, 2019, it held that it
would apply those 10 factors ``through the prism'' of whether
the worker has ``entrepreneurial opportunity.''\118\ In doing
so, the NLRB interpreted entrepreneurial opportunity so loosely
that it denied SuperShuttle drivers employee status--and thus
protection under the NLRA--even though those drivers were
subject to non-compete clauses that prohibited them from
driving for any of SuperShuttle's competitors.
---------------------------------------------------------------------------
\117\See FedEx Home Delivery v. NLRB, 849 F.3d 1123, 1125 (D.C.
Cir. 2017) (``The Restatement (Second) of Agency provides a non-
exhaustive list of ten factors to consider in deciding whether a worker
is an independent contractor: (1) the extent of control the employer
has over the work; (2) whether the worker is engaged in a distinct
occupation or business; (3) whether the kind of occupation is usually
done under the direction of the employer or by a specialist without
supervision; (4) the skill required in the particular occupation; (5)
whether the employer or worker supplies the instrumentalities, tools,
and the place of work for the person doing the work; (6) the length of
time for which the person is employed; (7) whether the employer pays by
the time or by the job; (8) whether the worker's work is a part of the
regular business of the employer; (9) whether the employer and worker
believe they are creating an employer-employee relationship; and (10)
whether the employer is or is not in business.'') (internal citations
omitted).
\118\367 NLRB No. 75 (2019).
---------------------------------------------------------------------------
As Professor Garden explained to the Committee at the July
25th Hearing, ``the Board's experience over the last several
decades has proven that [the common law factors] are an
inadequate method of determining which workers will be
protected by labor law. The factors are simply too
indeterminate, and the reality in turn allows gamesmanship by
employers.''\119\
---------------------------------------------------------------------------
\119\Protecting the Right to Organize Act: Modernizing America's
Labor Laws Before the Subcomm. on Health, Employment, Labor, and
Pensions of the H. Comm. on Education and Labor, 116th Cong. (2019)
(written testimony of Charlotte Garden, Professor at Seattle University
School of Law, at 13) [Hereinafter Garden Testimony].
---------------------------------------------------------------------------
To prevent misclassification of employees as independent
contractors, the PRO Act codifies the ABC test, which considers
any worker to be an employee unless three conditions are met:
(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 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.
Over 20 states use this test in some form for determining
whether a worker is an employee.\120\ Most states use it in the
context of unemployment compensation, and California recently
joined New Jersey and Massachusetts in applying this test to
state wage and hour laws.\121\ Professor Garden identified
three advantages to this test at the July 25th Hearing:
---------------------------------------------------------------------------
\120\Rebecca Smith, Washington State Considers ABC Test for
Employee Status, Nat'l Emp't Law Project (Jan. 28, 2019), https://
www.nelp.org/blog/washington-state-considers-abc-test-employee-status/.
\121\Id.; California Lab. CodeSec. 2750.3.
First, it consists of three relatively clear and
easy-to-apply factors, and workers qualify as
[independent contractors] rather than employees only if
each factor applies. This approach is self-evidently
more straightforward and predictable than one that
calls on the NLRB to balance (at least) ten factors as
it sees fit. Second, for similar reasons, the ABC test
is less amenable to manipulation by employers than the
Restatement factors. Third, the ABC test is better
aligned than the Restatement factors with the purpose
of the NLRA: ensuring that workers who lack individual
bargaining power--``actual liberty of contract''--can
bargain collectively.\122\
---------------------------------------------------------------------------
\122\Garden Testimony at 14 (quoting 29 U.S.C.Sec. 151).
Applying this test in the context of the NLRA would prevent
workers who are treated as employees from being misclassified
as independent contractors. In doing so, it would prevent
employers from undermining union organizing by informing
employees that organizing is futile due to their independent
contractor status.
The NLRA Must Deter Misclassification of Employees
During an exchange at the July 25th Hearing with Chairwoman
Wilson (D-FL-24), Mr. Griffin explained how misclassification
independently violates workers' rights under the NLRA:
If you are an employee, you have rights . . . If you
are an independent contractor, you don't have rights,
you are not protected. So, if an employer deliberately
takes someone who has employee status and does not
allow them to exercise their rights by advising them
that they are an independent contractor, that they have
no rights, it is a fundamental violation of people's
ability to engage in the activities protected under
Section 7. In addition, it has a chilling effect on
people's ability to speak to each other, to engage in
the type of concerted activity that the Act protects,
because they think they don't have any rights.\123\
---------------------------------------------------------------------------
\123\Subcomm. on Health, Employment, Labor, and Pensions of the H.
Comm. on Educ. and Labor, Protecting the Right to Organize Act:
Modernizing America's Labor Laws, YouTube (July 25, 2019), https://
www.youtube.com/watch?v=UA3vxNxKi_c (answer of Mr. Griffin at 52:03).
Misclassification incorrectly conveys to employees that
they do not have rights under the NLRA, and thus that any
exercise of those rights is futile.\124\ However, on August 29,
2019, the NLRB held in Velox Express, Inc. that
misclassification did not independently violate the NLRA.\125\
The PRO Act, as amended in the markup, overturns Velox by
specifying that an employer commits an unfair labor practice
when it communicates to workers, who are employees under the
NLRA, that they are not employees.
---------------------------------------------------------------------------
\124\Id.; see also Memorandum from Barry J. Kearney, Associate
General Counsel Division of Advice, NLRB, on Pac. 9 Transp., Inc., No.
21-CA-150875 to Olivia Garcia, Regional Director, NLRB (Dec. 18, 2015)
(released Aug. 26, 2016).
\125\368 NLRB No. 61 (2019).
---------------------------------------------------------------------------
The Definition of Supervisor Requires Clarification
In excluding supervisors from coverage of the NLRA,
Congress intended to only exclude individuals who are ``vested
with such genuine management prerogatives as the right to hire
or fire [or] discipline,'' and not exclude ``straw bosses, lead
men, set-up men, and other minor supervisory employees.''\126\
However, the Supreme Court's decision in NLRB v. Kentucky River
Community Care Inc. seized on ambiguous language in Section
2(11) of the NLRA to interpret the supervisory exclusion more
broadly than Congress intended.\127\
---------------------------------------------------------------------------
\126\S. Rep. No. 105 at 410 (1947) (submitted in the 80th Congress
during the 1st session).
\127\532 U.S. 706 (2001).
---------------------------------------------------------------------------
As Ms. Virk explained to the Committee at the March 26th
Hearing, because supervisors can face retaliation for
supporting an organizing campaign, the vague definition of
supervisor places many workers' rights in jeopardy.\128\ The
PRO Act brings clarity to the supervisory exemption by stating
that a supervisor must engage in such activities ``for a
majority of the individual's worktime.'' It also removes
consideration of whether the supervisor has authority ``to
assign,'' or ``responsibly to direct.''\129\
---------------------------------------------------------------------------
\128\Virk Testimony at 17-18.
\129\Kentucky River, 532 U.S. at 726 (Stevens, J., dissenting in
part) (noting the ambiguity of the term ``responsibly to direct'').
---------------------------------------------------------------------------
The NLRA Must Prevent Joint Employers from Evading Responsibility under
the NLRA
Approximately three million Americans are employed by a
temporary staffing agency on any given day, performing work on
behalf of a client company that directs the employee's work but
does not write the employee's paycheck.\130\ The NLRA
guarantees employees the right to collectively bargain for
wages and working conditions, but if multiple entities control
workers' terms and conditions of employment, this right is
rendered futile if workers cannot bargain with all companies
that actually control--directly or through a contract--those
wages and working conditions.
---------------------------------------------------------------------------
\130\Bureau of Labor Statistics, Employees on Nonfarm Payrolls by
Industry Sector and Selected Industry Data Econ. News Release, https://
www.bls.gov/news.release/empsit.t17.htm (last visited Dec. 4, 2019).
---------------------------------------------------------------------------
For a majority of the time since the NLRA was enacted in
1935, the NLRB found that an entity may be liable to bargain
with the employees of a subcontractor as a joint employer even
if its control over terms and conditions of employment was
indirect--such as exercised through an intermediary--or
reserved in its contract with an intermediary. In 1984, the
NLRB began relieving employers of responsibility to bargain in
those cases where its control over their subcontractors'
employees was not direct and immediate.\131\ In the NLRB's 2015
Browning-Ferris decision, it returned to the original, pre-1984
standard, which determined that employers are responsible under
the NLRA when they exercise control indirectly or reserve
control through an intermediary in addition to through direct
and immediate control. On December 28, 2018, the U.S. Court of
Appeals for the D.C. Circuit explicitly affirmed the Browning-
Ferris standard as consistent with the NLRA and the common law
of agency.\132\ The court wrote that ``the common-law inquiry
is not woodenly confined to indicia of direct and immediate
control.''\133\
---------------------------------------------------------------------------
\131\TLI, Inc., 271 NLRB 748 (1984); Laerco Transportation, 269
NLRB 324 (1984).
\132\Browning-Ferris Indus. v. NLRB, 911 F.3d 1195 (D.C. Cir.
2018).
\133\Id. at 1209.
---------------------------------------------------------------------------
The PRO Act codifies the Browning-Ferris standard by
stating that an employee has multiple employers if each
employer codetermines or shares control over the essential
terms and conditions of employment. In determining whether such
control exists, the PRO Act requires the consideration of both
exercised and reserved control, as well as whether that control
is exercised directly or indirectly through an intermediary.
Labor Law Must Protect Workers Regardless of Their Immigration Status
In 2002, the Supreme Court in Hoffman Plastic Compounds,
Inc. v. NLRB held that the NLRB has no power to order
reinstatement or backpay for workers who are undocumented under
the Immigration Reform and Control Act, even though
undocumented workers are employees under the NLRA.\134\ As Mr.
Pearce explained at the May 8th Hearing, this decision
``removed a vital check on workplace abuses'' because ``[t]he
very employers most likely to be emboldened by a backpay-free
prospect to retaliate against undocumented workers for
concertedly protesting their terms and conditions of employment
are the ones most likely to impose the worst terms and
conditions.''\135\ The PRO Act overturns the Supreme Court's
decision by explicitly stating that employees who suffer a
violation of the NLRA will not be denied remedies under the
NLRA regardless of their immigration status.
---------------------------------------------------------------------------
\134\535 U.S. 137 (2002).
\135\Pearce Testimony at 12.
---------------------------------------------------------------------------
THE PRO ACT REMOVES UNJUST RESTRICTIONS ON WORKERS' EXERCISE OF RIGHTS
The First Amendment Protects Secondary and Recognitional Picketing
When the NLRA was amended in 1947, it placed significant
constraints on workers' free speech rights. Some of the
restrictions prohibit collective action such as strikes or
picketing directed at ``secondary'' employers, which are
employers other than the employees' direct employer.\136\ The
amendments were a Republican reaction to a wave of strikes at
the end of World War II.\137\ To prevent strikes that would
disrupt production in war industries, President Franklin Delano
Roosevelt established the National War Labor Board in 1942,
which arbitrated labor disputes and prohibited unions from
supporting strikes.\138\ Immediately after the war, labor
disputes proliferated as rank-and-file workers demanded wages
that would reinstate their pre-war standard of living.\139\
Republicans reacted by passing the Labor Management Relations
Act, 1947 to curtail the power of unions, and they overrode
President Harry Truman's veto of the legislation.\140\
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\136\29 U.S.C. Sec. 158(b)(4).
\137\Philip Dray, There is Power in a Union: The Epic Story of
Labor in America 491-96 (2010).
\138\Exec. Order No. 9017, 7 Fed. Reg. 237 (Jan. 14, 1942).
\139\Philip Dray, There is Power in a Union: The Epic Story of
Labor in America 491-96 (2010).
\140\Pub. L. No. 80-101, 61 Stat. 136 (1947).
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One of the 1947 amendments, Section 8(b)(4) of the NLRA,
prohibits unions from encouraging employees of another company
to strike and from picketing designed to pressure a secondary
employer to cease doing business with the workers'
employer.\141\ These restrictions pose serious problems under
the First Amendment to the Constitution of the United States.
As Professor Garden explained at the July 25th Hearing, this
section ``is in tension with more recent First Amendment cases
in which the Supreme Court has made clear that speaker- and
content-based restrictions on speech are presumptively
invalid,'' and the Supreme Court has repeatedly construed the
provision narrowly in order to avoid having to decide on its
constitutionality.\142\ Further, in an increasingly fissured
workplace where companies subcontract for labor, subcontracted
workers are more limited in their ability to engage in free
speech picketing against the entity that controls their
economic arrangements because of the risk that picketing is
unlawful if the contracting entity is not an employer.\143\ The
1947 amendments to the NLRA further undermine workers' free
speech rights through Section 8(b)(7), which almost completely
prohibits them from peacefully picketing their employer to
encourage the employer to recognize their union.\144\
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\141\29 U.S.C. Sec. 8(b)(4).
\142\Garden Testimony at 4-5.
\143\Garden Testimony 1-3, 8-10.
\144\29 U.S.C. Sec. 8(b)(7); see also Garden Testimony at 10;
Catherine Fisk & Jessica Rutter, Labor Protest Under the New First
Amendment, 36 Berkeley J. Emp. & Lab. L. 277, 293-95 (2015) (observing
that the Supreme Court has never ruled on the constitutionality of
Section 8(b)(7), and that current application of Section 8(b)(7) is
incompatible with contemporary First Amendment jurisprudence).
---------------------------------------------------------------------------
The PRO Act protects workers' First Amendment rights by
repealing prohibitions on unions' picketing and secondary
activities. In addition, because the PRO Act ends the
prohibition on picketing designed to convince an employer to
cease doing business with another company, the PRO Act also
ends the prohibition on unions and employers freely bargaining
for such an agreement in support of a secondary boycott.\145\
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\145\In this regard, the PRO Act repeals Section 8(e) of the NLRA,
which prohibits unions and employers from bargaining for an agreement
where the employer ceases dealing with any products from another
employer. According to the legislative history of the LMRDA, also
referred to as the Landrum-Griffin Act, this prohibition was added in
order to expand on the purposes of Section 8(b)(4), preventing
employers and unions from agreeing to a provision that Section 8(b)(4)
prohibits unions from picketing to achieve. House Report No. 731, at
21-22 (1959) reprinted in 1 Legislative History of the Labor-Management
Reporting and Disclosure Act, 778-79 (1959).
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The NLRA Must Safeguard the Right to Strike
Section 13 of the NLRA explicitly states that none of its
provisions ``shall be construed so as either to interfere with
or impede or diminish in any way the right to strike or to
affect the limitations or qualifications on that right.''\146\
Despite this plain language, Mr. Pearce explained to the
Committee at the May 8th Hearing that ``the reality has been
more complicated.''\147\
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\146\29 U.S.C. Sec. 163.
\147\Pearce Testimony at 9.
Notably, the Supreme Court has taken the position
that it is lawful to permanently replace economic
strikers for the purpose of continuing operations
during a strike,\148\ and in Hot Shoppes, Inc., 146
NLRB 802, 805 (1964), the NLRB established a
presumption, not present in the Supreme Court
decisions, that an employer may permanently replace
strikers . . . unless there is evidence that the
employer had an ``independent unlawful purpose'' for
doing so. This presumption has had an effect of
whittling away the right to strike and preventing
employees from relying on the protections of the
Act.\149\
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\148\NLRB v. Erie Resistor Corp., 373 U.S. 221 (1963); NLRB v.
Mackay Radio & Telegraph Co., 304 U.S. 333 (1938).
\149\Pearce Testimony at 9-10.
Employers may further undermine employees' right to strike
by locking out employees before a strike even begins and
bringing in temporary replacements in order to leverage
employers' position at the bargaining table, even if employees
have not indicated that a strike is imminent.\150\ These
lockouts are classified as offensive lockouts in contrast to
defensive lockouts, which occur after a strike has begun.
Offensive lockouts curtail workers' ability to strike by
removing workers' control over the timing and duration of any
work stoppages, and employers are free to hire temporary
replacements during the lockout. In one offensive example that
occurred in 2018, National Grid locked out utility workers
represented by the United Steelworkers for over six months to
leverage its own position at the bargaining table, even though
no strike was imminent.\151\ During that time, the locked out
employees did not receive paychecks and lost access to their
health care.\152\ Lockouts like these retaliate against
employees simply for maintaining their bargaining positions and
their membership in the union.
---------------------------------------------------------------------------
\150\Harter Equipment, Inc., 280 NLRB 597 (1986) (holding that an
employer does not violate Section 8(a)(3) and (1) of the NLRA by
locking out employees and hiring temporary replacements for the sole
purpose of pressuring the employees to support its bargaining
position), aff'd Local 825 Int'l Union of Operating Engineers v. NLRB,
829 F.2d 458 (3d Cir. 1987).
\151\Katie Johnston, National Grid Union Workers OK Contract,
Ending Lockout, Boston Globe (Jan. 7, 2019, 4:02 PM) https://
www.bostonglobe.com/business/2019/01/07/two-unions-approve-national-
grid-contract/hEg7JnmsMWjT71CRQ9NKQM/story.html.
\152\Id.
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In order to protect employers' right to strike from
offensive employer retaliation that renders the right futile,
the PRO Act specifies that it is an unfair labor practice for
an employer to permanently replace striking employees or to
lockout employees prior to the beginning of a strike. The PRO
Act also explicitly states that the duration, scope, frequency,
or intermittence of a strike shall not render it unprotected by
the NLRA.
The NLRA Must Protect Workers' Rights to Litigate Joint, Class, or
Collective Claims
Many employers engage in a widespread practice of requiring
employees to waive their right to go to court over workplace
disputes as a condition of employment, and to agree to
arbitrate claims individually before an arbitrator of the
employer's choosing. Today, over 60 million workers are subject
to these requirements.\153\
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\153\Andrew J.S. Colvin, Econ. Policy Inst., The Growing Use of
Mandatory Arbitration 2 (2018), https://www.epi.org/publication/the-
growing-use-of-mandatory-arbitration-access-to-the-courts-is-now-
barred-for-more-than-60-million-american-workers/.
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Under longstanding precedent, the NLRA's protection of
concerted activity extend to employees' efforts to seek
administrative or legal remedies for workplace disputes.\154\
As Mr. Griffin explained at the July 25th Hearing, ``it is
clear that an employer requirement that an employee must
proceed individually to resolve all employment law disputes
through arbitration violates Section 8(a)(1) because it
interferes with the employee's Section 7 right to act jointly
or collectively to address such matters.''\155\
---------------------------------------------------------------------------
\154\Griffin Testimony at 14 (citing Spandsco Oil and Royalty Co.,
42 NLRB 942, 949 (1942)).
\155\Id.
---------------------------------------------------------------------------
However, despite the plain text of the NLRA permitting
employees to engage in concerted activity for mutual aid and
protection, the Supreme Court in 2018 rejected the NLRB's
position that the NLRA protects workers' rights to engage in
joint, class, or collective litigation.\156\ In Epic Systems v.
Lewis, the Court held that the Federal Arbitration Act
``instructed federal courts to enforce arbitration agreements
according to their terms,'' and incorrectly found that the NLRA
``says nothing about how judges and arbitrators must try legal
disputes.''\157\
---------------------------------------------------------------------------
\156\Epic Systems Corp. v. Lewis, 138 S. Ct. 1612 (2018).
\157\Id. at 1619.
---------------------------------------------------------------------------
This decision fueled the already-rampant practice of
employers requiring employees to sign agreements agreeing to
arbitrate any workplace claims individually and before an
arbitrator of the employer's choosing. Many individual actions
are simply not feasible to litigate, as employees are unable to
secure counsel, whereas collective actions allow workers to
pool resources and litigate more effectively. Because of the
Epic Systems decision, 80 percent of private sector, non-union
workers are expected to be covered by a forced individual
arbitration clause by 2024.\158\
---------------------------------------------------------------------------
\158\Griffin Testimony at 16 (citing Center for Popular Democracy
and Econ. Policy Inst., Unchecked Corporate Power: Forced Arbitration,
the Enforcement Crisis, and How Workers are Fighting Back (2019),
https://www.epi.org/files/uploads/Unchecked-Corporate-Power-web.pdf).
---------------------------------------------------------------------------
As Justice Ginsburg noted in her dissent in Epic Systems:
``Congressional correction of the Court's elevation of the FAA
over workers' rights to act in concert is urgently in
order.''\159\ The PRO Act provides that correction by
prohibiting pre-dispute agreements that require employees to
waive their rights to litigate a joint, class, or collective
claim in any forum of competent jurisdiction. It also prohibits
employers from coercing employees into such a waiver, or from
retaliating against employees for refusing to enter into such a
waiver, regardless of whether the coercion or retaliation
occurred before or after the dispute.
---------------------------------------------------------------------------
\159\Epic Systems Corp., 138 S. Ct. at 1633 (Ginsburg, J.,
dissenting).
---------------------------------------------------------------------------
The NLRA Must Protect Workers' Ability to Negotiate Fair Share Fees
The NLRA states that a recognized or certified union is the
exclusive representative of the employees it represents.
Therefore, the union must represent all workers within the
bargaining unit equally and without regard to their membership
in the union.\160\ Accordingly, the NLRA allows unions and
employers to agree to require that employees who are not
members of the union, but benefit from a collective bargaining
agreement, may be assessed a fair share fee to support the
costs of representation and collective bargaining as a
condition of continuing employment.\161\ However, as a result
of the 1947 amendments to the NLRA, Section 14(b) permits
states to pass laws that prevent unions from requiring
membership as a condition of employment.\162\ As a result, 27
states have passed so-called ``right to work'' laws that
prohibit unions and employers from entering into agreements
requiring fair share fees from workers who benefit from union
representation.
---------------------------------------------------------------------------
\160\29 U.S.C. Sec. 159(a).
\161\Id. Sec. 158(a)(3).
\162\Id. Sec. 164(b).
---------------------------------------------------------------------------
During an exchange at the March 27 hearing between Dr.
Rosenfeld and Congresswoman Marcia Fudge (D-OH-11), they
discussed how bans on fair share fees were originally crafted
to enforce segregation:
Ms. Fudge: Can you tell me if, in fact, right-to-work
laws really were designed to keep unions out because
[certain employers] didn't want blacks and whites to
have the same equal rights?
Dr. Rosenfeld: Thank you for that question,
Congresswoman. So the history of right to work is
interesting. It is pretty ugly. One of the key drivers
behind these types of regulations was a Texas
businessman, a successful businessman and white
supremacist, Vance Muse, who promoted the rule because
he ardently felt that unions brought people together,
brought workers together across racial lines, and that
was something he felt needed to be stopped in its
tracks. And so it was no accident that the first states
that adopted these types of regulations happened to be
the states of the former Confederacy.\163\
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\163\Subcomm. on Health, Employment, Labor, and Pensions of the H.
Comm. on Educ. and Labor, Protecting Workers' Right to Organize: The
Need for Labor Law Reform, YouTube (July 25, 2019), https://
www.youtube.com/watch?v=T9FPVr5-umY (question an answer between Ms.
Fudge and Dr. Rosenfeld at 1:06:26) (reprinted as Serial 116-11).
These limits on how unions and employers can negotiate have
negative implications on workers' wages. As Mr. Trumka
explained to the Committee after the May 8th Hearing,
``workers' wages in right-to-work states are 3.1 percent lower
than those in non-right-to-work states . . . and [on] average
full-time workers earn $1,558 less per year in right-to-work
states.''\164\
---------------------------------------------------------------------------
\164\Trumka Supplemental Statement at 5 (citing Ross Eisenbrey, New
Study Confirms that Right-to-Work Laws Are Associated with
Significantly Lower Wages, Econ. Policy Inst. (Apr. 22, 2015, 3:24 PM),
https://epi.org/blog/new-study-confirms-that-right-to-work-laws-are-
associated-with-significantly-lower-wages).
---------------------------------------------------------------------------
Statutory prohibitions on fair share agreements undermine
unions' ability to represent employees and collectively bargain
because they create a free-rider problem, where individuals
enjoy the benefits from representation without paying any of
the costs. This shifts the costs of free riders onto the
shoulders of coworkers who elect to join the union and pay
dues. The PRO Act solves the free rider problem by permitting
unions and employers to negotiate to require fair share fees,
notwithstanding state laws, to cover the costs of collective
bargaining and administration of the agreement.
THE RIGHT TO JOIN A UNION IS A HUMAN RIGHT, AND THE PRO ACT BOLSTERS
THE UNITED STATES' COMPLIANCE WITH INTERNATIONAL STANDARDS
The United States is a member of the International Labor
Organization (ILO), which codifies labor rights into
international conventions for member countries to ratify.
Although the ILO has designated its Convention Concerning
Freedom of Association and Protection of the Right to
Organize\165\ and its Convention Concerning the Application of
the Principles of the Right to Organize and Bargain
Collectively\166\ as two of its core conventions, the United
States has ratified neither.\167\ However, the United States is
a signatory to the ILO's Declaration on Fundamental Principles
and Rights at Work,\168\ and it therefore has ``an obligation''
to ``respect, to promote, and to realize . . . the principles
concerning the fundamental rights . . . [of] freedom of
association and the effective recognition of the right to
collective bargaining.''\169\
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\165\ILO, Convention (No. 87) Concerning Freedom of Association and
Protection of the Right to Organize, July 9, 1948, 68 U.N.T.S. 17.
\166\ILO, Convention (No. 98) Concerning the Application of the
Principles of the Right to Organize and Bargain Collectively, July 1,
1949, 96 U.N.T.S. 257.
\167\Trumka Testimony at 6 (adding that only five other ILO members
have ratified two or fewer core conventions).
\168\International Labor Organization, Declaration on Fundamental
Principles and Rights at Work, Section 2 (June 18, 1998), available at
http://www.ilo.org/declaration/thedeclaration/textdeclaration/lang_en/
index.htm.
\169\Id.
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The ILO's Committee on Freedom of Association has
repeatedly observed that the NLRA falls short of the
protections afforded in these international standards.\170\
During an exchange between Mr. Trumka and Congresswoman Donna
Shalala (D-FL-27) at the May 8th Hearing, they discussed the
implications of the Unites States' noncompliance with
international standards:
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\170\See, e.g., International Labor Organization, Committee on
Freedom of Association, Complaint Against the Government of the United
States Presented by the AFL-CIO, para. 854, Report No. 349, Case No.
2524 (2006), https://www.ilo.org/dyn/normlex/en/
f?p=1000:50002:0::NO:50002:P50002_COMPLAINT_TEXT_ID:2910434 (finding
that the NLRA's exclusion of supervisors is ``overly wide'' and not
``limited to those workers genuinely representing the interests of
employers''); International Labor Organization, Committee on Freedom of
Association, Complaint Against the Government of the United States
Presented by the AFL-CIO, para. 610, Report No. 332, Case No. 2227
(2003). https://www.ilo.org/dyn/normlex/en/
f?p=1000:50002:0::NO:50002:P50002_COMPLAINT_:2907332 (``[T]he remedial
measures left to the NLRB in cases of illegal dismissals of
undocumented workers are inadequate to ensure effective protection
against acts of anti-union discrimination.''); International Labor
Organization, Committee on Freedom of Association, Complaint Against
the Government of the United States Presented by the United Food and
Commercial Workers International Union, para. 198, Report No. 284, Case
No. 1523 (1992) https://www.ilo.org/dyn/normlex/en/
f?p=1000:50002:0::NO:50002:P50002_COMPLAINT_TEXT_ID:2901959 (observing
that requiring temporary injunctions against unions for violations
against employers, but not against employers for violations against
employees, is inequitable); International Labor Organization, Committee
on Freedom of Association, Complaint Against the Government of the
United States Presented by the AFL-CIO, para. 92, Report No. 278, Case
No. 1543 (1991) https://www.ilo.org/dyn/normlex/en/
f?p=1000:50002:0::NO:50002:P50002_COMPLAINT_TEXT_ID:2902035 (finding
that permitting the permanent replacement of strikers undermines the
right to strike and ``may affect the free exercise of trade union
rights'').
Ms. Shalala: Does the U.S. law comply with the basic
standards of the ILO conventions? And how does
noncompliance diminish our standing in the world? And
how would the PRO Act help promote compliance with
international human rights standards?
Mr. Trumka: It does not comply. Our laws don't comply
with ILO conventions . . . There was just a study done
by the World Justice Project . . . And the way that it
affects us most is, because we don't do the things that
we ask other[ countries] to do, we look like
hypocrites. We ask them to do something and we haven't
done it. We do not protect the right to strike. That is
one of the things that the international community
specifically addresses . . . and says the right to
strike cannot exist when you can permanently replace
anybody who exercises the right to strike. So what it
does is, it lessens our standing in the world and it
makes it more difficult for us to help people in other
parts of the world correct the outrageous labor
standards and lack of labor laws that they have.\171\
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\171\Subcomm. On Health, Employment, Labor, and Pensions of the H.
Comm. on Education and Labor, Protecting the Right to Organize Act:
Deterring Unfair Labor Practices, YouTube (May, 2019), https://
www.youtube.com/watch?v=UA3vxNxKi_c (question and answer between Ms.
Shalala and Mr. Trumka at 2:01:36) (citing Rule of Law Index, World
Justice Project (2019), https://worldjusticeproject.org/sites/default/
files/documents/WJP-ROLI-2019-Single%20Page%20View-Reduced.pdf).
The PRO Act is designed to bolster compliance with
international labor standards, including the Declaration on
Fundamental Principles and Rights at Work and respective core
conventions, by protecting workers' full freedom of
association.
Section-by-Section Analysis
Section 1. Short title
This section states that the title of the bill is the
Protecting the Right to Organize Act of 2019.
Section 2. Amendments to the National Labor Relations Act
a. Definitions
This subsection amends the definitions of employer,
employee, and supervisor:
Amends 2(2) of the NLRA (defining employer)
so that two more persons shall be employers under the
NLRA if each codetermines or shares control over the
employees' essential terms and conditions of
employment.
Amends 2(3) of the NLRA (defining employee)
to ensure workers performing any service are employees
and not independent contractors unless: (1) the
individual is free from the employer's control in
connection with the performance of the service, both
under the contract for the performance of service and
in fact; (2) the service is performed outside the usual
course of the business of the employer; and (3) 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.
Amends 2(11) of the NLRA (defining
supervisor) to require that the individual's
supervisory activities be executed for ``a majority of
the individual's worktime'' and modifies the list of
supervisory activities in 2(11) to remove the
individual's authority to ``assign'' and ``responsibly
to direct'' employees.
b. Annual report
This subsection reinstates the NLRB's requirement to
prepare annual reports:
Amends 3(c) of the NLRA (governing annual
reports) requiring the NLRB to submit annual reports to
Congress detailing the agency's significant case
handling activities and operations.
c. Appointment of individuals to conduct economic analyses
This subsection permits the NLRB to conduct economic
analyses:
Amends 4(a) of the NLRA (describing officers
and employees) by striking the provision of current law
that prohibits the NLRB from appointing individuals to
conduct economic analyses.
d. Unfair labor practices and collective bargaining
procedures for a first contract
This subsection strengthens workers' rights to engage in
protected activities:
Amends Sec. 8(a) of the NLRA (governing
unfair labor practices committed by employers) to
prohibit employers from, permanently replacing
employees who strike, or discriminating against
employees who support or participate in a strike.
Amends Sec. 8(a) of the NLRA (governing
unfair labor practices committed by employers) to
prohibit companies from offensively locking out
employees in the absence of a threatened strike.
Amends Sec. 8(a) of the NLRA (governing
unfair labor practices committed by employers) to
prohibit employers from misclassifying employees by
communicating or misrepresenting to an employee that
they are not covered by the NLRA, when in fact they are
an ``employee'' under 2(3) of the NLRA.
Amends Sec. 8(b) of the NLRA (governing
unfair labor practices by labor organizations) and
strikes the following provisions of the NLRA:
Sec. 8(b)(4) (prohibiting union
secondary boycott activity); and
Sec. 8(b)(7) (prohibiting union
recognitional picketing).
Amends Sec. 8(c) of the NLRA (governing the
expression of views) to prohibit employers from
requiring employees' attendance at anti-union meetings
or campaign related activities as a condition of
employment.
Amends Sec. 8(d) of the NLRA (governing
employers and labor organizations' duty to bargain) to
clarify that the duty to bargain requires the employer
to maintain current terms and conditions of employment
pending an agreement.
Amends Sec. 8(d) of the NLRA (governing
employers and labor organizations' duty to bargain) to
prevent employers from unilaterally withdrawing union
recognition prior to the completion of a
decertification election by the employees.
Amends Sec. 8(d)(3) of the NLRA (governing
employers and labor organizations' duty to bargain) to
require that the following applies whenever collective
bargaining is for the purpose of establishing an
initial collective bargaining agreement with a labor
organization:
Within 10 days of the union
submitting a request to the employer, or for a
longer duration if the parties mutually agree,
the parties shall meet and commence bargaining
and make every reasonable effort to conclude a
bargaining agreement.
If after expiration of 90 days
(or for additional periods as the parties may
agree) the parties fail to reach an agreement,
either party may request mediation facilitated
by the Federal Mediation and Conciliation
Service (FMCS).
If after 30 days from the
request for mediation (or for additional
periods as the parties may agree) the FMCS
cannot bring the parties to agreement by
conciliation, the FMCS shall refer the dispute
to a tripartite arbitration panel.
The arbitration panel shall be
composed of one member selected by the labor
organization, one member selected by the
employer, and one neutral member mutually
agreed to by the parties. A majority of the
panel shall render a decision settling the
dispute, and such decision shall be binding on
the parties for two years, unless amended
during such period by written consent of the
parties. Such decision shall be based on:
D the employer's financial status and
prospects;
D the size and type of the employer's
operations and business;
D the employees' cost of living;
D the employees' ability to sustain
themselves, their families, and their
dependents on the wages and benefits
they earn from the employer; and
D the wages and benefits other
employers in the same business provide
their employees.
Amends Sec. 8(d)(3) of the NLRA (governing
employers and labor organizations' duty to bargain) to
provide 14 days for labor organizations and employers
to select arbitrators to serve on the arbitration
panel. If the labor organization or employer fail to do
so within that time period, the FMCS shall designate
any members not selected by the employer or the labor
organization.
Amends Sec. 8(e) of the NLRA (governing the
enforceability of agreements to boycott employers)
striking the prohibition on hot cargo agreements and
inserting a prohibition on collective and class action
litigation waivers. This provision also establishes an
unfair labor practice under Sec. 8(a)(1) of the NLRA
(prohibiting employers from interfering with employees
right to engage in concerted activities) that prohibits
employers from requiring employees (regardless of their
union membership) to waive their right to collective
and class action litigation. This section now makes it
unlawful for employers to:
enter into or enforce an
agreement where 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, prior to a
dispute to which the agreement applies;
coerce an employee into
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
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.
Adds a new Sec. 8(h)(1) to the NLRA to
direct the NLRB to promulgate regulations requiring
employers to post and maintain notices to employees of
their rights under the NLRA and to notify each new
employee of the information in the notice.
Adds a new Sec. 8(h)(2) to the NLRA to
require that employers provide unions with a list that
includes employees' names, addresses, work locations,
shifts, job classifications, and, if available to the
employer, personal landline and mobile telephone
numbers and email addresses--of all the employees in
the bargaining unit, in a searchable electronic format,
no later than two business days after the NLRB directs
an election.
Adds a new Sec. 8(i) to the NLRA to protect
employees' right to engage in concerted activity when
it occurs on workplace email or other employer-provided
electronic communication systems, absent a compelling
business rationale.
e. Representation elections and bargaining orders
This subsection ensures fairness in union representation
elections:
Amends section Sec. 9(c)(1) of the NLRA
(governing NLRB election hearings) to require that the
NLRB find the union's proposed unit of employees
appropriate if the union demonstrates that the
employees share a community of interest, unless any
excluded employees share an overwhelming community of
interest with the employees in the unit.
Amends Sec. 9(c)(1) of the NLRA (governing
NLRB election hearings) to permit offsite union
representation elections electronically, through
certified mail, or at a location other than the one
owned or controlled by the employer.
Amends Sec. 9(c)(1) of the NLRA (governing
NLRB election hearings) to eliminate employer standing
as a party in union representation proceedings.
Adds a new Sec. 9(c)(4) to the NLRA
mandating that the NLRB issue an order requiring the
parties to engage in bargaining when a majority of
valid ballots have been cast in favor of a union.
Adds a new Sec. 9(c)(5) to the NLRA
authorizing the NLRB to issue orders requiring
employers to bargain with unions when a majority of
employees in the voting unit have signed authorization
cards designating the union as their representative,
but a majority of ballots during a union representation
election were not cast in favor of the labor
organization due to employer interference.
Adds a new Sec. 9(c)(8) to the NLRA
requiring the NLRB to schedule pre-election hearings
not later than eight days after notice of the hearing
is served on the labor organization and to schedule
post-election hearings not later than 14 days after the
filing of objections disputing election results.
f. Prevention of unfair labor practices
This subsection improves the NLRB's ability to prevent
unfair labor practices:
Amends Sec. 10(c) of the NLRA
(findings and orders of Board) to provide that
when an employer discriminates against an
employee in violation of Sec. 8(a)(3) of the
NLRA (prohibiting employer discrimination
against employees in regard to hire or tenure
of employment), discriminates against an
employee in violation of Sec. 8(a)(4) of the
NLRA (prohibiting employer discrimination
against employees for filing an unfair labor
practice), or has committed a violation of
Sec. 8(a) of the NLRA (governing unfair labor
practices committed by employers) that results
in the discharge of an employee or other
serious economic harm to an employee, the NLRB
shall award the employee back pay without any
reduction, front pay (when appropriate),
consequential damages, and an additional amount
as liquidated damages equal to two times the
amount of damages awarded. The NLRB must not
deny relief under this subsection on the basis
that the employee is, or has ever been, an
unauthorized alien as defined under any
provision of federal law relating to the
unlawful employment of aliens.
g. Enforcing compliance with orders of the NLRB and
penalties for contempt
This subsection improves the efficacy of NLRB orders:
Adds a new Sec. 10(d)(1) to the NLRA
permitting the NLRB to enforce its own orders.
Adds a new Sec. 10(d)(2) to the NLRA
requiring parties that fail or neglect to obey NLRB
orders to pay the NLRB a civil monetary penalty of not
more than $10,000 for each violation, which accrues to
the United States Treasury. This penalty may be
recovered in a civil action brought in federal district
court, providing such action may not be brought until
30 days following the issuance of an order. Each such
violation of an order shall be deemed a separate
offense.
Amends Sec. 10(f) of the NLRA (governing
review of final NLRB orders) to grant parties adversely
affected by NLRB orders the right to seek review before
federal courts of appeals within 30 days of the
contempt order being issued.
h. Injunctions against unfair labor practices involving
discharge or other serious economic harm
This subsection ensures that employees who allege a
violation causing serious economic harm receive injunctive
relief for the duration of their proceeding:
Amends Sec. 10(j) of the NLRA (injunctions)
to require the NLRB seek temporary injunctions whenever
there is reasonable cause to believe:
an employer has engaged in an
unfair labor practice within the meaning of
Sec. 8(a)(1) of the NLRA (prohibiting employer
interference with employees' right to engage in
concerted activities); or
an employer has engaged in an
unfair labor practice within the meaning of
Sec. 8(a)(3) of the NLRA (prohibiting employer
discrimination against employees in regard to
hire or tenure of employment); or
an employer has engaged in an
unfair labor practice that involves discharge
or serious economic harm to an employee.
Requires federal district courts to grant
the relief requested unless the court concludes there
is no reasonable likelihood that the NLRB will succeed
on the merits.
i. Penalties
This subsection authorizes civil monetary penalties for an
employer's unfair labor practices and other violations, and
provides an alternative means for enforcing alleged violations
of the NLRA when the NLRB fails to act in a timely manner:
Adds a new Sec. 12(b) to the NLRA that
authorizes the NLRB to assess a civil monetary penalty
not to exceed $500 when an employer fails to post a
notice of employee rights and protections in the
workplace, fails to inform new employees about their
rights under the NLRA, or fails to timely produce voter
eligibility lists.
Adds a new Sec. 12(c) to the NLRA to
authorize a civil monetary penalty not to exceed
$50,000 when an employer commits an unfair labor
practice within the meaning of Sec. 8(a) of the NLRA
(governing unfair labor practices committed by
employers). In determining the size of such penalty,
the NLRB may consider the gravity of the violation, the
impact of the violation on the employee, and the size
of the employer. If the employer has committed another
such violation causing discharge or serious economic
harm in the previous five years, the NLRB is authorized
assess a civil monetary penalty up to $100,000. Under
certain circumstances, the NLRB may hold an officer or
director of an employer personally liable and assess a
civil penalty against that individual.
Adds a new Sec. 12(d) to the NLRA to permit
any person injured by a violation of Sec. 8(a)(1) of
the NLRA (prohibiting employer interference with
employee's right to engage in concerted activities) or
Sec. 8(a)(3) of the NLRA (prohibiting employer
discrimination against employees in regard to hire or
tenure of employment) to file a civil action in federal
district court. The employee may bring a civil action
if the NLRB does not seek an injunction within 60 days
of filing a charge, and the employee has 90 days to
bring the civil action after the expiration of the 60-
day period or the date the Board notifies the person
that no complaint shall issue, whichever occurs
earlier.
j. Limitations on strike activity
This subsection clarifies employees' right to strike:
Amends Sec. 13 (right to strike) of the NLRA
by indicating that the duration, scope, frequency, or
intermittence of any strike does not render the strike
unlawful.
k. Fair share agreements permitted
This subsection permits labor organizations to negotiate
for fair share fees to ensure employees benefitting from
collective bargaining agreements contribute their fair share to
the labor organization:
Amends Sec. 14(b) of the NLRA (agreements
requiring union membership) to permit unions and
employers to enter into collective bargaining
agreements that require all employees in a bargaining
unit to contribute fees to labor organizations for the
cost of representation, contract enforcement, and
related expenditures as a condition of employment,
irrespective of state law.
Section 3. Conforming amendments to the Labor Management Relations Act
of 1947
This section updates the Labor Management Relations Act
(LMRA) to reflect changes made by the PRO Act to NLRA
provisions that the LMRA references:
Amends Sec. 213 of the LMRA (governing
conciliation of labor disputes in the health care
industry) to reflect organizational and non-substantive
changes made to Sec. 8(d) of the NLRA (governing
employers and labor organizations' duty to bargain).
This section also strikes Sec. 303 (private right of
action to bring suit for damages related to unlawful
secondary boycotts and unlawful combinations) because
Sec. 8(b)(4) (prohibitions on secondary boycotts and
picketing) is repealed in the PRO Act and Sec. 303 is,
therefore, rendered superfluous.
Section 4. Amendments to the Labor-Management Reporting and Disclosure
Act of 1959
This section promotes employer transparency by requiring
employers to report arrangements with consultants regarding
employee labor relations:
Amends Sec. 203(c) of the LMRDA (governing
employer reporting requirements) to clarify that
neither employers nor consultants who agree to
undertake persuader activities (for an object described
in Sec. 203(b)(1) of the LMRDA) are exempt from
requirements mandating the disclosure of arrangements
they enter into with consultants to directly or
indirectly persuade employees on how to exercise their
rights under the NLRA. These arrangements include
planning or conducting employee meetings, training
employer representatives, identifying employees for
disciplinary action or targeting, or drafting employer
personnel policies.
Section 5. Authorization of appropriations
This section authorizes such sums as may be necessary to
carry out the provisions of the Act.
Explanation of Amendments
The amendments, including the amendment in the nature of a
substitute, are explained in the descriptive portions of this
report.
Application of Law to the Legislative Branch
Pursuant to section 102(b)(3) of the Congressional
Accountability Act, Pub. L. No. 104-1, H.R. 2474, as amended,
does not apply to terms and conditions of employment or to
access to public services or accommodations within the
legislative branch.
Unfunded Mandate Statement
Pursuant to section 423 of the Congressional Budget and
Impoundment Control Act (as amended by Section 101(a)(2) of the
Unfunded Mandates Reform Act, Pub. L. 104-4), the Committee
adopts as its own the estimate of federal mandates regarding
H.R. 2474, as amended, prepared by the Director of the
Congressional Budget Office.
Earmark Statement
In accordance with clause 9 of rule XXI of the Rules of the
House of Representatives, H.R. 2474 does not contain any
congressional earmarks, limited tax benefits, or limited tariff
benefits as described in clauses 9(e), 9(f), and 9(g) of rule
XXI.
Roll Call Votes
In compliance with clause 3(b) of rule XIII of the Rules of
the House of Representatives, the Committee advises that the
following roll call votes occurred during the Committee's
consideration of H.R. 2474:
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Statement of Performance Goals and Objectives
Pursuant to clause (3)(c) of rule XIII of the Rules of the
House of Representatives, the goals of H.R. 2474 are to: deter
employers from violating workers' right to organize, safeguard
free and fair union representation elections, protect the right
of employees to collectively bargain, facilitate transparency
in labor-management relations, prevent employers from avoiding
their legal responsibilities under federal labor laws, and
remove unjust restrictions on workers' exercise of rights.
Duplication of Federal Programs
Pursuant to clause 3(c)(5) of rule XIII of the Rules of the
House of Representatives, the Committee states that no
provision of H.R. 2474 establishes or reauthorizes a program of
the Federal Government known to be duplicative of another
federal program, a program that was included in any report from
the Government Accountability Office to Congress pursuant to
section 21 of Public Law 111-139, or a program related to a
program identified in the most recent Catalog of Federal
Domestic Assistance.
Hearings
Pursuant to section 103(i) of H. Res. 6 for the 116th
Congress, the Committee held the following hearings.
On March 26, 2019, the Committee held a hearing entitled
``Protecting Workers' Right to Organize: The Need for Labor Law
Reform,'' which was used to develop H.R. 2474. The Committee
heard testimony on the economic consequences of declining union
membership, the inadequacy of deterrents for employer
violations of the NLRA, and legislative solutions that would
strengthen rights set forth in the law. The Committee heard
testimony from: Jake Rosenfeld, Professor of Sociology at
Washington University, St. Louis, MO; Cynthia Harper, Former
Lamination Specialist at Fuyao Glass, Englewood, OH; Glenn
Taubman, Staff Attorney for the National Right to Work
Foundation, Springfield, VA; and Devki K. Virk, Member of
Bredhoff & Kaiser, PLLC, Washington, DC.
On May 8, 2019, the Committee held a legislative hearing
entitled ``Protecting the Right to Organize Act: Deterring
Unfair Labor Practices,'' which was used to consider H.R. 2474.
The Committee heard testimony on the consequences of the NLRA's
weak enforcement scheme, the impacts of lacking penalties for
employer interference with workers organizing, the NLRB's
inability to enforce its own orders, and the remedies contained
in the PRO Act. The Committee heard testimony from: Richard
Trumka, President of the AFL-CIO, Washington, DC; Jim Staus,
Former Supply Clerk at University of Pittsburgh Medical Center,
Pittsburgh, PA; Philip Miscimarra, Partner at Morgan, Lewis &
Bockius LLP, Washington, DC; and Mark Pearce, Executive
Director of the Workers' Rights Institute at Georgetown
University Law School and Former Chairman of the NLRB,
Washington, DC.
On July 25, 2019, the Committee held a legislative hearing
entitled ``Protecting the Right to Organize Act: Modernizing
America's Labor Laws,'' which was used to consider H.R. 2474.
The Committee heard testimony on the problems caused by
misclassification of employees, the NLRB's efforts to narrow
the joint employer standard, and undue restrictions on workers'
First Amendment right to strike or engage in peaceful picketing
activity. The Committee heard testimony from: Charlotte Garden,
Associate Professor and Co-Associate Dean for Research and
Faculty Development at the Seattle University School of Law,
Seattle, WA; Josue Alvarez, Truck Driver for XPO Logistics,
Bell Gardens, CA; G. Roger King, Senior Labor and Employment
Counsel at the HR Policy Association, Washington, DC; and
Richard F. Griffin, Jr., Of Counsel at Bredhoff & Kaiser, PLLC,
Washington, DC.
Statement of Oversight Findings and Recommendations of the Committee
In compliance with clause 3(c)(1) of rule XIII and clause
2(b)(1) of rule X of the Rules of the House of Representatives,
the Committee's oversight findings and recommendations are
reflected in the descriptive portions of this report.
New Budget Authority and CBO Cost Estimate
Pursuant to clause 3(c)(2) of rule XIII of the Rules of the
House of Representatives and section 308(a) of the
Congressional Budget Act of 1974, and pursuant to clause
3(c)(3) of rule XIII of the Rules of the House of
Representatives and section 402 of the Congressional Budget Act
of 1974, the Committee has received the following estimate for
H.R. 2474 from the Director of the Congressional Budget Office:
U.S. Congress,
Congressional Budget Office,
Washington, DC, December 5, 2019.
Hon. Bobby Scott,
Chairman, Committee on Education and Labor,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 2474, the
Protecting the Right to Organize Act of 2019.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Meredith
Decker.
Sincerely,
Phillip L. Swagel,
Director.
Enclosure.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
The bill would:
Expand the enforcement powers of the
National Labor Relations Board (NLRB)
Amend the definition of joint employer,
employee, and supervisor under the National Labor
Relations Act (NLRA)
Authorize appropriations for additional data
collection, reporting, and dispute mediation
Impose intergovernmental and private-sector
mandates by preempting state laws, requiring employers
to undertake additional actions during collective
bargaining negotiations, and prohibiting certain labor
practices
Estimated budgetary effects would primarily stem from:
Imposing new civil penalties on violators of
the NLRA
Authorizing appropriations for the Federal
Mediation and Conciliation Service and the Department
of Labor
Areas of significant uncertainty include:
Predicting employer and employee responses
to the legislation and resulting changes in the NLRB's
workload
Estimating costs to employers
Bill summary: H.R. 2474 would amend several provisions of
the National Labor Relations Act (NLRA), which establishes the
rights of most private-sector employees to engage in collective
bargaining. The bill would change the statutory definitions of
joint employer, employee, and supervisor; modify the list of
actions that would qualify as unfair labor practices; and allow
collective bargaining agreements to require all employees in a
unit to contribute fees to a labor organization as a condition
of employment. Employers would be required to post notices that
inform workers of their rights under the NLRA and would be
prohibited from engaging in certain labor practices. Parties
negotiating an initial collective bargaining agreement would be
encouraged to use the mediation and arbitration services of the
Federal Mediation and Conciliation Service (FMCS) early in the
collective bargaining process.
The NLRA is administered by the National Labor Relations
Board (NLRB). The bill would allow the NLRB to take into
account economic analysis when deciding cases and to assess
civil penalties for violations of the act. H.R. 2474 also would
require the NLRB to report annually on its activities to the
Congress and the President.
In addition, H.R. 2474 would require more employers to
disclose to the Department of Labor any indirect activities
(such as hiring outside parties to draft personnel policies or
presentations) designed to persuade employees to exercise or
not to exercise their right to organize and bargain
collectively.
Estimated Federal cost: The estimated budgetary effect of
H.R. 2474 is shown in Table 1. The costs of the legislation
fall within budget function 500 (education, training,
employment, and social services).
TABLE 1.--ESTIMATED BUDGETARY EFFECTS OF H.R. 2474
--------------------------------------------------------------------------------------------------------------------------------------------------------
By fiscal year, millions of dollars--
-------------------------------------------------------------------------------------------
2020 2021 2022 2023 2024 2025 2026 2027 2028 2029 2020-2024 2020-2029
--------------------------------------------------------------------------------------------------------------------------------------------------------
Increases in Revenues
Estimated Revenues.......................................... 0 2 3 4 5 5 5 5 5 5 14 39
Increases in Spending Subject to Appropriation
Estimated Authorization..................................... * 1 1 1 1 n.e. n.e. n.e. n.e. n.e. 3 n.e.
Estimated Outlays........................................... * 1 1 1 1 n.e. n.e. n.e. n.e. n.e. 3 n.e.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Components may not sum to totals because of rounding; n.e. = not estimated, * = between zero and $500,000.
Basis of estimate: CBO assumes that the bill will be
enacted early in 2020 and that the necessary amounts will be
available each fiscal year. Estimated outlays are based on
historical patterns for existing and similar activities.
Revenues: The bill would provide the NLRB with the
authority to assess civil penalties on employers that violate
certain sections of the NLRA. Under current law, the NLRB may
seek remedies including reinstatement and back pay for
discharged workers. H.R. 2474 would enable the NLRB to assess a
civil penalty of up to $50,000 on employers that commit an
unfair labor practice as defined by the NLRA and up to $100,000
on employers that specifically discriminate against or
discharge an employee because of membership in a labor
organization. The higher penalty also could be assessed on
employers that discriminate against or discharge an employee
for filing charges or giving testimony related to unfair labor
practices. Based on the history of such cases, CBO estimates
those penalties would be imposed in about 120 cases per year,
about one-quarter of which would be subject to the higher
penalty. The bill also would enable the NLRB to assess a civil
penalty of up to $10,000 on any person who fails to obey an
order of the board. Based on the history of such cases, CBO
estimates those penalties would apply to about 60 cases per
year. Altogether, CBO estimates that enacting those provisions
would increase revenues by $39 million over the 2020-2029
period.
Spending Subject to Appropriation: CBO estimates that
implementing H.R. 2474 would cost $3 million, on net, over the
2020-2024 period. Such spending would be subject to the
availability of appropriated funds.
National Labor Relations Board. Some provisions of H.R.
2474 would increase the workload of the NLRB, such as requiring
NLRB to report annually to the Congress and the President and
allowing the agency to hire staff to conduct economic analysis
to support the agency's rulemaking and decisionmaking. Other
provisions would decrease the workload of the NLRB, because the
agency would no longer need to seek enforcement of its orders
through the U.S. Courts of Appeals. On net, CBO estimates that
implementing those provisions would not significantly change
the operating costs for the NLRB over the 2020-2024 period.
Federal Mediation and Conciliation Service. Currently, FMCS
receives around 500 notifications annually from the NLRB that
new bargaining units have been certified and that the parties
are working toward an initial collective bargaining agreement.
The agency mediates disputes only if both parties request its
services, which occurs in roughly 10 percent of initial
collective bargaining cases. H.R. 2474 would allow either side
to request mediation services from FMCS early in the collective
bargaining process. If the dispute were not resolved, FMCS
could refer the parties to an arbitration panel.
Using information from the agency, CBO expects that the
number of initial cases mediated by FMCS would double under the
bill because either party could request mediation.
Additionally, CBO expects that the agency would continue to
encourage parties to work toward an agreement independently
before mediating any conflict and referring parties to
arbitration. The costs of mediation are covered by FMCS; any
arbitration costs are covered by the parties. Using information
from FMCS, CBO estimates that personnel and administrative
costs would increase by $2 million over the 2020-2024 period
mostly for the agency to update its system for referring
parties to arbitration, and to hire an additional meditator.
Department of Labor. Section 4 would require employers to
report more of their indirect efforts to influence employees'
decisions to organize or bargain collectively to the
department's Office of Labor-Management Standards. Using
information from the department, CBO expects that the number of
reports filed would roughly triple and that enforcement and
processing costs would increase by $1 million over the 2020-
2024 period.
Pay-As-You-Go considerations: The Statutory Pay-As-You-Go
Act of 2010 establishes budget-reporting and enforcement
procedures for legislation affecting direct spending or
revenues. The net changes in revenues that are subject to those
pay-as-you-go procedures are shown in Table 2.
TABLE 2.--CBO'S ESTIMATE OF THE STATUTORY PAY-AS-YOU-GO EFFECTS OF H.R. 2474, PROTECTING THE RIGHT TO ORGANIZE ACT OF 2019, AS ORDERED REPORTED BY THE
HOUSE COMMITTEE ON EDUCATION AND LABOR ON SEPTEMBER 25, 2019
--------------------------------------------------------------------------------------------------------------------------------------------------------
By fiscal year, millions of dollars--
-------------------------------------------------------------------------------------------
2020 2021 2022 2023 2024 2025 2026 2027 2028 2029 2020-2024 2020-2029
--------------------------------------------------------------------------------------------------------------------------------------------------------
Net Decrease in the Deficit
Pay-As-You-Go Effect........................................ 0 -2 -3 -4 -5 -5 -5 -5 -5 -5 -14 -39
--------------------------------------------------------------------------------------------------------------------------------------------------------
Increase in long-term deficits: None.
Mandates: H.R. 2474 contains intergovernmental and private-
sector mandates as defined in the Unfunded Mandates Reform Act
(UMRA). CBO estimates that the cost of the public-sector
mandate would be below the annual threshold for the
intergovernmental mandates established by UMRA ($82 million in
2019, adjusted annually for inflation). CBO estimates that the
aggregate cost of complying with the private-sector mandates
would exceed the annual threshold established in UMRA ($164
million in 2019, adjusted annually for inflation).
Mandate that affects the public sector: The bill would
preempt current law in states that prohibit contracts between
employers and unions from requiring workers to pay for the
costs of union representation as a condition of employment. CBO
estimates the costs of the preemption, for example to update
the information available to businesses and employees about the
change in law, would be small.
Mandates that affect the private sector: By requiring
employers to post notices outlining new protections for
employees and potential employees, H.R. 2474 would impose a
mandate on employers under the jurisdiction of the NLRA. Using
information from the NLRB, CBO estimates that the cost of the
requirement would be approximately $73 per business and that it
would apply to most of the nation's roughly 8 million
businesses. Thus, CBO estimates that posting the new notices
would cost several hundred million dollars in total.
Several other private-sector mandates are contained in H.R.
2474 but CBO cannot anticipate the number of businesses that
would be affected nor the extent to which changes in their
labor practices would be required. Therefore, CBO cannot
estimate the cost of the following mandates:
Employers would be prohibited from participating
in union elections, requiring employees to attend employer-
organized meetings related to labor representation, or
misrepresenting employees' status as it relates to the right to
representation.
Employers would be required to allow employees to
use electronic and communication equipment for labor organizing
and to maintain wages and working conditions for employees
during collective bargaining.
Employers could not reduce or deny employees'
hours to influence their position in collective bargaining
before a strike, permanently replace employees who participate
in strikes seeking better wages and benefits, or prevent
employees from engaging in class action lawsuits relating to
employment conditions.
The bill also would broaden employers' reporting
requirements related to labor-management representation and
collective bargaining efforts. Finally, for employment
contracts that are not part of a union agreement, the bill
would prohibit and void predispute arbitration agreements.
Uncertainty: Depending on the responses of labor
organizations, employers, and employees to the bill's
provisions, and on how the NLRB implements the bill, the
agency's workload could change significantly. The NLRB could
interpret the bill as increasing the number of people
classified as employees under the NLRA, and those employees
might bring more charges of unfair labor practices to the NLRB,
and thus increase its workload. On the other hand, larger
potential penalties and additional enforcement powers for the
NLRB could encourage violators of the NLRA to settle cases
earlier, and thus decrease litigation costs. In addition, the
NLRB could choose not to impose penalties when it settles
certain cases, and thus reduce revenues.
For the private sector, CBO cannot anticipate the number of
businesses likely to be affected by the bill or the extent of
changes in their labor practices resulting from it; therefore,
CBO cannot estimate the cost to comply with many of those
requirements.
Estimate prepared by: Federal Costs: Meredith Decker;
Revenues: Bayard Meiser; Mandates: Lilia Ledezma.
Estimate reviewed by: Sheila Dacey, Chief, Income Security
and Education Cost Estimates Unit; Joshua Shakin, Chief, Tax
Analysis Division; Susan Willie, Chief, Mandates Unit; H.
Samuel Papenfuss, Deputy Assistant Director for Budget
Analysis; Theresa Gullo, Assistant Director for Budget
Analysis.
Committee Cost Estimate
Clause 3(d)(1) of rule XIII of the Rules of the House of
Representatives requires an estimate and a comparison of the
costs that would be incurred in carrying out H.R. 2474.
However, clause 3(d)(2)(B) of that rule provides that this
requirement does not apply when the committee has included in
its report a timely submitted cost estimate of the bill
prepared by the Director of the Congressional Budget Office
under section 402 of the Congressional Budget Act of 1974.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, H.R. 2474, as reported, are shown as follows:
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italic, and existing law in which no
change is proposed is shown in roman):
NATIONAL LABOR RELATIONS ACT
* * * * * * *
definitions
Sec. 2. When used in this Act--
(1) The term ``person'' includes one or more individuals,
labor organizations, partnerships, associations, corporations,
legal representatives, trustees, trustees in cases under title
11 of the United States Code, or receivers.
(2) The term ``employer'' includes any person acting as an
agent of an employer, directly or indirectly, but shall not
include the United States or any wholly owned Government
corporation, or any Federal Reserve Bank, or any State or
political subdivision thereof, or any person subject to the
Railway Labor Act, as amended from time to time, or any labor
organization (other than when acting as an employer), or anyone
acting in the capacity of officer or agent of such labor
organization. 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.
(3) The term ``employee'' shall include any employee, and
shall not be limited to the employees of a particular employer,
unless the Act explicitly states otherwise, and shall include
any individual whose work has ceased as a consequence of, or in
connection with, any current labor dispute or because of any
unfair labor practice, and who has not obtained any other
regular and substantially equivalent employment, but shall not
include any individual employed as an agricultural laborer, or
in the domestic service of any family or person at his home, or
any individual employed by his parent or spouse, or any
individual having the status of an independent contractor, or
any individual employed as a supervisor, or any individual
employed by an employer subject to the Railway Labor Act, as
amended from time to time, or by any other person who is not an
employer as herein defined. 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.
(4) The term ``representatives'' includes any individual or
labor organization.
(5) The term ``labor organization'' means any organization of
any kind, or any agency or employee representation committee or
plan, in which employees participate and which exists for the
purpose, in whole or in part, of dealing with employers
concerning grievances, labor disputes, wages, rates of pay,
hours of employment, or conditions of work.
(6) The term ``commerce'' means trade, traffic, commerce,
transportation, or communication among the several States, or
between the District of Columbia or any Territory of the United
States and any State or other Territory, or between any foreign
country and any State, Territory, or the District of Columbia,
or within the District of Columbia or any Territory, or between
points in the same State but through any other State or any
Territory or the District of Columbia or any foreign country.
(7) The term ``affecting commerce'' means in commerce, or
burdening or obstructing commerce or the free flow of commerce,
or having led or tending to lead to a labor dispute burdening
or obstructing commerce or the free flow of commerce.
(8) The term ``unfair labor practice'' means any unfair labor
practice listed in section 8.
(9) The term ``labor dispute'' includes any controversy
concerning terms, tenure or conditions of employment, or
concerning the association or representation of persons in
negotiating, fixing, maintaining, changing, or seeking to
arrange terms or conditions of employment, regardless of
whether the disputants stand in the proximate relation of
employer and employee.
(10) The term ``National Labor Relations Board'' means the
National Labor Relations Board provided for in section 3 of
this Act.
(11) The term ``supervisor'' means any individual having
authority, in the interest of the employer and for a majority
of the individual's worktime, to hire, transfer, suspend, lay
off, recall, promote, discharge, [assign,] reward, or
discipline other employees, [or responsibly to direct them,] or
to adjust their grievances, or effectively to recommend such
action, if in connection with the foregoing the exercise of
such authority is not of a merely routine or clerical nature,
but requires the use of independent judgment.
(12) The term ``professional employee'' means--
(a) any employee engaged in work (i) predominantly
intellectual and varied in character as opposed to
routine mental, manual, mechanical, or physical work;
(ii) involving the consistent exercise of discretion
and judgment in its performance; (iii) of such a
character that the output produced or the result
accomplished cannot be standardized in relation to a
given period of time; (iv) requiring knowledge of an
advanced type in a field of science or learning
customarily acquired by a prolonged course of
specialized intellectual instruction and study in an
institution of higher learning or a hospital, as
distinguished from a general academic education or from
an apprenticeship or from training in the performance
of routine mental, manual, or physical processes; or
(b) any employee, who (i) has completed the courses
of specialized intellectual instruction and study
described in clause (iv) of paragraph (a), and (ii) is
performing related work under the supervision of a
professional person to qualify himself to become a
professional employee as defined in paragraph (a).
(13) In determining whether any person is acting as an
``agent'' of another person so as to make such other person
responsible for his acts, the question of whether the specific
acts performed were actually authorized or subsequently
ratified shall not be controlling.
(14) The term ``health care institution'' shall include any
hospital, convalescent hospital, health maintenance
organization, health clinic, nursing home, extended care
facility, or other institution devoted to the care of sick,
infirm, or aged person.
national labor relations board
Sec. 3. (a) The National Labor Relations Board (hereinafter
called the ``Board'') created by this Act prior to its
amendment by the Labor Management Relations Act, 1947, is
hereby continued as an agency of the United States, except that
the Board shall consist of five instead of three members,
appointed by the President by and with the advice and consent
of the Senate. Of the two additional members so provided for,
one shall be appointed for a term of five years and the other
for a term of two years. Their successors, and the successors
of the other members, shall be appointed for terms of five
years each, excepting that any individual chosen to fill a
vacancy shall be appointed only for the unexpired term of the
member whom he shall succeed. The President shall designate one
member to serve as Chairman of the Board. Any member of the
Board may be removed by the President, upon notice and hearing,
for neglect of duty or malfeasance in office, but for no other
cause.
(b) The Board is authorized to delegate to any group of three
or more members any or all of the powers which it may itself
exercise. The Board is also authorized to delegate to its
regional directors its powers under section 9 to determine the
unit appropriate for the purpose of collective bargaining, to
investigate and provide for hearings, and determine whether a
question of representation exists, and to direct an election or
take a secret ballot under subsection (c) or (e) of section 9
and certify the results thereof, except that upon the filing of
a request therefor with the Board by any interested person, the
Board may review any action of a regional director delegated to
him under this paragraph, but such a review shall not, unless
specifically ordered by the Board, operate as a stay of any
action taken by the regional director. A vacancy in the Board
shall not impair the right of the remaining members to exercise
all of the powers of the Board, and three members of the Board
shall, at all times, constitute a quorum of the Board, except
that two members shall constitute a quorum of any group
designated pursuant to the first sentence hereof. The Board
shall have an official seal which shall be judicially noticed.
(c) [The Board] (1) The Board shall at the close of each
fiscal year make a report in writing to Congress and to the
President summarizing significant case activities and
operations for that fiscal year.
(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).
(d) There shall be a General Counsel of the Board who shall
be appointed by the President, by and with the advice and
consent of the Senate, for a term of four years. The General
Counsel of the Board shall exercise general supervision over
all attorneys employed by the Board (other than trial examiners
and legal assistants to Board members) and over the officers
and employees in the regional offices. He shall have final
authority, on behalf of the Board, in respect of the
investigation of charges and issuance of complaints under
section 10, and in respect of the prosecution of such
complaints before the Board, and shall have such other duties
as the Board may prescribe or as may be provided by law. In
case of a vacancy in the office of the General Counsel the
President is authorized to designate the officer or employee
who shall act as General Counsel during such vacancy, but no
person or persons so designated shall so act (1) for more than
forty days when the Congress is in session unless a nomination
to fill such vacancy shall have been submitted to the Senate,
or (2) after the adjournment sine die of the session of the
Senate in which such nomination was submitted.
Sec. 4. (a) Each member of the Board and the General Counsel
of the Board shall receive a salary of $12,000 a year, shall be
eligible for reappointment, and shall not engage in any other
business, vocation, or employment. The Board shall appoint an
executive secretary, and such attorneys, examiners, and
regional directors, and such other employees as it may from
time to time find necessary for the proper performance of its
duties. The Board may not employ any attorneys for the purpose
of reviewing transcripts of hearings or preparing drafts of
opinions except that any attorney employed for assignment as a
legal assistant to any Board member may for such Board member
review such transcripts and prepare such drafts. No trial
examiner's report shall be reviewed, either before or after its
publication, by any person other than a member of the Board or
his legal assistant, and no trial examiner shall advise or
consult with the Board with respect to exceptions taken to his
findings, rulings, or recommendations. The Board may establish
or utilize such regional, local, or other agencies, and utilize
such voluntary and uncompensated services, as may from time to
time be needed. Attorneys appointed under this section may, at
the direction of the Board, appear for and represent the Board
in any case in court. Nothing in this Act shall be construed to
authorize the Board to appoint individuals for the purpose of
conciliation or mediation[, or for economic analysis].
(b) All of the expenses of the Board, including all necessary
traveling and subsistence expenses outside the District of
Columbia incurred by the members or employees of the Board
under its orders, shall be allowed and paid on the presentation
of itemized vouchers therefor approved by the Board or by any
individual it designates for that purpose.
* * * * * * *
unfair labor practices
Sec. 8. (a) It shall be an unfair labor practice for an
employer--
(1) to interfere with, restrain, or coerce employees
in the exercise of the rights guaranteed in section 7;
(2) to dominate or interfere with the formation or
administration of any labor organization or contribute
financial or other support to it: Provided, That
subject to rules and regulations made and published by
the Board pursuant to section 6, an employer shall not
be prohibited from permitting employees to confer with
him during working hours without loss of time or pay;
(3) by discrimination in regard to hire or tenure of
employment or any term or condition of employment to
encourage or discourage membership in any labor
organization: Provided, That nothing in this Act, or in
any other statute of the United States, shall preclude
an employer from making an agreement with a labor
organization (not established, maintained, or assisted
by any action defined in section 8(a) of this Act as an
unfair labor practice) to require as a condition of
employment membership therein on or after the thirtieth
day following the beginning of such employment or the
effective date of such agreement, whichever is the
later; (i) if such labor organization is the
representative of the employees as provided in section
9(a), in the appropriate collective-bargaining unit
covered by such agreement when made, and (ii) unless
following an election held as provided in section 9(e)
within one year preceding the effective date of such
agreement, the Board shall have certified that at least
a majority of the employees eligible to vote in such
election have voted to rescind the authority of such
labor organization to make such an agreement: Provided
further, That no employer shall justify any
discrimination against an employee for nonmembership in
a labor organization (A) if he has reasonable grounds
for believing that such membership was not available to
the employee on the same terms and conditions generally
applicable to other members, or (B) if he has
reasonable grounds for believing that membership was
denied or terminated for reasons other than the failure
of the employee to tender the periodic dues and the
initiation fees uniformly required as a condition of
acquiring or retaining membership;
(4) to discharge or otherwise discriminate against an
employee because he has filed charges or given
testimony under this Act;
(5) to refuse to bargain collectively with the
representatives of his employees, subject to the
provisions of section 9(a)[.];
(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).
(b) It shall be an unfair labor practice for a labor
organization or its agents--
(1) to restrain or coerce (A) employees in the
exercise of the rights guaranteed in section 7:
Provided, That this paragraph shall not impair the
right of a labor organization to prescribe its own
rules with respect to the acquisition or retention of
membership therein; or (B) an employer in the selection
of his representatives for the purpose of collective
bargaining or the adjustment of grievances;
(2) to cause or attempt to cause an employer to
discriminate against an employee in violation of
subsection (a)(3) or to discriminate against an
employee with respect to whom membership in such
organization has been denied or terminated on some
ground other than his failure to tender the periodic
dues and the initiation fees uniformly required as a
condition of acquiring or retaining membership;
(3) to refuse to bargain collectively with an
employer, provided it is the representative of his
employees subject to the provisions of section 9(a);
[(4)(i) to engage in, or to induce or encourage any
individual employed by any person engaged in commerce
or in an industry affecting commerce to engage in, a
strike or a refusal in the course of his employment to
use, manufacture, process, transport, or otherwise
handle or work on any goods, articles, materials, or
commodities or to perform any services; or (ii) to
threaten, coerce, or restrain any person engaged in
commerce or in an industry affecting commerce, where in
either case an object thereof is--
[(A) forcing or requiring any employer or
self-employed person to join any labor or
employer organization or to enter into any
agreement which is prohibited by section 8(e);
[(B) forcing or requiring any person to cease
using, selling, handling, transporting, or
otherwise dealing in the products of any other
producer, processor, or manufacturer, or to
cease doing business with any other person, or
forcing or requiring any other employer to
recognize or bargain with a labor organization
as the representative of his employees unless
such labor organization has been certified as
the representative of such employees under the
provisions of section 9: Provided, That nothing
contained in this clause (B) shall be construed
to make unlawful, where not otherwise unlawful,
any primary strike or primary picketing;
[(C) forcing or requiring any employer to
recognize or bargain with a particular labor
organization as the representative of his
employees if another labor organization has
been certified as the representative of such
employees under the provisions of section 9;
[(D) forcing or requiring any employer to
assign particular work to employees in a
particular labor organization or in a
particular trade, craft, or class rather than
to employees in another labor organization or
in another trade, craft, or class, unless such
employer is failing to conform to an order or
certification of the Board determining the
bargaining representative for employees
performing such work:
Provided, That nothing contained in this
subsection (b) shall be construed to make
unlawful a refusal by any person to enter upon
the premises of any employer (other than his
own employer), if the employees of such
employer are engaged in a strike ratified or
approved by a representative of such employees
whom such employer is required to recognized
under this Act: Provided further, That for the
purposes of this paragraph (4) only, nothing
contained in such paragraph shall be construed
to prohibit publicity other than picketing, for
the purposes of truthfully advising the public,
including consumers and members of a labor
organization, that a product or products are
produced by an employer with whom the labor
organization has a primary dispute and are
distributed by another employer, as long as
such publicity does not have an effect of
inducing any individual employed by any person
other than the primary employer in the course
of his employment to refuse to pick up,
deliver, or transport any goods, or not to
perform any services, at the establishment of
the employer engaged in such distribution;]
[(5)] (4) To require of employees covered by an
agreement authorized under subsection (a)(3) the
payment, as a condition precedent to becoming a member
of such organization, of a fee in an amount which the
Board finds excessive or discriminatory under all the
circumstances. In making such a finding, the Board
shall consider, among other relevant factors, the
practices and customs of labor organizations in the
particular industry, and the wages currently paid to
the employees [affected;] affected; and
[(6)] (5) to cause or attempt to cause an employer to
pay or deliver or agree to pay or deliver any money or
other thing of value, in the nature of an exaction, for
services which are not performed or not to be
performed[; and].
[(7) to picket or cause to be picketed, or threaten
to picket or cause to be picketed, any employer where
an object thereof is forcing or requiring an employer
to recognize or bargain with a labor organization as
the representative of his employees, or forcing or
requiring the employees of an employer to accept or
select such labor organization as their collective
bargaining representative, unless such labor
organization is currently certified as the
representative of such employees:
[(A) where the employer has lawfully
recognized in accordance with this Act any
other labor organization and a question
concerning representation may not appropriately
be raised under section 9(c) of this Act,
[(B) where within the preceding twelve months
a valid election under section 9(c) of this Act
has been conducted, or
[(C) where such picketing has been conducted
without a petition under section 9(c) being
filed within a reasonable period of time not to
exceed thirty days from the commencement of
such picketing: Provided, That when such a
petition has been filed the Board shall
forthwith, without regard to the provisions of
section 9(c)(1) or the absence of a showing of
a substantial interest on the part of the labor
organization, direct an election in such unit
as the Board finds to be appropriate and shall
certify the results thereof: Provided further,
That nothing in this subparagraph (C) shall be
construed to prohibit any picketing or other
publicity for the purpose of truthfully
advising the public (including consumers) that
an employer does not employ members of, or have
a contract with, a labor organization, unless
an effect of such picketing is to induce any
individual employed by any other person in the
course of his employment, not to pick up,
deliver or transport any goods or not to
perform any services. Nothing in this paragraph
(7) shall be construed to permit any act which
would otherwise be an unfair labor practice
under this section 8(b).]
(c) The expressing of any views, argument, or opinion, or the
dissemination thereof, whether in written, printed, graphic, or
visual form, shall not constitute or be evidence of an unfair
labor practice under any of the provisions of this Act, if such
expression contains no threat of reprisal or force or promise
of benefit[.]: 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)).
(d) [For the purposes of this section] (1) For purposes of
this section, to bargain collectively is the performance of the
mutual obligation of the employer and the representative of the
employees to meet at reasonable times and confer in good faith
with respect to wages, hours, and other terms and conditions of
employment, or the negotiation of an agreement, or any question
arising thereunder and to maintain current wages, hours, and
working conditions pending an agreement, and the execution of a
written contract incorporating any agreement reached if
requested by either party, but such obligation does not compel
either party to agree to a proposal or require the making of a
concession: 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 Provided further, That where there is in effect a
collective-bargaining contract covering employees in an
industry affecting commerce, the duty to bargain collectively
shall also mean that no party to such contract shall terminate
or modify such contract, unless the party desiring such
termination or modification--
[(1)] (A) serves a written notice upon the other
party to the contract of the proposed termination or
modification sixty days prior to the expiration date
thereof, or in the event such contract contains no
expiration date, sixty days prior to the time it is
proposed to make such termination or modification;
[(2)] (B) offers to meet and confer with the other
party for the purpose of negotiating a new contract or
a contract containing the proposed modificatiaons;
[(3)] (C) notifies the Federal Mediation and
Conciliation Service within thirty days after such
notice of the existence of a dispute, and
simultaneously therewith notifies any State or
Territorial agency established to mediate and
conciliate disputes within the State or Territory where
the dispute occurred, provided no agreement has been
reached by that time; and
[(4)] (D) continues in full force and effect, without
resorting to strike or lock-out, all the terms and
conditions of the existing contract for a period of
sixty days after such notice is given or until the
expiration date of such contract, whichever occurs
later:
[The duties imposed] (2) The duties imposed upon employers,
employees, and labor organizations [by paragraphs (2), (3), and
(4)] by subparagraphs (B), (C), and (D) of paragraph (1) shall
become inapplicable upon an intervening certification of the
Board, under which the labor organization or individual, which
is a party to the contract, has been superseded as or ceased to
be the representative of the employees subject to the
provisions of section 9(a), and the duties so imposed shall not
be construed as requiring either party to discuss or agree to
any modification of the terms and conditions contained in a
contract for a fixed period, if such modification is to become
effective before such terms and conditions can be reopened
under the provisions of the contract. Any employee who engages
in a strike within any notice period specified in this
subsection, or who engages in any strike within the appropriate
period specified in subsection (g) of this section, shall lose
his status as an employee of the employer engaged in the
particular labor dispute, for the purposes of sections 8, 9,
and 10 of this Act, as amended, but such loss of status for
such employee shall terminate if and when he is reemployed by
such employer. Whenever the collective bargaining involves
employees of a health care institution, the provisions of this
section 8(d) shall be modified as follows:
(A) The notice of [section 8(d)(1)] paragraph (1)(A)
shall be ninety days; the notice of [section 8(d)(3)]
paragraph (1)(C) shall be sixty days; and the contract
period of [section 8(d)(4)] paragraph (1)(D) shall be
ninety days.
(B) Where the bargaining is for an initial agreement
following certification or recognition, at least thirty
days' notice of the existence of a dispute shall be
given by the labor organization to the agencies set
forth in [section 8(d)(3)] paragraph (1)(C).
(C) After notice is given to the Federal Mediation
and Conciliation Service under either clause (A) or (B)
of this sentence, the Service shall promptly
communicate with the parties and use its best efforts,
by mediation and conciliation, to bring them to
agreement. The parties shall participate fully and
promptly in such meetings as may be undertaken by the
Service for the purpose of aiding in a settlement of
the dispute.
(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 two 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.
[(e) It shall be an unfair labor practice for any labor
organization and any employer to enter into any contract or
agreement, express or implied, whereby such employer ceases or
refrains or agrees to cease or refrain from handling, using,
selling, transporting or otherwise dealing in any of the
products of any other employer, or to cease doing business with
any other person, and any contract or agreement entered into
heretofore or hereafter containing such an agreement shall be
to such extent unenforcible and void: Provided, That nothing in
this subsection (e) shall apply to an agreement between a labor
organization and an employer in the construction industry
relating to the contracting or subcontracting of work to be
done at the site of the construction, alteration, painting, or
repair of a building, structure, or other work: Provided
further, That for the purposes of this subsection (e) and
section 8(b)(4)(B) the terms ``any employer'', ``any person
engaged in commerce or an industry affecting commerce'', and
``any person'' when used in relation to the terms ``any other
producer, processor, or manufacturer'', ``any other employer'',
or ``any other person'' shall not include persons in the
relation of a jobber, manufacturer, contractor, or
subcontractor working on the goods or premises of the jobber or
manufacturer or performing parts of an integrated process of
production in the apparel and clothing industry: Provided
further, That nothing in this Act shall prohibit the
enforcement of any agreement which is within the foregoing
exception.]
(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.
(f) It shall not be an unfair labor practice under
subsections (a) and (b) of this section for an employer engaged
primarily in the building and construction industry to make an
agreement covering employees engaged (or who, upon their
employment, will be engaged) in the building and construction
industry with a labor organization of which building and
construction employees are members (not established,
maintained, or assisted by any action defined in section 8(a)
of this Act as an unfair labor practice) because (1) the
majority status of such labor organization has not been
established under the provisions of section 9 of this Act prior
to the making of such agreement, or (2) such agreement requires
as a condition of employment, membership in such labor
organization after the seventh day following the beginning of
such employment or the effective date of the agreement,
whichever is later, or (3) such agreement requires the employer
to notify such labor organization of opportunities for
employment with such employer, or gives such labor organization
an opportunity to refer qualified applicants for such
employment, or (4) such agreement specifies minimum training or
experience qualifications for employment or provides for
priority in opportunities for employment based upon length of
service with such employer, in the industry or in the
particular geographical area: Provided, That nothing in this
subsection shall set aside the final proviso to section 8(a)(3)
of this Act: Provided further, That any agreement which would
be invalid, but for clause (1) of this subsection, shall not be
a bar to a petition filed pursuant to section 9(c) or 9(e).
(g) A labor organization before engaging in any strike,
picketing, or other concerted refusal to work at any health
care institution shall, not less than ten days prior to such
action, notify the institution in writing and the Federal
Mediation and Conciliation Service of that intention, except
that in the case of bargaining for an initial agreement
following certification or recognition the notice required by
this subsection shall not be given until the expiration of the
period specified in [clause (B) of the last sentence of section
8(d) of this Act] subsection (d)(2)(B). The notice shall state
the date and time that such action will commence. The notice,
once given, may be extended by the written agreement of both
parties.
(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 two 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 nine 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.
representatives and elections
Sec. 9. (a) Representatives designated or selected for the
purposes of collective bargaining by the majority of the
employees in a unit appropriate for such purposes, shall be the
exclusive representatives of all the employees in such unit for
the purposes of collective bargaining in respect to rates of
pay, wages, hours of employment, or other conditions of
employment: Provided, That any individual employees or a group
of employees shall have the right at any time at present
grievances to their employer and to have such grievances
adjusted, without the intervention of the bargaining
representative, as long as the adjustment is not inconsistent
with the terms of a collective-bargaining contract or agreement
then in effect: Provided further, That the bargaining
representative has been given opportunity to be present at such
adjustment.
(b) The Board shall decide in each case whether, in order to
assure to employees the fullest freedom in exercisiong the
rights guaranteed by this Act, the unit appropriate for the
purposes of collective bargaining shall be the employer unit,
craft unit, plant unit, or subdivision thereof: Provided, That
the Board shall not (1) decide that any unit is appropriate for
such purposes if such unit includes both professional employees
and employees who are not professional employees unless a
majority of such professional employees vote for inclusion in
such unit; or (2) decide that any craft unit is inappropriate
for such purposes on the ground that a different unit has been
established by a prior Board determination, unless a majority
of the employees in the proposed craft unit vote against
separate representation or (3) decide that any unit is
appropriate for such purposes if it includes, together with
other employees, any individual employed as a guard to enforce
against employees and other persons rules to protect property
of the employer or to protect the safety of persons on the
employer's premises; but no labor organization shall be
certified as the representative of employees in a bargaining
unit of guards if such organization admits to membership, or is
affiliated directly or indirectly with an organization which
admits to membership, employees other than guards.
(c)[(1) Whenever a petition shall have been filed, in
accordance with such regulations as may be prescribed by the
Board--
[(A) 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
currently recognized by their employer as the
bargaining representative, is no longer a
representative as defind in section 9(a); or
[(B) by an employer, alleging that one or more
individuals or labor organizations have presented to
him a claim to be recognized as the representative
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.]
(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.
(2) In determining whether or not a question or
representation affecting commerce exists, the same regulations
and rules of decision shall apply irrespective of the identity
of the persons filing the petition or the kind of relief sought
and in no case shall the Board deny a labor organization a
place on the ballot by reason of an order with respect to such
labor organization or its predecessor not issued in conformity
with section 10(c).
(3) No election shall be directed in any bargaining unit or
any subdivision within which, in the preceding twelve-month
period, a valid election shall have been held. Employees
engaged in [an economic strike who are not entitled to
reinstatement] a strike shall be eligible to vote under such
regulations as the Board shall find are consistent with the
purposes and provisions of this Act in any election conducted
within twelve months after the commencement of the strike. In
any election where none of the choices on the ballot receives a
majority, a run-off shall be conducted, the ballot providing
for a selection between the two choices receiving the largest
and second largest number of valid votes cast in the election.
(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
one 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).
[(4)] (6) Nothing in this section shall be construed to
prohibit the waiving of hearings by stipulation for the purpose
of a consent election in conformity with regulations and rules
of decision of the Board.
[(5)] (7) In determining whether a unit is appropriate for
the purposes specified in subsection (b) the extent to which
the employees have organized shall not be controlling.
(8) Except under extraordinary circumstances--
(A) a pre-election hearing under this subsection
shall begin not later than eight days after a notice of
such hearing is served on the labor organization; and
(B) a post-election hearing under this subsection
shall begin not later than 14 days after the filing of
objections, if any.
(d) Whenever an order of the Board made pursuant to section
10(c) is based in whole or in part upon facts certified
following an investigation pursuant to subsection (c) of this
section and there is a petition for the enforcement or review
of such order, such certification and the record of such
investigatioon shall be included in the transcript of the
entire record required to be filed under section 10[(e) or] (d)
or 10(f), and thereupon the decree of the court enforcing,
modifying, or setting aside in whole or in part the order of
the Board shall be made and entered upon the pleadings,
testimony, and proceedings set forth in such transcript.
(e)(1) Upon the filing with the Board, by 30 per centum or
more of the employees in a bargaining unit covered by an
agreement between their employer and a labor organization made
pursuant to section 8(a)(3), of a petition alleging they desire
that such authority be rescinded, the Board shall take a secret
ballot of the employees in such unit and certify the results
thereof to such labor organization and to the employer.
(2) No election shall be conducted pursuant to this
subsection in any bargaining unit or any subdivision within
which, in the preceding twelve-month period, a valid election
shall have been held.
prevention of unfair labor practices
Sec. 10. (a) The Board is empowered, as hereinafter provided,
to prevent any person from engaging in any unfair labor
practice (listed in section 8) affecting commerce. This power
shall not be affected by any other means of adjustment or
prevention that has been or may be established by agreement,
law, or otherwise: Provided, That the Board is empowered by
agreement with any agency of any State or Territory to cede to
such agency jurisdiction over any cases in any industry (other
than mining, manufacturing, communications, and transportation
except where predominantly local in character) even though such
cases may involve labor disputes affecting commerce, unless the
provision of the State or Territorial statue applicable to the
determination of such cases by such agency is inconsistent with
the corresponding provision of this Act or has received a
construction inconsistent therewith.
(b) Whenever it is charged that any person has engaged in or
is engaging in any such unfair labor practice, the Board, or
any agent or agency designated by the Board for such purposes,
shall have power to issue and cause to be served upon such
person a complaint stating the charges in that respect, and
containing a notice of hearing before the Board or a member
thereof, or before a designated agent or agency, at a place
therein fixed, not less than five days after the serving of
said complaint: Provided, That no complaint shall issue based
upon any unfair labor practice occurring more than [six months]
180 days prior to the filing of the charge with the Board and
the service of a copy thereof upon the person against whom such
charge is made, unless the person aggrieved thereby was
prevented from filing such charge by reason of service in the
armed forces, in which event [the six-month period] the 180-day
period shall be computed from the day of his discharge. Any
such complaint may be amended by the member, agent, or agency
conducting the hearing or the Board in its discretion at any
time prior to the issuance of an order based thereon. The
person so complained of shall have the right to file an answer
to the original or amended complaint and to appear in person or
otherwise and give testimony at the place and time fixed in the
complaint. In the discertion of the member, agent, or agency
conducting the hearing or the Board, any other person may be
allowed to intervene in the said proceeding and to present
testimony. Any such proceeding shall, so far as practicable, be
conducted in accordance with the rules of evidence applicable
in the district courts of the United States under the rules of
civil procedure for the district courts of the United States,
adopted by the Supreme Court of the United States pursuant to
the Act of June 19, 1934 (U.S.C., title 28, secs. 723-B, 723-
C).
(c) The testimony taken by such member, agent, or agency or
the Board shall be reduced to writing and filed with the Board.
Thereafter, in its discretion, the Board upon notice may take
further testimony or hear argument. If upon the preponderance
of the testimony taken the Board shall be of the opinion that
any person named in the complaint has engaged in or is engaging
in any such unfair labor practice, then the Board shall state
its findings of fact and shall issue and cause to be served on
such person an order requiring such person to cease and desist
from such unfair labor practice, and to take such affirmative
action including reinstatement of employees with or without
back pay, as will effectuate the policies of this Act:
Provided, That where an order directs reinstatement of an
employee, back pay may be required of the employer or labor
organization, as the case may be, responsible for the
discrimination [suffered by him] 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: And provided further, That in determining
whether a complaint shall issue alleging a violation of section
8(a)(1) or section 8(a)(2), and in deciding such cases, the
same regulations and rules of decisions shall apply
irrespective of whether or not the labor organization affected
is affiliated with a labor organization national or
international in scope. Such order may further require such
person to make reports from time to time showing the extent to
which it has complied with the order. If upon the preponderance
of the testimony taken the Board shall not be of the opinion
that the person named in the complaint has engaged in or is
engaging in any such unfair labor practice, then the Board
shall state its findings of fact and shall issue an order
dismissing the said complaint. No order of the Board shall
require the reinstatement of any individual as an employee who
has been suspended or discharged, or the payment to him of any
back pay, if such individual was suspended or discharged for
cause. In case the evidence is presented before a member of the
Board, or before an examiner or examiners thereof, such member,
or such examiner or examiners, as the case may be, shall issue
and cause to be served on the parties to the proceeding a
proposed report, together with a recommended order, which shall
be filed with the Board, and if no exceptions are filed within
twenty days after service thereof upon such parties, or within
such further period as the Board may authorize, such
recommended order shall become the order of the Board and
become effective as therein prescribed.
(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)] (e) Until the record in a case shall have been filed in
a court, as hereinafter provided, the Board may at any time
upon reasonable notice and in such manner as it shall deem
proper, modify or set aside, in whole or in part, any finding
or order made or issued by it.
[(e) The Board shall have power to petition any court of
appeals of the United States, or if all the courts of appeals
to which application may be made are in vacation, any district
court of the United States, within any circuit or district,
respectively, wherein the unfair labor practice in question
occurred or wherein such person resides or transacts business,
for the enforcement of such order and for approppriate
temporary relief or restraining order, and shall file in the
court the record in the proceedings, as provided in section
2112 of title 28, United States Code. Upon the filing of such
petition, the court shall cause notice thereof to be served
upon such person, and thereupon shall have jurisdiction of the
proceeding and of the question determined therein, and shall
have power to grant such temporary relief or restraining order
as it deems just and proper, and to make and enter a decree
enforcing, modifying, and enforcing as so modified, or setting
aside in whole or in part the order of the Board. No objection
that has not been urged before the Board, its member, agent, or
agency, shall be considered by the 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 as hereinabove provided, and by the Supreme Court of the
United States upon writ of certiorari or certification as
provided in section 1254 of title 28.]
(f) [Any]
(1) Within 30 days of the issuance of an order, any
person aggrieved by a final order of the Board granting
or denying in whole or in part the relief sought may
obtain a review of such order in any court of appeals
of the United States in the circuit wherein the unfair
labor practice in question was alleged to have been
engaged in or wherein such person resides or transacts
business, or on the United States Court of Appeals for
the District of Columbia, by filing in such court a
written petition praying that the order of the Board be
modified or set aside. A copy of such petition shall be
forthwith transmitted by the clerk of the court to the
Board, and thereupon the aggrieved party shall file in
the court the record in the proceeding, certified by
the Board, as provided in section 2112 of title 28,
United States Code. Upon the filing of such petition,
the court shall [proceed in the same manner as in the
case of an application by the Board under subsection
(e) of this section,] proceed as provided under
paragraph (2) of this subsection and shall have the
same jurisdiction to grant to the Board such temporary
relief or restraining order as it deems just and
proper, and in like manner to make and enter a decree
enforcing, modifying, and enforcing as so modified, or
setting aside in whole or in part the order of the
Board; the findings of the Board with respect to
questions of fact it supported by substantial evidence
on the record considered as a whole shall in like
manner be conclusive.
(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.
(g) The commencement of proceedings under [subsection (e) or
(f) of this section] subsection (d) or (f) shall not, unless
specifically ordered by the court, operate as a stay of the
Board's order.
(h) When granting appropriate temporary relief or a
restraining order, or making and entering a decree enforcing,
modifying, and enforcing as so modified, or setting aside in
whole or in part an order on the Board, as provided in this
section, the jurisdiction of courts sitting in equity shall not
be limited by the Act entitled ``An Act to amend the Judicial
Code and to define and limit the jurisdiction of courts sitting
in equity, and for other purposes'', approved March 23, 1932
(U.S.C., Supp. VII, title 29, secs. 101-115).
(j) [The Board] (1) The Board shall have power, upon
issuance of a complaint as provided in subsection (b) charging
that any person has engaged in or is engaging in an unfair
labor practice, to petition any district court of the United
States (including the United States District Court for the
District of Columbia), within any district wherein the unfair
labor practice in question is alleged to have occurred or
wherein such person resides or transacts business, for
appropriate temporary relief or restraining order. Upon the
filing of any such petition the court shall cause notice
thereof to be served upon such person, and thereupon shall have
jurisdiction to grant to the Board such temporary relief or
restraining order as it deems just and proper.
(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.
[(k) Whenever it is charged that any person has engaged in an
unfair labor practice within the meaning of paragraph (4)(D) of
section 8(b), the Board is empowered and directed to hear and
determine the dispute out of which such unfair labor practice
shall have arisen, unless, within ten days after notice that
such charge has been filed, the parties to such dispute submit
to the Board satisfactory evidence that they have adjusted, or
agreed upon methods for the voluntary adjustment of, the
dispute. Upon compliance by the parties to the dispute with the
decision of the Board or upon such voluntary adjustment of the
dispute, such charge shall be dismissed.
[(l) Whenever it is charged that any person has engaged in an
unfair labor practice within the meaning of paragraph (4) (A),
(B), or (C) of section 8(b), or section 8(e) or section
8(b)(7), 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, he shall, on behalf of the Board,
petition any district court of the United States (including the
United States District Court for the District of Columbia)
within any district where the unfair labor practice in question
has occurred, is alleged to have occurred, or wherein such
person resides or transacts business, for appropriate
injunctive relief pending the final adjudication of the Board
with respect to such matter. Upon the filing of any such
petition the district court shall have jurisdiction to grant
such injunctive relief or temporary restraining order as it
deems just and proper, notwithstanding any other provision of
law: Provided further, That no temporary restraining order
shall be issued without notice unless a petition alleges that
substantial and irreparable injury to the charging party will
be unavoidable and such temporary restaining order shall be
effective for no longer than five days and will become void at
the expiration of such period: Provided further, That such
officer or regional attorney shall not apply for any
restraining order under section 8(b)(7) if a charge against the
employer under section 8(a)(2) has been filed and after the
preliminary investigation, he has reasonable cause to believe
that such charge is true and that a complaint should issue.
Upon filing of any such petition other courts shall cause
notice thereof to be served upon any person involved in the
charge and such person, including the charging party, shall be
given an opportunity to appear by counsel and present any
relevant testimony: Provided further, That for the purposes of
this subsection district courts shall be deemed to have
jurisdiction of a labor organization (1) in the district in
which such organization maintains its principal office, or (2)
in any district in which its duly authorized officers or agents
are engaged in promoting or protecting the interests of
employee members. The service of legal process upon such
officer or agent shall constitute service upon the labor
organization and make such organization a party to the suit. In
situations where such relief is appropriate the procedure
specified herein shall apply to charges with respect to section
8(b)(4)(D).]
(m) Whenever it is charged that any person has engaged in an
unfair labor practice within the meaning of subsection (a)(3)
or (b)(2) of section 8, such charge shall be given priority
over all other cases except cases of like character in the
office where it is filed or to which it is referred and cases
given priority under subsection (i).
* * * * * * *
SEC. 12. PENALTIES.
(a) Violations for Interference With Board.--Any person who
shall willfully resist, prevent, impede, or interfere with any
member of the Board or any of its agents or agencies in the
performance of duties pursuant to this Act shall be punished by
a fine of not more than $5,000 or by imprisonment for not more
than one year, or both.
(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 five 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.
limitations
Sec. 13. Nothing in this Act, except as specifically provided
for herein, shall be construed so as either to interfere with
or impede or diminish in any way the right to strike, or to
affect the limitations or qualifications on that right[.]:
Provided, That the duration, scope, frequency, or intermittence
of any strike or strikes shall not render such strike or
strikes unprotected or prohibited.
Sec. 14. (a) Nothing herein shall prohibit any individual
employed as a supervisor from becoming or remaining a member of
a labor organization, but no employer subject to this Act shall
be compelled to deem individuals defined herein as supervisors
as employees for the purpose of any law, either national or
local, relating to collective bargaining.
(b) Nothing in this Act shall be construed as authorizing the
execution or application of agreements requiring membership in
a labor organization as a condition of employment in any State
or Territory in which such execution or application is
prohibited by State or Territorial law[.]: 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.
(c)(1) The Board, in its discretion, may, by rule of decision
or by published rules abopted pursuant to the Administrative
Procedure Act, decline to assert jurisdiction over any labor
dispute involving any class or category of employers, where, in
the opinion of the Board, the effect of such labor dispute on
commerce is not sufficiently substantial to warrant the
exercise of its jurisdiction: Provided, That the Board shall
not decline to assert jurisdiction over any labor dispute over
which it would assert jurisdiction under the standards
prevailing upon August 1, 1959.
(2) Nothing in this Act shall be deemed to prevent or bar any
agency or the courts of any State or Territory (including the
Commonwealth of Puerto Rico, Guam, and the Virgin Islands),
from assuming and asserting jurisdiction over labor disputes
over which the Board declines, pursuant to paragraph (1) of
this subsection, to assert jurisdiction.
* * * * * * *
Sec. 18. No petition entertained, no investigation made, no
election held, and no certification issued by the National
Labor Relations Boards, under any of the provisions of section
9 of the National Labor Relations Act, as amended, shall be
invalid by reason of the failure of the Congress of Industrial
Organizations to have complied with the requirements of section
9 (f), (g), or (h) of the aforesaid Act prior to December 22,
1949, or by reason of the failure of the American Federation of
Labor to have complied with the provisions of section 9(f),
(g), or (h), of the aforesaid Act prior to November 7, 1947:
Provided, That no liability shall be imposed under any
provision of this Act upon any person for failure to honor any
election or certificate referred to above, prior to the
effective date of this amendment: Provided, however, That this
proviso shall not have the effect of setting aside or in any
way affecting judgments or decrees heretofore entered under
[section 10(e) or (f)] subsection (d) or (f) of section 10 and
which have become final.
* * * * * * *
----------
LABOR MANAGEMENT RELATIONS ACT, 1947
* * * * * * *
TITLE II--CONCILIATION OF LABOR DISPUTES IN INDUSTRIES AFFECTING
COMMERCE; NATIONAL EMERGENCIES
* * * * * * *
conciliation of labor disputes in the health care industry
Sec. 213. (a) If, in the opinion of the Director of the
Federal Mediation and Conciliation Service a threatened or
actual strike or lockout affecting a health care institution
will, if permitted to occur or to continue, substantially
interrupt the delivery of health care in the locality
concerned, the Director may further assist in the resolution of
the impasse by establishing within 30 days after the notice to
the Federal Mediation and Conciliation Service under [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)] 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, an impartial Board of Inquiry to
investigate the issues involved in the dispute and to make a
written report thereon to the parties within fifteen (15) days
after the establishment of such a Board. The written report
shall contain the findings of fact together with the Board's
recommendations for settling the dispute, with the objective of
achieving a prompt, peaceful and just settlement of the
dispute. Each such Board shall be composed of such number of
individuals as the Director may deem desirable. No member
appointed under this section shall have any interest or
involvement in the health care institutions or the employee
organizations involved in the dispute.
(b)(1) Members of any board established under this section
who are otherwise employed by the Federal Government shall
serve without compensation but shall be reimbursed for travel,
subsistence, and other necessary expenses incurred by them in
carrying out its duties under this section.
(2) Members of any board established under this section who
are not subject to paragraph (1) shall receive compensation at
a rate prescribed by the Director but not to exceed the daily
rate prescribed for GS-18 of the General Schedule under section
5332 of title 5, United States Code, including travel for each
day they are engaged in the performance of their duties under
this section and shall be entitled to reimbursement for travel,
subsistence, and other necessary expenses incurred by them in
carrying out their duties under this section.
(c) After the establishment of a board under subsection (a)
of this section and for 15 days after any such board has issued
its report, no change in the status quo in effect prior to the
expiration of the contract in the case of negotiations for a
contract renewal, or in effect prior to the time of the impasse
in the case of an initial bargaining negotiation, except by
agreement, shall be made by the parties to the controversy.
(d) There are authorized to be appropriated such sums as may
be necessary to carry out the provisions of this section.
TITLE III--SUITS BY AND AGAINST LABOR ORGANIZATIONS
* * * * * * *
[boycotts and other unlawful combinations
[Sec. 303. (a) It shall be unlawful, for the purpose of this
section only, in an industry or activity affecting commerce,
for any labor organization to engage in any activity or conduct
defined as an unfair labor practice in section 8(b)(4) of the
National Labor Relations Act, as amended.
[(b) Whoever shall be injured in his business or property by
reason or any violation of subsection (a) may sue therefor in
any district court of the United States subject to the
limitations and provisions of section 301 hereof without
respect to the amount in controversy, or in any other court
having jurisdiction of the parties, and shall recover the
damages by him sustained and the cost of the suit.]
* * * * * * *
----------
LABOR-MANAGEMENT REPORTING AND DISCLOSURE ACT OF 1959
* * * * * * *
TITLE II--REPORTING BY LABOR ORGANIZATIONS, OFFICERS AND EMPLOYEES OF
LABOR ORGANIZATIONS, AND EMPLOYERS
* * * * * * *
report of employers
Sec. 203. (a) Every employer who in any fiscal year made--
(1) any payment or loan, direct or indirect, of money
or other thing of value (including reimbursed
expenses), or any promise or agreement therefor, to any
labor organization or officer, agent, shop steward, or
other representative of a labor organization, or
employee of any labor organization, except (A) payments
or loans made by any national or State bank, credit
union, insurance company, savings and loan association
or other credit institution and (B) payments of the
kind referred to in section 302(c) of the Labor
Management Relations Act, 1947, as amended;
(2) any payment (including reimbursed expenses) to
any of his employees, or any group or committee of such
employees, for the purpose of causing such employee or
group or committee of employees to persuade other
employees to exercise or not to exercise, or as the
manner of exercising, the right to organize and bargain
collectively through representatives of their own
choosing unless such payments were contemporaneously or
previously disclosed to such other employees;
(3) any expenditure, during the fiscal year, where an
object thereof, directly or indirectly, is to interfere
with, restrain, or coerce employees in the exercise of
the right to organize and bargain collectively through
representatives of their own choosing, or is to obtain
information concerning the activities of employees or a
labor organization in connection with a labor dispute
involving such employer, except for use solely in
conjunction with an administrative or arbitral
proceeding or a criminal or civil judicial proceeding;
(4) any agreement or arrangement with a labor
relations consultant or other independent contractor or
organization pursuant to which such person undertakes
activities where an object thereof, directly or
indirectly, is to persuade employees to exercise or not
to exercise, or persuade employees as to the manner of
exercising, the right to organize and bargain
collectively through representatives of their own
choosing, or undertakes to supply such employer with
information concerning the activities of employees or a
labor organization in connection with a labor dispute
involving such employer, except information for use
solely in conjunction with an administrative or
arbitral proceeding or a criminal or civil judicial
proceeding; or
(5) any payment (including reimbursed expenses)
pursuant to an agreement or arrangement described in
subdivision (4);
shall file with the Secretary a report, in a form prescribed by
him, signed by its president and treasurer or corresponding
principal officers showing in detail the date and amount of
each such payment, loan, promise, agreement, or arrangement and
the name, address, and position, if any, in any firm or labor
organization of the person to whom it was made and a full
explanation of the circumstances of all such payments,
including the terms of any agreement or understanding pursuant
to which they were made.
(b) Every person who pursuant to any agreement or arrangement
with an employer undertakes activities where an object thereof
is, directly or indirectly--
(1) to persuade employees to exercise or not to
exercise, or persuade employees as to the manner of
exercising, the right to organize and bargain
collectively through representatives of their own
choosing; or
(2) to supply an employer with information concerning
the activities of employees or a labor organization in
connection with a labor dispute involving such
employer, except information for use solely in
conjunction with an administrative or arbitral
proceeding or a criminal or civil judicial proceeding;
shall file within thirty days after entering into such
agreement or arrangement a report with the Secretary, signed by
its president and treasurer or corresponding principal
officers, containing the name under which such person is
engaged in doing business and the address of its principal
office, and a detailed statement of the terms and conditions of
such agreement or arrangement. Every such person shall file
annually, with respect to each fiscal year during which
payments were made as a result of such an agreement or
arrangement, a report with the Secretary, signed by its
president and treasurer or corresponding principal officers,
containing a statement (A) of its receipts of any kind from
employers on account of labor relations advice or services,
designating the sources thereof, and (B) of its disbursements
of any kind, in connection with such services and the purposes
thereof, in each such case such information shall be set forth
in such categories as the Secretary may prescribe.
(c) Nothing in this section shall be construed to require any
employer or other person to file a report covering the services
of such person by reason of his giving or agreeing to give
advice to such employer or representing or agreeing to
represent such employer before any court, administrative
agency, or tribunal of arbitration or engaging or agreeing to
engage in collective bargaining on behalf of such employer with
respect to wages, hours, or other terms or conditions of
employment or the negotiation of an agreement or any question
arising thereunder[.]: 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.
(d) Nothing contained in this section shall be construed to
require an employer to file a report under subsection (a)
unless he has made an expenditure, payment, loan, agreement, or
arrangement of the kind described therein. Nothing contained in
this section shall be construed to require any other person to
file a report under subsection (b) unless he was a party to an
agreement or arrangement of the kind described therein.
(e) Nothing contained in this section shall be construed to
require any regular officer, supervisor, or employee of an
employer to file a report in connection with services rendered
to such employer nor shall any employer be required to file a
report covering expenditures made to any regular officer,
supervisor, or employee of an employer as compensation for
service as a regular officer, supervisor, or employee of such
employer.
(f) Nothing contained in this section shall be construed as
an amendment to, or modification of the rights protected by,
section 8(c) of the National Labor Relations Act, as amended.
(g) The term ``interfere with, restrain, or coerce'' as used
in this section means interference, restraint, and coercion
which, if done with respect to the exercise of rights
guaranteed in section 7 of the National Labor Relations Act, as
amended, would, under section 8(a) of such Act, constitute an
unfair labor practice.
* * * * * * *
MINORITY VIEWS
Introduction
For more than 70 years, federal labor law has struck a
careful balance between the right of labor unions to organize
and bargain collectively on behalf of employees, the right of
employers to respond to those organizing and bargaining
efforts, and the right of employees to refrain from
participating in or funding union activity. Throughout this
time, the National Labor Relations Board (NLRB or Board) has
issued decisions and promulgated regulations that have swung
this balance in one direction or another within the confines of
the National Labor Relations Act (NLRA) and its subsequent
amendments.
Committee Republicans are committed to protecting
constitutionally-guaranteed rights such as the freedom of
speech and the freedom of association. We support the right of
employees to join together and form a union, just as we support
the right of individuals to refrain from joining unions.
Federal labor law is outdated and in need of modernization and
improvement, such as strengthening protections for workers
within labor unions and increasing union transparency.
Unfortunately, H.R. 2474, the Protecting the Right to Organize
Act of 2019, does nothing to modernize labor law. It merely
doubles down on an antiquated worldview of the American economy
and a coercive model of unionization that has failed to attract
the support of American workers in the 21st century.
In 1935, Congress enacted the NLRA, which covers the vast
majority of private sector employees in the United States and
codifies their right to organize into unions, engage in
collective bargaining, and take collective actions such as
strikes to advance their interests. The law established the
NLRB and subsequent rules for organizing and bargaining, as
well as a list of unfair labor practices--illegal activity by
employers that impede union and employee rights protected by
the NLRA. Federal labor law has seen only two major updates
since then. In response to a wave of strikes throughout the
1930s and 1940s, the Labor-Management Relations Act of 1947,
more commonly known as the Taft-Hartley Act, defined a series
of unfair union labor practices and allowed states to enact
right-to-work laws stating that a worker cannot be fired for
refusing to join or pay a union. In 1959, in response to
rampant union corruption, Congress enacted the Labor-Management
Reporting and Disclosure Act (LMRDA), which established a Bill
of Rights for union members and created reporting requirements
for labor unions and their leadership. Neither of these laws
substantially changed the right to organize and bargain
collectively.
However, union membership rates have steadily declined over
the last 60 years. As a percentage of all employed workers,
union membership peaked in 1954 at 28.3 percent. The total
number of union members peaked in 1979 at 21 million
employees.\1\ In 2018, just 10.5 percent of workers, or 14.7
million, were members of a union, 7.6 million of which were in
the private sector. The unionization rate in the private sector
was just 6.4 percent in 2018.\2\ Importantly, under current
law, once a union is certified in a workplace, it is not
required to stand for periodic recertification elections. As a
result, 94 percent of workers covered by a union under the NLRA
as of 2015 have never voted for that union to represent
them.\3\ They either voted against the union, or more commonly
inherited a union that was voted in years or even decades
earlier.
---------------------------------------------------------------------------
\1\Gerald Meyer, Cong. Res. Serv., Union Membership Trends in the
United States (Aug. 31, 2004).
\2\Bureau of Lab. Stat., Union Members--2018 (Jan. 18, 2019).
\3\James Sherk, Heritage Found., Unelected Representatives: 94
Percent of Union Members Never Voted for a Union (Aug. 30, 2016).
---------------------------------------------------------------------------
It is against this backdrop that Committee Democrats
introduced H.R. 2474. This bill is a blatant attempt to
legislate a radical, one-sided and undemocratic assault on
workplace rights in order to bail out labor union special
interests. H.R. 2474 undermines the rights of employers and
employees alike in order to increase the wealth and coercive
power of labor unions and union leaders. It subjects millions
of additional workers to union harassment by expanding the
definition of joint employment and ``employee'' under the NLRA
and by overturning the longstanding ban on secondary boycotts,
in which a union targets the business partners of a company it
is seeking to organize. H.R. 2474 forces employers to turn over
reams of workers' personal information to union organizers
without giving workers any say in the matter, undermines
employers' right to free speech throughout the organizing
process, and in certain circumstances forces workers to
publicly voice their support or opposition to the union rather
than through a secret-ballot election. It overturns all state
right-to-work laws, forcing millions of Americans to make
financial contributions to a labor union they do not want or
need as a condition of employment. For these reasons, Committee
Republicans are united in their opposition to H.R. 2474.
Numerous Concerns With H.R. 2474
Committee Republicans strongly oppose H.R. 2474 for
numerous policy reasons. Many of the bill's attacks on worker
and employer rights and other objectionable provisions are
described below.
IMPOSING FORCED UNIONIZATION
H.R. 2474 bans right-to-work laws that guarantee an
employee cannot be fired for refusing to join or pay a labor
union. Currently, 27 states have enacted right-to-work laws and
as a result of this bill, workers in a union shop would be
forced to pay hundreds of dollars per year in union dues, even
if they object to union representation and wish to represent
themselves. In addition to funding collective bargaining
expenses, from 2010 through 2018 unions sent more than $1.6
billion in member dues to hundreds of political advocacy
organizations, including Planned Parenthood and the Progressive
Democrats of America.\4\ In a March 26, 2019, Subcommittee on
Health, Employment, Labor, and Pensions hearing on labor law
reform, Mr. Glenn Taubman, a staff attorney at the National
Right to Work Legal Defense Foundation, explained why both
forced union dues and forced union representation violate
workers' rights:
\4\CTR. for Union Facts, How Labor Unions Finance Their Political
Agenda: 2010-2018 (Sept. 5, 2019).
---------------------------------------------------------------------------
It is neither fair nor constitutional to force
employees into paying dues to a private organization
upon pain of discharge. . . . Similarly, forcing an
individual to be represented by a private organization
is antithetical to American values of free speech and
free association. Just as few on this Committee would
approve of being represented against their will by a
lawyer or accountant purporting to serve as their
exclusive representative for purposes of dealing with
the government, few employees want to be forced into an
exclusive agency relationship with a labor union for
purposes of negotiating their wages and working
conditions.
Democrats claim that forced union dues are necessary to
cover the cost of representation, but this assumes all workers
in the bargaining unit want union representation. In reality,
workers who prefer to represent themselves are forced riders,
not so-called free riders. Mr. Taubman further expounded on how
the so-called free rider problem is one of unions' own
creation:
Union officials fought tooth and nail for the abusive
power to force their so-called ``representation'' on
all workers. By exercising this monopoly power, they
forbid individual workers from representing themselves.
Then, rubbing salt in the wound, these same union
officials turn around and falsely complain that since
they've forced those workers to accept their
representation, they should also be able to force those
workers to pay for it. This is like being kidnapped by
a cab driver, driven all over town against your will,
and then being forced to pay the driver an exorbitant
fare for the ``services'' he allegedly rendered.
Moreover, not only do right-to-work laws protect workers'
freedom of speech and freedom of association by ensuring they
are not forced to fund speech with which they disagree, they
also produce economic benefits and have enjoyed the support of
a majority of the American people. As of 2017, right-to-work
states enjoyed greater employment growth, population growth,
and cost-of-living-adjusted per capita disposable income, as
well as lower rates of welfare dependency.\5\ As of 2014, the
most recent year the question was polled by Gallup, 71 percent
of Americans favored right-to-work laws, compared to just 22
percent who said they opposed these laws.\6\ H.R. 2474's
elimination of state right-to-work laws undermines federalism,
violates workers' freedom of speech and association, harms the
economy, and disregards the preferences of the American people.
---------------------------------------------------------------------------
\5\National Inst. for Lab. Rel. Res., Right to Work States Benefit
from Faster Growth, Higher Real Purchasing Power--Winter 2019 Update
(Jan. 11, 2019).
\6\Gallup, Americans Approve of Unions but Support ``Right-to-
Work'' (Aug. 28, 2014).
---------------------------------------------------------------------------
ELIMINATING EMPLOYEE FREE CHOICE
H.R. 2474 also contains a risky ``card-check'' scheme that
allows unions to organize a workplace without ever receiving
majority support in a secret-ballot election. Currently, unions
must collect authorization cards expressing interest in the
union signed by at least 30 percent of the bargaining unit.
Unless the employer voluntary recognizes the union, the union
must win the majority of votes cast in a secret-ballot
election. Under H.R. 2474, if a union receives cards from a
majority of the bargaining unit but loses the election, it can
file an unfair labor practice charge against the employer,
alleging interference. Unless the employer proves its actions
did not affect the outcome of the election, the union is
automatically certified without ever winning a secret-ballot
election--turning America's presumption of innocence on its
head and depriving workers an opportunity to voice their
opinion free of the harassment and intimidation that unions
often use to coerce workers into signing authorization cards.
Over the past decade, the Committee has heard testimony
from employees who have been personally subjected to this kind
of union coercion. For example, in 2011, Mr. Larry Getts, an
employee at Dana Corporation in Fort Wayne, Indiana, testified
that union officials would ``even follow us to our vehicles at
the end of the day and some of us even to our homes.''\7\ In
2013, Ms. Marlene Felter, a medical records coder in
California, testified that union organizers ``were calling them
on their cell phones, coming to their homes, stalking them,
harassing them . . . to convince them to sign union cards.''\8\
---------------------------------------------------------------------------
\7\H.R. Rep. No. 113-583, at 7 (2014).
\8\Id. at 6.
---------------------------------------------------------------------------
The U.S. Supreme Court has acknowledged that the so-called
card-check process is ``admittedly inferior to the election
process'' for determining representation.\9\ While it is
important that an employer bargain in good faith with a
majority-supported union, it is essential that federal law
ensure the union has properly demonstrated such majority
support. Moreover, as Mr. G. Roger King, Senior Labor and
Employment Counsel at the HR Policy Association, testified on
behalf of the Coalition for a Democratic Workplace at a July
25, 2019 Full Committee hearing on H.R. 2474, advocates of the
bill overstate the prevalence of the problem of employer
election interference:
\9\NLRB v. Gissel Packing Co., 395 U.S. 575, 603 (1969).
---------------------------------------------------------------------------
[B]argaining orders are available today to unions if
they can establish that employers have committed
numerous and severe unfair labor practices or
objectionable conduct during the critical pre-election
period. [A] very small percentage of unfair labor
practice cases ever reach the Board or courts for
decision. In FY 2018, nearly 80% of unfair labor
practice charges were either resolved by way of
settlement, at the regional board level, or at the
administrative law judge stage, or withdrawn, with
Board Order comprising only 2% of the disposition of
such charges. Stated alternatively, representatives of
organized labor have continually, incorrectly,
overstated both the number of cases where severe
election misconduct occurs and misrepresented the type
of alleged employer conduct that is at issue in such
cases.\10\
\10\Protecting the Right to Organize Act: Modernizing America's
Labor Laws: Hearing Before the Subcomm. on Health, Emp., Lab., &
Pensions of the H. Comm. on Educ. & Lab., 116th Cong. (2019) (statement
of G. Roger King, Senior Lab. & Emp. Couns., HR Pol' Ass'n, at 10)
(footnotes omitted) [hereinafter King Statement].
---------------------------------------------------------------------------
Card-check union certifications do not only undermine the
rights of American workers. They also represent rank hypocrisy
on the part of House Democrats. Not only is every Member of
Congress elected in a secret-ballot vote, but a secret-ballot
vote is also how House Democrats select their own
leadership.\11\ Moreover, as part of the negotiation over the
enactment of the United States-Mexico-Canada (USMCA) trade
agreement, Democrats have pressured the Trump administration to
ensure enforcement of a new Mexican law that guarantees workers
in that country the right to a secret-ballot election to
determine union representation.\12\ Democrats are seeking to
deprive their own constituents, American workers, the same
right they seek to protect for Mexican workers.
---------------------------------------------------------------------------
\11\Melanie Zanona & Mike Lillis, How voting present could secure
the Speakership for Nancy Pelosi, Hill Nov. 30, 2018 (``In a 203-32
secret-ballot vote, Democrats nominated Pelosi to be their next
Speaker, with three lawmakers leaving the ballot blank.'').
\12\See Letter from Rep. Bill Pascrell, Jr., et al. to the Hon.
Robert Lighthizer, U.S. Trade Rep. (Apr. 12, 2019), https://
pascrell.house.gov/uploadedfiles/letter_mexico_labor_signed_041219.pdf.
---------------------------------------------------------------------------
The undemocratic system of card-check union certification
has been previously rejected by Congress. In 2007, following
Committee approval, the Democrat House passed the Employee Free
Choice Act,\13\ which automatically certified a union as the
bargaining representative without employer consent or a secret-
ballot election if the employer received authorization cards
from a majority of the bargaining unit, even without an unfair
labor practice charge against the employer. However, the bill
failed a cloture motion in the Democrat Senate by a vote of 51-
48. Moreover, card-check remains unpopular. 2015 polling by the
Opinion Research Corporation (ORC) showed that 79 percent of
union households, 81 percent of Democrats, and 81 percent of
independents support the right to a secret-ballot election to
determine unionization.\14\ Committee Democrats are ignoring
the will of the American people, including their own voters and
union households, to push legislation increasing the coercive
power of union leaders.
---------------------------------------------------------------------------
\13\H.R. 800, 110th Cong. (2007).
\14\ERA has broad support among union and non-union households
according to national polling, https://employeerightsact.com/wp-
content/uploads/2018/07/ERA_Polling_Updatev4-1.pdf (July 2018).
---------------------------------------------------------------------------
ELIMINATING EMPLOYEES' RIGHT TO PRIVACY
Under H.R. 2474, during the unionization process, workers
have no say in whether the union receives several pieces of
personal contact information, including home address, home
phone number, cell phone number, personal email address, work
email address, work shifts and location, and more. The bill
makes it an unfair labor practice for an employer to fail to
turn over this information to the union within two days after
the Board orders an election, and the list must be provided in
a searchable electronic format. At a May 8, 2019, Subcommittee
on Health, Employment, Labor, and Pensions hearing on H.R.
2474, Richard Trumka, a Democrat-invited witness and President
of the AFL-CIO, explained unions' intentions upon receiving
this information:
It is essential to be able to communicate with them .
. . . We may have to meet with them at a grocery store,
any place else where you can get them. The most
efficient place, the best place for them to be able to
talk is at their home setting, at their home, so that
you can have a real conversation with them.
Providing workers' personal information to union organizers
has led to well-documented instances of harassment and
intimidation to gain support for the union. In 2017, Mr. Matt
Patterson, Executive Director of Free California, a non-profit
organization focused on labor and immigration issues, described
one Minnesota personal care attendant's experience with a
Service Employees International Union (SEIU) organizer, as she
detailed to Mr. Patterson first-hand:
Holly had just returned home from shopping, when as
she escorted her patient inside prior to unloading the
groceries she noticed a woman sitting in a parked car
in front of the house. As Holly gathered the groceries,
the woman got out and approached her: she was well
dressed in a white suit and had an accent that
indicated that she was not from Minnesota.
The woman identified herself as a SEIU
representative, and asked if they could talk for a few
minutes. Holly said she didn't have time right now, but
the woman persisted, placing herself between Holly and
the front of the door and repeatedly asking her how she
intended to vote in the upcoming union election.
Holly became frightened; arms full of groceries, she
could hear her patient becoming agitated and distressed
inside, and here was this strange woman blocking her
way and demanding to know how she would `vote.'
Holly finally extricated herself and entered her home
slamming the door behind her. But that wasn't the end
of things. Over the next weeks and months, she received
multiple calls and visits from the union. I asked Holly
how she would characterize the nature of these calls
and visits. ``Stalking, absolutely,'' she told me.
``They wouldn't leave me alone!''\15\
---------------------------------------------------------------------------
\15\Matt Patterson, Exclusive: SEIU Skims Medicaid for `Dues,'
Forbes.com, Feb. 13, 2017.
H.R. 2474 also requires that employees' information be
provided in searchable electronic format, further exposing
workers to having their information hacked, sold, or otherwise
misused. Numerous private corporations and government agencies
have been hacked in recent years, allowing the personal data of
millions of Americans to fall into the wrong hands. H.R. 2474
increases the likelihood of such abuses and creates no
penalties if a union allows its database to be hacked or
voluntarily sells or offers workers' information to private
companies, advocacy organizations, or political campaigns for
solicitation. The bill eliminates workers' right to privacy in
order to benefit labor unions.
ENDANGERING THE SHARING ECONOMY
H.R. 2474 radically broadens the definition of ``employee''
in order to make it more difficult for workers to be classified
as independent contractors. Modern workers seek opportunities
as independent contractors which allow them entrepreneurial
freedom and flexibility. The expansive definition of
``employee'' in H.R. 2474 subjects small businesses to
additional litigation risk and union harassment while
undermining the sharing economy that has created remarkable
opportunities for workers as well as demonstrated benefits to
consumers in recent years. Moreover, Committee Democrats'
unilateral attempt to rewrite the definition of the word
``employee'' in H.R. 2474 undermines the original intent of
Congress. The Committee Report accompanying the Taft-Hartley
amendments to the NLRA says of the word ``employee'':
According to all standard dictionaries, according to
the law as the courts have stated it, and according to
the understandings of almost everyone, with the
exception of members of the [NLRB], [employee] means
someone who works for another for hire . . . [and who]
worked for wages and salaries under direct supervision
. . . . It must be presumed that when Congress passed
the Labor Act, it intended words it used [such as
employee] to have the meaning they had when Congress
passed the Act, not new meanings that, nine years
later, the Labor Board might think up . . . . [I]t is
inconceivable that Congress, when it passed the Act,
authorized the Board to give every word in the Act
whatever meaning it wished.\16\
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\16\H.R. Rep. No. 80-245, at 18 (1947).
Instead of respecting Congress' original, clear definition,
H.R. 2474 redefines the word ``employee'' with the goal of
subjecting more workers to unionization and more businesses to
expensive litigation. The bill codifies the highly
controversial ``ABC'' test in the California Supreme Court's
2018 Dynamex decision.\17\ The ABC test in H.R. 2474 states
that in order to be classified as an independent contractor, an
individual must demonstrate: A) he or she 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) he or she is
``customarily engaged in an independently established trade,
occupation, profession, or business of the same nature as that
involved in the service performed.''\18\
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\17\Dynamex Operations West, Inc. v. Superior Ct., 416 P.3d 1 (Cal.
2018).
\18\H.R. 2474, 116th Cong. Sec. 4(a)(2) (2019).
---------------------------------------------------------------------------
While the ``A'' prong of the ABC test essentially codifies
the existing common-law standard for determining employee
status, the ``B'' and ``C'' prongs are sprawling and ill-
defined. They fail to define ``the usual course of the business
of the employer'' or what it means to be ``customarily engaged
in an independent trade,'' among other issues. A report from
Littler's Workforce Policy Institute explained the unworkable
nature of the ``B'' and ``C'' prongs of the ABC test in
Dynamex:
[W]hat is the ``usual course of business'' of a
retail store? The court does not say, and it is not
defined anywhere in the opinion. If we do not know what
that business is, how can anyone know whether a service
is or is not in the usual course of such business? The
answer, presumably, is we just assume we know or get to
guess based on the description ``retail store'' that
its business is ``selling'' some kind of tangible
goods. The court's analysis now suggests that the ``B''
prong is based on assuming someone knows what a
business does.
What if the retail store is part of a large chain
that has its own maintenance staff that includes
plumbers and electricians? Are maintenance and repairs
then part of the usual business of the retail store? If
so, if it still hires an outside plumber or
electrician, does that create an employment
relationship under the ``B'' prong? What if that
outside plumber has his own truck, tools, advertising,
and other clients? Is he then in business for himself
as a ``traditional independent contractor'' under the
``C'' prong, particularly if the retail store does not
``control'' him under the ``A'' prong? What if the
electrician is a retired electrician that happens to be
a friend of the store manager, and offers to fix
whatever electrical issue exists for a small fee? Is he
an employee because the ``C'' prong is not met or
because the ``B'' prong is not met, or both? These kind
of practical questions have no answer in the court's
opinion.
[W]hat is telling from the court's bare and
incomplete examples is not what it says, but everything
the court chooses to omit that could make the question
difficult to answer. By failing to address any complex,
modern, real-world examples, the court leaves
unanswered several critical questions and provides
little meaningful direction for courts, agencies,
businesses or workers.\19\
---------------------------------------------------------------------------
\19\Bruce Sarchet et. Al., AB 5: The Great California Employment
Experiment--A Littler Workplace Policy Institute Report (Aug. 8, 2019).
The ABC test is particularly damaging in the context of
H.R. 2474. During the Committee markup, Democrat amendments
were adopted that make it an unfair labor practice for a
business to misclassify an employee as an independent
contractor under the NLRA, and which extends the bill's civil
monetary penalties and individual liability to a broad array of
unfair labor practices that do not impose direct economic harm
to an employee. Under these amendments, a business owner who
misinterprets the vague language of the ABC test and as a
result mistakenly misclassifies a worker as an independent
contractor rather than as an employee could be hit with an
unfair labor practice charge. Both the owner and their business
could then be fined up to $100,000. This punitive fine could
put a small company unable to afford costly attorneys to
interpret the vague and confusing legislative text of H.R. 2474
out of business.
The ABC test is so damaging that even the state of
California--led by a Democrat governor and Democrat
supermajorities in both chambers of the legislature--adopted
the test with dozens of occupations exempted from its onerous
standard.\20\ Yet Committee Democrats adopted the ABC test in
H.R. 2474 with no exemptions and far more damaging penalties
for violations. The ABC test is intended to subject more
workers to unionization in order to increase the power and
wealth of labor unions and create more opportunities for trial
lawyers to sue businesses. As applied in H.R. 2474, the ABC
test will shut down thousands of small businesses, destroy the
sharing economy that has revolutionized the modern economy, and
ultimately kill the jobs that millions of hardworking Americans
enjoy. This dangerous provision is a leading example of the
Committee Democrats' vision of the ``future of work.''
---------------------------------------------------------------------------
\20\See 2019 Cal. Assembly Bill No. 5.
---------------------------------------------------------------------------
ELIMINATING SUBCONTRACTING AND FRANCHISING
H.R. 2474 also codifies the Obama NLRB's extreme Browning-
Ferris joint-employer standard, under which an employer can be
required to negotiate with a union over the wages and working
conditions of workers it does not directly control.\21\ The
Obama NLRB's 2015 Browning-Ferris decision upended more than 30
years of precedent, requiring merely ``indirect,''
``potential,'' or ``reserved'' control of employees to prove
joint-employer status. This overly broad and vague standard has
disrupted franchisor-franchisee, contracting, and other
business relationships, increased risk of lawsuits and union
harassment, and complicated collective bargaining for
businesses and workers alike.
---------------------------------------------------------------------------
\21\362 NLRB No. 186 (2015).
---------------------------------------------------------------------------
The standard is unclear and unreliable because it relies on
abstract assumptions and after-the-fact conclusions, rather
than the actual facts, events, and decisions of the situation.
Mr. Zachary D. Fasman, partner in the law firm Proskauer Rose
LLP, testified before the Committee in 2017 on why the prior
joint-employer standard was superior to the Browning-Ferris
standard codified in H.R. 2474:
This standard, which was based upon the actual
conduct of the parties as opposed to hypothetical after
the fact legal conclusions about retained but
unexercised authority, afforded stability and
predictability in business relationships while allowing
collective bargaining between unions and the ``direct''
employer that actually set the terms and conditions of
employment. For more than 30 years, the NLRB and the
courts applied this standard by determining the actual
relationship between the two businesses in question;
who hired, fired, disciplined, supervised, or directed
the employees.\22\
\22\H.R. 3441, ``Save Local Business Act,'' Hearing Before the
Subcomms. on Workforce Protections & Health, Emp., Lab., & Pensions of
the H. Comm. on Educ. & the Workforce, 115th Cong. 47 (2017) (statement
of Zachary D. Fasman, Partner, Proskauer Rose, LLP) (emphasis in
original).
---------------------------------------------------------------------------
Under the standard codified in H.R. 2474, businesses simply
have no way to determine what level of control is necessary or
appropriate to avoid joint-employer status and the additional
liabilities that accompany it representing a new, government-
imposed consideration that goes beyond the goal of running an
effective and efficient operation.
The Committee has heard testimony from business owners in
recent years explaining how the Browning-Ferris joint-employer
standard is so troublesome. Ms. Jagruti Panwala, a
Pennsylvania-based hotel owner and operator, testified in 2014
in anticipation of the Obama NLRB's decision in Browning-Ferris
how it would undermine entrepreneurial opportunity:
Essentially, I would no longer be in business for
myself. Instead of simply acting as a licensor,
collecting fees, and providing guidance from time to
time, the franchisor would likely feel the need to
become a partner who would inherently have a lesser
understanding of operating conditions than I do, and
try to have disproportionate influence on business and
staffing decisions . . . . If this were to happen, I
would essentially become an employee of the parent
corporation and no longer an entrepreneur. I would lose
the equity I have built in my business overnight based
on the decision of an unelected bureaucrat in
Washington. To be completely honest, if these were the
conditions of the franchising model before I became an
hotelier, I would have never entered this business.\23\
---------------------------------------------------------------------------
\23\Expanding Joint Employer Status: What Does it Mean for Workers
and Job Creators?: Hearing Before the Subcomm. on Health, Emp., Lab., &
Pensions of the H. Comm. on Educ. & the Workforce, 113th Cong. 28-29
(2014) (statement of Jagruti Panwala, owner, hotel franchisees).
Mr. Kevin R. Cole, Chief Executive Officer of Ennis
Electrical Company, explained to the Subcommittee on Health,
Employment, Labor, and Pensions on behalf of the Independent
Electrical Contractors in 2015 how Browning-Ferris undermines
the subcontracting model and ultimately reduce opportunities
---------------------------------------------------------------------------
for workers whose services he otherwise may have sought:
Moving forward, almost any contractual relationship
we enter into may trigger a finding of joint employer
status that would make us liable for the employment and
labor actions of our subcontractors, vendors,
suppliers, and staffing firms. In addition, as we
understand it, the new standard would also expose my
company to another company's collective bargaining
obligations and economic protest activity, to include
strikes, boycotts, and picketing . . . . This new
standard also prevents us from working with certain
start-ups or new small businesses that may have a
limited track record. For example, my company will take
on certain small businesses as subcontractors, which
will often times be owned by minorities or women, and
help them on certain projects. With this new standard,
I'm now less likely to take on that risk.\24\
---------------------------------------------------------------------------
\24\H.R. 3459: ``Protecting Local Business Opportunity Act'':
Hearing Before the Subcomm. on Health, Emp., Lab., & Pensions of the H.
Comm. on Educ. & the Workforce, 114th Cong. 55 (2015) (statement of
Kevin R. Cole, Chief Exec. Officer, Ennis Elec. Co.).
Ms. Tamra Kennedy, President of Twin City Taco John's,
testified in 2017 how the Browning-Ferris standard undermined
her franchisor's willingness to assist her small business
operation, harming her ability to create new job opportunities
---------------------------------------------------------------------------
in her community:
[Browning-Ferris] has negatively affected my business
in several ways. First, my franchisor used to provide
standard employee handbooks to its franchisees. But due
to expanded joint employment liability, the company no
longer provides me employee handbooks . . . . Now, I
must hire an outside attorney to write an employee
handbook for me. It cost my business $9,000 to have
outside counsel prepare my employee handbook. Not to
mention, I need my attorneys to update my handbook each
time the law changes . . . . Second, I no longer
receive a job application from my franchisor. I must
create my own application now . . . another recurring
cost for which the new joint employer doctrine is
responsible. A third example is that joint employment
liability means I must recruit employees on my own. For
years, our brand company has produced and provided its
franchise owners employee recruiting kits . . . .
Today, because of the fear of joint employment
liability, these essential recruitment tools are no
longer available to franchisees . . . creat[ing]
another barrier to hiring great people, so
unfortunately, I'm creating jobs in my community slower
than I otherwise would.\25\
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\25\H.R. 3441: Save Local Business Act: Hearing Before the
Subcomms. on Workforce Protections & Health, Emp., Lab., & Pensions of
the H. Comm. on Educ. & the Workforce,115th Cong. 26-27 (2017)
(statement of Tamra Kennedy, President, Twin City T.J.'s, Inc.).
Real-world evidence makes clear that the joint-employer
standard codified in H.R. 2474 is unworkable.
Democrats claim that the Browning-Ferris standard was
affirmed by the U.S. Court of Appeals for the D.C. Circuit in
December 2018, but in reality the D.C. Circuit denied
enforcement of the NLRB's Browning-Ferris decision and remanded
the case back to the Board for further proceedings because the
Board's decision was too broad and went beyond the common-law
limitations of joint employment.\26\ In September 2018, the
Board published a proposed rule overturning Browning-Ferris,
requiring substantial direct and immediate control of the
essential terms and conditions of employment in order to be
considered a joint employer.\27\ If this rule is finalized,
then it will restore clarity and stability for workers and
businesses alike.
---------------------------------------------------------------------------
\26\See Browning-Ferris Indus. of Cal., Inc. v. NLRB, 911 F.3d
1195, 1200 (D.C. Cir. 2018).
\27\See The Standards for Determining Joint-Employer Status, 83
Fed. Reg. 46,681 (proposed Sept. 14, 2018).
---------------------------------------------------------------------------
The joint-employer definition codified in H.R. 2474
undermines the original intent of Congress, impedes economic
growth and job creation, and deprives entrepreneurial
opportunities to thousands of Americans.
ELIMINATING EMPLOYER RIGHTS
In addition to undermining the rights of workers to
suppress their freedom of choice and expression and extract
more union dues, H.R. 2474 also harms employers by curbing
their freedom of speech, freedom of contract, and right to
privacy, among other protections. These deliberate limitations
are a blatant attempt to tilt the playing field, so employees
are only presented the unions' perspective on organizing and
collective bargaining, remaining unaware of any of the
potential risks while employers are obstructed from legitimate
interactions and communications with their own employees.
H.R. 2474's codification of the Obama NLRB's ``ambush
election'' rule harms employees and employers alike by
shortening the time between an election petition being filed
and the union election taking place. Under this rule, elections
take place in as few as 11 days, down from a median of 38 days
prior to the rule going into effect in 2015. In a 2017 hearing
on the ambush election rule, Mr. Seth Borden, a partner with
McGuireWoods LLP, explained how the ambush election rule
benefits unions at the expense of fairness and clarity for
workers and employers:
The changes in the 2015 Rule changes were, at best, a
proposed solution in search of a problem. To the extent
they were intended simply to increase union success in
organizing, they did so by limiting employer free
speech rights protected by Section 8(c) of the [NLRA]
and infringing on the Section 7 rights of employees to
refrain from union representation. Postponing
resolution of important legal issues until after an
election only serves to enhance union electoral success
by allowing them to leverage employer uncertainty and
risk. Take, for example, the issue of whether an
individual or group of individuals are ``employees''
covered by the NLRA or rather ``supervisors'' exempted
by Section 2(11). How is an employer to communicate
lawfully with these purported supervisors without
knowing whether or not the Board will ultimately find
them to be covered or exempt? The employer's choice is
either (a) to decline to communicate with these
individuals to the maximum extent allowed, and thereby
deny these workers, and the workers they supervise, the
fullest array of information and discourse protected by
Section 7 of the Act; or (b) to risk potentially
unlawful communications with them which could have the
consequence of overturning the results of an election.
It is the lack of certainty at the outset of the
process that creates these untenable options--all of
which create legal exposure for the best-intentioned
employers and infringe upon the rights of the employees
to seek a prompt, conclusive determination on the issue
of representation.\28\
---------------------------------------------------------------------------
\28\Legislative Reforms to the National Labor Relations Act: H.R.
2776, Workforce Democracy and Fairness Act; H.R. 2775, Employee Privacy
Protection Act; and, H.R. 2723, Employee Rights Act: Hearing Before the
Subcomm. on Health, Emp., Lab., & Pensions of the H. Comm. on Educ. &
the Workforce,115th Cong. (2017) (statement of Seth H. Borden, Partner,
McGuire Woods LLP).
---------------------------------------------------------------------------
Slashing the time between petition and election creates a
scenario in which unions are stealthily able to talk to workers
for weeks or months about organizing a union while employers
are given just a few days to educate workers on the alternate
perspective. This scheme is clearly intended to benefit union
leaders and organizers but does so at the expense of workers
who are subsequently less informed about a decision with
enormous impact on their livelihoods and families.
Worse, not only does H.R. 2474 shorten the window in which
employers are able to communicate their perspective, it also
imposes new burdens on doing so. The bill codifies the Obama
Department of Labor's (DOL) 2016 ``Persuader Rule,'' which
functionally eliminated the LMRDA's ``advice exemption'' by
requiring employers and their attorneys to report to DOL any
agreement or arrangement they have that may pertain to
unionization, even if the attorney will have no direct contact
with employees. While this rule was halted by a federal
district court decision\29\ in November 2016 and later
rescinded by the Trump administration,\30\ H.R. 2474 codifies
it in order to stifle employer free speech and create yet
another unfair advantage for union organizers.
---------------------------------------------------------------------------
\29\Nat'l Fed'n of Indep. Bus. v. Perez, 2016 WL 8193279 (N.D. Tex.
Nov. 16, 2016).
\30\Rescission of Rule Interpreting ``Advice'' Exemption in Section
203(c) of the Labor-Management Reporting and Disclosure Act, 83 Fed.
Reg. 33,826 (July 18, 2018).
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In a 2016 hearing on the Persuader Rule, Mr. William
Robinson III, a member of Frost Brown Todd LLC and former
President of the American Bar Association, explained how the
rule infringes on the attorney-client privilege and will
ultimately harm well-meaning small businesses:
The privilege of client attorney confidentiality
associated with litigation is essential to the proper
functioning of the American legal system. They ensure
that clients can obtain the advice they need to fulfill
their legal obligations. The best interests of clients,
not lawyers, are the overriding concern and focus at
stake here. . . . As our Supreme Court has explained,
``[i]ts purpose is to encourage full and frank
communication between attorneys and their clients and
thereby promote broader public interests in the
observance of law and administration of justice.'' . .
. The employers most effected will be the many, many
small businesses that provide the largest share of jobs
in the United States. Large corporations may be able to
turn to their own in-house legal departments for legal
advice on labor relations issues. As employees of their
client, in-house counsel are not subject to proposed
Rule. The large corporations that they advise trigger
no reporting requirement when they consult their in-
house counsel. . . . Small businesses, on the other
hand, will have no such option. Their dilemma will be
to either act without legal advice, or take the risk
that any legal question they ask, and any action they
disclose, to their outside legal counsel will
ultimately have to be disclosed to the Department of
Labor. In short, the right of small business to receive
confidential legal advice on labor relations matters
will be gone.\31\
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\31\``The Persuader Rule: The Administration's Latest Attack on
Employer Free Speech and Worker Free Choice'': Hearing Before the
Subcomm. on Health, Emp., Lab., & Pensions of the H. Comm. on Educ. &
the Workforce, 114th Cong. 95-96, 98-99 (2016) (statement of Wm. T
(Bill) Robinson III, Member, Frost Brown Todd LLC).
The Persuader Rule is made even more harmful by H.R. 2474.
Because the bill significantly increases penalties for unfair
labor practices and allows the NLRB to levy fines of up to
$100,000 in each instance, it is even more important that
employers have the benefit of legal counsel before responding
to union organizing efforts. The Persuader Rule's disclosure
requirement contained in H.R. 2474 discourages and penalizes
this conduct. In a 2016 hearing on the Persuader Rule, Mr.
Joseph Baumgarten, Co-Chair of the Labor and Employment Law
Department at Proskauer Rose LLP, explained how the Rule
---------------------------------------------------------------------------
exposes employers to NLRA violations:
Given the Department's position that the scope of the
reporting obligation extends to all labor relations
advice or services, not just persuader activities, many
lawyers will simply decline to provide services which
could conceivably be deemed ``persuader activity'' out
of fear of triggering the reporting obligation as to
all of their clients. Conversely, employers may eschew
seeking counsel for these types of communications if
they have to report their agreements with counsel, as
well as the fees and the details of such agreements--
clearly chilling the free flow of communications
necessary between a client and his attorney. This is
critical--as the NLRB has strict guidelines on the
scope and nature of communications to employees during
the bargaining process. Without counsel to assist in
the drafting of these communications, it could easily
lead to entirely unintended unlawful behavior by
employers that, in fact, interferes with the bargaining
process--an entirely perverse result from a statute
that is intended to promote the process.\32\
---------------------------------------------------------------------------
\32\Id. at 48 (statement of Joseph Baumgarten, Co-Chair, Lab. &
Emp. Law Dep't, Proskauer Rose LLP).
The Persuader Rule codified in H.R. 2474 is a perversion of
the original intent of the LMRDA, stifles the free speech of
small businesses by subjecting them to unnecessary additional
government oversight, and exposes them to costly financial
penalties for unintentional violations of the NLRA.
Unfortunately, the ambush election rule and Persuader Rule
are not the only provisions of H.R. 2474 that infringe on the
free speech rights of employers.
Even though the federal government has no business
determining when, why, or how an employer can meet with his or
her own employees in his or her own workplace, the bill also
bans employers from holding required meetings with their own
employees in their own workplace to discuss unionization during
an organizing campaign. In a July 25, 2019 Full Committee
hearing on H.R. 2474, Mr. G. Roger King, Senior Labor and
Employment Counsel at the HR Policy Association, testified on
why banning these meetings is unnecessarily invasive:
[T]here is no evidence to support the conclusion that
employers can unduly influence employees to oppose
unionization in such meetings. Further, an employer is
considerably restricted in what it can say in such
meetings. For example, election objections can be
successfully pursued by a union or unfair labor
practices charges could be successfully filed against
an employer if, in such meetings, the employer
threatens employees who support unionization, or the
employer promises better benefits to employees if they
oppose unionization. Further, the faulty premise that
such meetings seriously impede a union's ability to win
an election is specious at best, particularly due to
the ability of employees to communicate through social
media with unions and also among themselves using a
wide array of options. Indeed, an employee's ability
today to go online to obtain facts and information
about the issues of union representation is greater
than ever. In summary, these meetings have virtually no
bearing on the success or lack thereof of the union
movement and should not be made unlawful. Finally, it
needs to be noted that unions, unlike employers, have
the right to visit employees at their homes and engage
in campaign activity in such settings.\33\
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\33\King Statement, supra note 10.
Worse, H.R. 2474 not only eliminates an important
opportunity for employers to communicate to their employees, it
also prevents employers from presenting their case before the
NLRB, undermining the First Amendment's guarantee of the right
to petition the government for redress of grievances.
Shockingly, the bill eliminates employers' standing before the
NLRB regarding questions of union representation, despite the
fact that employers face enormous consequences and are often
the source of the most direct and complete knowledge necessary
to make those decisions. This overtly one-sided provision
requires that the Board only hear from the union when making
determinations about employee or supervisor status, makeup of
the bargaining unit, and other important questions. Rather than
preserving the fair system at the core of America's rule of
law, H.R. 2474 requires that the government hear only from a
labor union that has a vested interest in enriching itself as a
result of the decisions the Board will make.
Finally, H.R. 2474 undermines the freedom of contract by
requiring that a third-party panel determine the binding terms
of a collective bargaining agreement if a union and employer
reach an impasse negotiating their first contract that is not
solved in mediation. Third-party arbitrators have no stake in
the success of the business and are underinformed about
important details of the company's finances. Moreover, H.R.
2474 requires that the arbitration panel consider factors
unrelated to the employer's financial health, including
employees' cost of living, employees' ``ability to sustain
themselves, their families, and their dependents on the wages
and benefits they earn from the employer,'' and ``the wages and
benefits other employers in the same business provide their
employees.'' The cost of living in a given region, the number
of dependents a business' employees have, and the wages and
benefits of a major competitor does not determine the ability a
small business to make payroll and yet arbitrators would be
required to take those factors into account in determining a
binding two-year contract on which neither the employer nor the
employees are ever given an opportunity to vote. The mandatory
binding arbitration provision of H.R. 2474 is intended to
solely reward union interests and intransigence in the
bargaining process and could bankrupt countless small
businesses, killing tens of thousands of jobs.
Biased and discredited provisions such as ambush elections,
the Persuader Rule, banning certain meetings, eliminating
employer standing before the NLRB, and imposing binding
mandatory arbitration are all intended to intimidate and muzzle
employers to clear the way for unions to more easily organize
workers and collect dues. These radical provisions in H.R. 2474
are a blatant attempt to rig the rules in favor of unions in
response to workers' overwhelming rejection of union membership
in recent decades. These anti-employer provisions in H.R. 2474
lay bare the bill's true intent, which is to silence employers
and minimize any potential challenge a union might face in
organizing workers and collecting millions of dollars in
additional union dues.
PROMOTING AND SUSTAINING ECONOMIC INJURY
H.R. 2474 not only undermines employers' and workers'
rights--but also makes it easier for unions to unilaterally
inflict economic pain on workers, employers, and the economy as
a whole by increasing and expanding strikes. First, the bill
bans employers from permanently replacing striking workers,
overturning 80 years of unanimous Supreme Court precedent and
subsequently upending the recognized balance in the law, in
which unions have a right to strike but employers have a right
to make the decisions necessary to continue to serve their
customers and remain in business. In NLRB v. Mackay Radio &
Telegraph Co., the Court ruled unanimously that Mackay Radio
had not engaged in an unfair labor practice when it flew in
replacement workers from other offices to cover the roles of
workers striking at their San Francisco office, nor when the
company declined to rehire four of those striking workers. In
the decision, the Justices explained that taking the steps
necessary to continue to do business amidst a labor dispute is
within an employer's rights:
[I]t does not follow that an employer, guilty of no
act denounced by the statute, has lost the right to
protect and continue his business by supplying places
left vacant by strikers. And he is not bound to
discharge those hired to fill the places of strikers,
upon the election of the latter to resume their
employment, in order to create places for them.\34\
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\34\NLRB v. Mackay Radio & Telegraph Co., 304 U.S. 333, 345 (1938).
H.R. 2474 eliminates this longstanding employer right and
essentially allows a union to shut down a business for as long
as it may please, under any circumstance. Worse, the bill also
legalizes so-called intermittent strikes. Striking and
picketing are at the core of a union's leverage at the
bargaining table, but the NLRA and NLRB have appropriately
placed certain limitations on these activities in order to
minimize disruption to the economy. The NLRB states, ``a strike
may be unlawful because an object, or purpose, of the strike is
unlawful.''\35\ In 1998, NLRB Acting General Counsel Frederick
L. Feinstein summarized the ban on intermittent strikes:
---------------------------------------------------------------------------
\35\NLRB, Basic Guide to the National Labor Relations Act, General
Principles of Law Under the Statute and Procedures of the National
Labor Relations Board, The Rights of Employees (1997).
[A] refusal to work will be considered unprotected
intermittent strike activity when the evidence
demonstrates that the stoppage is part of a plan or
pattern of intermittent action which is inconsistent
with a genuine strike or genuine performance by
employees of the work normally expected of them by the
employer.\36\
---------------------------------------------------------------------------
\36\Off. of the Gen. Counsel, NLRB, Report of the General Counsel
(Sept. 1, 1998) (quotation marks and citations omitted), http://
www.lawmemo.com/nlrb/gcreport.htm.
H.R. 2474's legalization of intermittent strikes would
subject employers to unexpected, unpredictable, and repeated
work stoppages without any legal recourse. Stability and
predictability are essential to a functioning business, but
H.R. 2474 would wantonly discard that basic principle in order
to weaponize a union's economic leverage.
Finally, H.R. 2474 repeals the ban on so-called secondary
activity that was enacted in the 1947 Taft-Hartley amendments
to the NLRA.\37\ Secondary activity extends the pain of
striking and picketing by allowing unions to target the
business partners of a company they are seeking to organize. As
such, businesses with no direct connection to the employer
being targeted by the union will be subject to union
harassment. Given the interdependent nature of companies in the
21st century economy, allowing secondary boycotts could subject
nearly any employer, employee, or consumer in the country to
union harassment. Coupled with H.R. 2474's other extreme
provisions allowing unions to exploit more economically painful
and disruptive strikes than are currently permitted, legalizing
secondary activity would target and destroy countless small
businesses.
---------------------------------------------------------------------------
\37\29 U.S.C. 158(b)(4).
---------------------------------------------------------------------------
H.R. 2474 seeks to restore an antiquated view of the
American economy reliant on constant struggle and conflict
between labor and management. A workplace landscape defined by
conflict creates the most opportunity for unions to promote
their goals of unionization and H.R. 2474 is singularly aimed
at increasing that prospect, irrespective of the consequences
for workers, employers, and the economy as a whole. In 1937,
there were nearly 5,000 strikes nationwide\38\ and while
economic disruption of this magnitude undoubtedly harmed
American workers by reducing overall productivity, it
underscored unions' ability to dictate the direction of the
economy, representing a win for unions but a long-term loss for
American workers and employers. This 1930s-era vision of the
economy is the ``future of work'' that Democrats seek to impose
on modern businesses with H.R. 2474.
---------------------------------------------------------------------------
\38\BLS, ANALYSIS OF STRIKES IN 1937 (1938).
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In a May 8, 2019, Subcommittee on Health, Employment,
Labor, and Pensions hearing on H.R. 2474, Mr. Philip A.
Miscimarra, Partner at Morgan Lewis & Bockius LLP and former
Chairman of the NLRB, explained how the consequences of H.R.
2474's expansion of strikes will be even more painful in the
21st century because American businesses and workers are
competing in an increasingly globalized and technologically-
advanced economy:
[T]he biggest problem with the PRO Act is the
expansion of economic weapons and economic injury,
which have been the engine driving collective
bargaining under the NLRA. Increasing the scope of
these economic weapons, and making them more
destructive, will have a destabilizing impact on U.S.
employees, employers, the general public, and unions.
This is especially true in the global economy that
exists today, which was unimaginable when the NLRA was
enacted in the 1930s during the Great Depression. . . .
[H.R. 2474] does not recognize the significant risks to
U.S. employment that are already posed by automation,
artificial intelligence and other dramatic advances in
technology. Inevitably, the PRO Act's expansion of
employment-related costs and conflict will magnify
increased investments of every business in new
technology rather than people. For this reason, the PRO
Act will not enhance employment policy. To the
contrary, it will place U.S. employees at a more severe
disadvantage, in comparison to new technology, with the
greatest negative impact on many of the most vulnerable
employees, including minority members, employees in
manufacturing, and high school graduates who lack
college degrees, among others. This will produce
additional spillover negative consequences on families,
communities, state and local governments, and the
unions who hope to benefit from this legislation.\39\
---------------------------------------------------------------------------
\39\Protecting the Right to Organize Act: Deterring Unfair Labor
Practices: Hearing Before the Subcomm. on Health, Emp., Lab., &
Pensions of the H. Comm. on Educ. & Lab., 116th Cong. (2019) (statement
of Philip A. Miscimarra, Partner, Morgan Lewis & Bockius LLP).
The right to strike and picket provides federally-protected
leverage for unions in labor-management relations and
theoretically exists to win concessions that ultimately leave
workers better off. But the strike provisions in H.R. 2474 are
so radical that they will leave workers worse off. Allowing
unions to harass and disrupt businesses to the extent permitted
in H.R. 2474--including picketing and boycotting businesses
that unions are not even trying to organize--does not empower
workers. It merely increases the costs, burdens, and risks of
investing in American workers and expands the pain of union
confrontation to affect nearly every single business and
consumer in the country.
Decades of balance in American labor law have allowed the
economy to flourish and provide workers with higher wages and
greater opportunities. The future of work in the modern economy
should be aimed at harmonizing relationships between workers
and businesses and ultimately making the United States a more
attractive place to do business than our global competitors
like China. H.R. 2474 does the opposite, sacrificing economic
stability that leads to progress and growth in order to promote
economic strife while enriching and empowering labor unions at
the expense of employers, workers, and consumers.
PUNITIVE AND ONE-SIDED CIVIL PENALTIES
Finally, H.R. 2474 weaponizes enforcement of the NLRA in a
one-sided manner that punishes employers while relaxing legal
restrictions on unions. As described above, the bill increases
the range of unfair labor practices for employers, such as
making it an unfair labor practice to fail to turn over
employees' personal information to a union or misclassifying
employees as independent contractors, while allowing unions to
engage in previously illegal activity such as secondary
boycotts and intermittent striking.
In addition to unjustly expanding the list of unfair labor
practices considered violations of the NLRA, the bill imposes
costly monetary civil penalties, individual legal liability,
and a private right of action against employer unfair labor
practices only, while leaving remedies for unfair union labor
practices untouched. Not only does this clearly biased approach
disrupt existing equal protection and enforcement under the
law, it is also a solution in search of a problem. In a May 8,
2019 hearing on H.R. 2474, Mr. Miscimarra explained why civil
monetary penalties are unnecessary for the Board to enforce the
law:
During each of the past several years, approximately
20,000 unfair labor practice charges have been filed
with the NLRB, and as noted below, roughly 95 percent
of these cases are resolved within 3-4 months--with
relief being provided in cases involving probable
violations. In most cases, the up-front investigation
takes 90-120 days, resulting in a finding that roughly
60 percent of the cases lack merit (resulting in
dismissal or withdrawal of the charge, which represents
the end of the case, without any further proceedings or
appeals); and with a finding that 40 percent of the
cases have probable merit. In the cases found to have
probable merit, the NLRB's Regional Office successfully
works out settlements in roughly 90 percent of the
cases, usually in the same 90-120 day timeframe, which
represents the end of the case--including on Board-
required remedies--without any further proceedings or
appeals. In the fiscal year ending September 30, 2018,
the Board successfully settled 97.5 percent of the
unfair labor practice cases found to have probable
merit. In total, the Board successfully accomplishes
final, binding resolution of roughly 95 percent of all
unfair labor practice charges after an up-front
investigation that usually occurs within 90-120 days
after the charge is filed.\40\
---------------------------------------------------------------------------
\40\Id.
Put simply, few unfair labor practice charges ever make it
to the point at which the Board would assess monetary
penalties, were H.R. 2474 to become law. In addition, Mr.
Miscimarra explained how the Board is already empowered to
ensure enforcement of its orders to remedy unfair labor
practices:
Not only can the Board devise remedies consistent with its
authority under the Act, the Board has the authority in
appropriate cases to seek interim injunctive relief under
Section 10(j). Moreover, the Board's orders are subject to
enforcement in the courts. When any party violates a court's
enforcement of an NLRB order, that violation is subject to
potential civil and criminal contempt proceedings and
penalties, including potential fines and imprisonment.\41\
---------------------------------------------------------------------------
\41\Id.
---------------------------------------------------------------------------
H.R. 2474 discards the original intent of the NLRA to
remedy rather than punish wrongdoing. Even more egregious is
the bill's wanton disregard for doing so fairly. Section 8 of
the NLRA outlaws unfair labor practices committed by unions,
and the NLRB has explained union unfair labor practices in
detail.\42\ H.R. 2474 imposes fines on both a business and a
business owner of as much as $100,000 for a minor offense such
as unintentionally misinterpreting the bill's complicated
definition of ``employee.'' Amazingly, unions and union
officers face no such liability or financial penalty for
unlawful activity such as acts of violence on the picket line,
threats of violence on non-striking employees, or threating
employees that they will be fired unless they pay the union
hundreds of dollars. H.R. 2474 risks bankrupting small
businesses unable to afford a team of lawyers to interpret
complicated federal labor laws but levies no additional
penalties or punishments on powerful, coercive, multimillion-
dollar labor unions. While H.R. 2474 contains a litany of
discriminatory changes that curb employee and employer rights
in order to enrich and empower unions, perhaps no single
provision underscores its outrageous one-sided nature as its
imposition of costly monetary penalties for minor employer
unfair labor practices while leaving union unfair labor
practices, including union violence, untouched.
---------------------------------------------------------------------------
\42\NLRB, Basic Guide to the National Labor Relations Act, General
Principles of Law Under the Statute and Procedures of the National
Labor Relations Board, Unfair Labor Practices of Labor Organizations
(1997).
---------------------------------------------------------------------------
The above examples represent just a few of the most
egregious provisions of H.R. 2474. There are many others,
ranging from a requirement that the NLRB give unfair labor
practice charges against employers preference over charges
against unions, to allowing the prevailing party in a civil
action to collect punitive damages based on the gross income of
the employer.
Union Failings
Democrats claim that union density has plummeted in recent
years because of political attacks against unions and NLRB
decisions that make it more difficult to organize workers.
Chief among these so-called attacks are right-to-work laws,
which allow workers to decide for themselves whether to join
and pay a union and which have been passed in five states since
2012, bringing the total number of states with right-to-work
laws to 27. This and other criticisms ignore the basic truth
that federal labor law has not changed, irrespective of
political attacks and NLRB decisions as employees maintain the
right to organize and remain free to decide for themselves
whether to become union members and the vast majority of
workers have chosen not to pursue unionization.
In reality, the union membership rate continues to plunge
because of unions' own failings. Unions have failed to evolve
to meet the needs of a 21st century workforce resulting from a
lack of accountability and transparency that has fostered
corruption while union bosses have failed to dedicate adequate
resources and attention to organizing efforts. If workers
believed unions were in their best interest and union advocacy
and representation were worth paying for, then the nation would
see more workers attempting to organize unions and voluntarily
choosing to be union members, paying hundreds of dollars per
year in union dues. No business, no law, and no NLRB decision
has forced workers to abandon unions.
As the Committee has considered H.R. 2474 this Congress,
the United Auto Workers (UAW) union has remained embroiled in a
terrible scandal involving the abuse of workers' union dues
that has resulted in more than a dozen people charged,
including two former UAW Vice Presidents.\43\ Among the many
offenses of top union officials is a violation of the Labor-
Management Relations Act by accepting illegal payments from the
companies with which the union was negotiating. Moreover, union
officials used workers' hard-earned union dues on lavish
personal expenses such as a $30,000 party that featured
strolling models sparking attendees' cigars.\44\ While union
executives were kept ``fat, dumb, and happy'' according to
federal investigators, rank-and-file autoworkers were kept in
the dark about how their union leaders were spending their
hard-earned union dues.\45\ An Assistant U.S. Attorney wrote in
a sentencing memorandum stemming from the investigation that
``there was a culture of corruption inside the senior
leadership of the United Auto Workers union.''\46\ It should
come as no surprise, then, that the UAW lost more than 35,000
members in 2018, representing an 8 percent decline of its
overall membership.\47\
---------------------------------------------------------------------------
\43\Paul A. Eisenstein, Feds charge former UAW vice president with
money laundering and bribery, NBC News, Nov. 6, 2019.
\44\Press Release, U.S. Atty's Off., E. Dist. of Mich., Former FCA
Executive and Wife of Former UAW Vice President Charged in Scheme to
Pay Off UAW Officials (July 26, 2017); Robert Snell, FCA training funds
used for UAW exec's pricey '14 party, Det. News, Feb. 2, 2018.
\45\Snell, supra note 45.
\46\Robert Snell, Court records: Fear of factory floor fed UAW
corruption, Det. News, Nov. 5, 2018.
\47\Off. of Lab.-Mgmt. Standards, U.S. Dep't Of Lab., Form LM-2
Labor Organization Annual Report, https://olms.dol-esa.gov/query/
orgReport.do?rptId=698886&rptForm=LM2Form.
---------------------------------------------------------------------------
Although H.R. 2474 should require unions to reaffirm their
commitment to the workers they purport to represent by
requiring greater transparency and improving accountability,
unfortunately the bill fails completely in this regard. Over
the past decade, unions successfully lobbied their political
allies in the Obama administration to rescind regulations that
increase financial transparency\48\ and are now calling on
their political allies in Congress to enact radical national
labor laws such as H.R. 2474 to increase their coercive power.
---------------------------------------------------------------------------
\48\Off. of Lab.-Mgmt. Standards, U.S. Dep't of Lab., 2010 Annual
Report 9-10 (Jan. 2011) (Obama administration rescinding regulations
requiring unions to report parties buying or selling union assets of
$5,000 or more and requiring unions to file separate financial
disclosures for union-controlled trusts such as strike funds and
workforce development programs), https://www.dol.gov/olms/regs/
compliance/annualreports/highlights_10.pdf.
---------------------------------------------------------------------------
Perhaps unions' single biggest failure has been the lack of
attention and resources dedicated to the very reason they claim
to exist: to organize and represent workers. Mr. G. Roger King,
Senior Labor and Employment Counsel at the HR Policy
Association, testified at a July 25, 2019, hearing on H.R. 2474
and quantified unions' lack of focus on organizing efforts:
[U]nion organizing and the number of petitions filed
by unions with the National Labor Relations Board have
fallen nearly 63% from 5,000 in 1997 to 1,854 in 2017.
In FY 2018, the number of petitions filed dropped even
further to 1,597, the fewest number in over 75 years.
Perhaps most telling, as the rate of private sector
employment has increased, the number of NLRB elections
has decreased precipitously. Further, when examining
data from the U.S. Department of Labor Bureau of Labor
Statistics, the lack of union attention to union
organizing is even more evident. In FY 2018, there were
110.5 million potential private sector employees
available for organizing in the country under the
National Labor Relations Act. The number of employees
petitioned-for, in that same year, according to NLRB
statistics, was only 73,109. Accordingly, unions only
sought to represent .066% of potential new members in
this country.\49\
---------------------------------------------------------------------------
\49\King Statement, supra note 10.
Despite a failure to recruit substantial numbers of new
union members, labor unions continue to be flush with revenue,
thanks in part to their ability to force millions of workers in
union shops to pay dues and fees against their will. As of
2012, labor unions received more than $14 billion in dues from
collective bargaining agreements.\50\ This begs the question of
where unions are spending their ample wealth. The lack of
resources dedicated to organizing efforts was delineated by a
Splinter News analysis of the AFL-CIO's 2018-2019 internal
---------------------------------------------------------------------------
budget:
\50\NATIONAL INST. FOR LAB. REL. RES., LABOR UNIONS RECEIVE $14
BILLION IN DUES PER YEAR FROM CBAS (Mar. 31, 2012).
[T]otal organizing spending . . . accounts for less
than a tenth of the budget. The percentage of the
budget dedicated to all organizing activities is about
the same as the portion dedicated to funding the
offices of the President, Secretary-Treasurer,
Executive Vice President, and Executive Councils and
associated committees. The largest portion of the
budget--more than 35 percent--is dedicated to funding
political activities.\51\
---------------------------------------------------------------------------
\51\Hamilton Nolan, AFL-CIO Budget is a Stark Illustration of the
Decline of Organizing, Splinter News, May 16, 2019.
In addition to dedicating massive sums to political
activity instead of organizing new workers, unions have also
spent generously to advance ideological causes. As mentioned
previously, from 2010 through 2018 unions sent more than $1.6
billion in member dues to hundreds of progressive political
advocacy organizations, including Planned Parenthood and the
Progressive Democrats of America.\52\ Not only are these
expenditures a departure from unions' core function, they are
also not representative of the beliefs of union membership, as
more than 40 percent of union households voted Republican in
the most recent presidential election.\53\ Moreover, recent
polling shows that the vast majority of union households,
Democrats, and independents believe unions should be required
to receive opt-in permission from employees before using their
dues for purposes other than collective bargaining.\54\ Labor
leaders themselves recognize this lack of focus on unions' core
purpose. The late Hector Figueroa, an influential former leader
within the SEIU, chided unions for abdicating their
responsibilities:
---------------------------------------------------------------------------
\52\Ctr. for Union Facts, supra note 4.
\53\Philip Bump, Donald Trump got Reagan-like support from union
households, Wash. Post, Nov. 10, 2016.
\54\ERA has Broad Support Among Union and Non-Union Households
According to National Polling, https://employeerightsact.com/wp-
content/uploads/2018/07/ERA_Polling_Updatev4-1.pdf (July 2018).
For too long, too many unions have avoided the tough
work that needs to be done to organize nonunion
workers, to convince our own members that it's in their
interest to expand our ranks, and to retool our
organizations by putting resources into building
power.\55\
---------------------------------------------------------------------------
\55\Hector Figueroa, The Labor Movement Can Rise Again, N.Y. Times,
July 12, 2019.
Labor unions are not incapable of demonstrating value to
workers. Too many are simply unwilling to put in the work
necessary to do so, instead focusing their efforts and
resources on other priorities such as advancing a one-sided
political agenda.
Unions and American Prosperity
Democrats also claim that H.R. 2474 is necessary because
the decline of unions has harmed lower- and middle-income
Americans. Specifically, Democrats continue their tired
arguments about stagnant wages and rapidly worsening income
inequality. They claim that strengthening the coercive power of
labor unions and weakening the rights of business owners, as
H.R. 2474 does, will empower workers to earn higher wages and a
greater share of total income. While unions have the ability to
bargain collectively for better wages or benefits, it is simply
not the case that workers are worse off today than they were
when the union rate was higher in the 20th century.
First, wages are not stagnant, and unions' decline has not
made Americans poorer. According to the Bureau of Labor
Statistics (BLS), wages and salaries in the private sector
increased more than 3 percent in 2018.\56\ In lower-wage
industries, wages grew a remarkable 4.4 percent in 2018,
suggesting that lower-income workers are seeing substantial
benefit from recent economic growth.\57\ Median household
income, a reflection of middle-class living standards, reached
another record high in 2018, rising to $63,179.\58\ Going back
further, in 2017 dollars, the typical American household earns
over $1,000 more per month today than it did in 1975.\59\ The
union membership rate in 1975 was more than double the rate in
2018.\60\
---------------------------------------------------------------------------
\56\BLS, Compensation costs for private industry workers up 3.0
percent in 2018 (Feb. 4, 2019).
\57\James Pethokoukis, Am. enterprise Inst., Wages rising: The US
economy is now working best for lower-wage workers (Mar. 13, 2019).
\58\U.S. Census Bureau, Income and Poverty in the United States:
2018 (Sept. 10, 2019).
\59\Mark Perry, Am. Enterprise Inst., Census data released today
show continued gains for middle-class Americans and little evidence of
rising income inequality (Sept. 12, 2018).
\60\Meyer, supra note 1, at 22.
---------------------------------------------------------------------------
Moreover, economic growth and opportunity continue to allow
poor Americans to move into the middle-class and middle-class
Americans to become wealthy. The poverty rate for people who
worked full-time, year-round in 2018 was just 2.3 percent,
according to Census data.\61\ According to analysis of Census
data by Mark Perry at the American Enterprise Institute, the
portion of high-earning households is growing while the portion
of middle-income and poor households are both shrinking. In
inflation-adjusted 2018 dollars, from 1967 to 2018 the
percentage of U.S. households earning between $35,000 and
$100,000 fell from 53.8 percent to 41.7 percent and the portion
making less than $35,000 fell from 37.2 percent to 27.9
percent, while the portion making more than $100,000 per year
rose from 9 percent to 30.4 percent.\62\ The union membership
rate fell from 27.8 percent in 1967\63\ to 10.5 percent in
2018.\64\ In summarizing his analysis, Mr. Perry debunks
Democrat claims of a worsening middle class:
---------------------------------------------------------------------------
\61\U.S. Census Bureau, supra note 59.
\62\Mark Perry, Am. Enterprise Inst., Three charts based on today's
Census report show that the US middle-class is shrinking . . . because
they're moving up (Sept. 10, 2019).
\63\Meyer, supra note 1, at 22.
\64\BLS, Union Members--2016 (Jan. 26, 2017).
America's middle class did start largely disappearing
in the 1970s, but it was because they were moving up to
higher-income groups, not down into a lower-income
category. And that movement was so significant that
between 1967 and 2018, the share of American households
earning incomes above $100,000 more than tripled. . . .
[P]rogressive politicians like Sen. Bernie Sanders and
Sen. Elizabeth Warren claim that America's middle class
has been declining, disappearing, collapsing, losing
ground, vanished, stagnated, etc. But the Census Bureau
data on household income over time displayed above
demonstrate conclusively that those assertions are
---------------------------------------------------------------------------
incredibly and verifiably wrong.
In addition, the steady decline of unions has not
entrenched a permanent upper-class gaining wealth at the
expense of lower- and middle-income Americans. Rather,
Americans move constantly between income brackets throughout
the course of their lives. Thus, not only are the poor and
middle-class better off than they were decades ago, those
groups are also unlikely to include many of the same
individuals from one decade to the next. According to research
from Washington University Professor of Social Welfare, Mark
Rank, and Cornell University Professor, Thomas Hirschl, looking
at 44 years of longitudinal data for individuals ages 25 to 60,
39 percent of Americans will spend at least one year in the top
5 percent of the income distribution, 56 percent will do so in
the top 10 percent, and 73 percent of Americans will do so in
the top 20 percent of the income distribution. Of the 12
percent of Americans who will experience a year in the top 1
percent of income, just 0.6 percent will do so in 10
consecutive years.\65\
---------------------------------------------------------------------------
\65\Mark Rank, From Rags to Riches, N.Y. Times, Apr. 18, 2014.
---------------------------------------------------------------------------
Income inequality has also remained relatively stable over
the 25 years between 1993 and 2017 while the union membership
rate declined. The share of income earned by the top 20 percent
stayed between 48.9 percent and 51.5 percent from 1993 to 2017,
while the income share of the top 5 percent stayed between 21
percent and 22.6 percent. The ``Gini index'' measuring income
inequality on a scale of 0 (perfect equality) to 1 (complete
inequality) has remained between 0.46 and 0.48 since 1993.\66\
While different methodologies can result in varying measures of
income inequality, at the very least it is clear that the
decline in union membership has not coincided with a massive
increase in inequality in recent decades as Democrats claim.
---------------------------------------------------------------------------
\66\Perry, supra note 60.
---------------------------------------------------------------------------
Finally, workers' share of income has remained constant,
and compensation growth continues to align with productivity
growth. Democrats claim that workers' share of total income has
fallen, and that employees' compensation growth has not kept
pace with their productivity growth as the union rate has
declined in recent decades. However, when considering only net
income rather than gross income, and excluding self-employment
income (as it cannot reasonably be attributed to labor nor
capital), labor's share of income has remained remarkably
consistent, rising just slightly from 68.5 percent in 1948 to
68.8 percent in 2014, according to a 2016 analysis from the
Heritage Foundation.\67\ Similarly, claims that workers'
compensation growth has not kept pace with their productivity
growth compare the compensation of the limited category of
private sector ``production and non-supervisory employees''
covered by the BLS payroll survey to the productivity growth of
all employees, including government workers, the self-employed,
and others excluded from the BLS payroll survey. These
comparisons alleging slowing compensation growth also exclude
most performance-based compensation such as commission,
bonuses, and stock options. An ``apples-to-apples'' comparison
for employees in the non-farm business sector shows that from
1973 to 2014, average compensation grew by 78 percent while
average productivity grew by 81 percent--tracking much more
closely than Democrats claim.\68\
---------------------------------------------------------------------------
\67\James Sherk, Heritage Found., Labor's Share of Income Little
Changed Since 1948 (May 31, 2016).
\68\James Sherk, Heritage Found., Workers' Compensation: Growing
Along with Productivity, Heritage Found. (May 31, 2016).
---------------------------------------------------------------------------
The state of the American economy is sound. However, public
policy reforms can help increase economic growth and
opportunity, providing more Americans the dignity of work and
allowing them to build stable middle- or upper-middle-class
livelihoods. But the Democrats' bleak picture of an unfair
economy that works only for the wealthiest Americans while
leaving behind the rest of the workforce is simply false. The
decay of unions has not created an unfair economy and it has
not left workers worse off. Moreover, there is no evidence that
passing a law to make it easier for unions to force more
workers into one-size-fits-all collective bargaining agreements
which limit opportunity and innovation while siphoning hundreds
of dollars per year from worker paychecks will result in more
jobs, higher wages, or greater economic opportunity than exists
today. To the contrary, the best way to improve the lives of
workers and their families is to continue to grow the economy
which is precisely what individual liberty and the free
enterprise system have achieved over the last four decades as
the union membership rate has fallen.
Democrat Amendment in the Nature of a Substitute
Chairman Scott's Amendment in the Nature of a Substitute
(ANS) contains several additional alterations which further
worsen an already ruinous bill. First, the ANS requires
employers to maintain existing terms and conditions of
employment pending an agreement with the union. This provision
could lock a small business into rigid contract terms that are
unaffordable over the long-run as the company's financial
situation changes. Collective bargaining agreements are
periodically renegotiated to reflect changing needs, market
conditions, and bargaining priorities. The ANS locks in costly
provisions, increases unions' myriad opportunities for coercion
and reduces their incentives to renegotiate a contract, no
matter what that means for the employer. This provision of the
ANS is another way in which H.R. 2474 radically skews the
playing field in favor of union bosses and against employers.
The ANS also overturns the NLRB's recent ruling in Johnson
Controls, Inc. which allows many workers to vote for the first
time ever on the union representing them. As previously stated,
more than 90 percent of workers represented by a union under
the NLRA have never voted for that union, because once a union
is voted in, it never stands for a recertification election. In
the interest of union democracy and accountability, the Board
ruled in Johnson Controls that an employer could withdraw
recognition of a union within 90 days prior to the expiration
of a collective bargaining agreement if it had evidence the
union has lost majority support of the bargaining unit. If the
workers wish to retain the union as their representative, then
the union simply needs to refile a petition for a new
representation election within 45 days and win an election to
retain recognition, which is feasible if the union maintains
the support from the workers as it claims.\69\ Instead of
strengthening union democracy, the ANS to H.R. 2474 deprives
workers an opportunity to vote on the union that claims to
represent them.
---------------------------------------------------------------------------
\69\368 NLRB No. 20 (2019).
---------------------------------------------------------------------------
Further enhancing H.R. 2474's invasion of worker privacy,
the ANS specifies that employees' private personal information
provided to the union must be in searchable electronic format.
For Committee Democrats, it's not enough to force workers to
have their private, personal information shared with a union
organizer and be subject to harassment and intimidation in
their homes against their will. The ANS makes it such that
workers also have to fear that information being hacked and
easily misused. Countless government agencies and private
companies alike have been hacked in recent years, risking
Americans' privacy and security. The ANS to H.R. 2474 provides
workers' private, personal information in searchable electronic
format to labor unions, entrusting the same entities that have
failed to evolve from the 1950s and are plagued by corruption
and self-dealing with protecting private, personal information
from 21st century hackers. Significantly, H.R. 2474 contains no
restrictions on unions volunteering or selling this data to
private companies, political campaigns, or other organizations
and providing it to be searchable online makes it even easier
for those organizations to harass and solicit workers. This
provision of the ANS makes one of the worst provisions of H.R.
2474 even more susceptible to abuse.
In addition to giving unions access to workers' private
information, the ANS essentially gives union access to
employers' private resources as well. The ANS codifies the
Obama NLRB's 2014 ruling in Purple Communications, Inc., that
employees have a statutory right to use workplace email to
discuss activity protected under the NLRA, including union
organizing, even if the employer does not allow comparable non-
business uses of the email system.\70\ An employer's email
system belongs first and foremost to the employer.
---------------------------------------------------------------------------
\70\361 NLRB 1050 (2014).
---------------------------------------------------------------------------
Prior to the Obama administration, the Board had held for
decades that employees did not have a right to use an
employer's equipment for union organizing efforts provided the
employer did not discriminate against NLRA-protected activities
while allowing other comparable non-business uses. The
invention of email did not change that basic principle.
Moreover, requiring that workers be allowed to use an
employer's email system for union organizing creates compliance
confusion for businesses that must grapple with competing
interests such as monitoring email for security intrusions and
for other legitimate purposes having nothing to do with the
NLRA while also avoiding surveillance that impedes workers'
Section 7 rights under the NLRA.\71\ Employees have several
other methods by which to communicate about unionization that
do not involve the employer-provided email system, including
social media, texting, and in-person conversation. Moreover,
H.R. 2474's mandate that unions receive reams of workers'
personal contact information makes the use of email even more
unnecessary. This provision of the ANS undermines employers'
rights and exposes them to additional compliance risks for
little benefit to the employees.
---------------------------------------------------------------------------
\71\See id. at 1068 (Miscimarra, Member, dissenting).
---------------------------------------------------------------------------
Finally, the ANS codifies the Obama NLRB's Specialty
Healthcare ``micro-union'' ruling that the Board must find that
the petitioned-for bargaining unit is appropriate if the union
demonstrates that the employees share a ``community of
interest,'' unless any excluded employees share an overwhelming
community of interest with the proposed unit.\72\ This new
provision allows unions to gerrymander bargaining units,
creating micro units, to increase their likelihood of success
when they are unable to convince a workplace of the benefits of
unionization. In December 2017, the Board overturned Specialty
Healthcare and returned to the traditional community-of-
interest standard.\73\ In September 2019, the NLRB clarified in
the Boeing decision that the ``overwhelming community of
interest'' standard used in this ANS is insufficient.\74\
Instead, the Board set forth a clear three-factor test for
determining an appropriate bargaining unit: (1) whether the
members of the petitioned-for unit share a community of
interest with each other; (2) whether those excluded from the
proposed unit have meaningfully distinct interests that
outweigh similarities with the unit; and (3) any bargaining
unit guidelines specific to the given industry.\75\ This clear,
concise, easy-to-understand standard makes sense for employers
and employees alike--but not for union bosses. The ``micro-
union'' provision in the ANS is another attempt by Committee
Democrats to rig the playing field to make it easier to
unionize workers and collect dues, even when the union lacks
majority support.
---------------------------------------------------------------------------
\72\357 NLRB 934 (2011), overruled by PCC Structurals, Inc., 365
NLRB No. 160 (2017).
\73\See PCC Structurals, Inc., 365 NLRB No. 160 (2017).
\74\368 NLRB No. 67 (2019).
\75\Id. slip. op. at 3.
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H.R. 2474 as originally introduced is a disturbing
intrusion on employee and employer rights. The last-minute
changes added by the ANS worsen the bill, further eroding
rights in the workplace and empowering unions to more easily
coerce workers into unionization.
Additional Democrat Amendments
At the Committee markup of H.R. 2474, Democrats offered and
passed four amendments, all of which undermine employee and
employer rights in order to rig the system even further in
favor of unions. The first, offered Rep. Frederica Wilson (D-
FL), makes it an unfair labor practice for an employer to
misclassify an employee as an independent contractor. In August
2019, the NLRB ruled in Velox Express, Inc., that
misclassification does not on its own constitute a violation of
the NLRA because it does not infringe on employees' exercise of
their Section 7 rights.\76\ The Fair Labor Standards Act
already imposes large penalties on employers for violations
that arise when an employer misclassifies workers,\77\ and the
Internal Revenue Service may hold employers liable for the
employment taxes owed,\78\ making this amendment's additional
layer of red tape redundant and unnecessary. However, Committee
Democrats seek to make it as risky and difficult as possible to
classify workers as independent contractors in order to subject
more workers to unionization. This amendment, supported by
every Committee Democrat present, reverses Velox Express,
adding to H.R. 2474's expansion of potential employer unfair
labor practices while rewarding coercive labor union tactics by
repealing the ban on secondary boycotts and permitting
disruptive intermittent strikes.
---------------------------------------------------------------------------
\76\368 NLRB No. 61 (2019).
\77\29 U.S.C. Sec. 216(b) (employer who violates the Act liable for
back wages and liquidated damages in equal amount).
\78\See 26 U.S.C. Sec. 3509 (employer liability for certain
employment taxes).
---------------------------------------------------------------------------
The second Democrat amendment, offered by Rep. Andy Levin
(D-MI), allows union elections to be conducted electronically,
through certified mail, or at a location other than one owned
by the employer. Currently, the details of a union election
such as time and place are agreed upon by the union and the
employer or else determined by an NLRB Regional Director.\79\
Elections are administered and overseen by NLRB officials who
ensure election integrity and prevent wrongdoing and the Board
has explained in detail the process by which employees are able
to vote in secret by secure paper ballot.\80\ Moreover, the
Board currently lacks the technology to conduct electronic
voting.\81\ The risk of hacking, fraud, and abuse is one of the
primary reasons that states do not allow electronic voting for
elected office and the risk is the same for union elections--
perhaps greater when union bosses, who do not have a
confidence-inspiring track record when it comes to crime,
fraud, and corruption, have so much to gain. This amendment,
supported by every Committee Democrat present, introduces yet
another opportunity for union fraud and abuse and for
organizers to harass workers.
---------------------------------------------------------------------------
\79\NLRB, Basic Guide to the National Labor Relations Act,
Collective Bargaining and Representation of Employees, The
Representation Election (1997).
\80\NLRB, Description of Election and Post-Election Representation
Case Procedures (Form NLRB-5547) (2015).
\81\See, e.g., Secure Electronic Voting Service, RFI-NLRB-01
(request for information June 9, 2010) (NLRB seeking industry solutions
regarding the capacity, availability, methodology, and interest of
industry sources for procuring and implementing secure electronic
voting services).
---------------------------------------------------------------------------
The third amendment, offered by Rep. Josh Harder (D-CA),
expands H.R. 2474's monetary civil penalties for employer
unfair labor practices to include unfair labor practices that
do not cause direct economic harm. Representing another attack
on business owners, this amendment distorts labor law even
further from the careful balance that has been struck for more
than 70 years, in which wrongdoing is remedied rather than
punished. In combination with Rep. Wilson's amendment making it
an unfair labor practice for an employer to misclassify an
employee, this amendment allows the NLRB to impose a fine of as
much as $100,000 on a business and business owner alike for
accidentally misinterpreting the vague, confusing ``ABC'' test
to determine who qualifies as an ``employee'' under the NLRA.
Such a significant fine on many small businesses and small
business owners is easily enough to bankrupt them. In an
attempt to punish employers and empower union bosses to
organize more workers, this amendment, supported by every
Committee Democrat present, could kill countless small
businesses and many thousands of jobs.
Finally, the fourth Democrat amendment, offered by Rep.
Lori Trahan (D-MA), prohibits employers from engaging in an
``offensive'' lockout, which is a lockout the employer
initiates prior to the beginning of a strike. Offensive
lockouts are an important and allowable tool for a company, so
it is not at the mercy of the union's decision to strike. H.R.
2474 already repeals the longstanding ban on disruptive
intermittent strikes and damaging secondary boycotts,
subjecting nearly every business in America to union
harassment. Under this amendment, the government provides
exclusive powers to the union, rather than business owner, to
decide when to allow access to his or her own business. This
amendment makes it such that only a union can take action in
the event of a collective-bargaining impasse, representing
another indication that the Democrats' vision of the future of
work is a return to the 1930s when rampant, destructive strikes
made doing business nearly impossible for many Americans.
Notably, this amendment, allowing third-party unions to control
the fate of private businesses, was supported by every
Committee Democrat present.
These four additional amendments adopted by Committee
Democrats place more restrictions on the rights of employees
and employers alike in order to minimize barriers and
challenges to union power. They increase punishments on
employers and expose workers to further fraud and harassment
while advancing the ultimate goal of H.R. 2474 to increase the
coercive power of labor unions in order to unionize more
workers and collect millions more in union dues.
Republican Amendments
Recognizing the fundamental flaws of H.R. 2474, Committee
Republicans offered 31 amendments during the Committee markup
to protect worker and employer rights and improve union
transparency and accountability.
Rep. Rick Allen (R-GA) offered an amendment to protect
workers from being forced to join and pay a union as a
condition of employment, stripping the provision of H.R. 2474
that overturns state right-to-work laws. Right-to-work laws
ensure the basic freedom of speech and association guaranteed
by the First Amendment with 27 states having passed right-to-
work laws, including five since 2012, experiencing greater
economic growth than their forced-union counterparts.\82\ This
amendment in no way impacted the right to organize or bargain
collectively, yet every Committee Democrat present voted
against the simple proposition that no worker should be forced
to pay hundreds of dollars per year to a third-party political
organization as a condition of employment.
---------------------------------------------------------------------------
\82\National Inst. for Lab. Rel. Res., Right to Work States Benefit
From Faster Growth, Higher Real Purchasing Power--Winter 2019 Update
(Jan. 11, 2019).
---------------------------------------------------------------------------
Rep. Allen offered another amendment to protect workers'
rights by ensuring they would be able to revoke their union
authorization, leave the union, or end dues deduction at any
time. Currently, many collective bargaining agreements place
arbitrary restrictions on when and how employees are able to
opt out of belonging and paying dues to the union in their
workplace. This amendment in no way impacted the right to
organize or bargain collectively and the Supreme Court has
upheld the right of workers to refrain from joining a
union.\83\ Yet every Committee Democrat present voted against
giving workers the right to exercise this freedom free from
senseless union-imposed limitations.
---------------------------------------------------------------------------
\83\See, e.g., Comm. Workers of Am. v. Beck, 487 U.S. 735, 745
(1988) (``Taken as a whole, [NLRA] Sec. 8(a)(3) permits an employer and
a union to enter into an agreement requiring all employees to become
union members as a condition of continued employment, but the
``membership'' that may be so required has been ``whittled down to its
financial core.'') (citation omitted).
---------------------------------------------------------------------------
In order to ensure that workers are fully informed of their
rights within a union, Rep. Glenn Thompson (R-PA) offered an
amendment requiring that the notice of the NLRA rights required
to be posted in a workplace under H.R. 2474 contain information
about workers' right to refrain from union participation and to
decertify a union. Unions, intent on maintaining as many dues-
paying members as possible at any cost, seldom fully inform
workers of their right to opt out of, or decertify, a union
even though these are fundamental workers' rights protected
under the NLRA. Although this amendment in no way impacted the
right to organize or bargain collectively, every Committee
Democrat present voted against this commonsense proposal to
ensure that workers are made fully aware of their labor rights.
In order to protect democracy in the workplace, Rep. Phil
Roe (R-TN) offered an amendment replacing the provision of H.R.
2474 that allows card-check union certifications with one
requiring that unions win a majority of votes cast in a secret-
ballot election in order to be certified as the exclusive
bargaining representative. The right to a secret-ballot for
union certification in no way impacts the right to organize or
bargain collectively. Rather, it simply minimizes the
opportunity for union organizers to harass and intimidate.
Secret ballots are supported by the majority of union
households and Congressional Democrats have fought for secret
ballots for workers in Mexico. Nevertheless, every Committee
Democrat present voted against Rep. Roe's amendment to ensure
secret-ballots for American workers.
In another effort to promote workplace democracy, Rep. Roe
offered an amendment to trigger automatic secret-ballot union
recertification elections once a union-represented bargaining
unit turned over by at least 50 percent. Currently, once a
union is certified, it never stands for re-election unless
workers successfully petition for a decertification vote. As of
2015, 94 percent of workers represented by a union had never
voted for that union to represent them, the vast majority
having inherited a union that was voted on years before they
began working at the unionized business.\84\ This amendment in
no way impacted the right to organize or bargain collectively,
yet every Committee Democrat present voted against allowing
workers to vote on the union that claims to represent them.
---------------------------------------------------------------------------
\84\Sherk, supra note 3.
---------------------------------------------------------------------------
Rep. Roe's third amendment protected workers' right to vote
on important workplace decisions affecting their livelihoods by
requiring separate secret-ballot majority votes to ratify a
collective bargaining agreement or pension plan, or to
participate in a multiemployer pension plan. Union leaders
negotiate on behalf of a broad group of workers, but deals they
negotiate do not necessarily work best for each individual
worker. Workers should not be pressured, coerced, or misled
into accepting contract terms. This amendment in no way
impacted unions' right to organize or bargain collectively as
it merely ensured that workers are given the ability to express
their opinions of the terms negotiated for them. Every
Committee Democrat present voted against giving workers a
stronger voice in the workplace.
In order to discourage unions from using illegal foreign
labor to expand their reach into American workplaces, Rep. Jim
Banks (R-IN) offered an amendment requiring that any showing of
interest submitted by a union on behalf of a worker be
accompanied by proof that the worker is legally authorized to
be employed in the United States. Illegal aliens should not be
working at American companies and should not be able to decide
whether other, legal workers are forced to pay hundreds of
dollars a year from their paychecks to a labor union. This
amendment in no way impacted the right to organize or bargain
collectively yet every Committee Democrat present voted against
the proposal to verify the legal status of workers that unions
are attempting to organize.
Rep. Dusty Johnson (R-SD) offered an amendment to allow
employers to reward employees with performance-based raises,
bonuses, and other compensation that exceeds the terms of their
collective bargaining agreement. This amendment merely ensured
that a collective bargaining agreement serves as a floor rather
than a ceiling, allowing employees to be rewarded for excellent
work. Although the amendment would not have allowed employees
to bypass the collective bargaining process nor impacted the
right to organize or bargain collectively, every Committee
Democrat present voted against allowing workers to earn more
money than their union permits.
H.R. 2474 requires employers to give unions reams of
workers' personal information but shockingly contains no
restrictions on how unions can use that information nor any
protections from having that information fall into the wrong
hands. In an attempt to protect employee privacy, Rep. Dan
Meuser (R-PA) offered an amendment making it an unfair labor
practice for a union to fail to protect the personal
information of an employee turned over to the union during an
organizing drive, to use that information for any reason other
than a representation proceeding, or to use it after the
conclusion of the representation proceeding. This amendment in
no way impacted the right to organize or bargain collectively
as it merely ensures that unions have a legal incentive to
protect workers' private, personal information. Regardless,
every Committee Democrat present voted against this amendment
to protect employee privacy.
In order to protect small business employees from being
subjected to undeserved and disruptive union harassment, Rep.
William Timmons (R-SC) offered an amendment striking H.R.
2474's legalization of secondary boycotts and adding a
provision creating a private right of action for employees of
employers who face a secondary boycott, allowing them to sue
for actual damages and a civil penalty of $500 per day. H.R.
2474 allows unions to boycott and picket employers they are not
even seeking to organize, simply because that company does
business with an employer the union is seeking to organize
which radically expands the scope and economic pain of union
harassment to include employees who have nothing to do with the
union. This amendment merely helped employees at third-party
businesses to be free to work and earn a living without being
subjected to union harassment and in no way impacted the right
to organize or bargain collectively yet every Committee
Democrat present voted against this commonsense worker
protection amendment.
Rep. James Comer (R-KY) offered an amendment to protect
third-party employers and employees from union harassment by
striking the provision of H.R. 2474 that legalizes secondary
boycotts. Rep. Comer's amendment simply maintained the status
quo that has existed for more than 70 years, in which a union
cannot strike or boycott against a business it is not actively
negotiating with or attempting to organize. Although the
existing ban on secondary boycotts minimizes the economic and
reputational damage of union harassment on uninvolved third
parties and seeks to ensure labor peace, every Committee
Democrat present voted against this amendment.
In the interest of protecting employers' ability to serve
their customers, Rep. Fred Keller (R-PA) offered an amendment
striking the provision of H.R. 2474 that bans employers from
permanently replacing striking workers and that legalizes
intermittent strikes by unions. This amendment preserved
current law in which workers are allowed to engage in genuine
strikes so long as the strikes are not part of a plan or
pattern intended to maximize uncertainty and disruption.
Moreover, it maintains the status quo, upheld by the Supreme
Court 80 years ago, that employers are allowed to replace
striking workers permanently in order to keep their business
running.\85\ This amendment in no way impacted the right to
organize or bargain collectively yet every Committee Democrat
present voted against this amendment in order to allow unions
to inflict widespread economic pain and disruption.
---------------------------------------------------------------------------
\85\See NLRB v. Mackay Radio & Telegraph Co., 304 U.S. 333, 345
(1938).
---------------------------------------------------------------------------
Rep. Elise Stefanik (R-NY) offered an amendment to preserve
workers' ability to benefit from the flexibility of
independent-contractor status by striking the flawed and biased
ABC test from H.R. 2474. Although millions of American workers
prefer independent-contractor status because of the
entrepreneurialism, choice, and scheduling flexibility that it
allows, the ABC test dramatically expands the definition of
``employee,'' significantly narrowing independent-contractor
status. Independent-contractor status allows small businesses
to subcontract specialized tasks and has created unique
innovations such as the sharing economy, but in an effort to
minimize independent-contractor status and subject more workers
to unionization, every Committee Democrat present voted against
this amendment.
Rep. Steve Watkins (R-KS) offered an amendment to protect
workers from being forced into risky and unreliable
multiemployer pension plans against their will by prohibiting
mandatory arbitration agreements that include multiemployer
pension participation. Multiemployer pension plans are woefully
underfunded by $638 billion, placing workers at risk of relying
on retirement funds that may not be available when workers need
them. H.R. 2474 allows an unelected panel of arbitrators to
determine a binding two-year contract for workers, which may
include participation in a multiemployer pension plan, without
those workers ever voting to approve or reject the terms of the
contract. Third-party arbitrators should not be able to force
workers into retirement plans that may not be there for them
when they retire. Regardless, every Committee Democrat present
voted against this amendment to protect workers from being
forced into underfunded and unreliable multiemployer pension
plans.
Rep. Tim Walberg (R-MI), Ranking Member of the Subcommittee
on Health, Employment, Labor, and Pensions, offered several
amendments to protect workers' rights. His first amendment
struck the ambush election provision of H.R. 2474 that
significantly narrows the time between a union filing an
election petition and that election being held. Ambush
elections deprive employers from having sufficient opportunity
to communicate their perspective to employees about potential
risks of unionization, leaving employees underinformed before
making such a critical decision. Rep. Walberg's amendment
ensured at least 14 days between the filing of an election
petition and the pre-election hearing taking place, ensuring
ample time for employees to hear both sides before voting on
unionization. This amendment in no way impacted workers' right
to organize or bargain collectively, and it is in their best
interest to be fully informed about the costs and benefits of
unionization, yet every Committee Democrat present voted
against this amendment.
Rep. Walberg's second amendment ensured that workers are
fully informed before signing a union authorization card by
requiring that the card be accompanied by a written notice
specifying that it will be used to certify the union as the
employee's exclusive representative; clarifying the employee's
right to opt out of union membership and to refrain from paying
for non-bargaining expenses; and detailing total monthly dues
and fees charged by the union. This amendment in no way
amendment in no way impacted unions' right to organize or
bargain collectively, however every Committee Democrat present
voted against this amendment, opposing the effort to ensure
workers are fully informed before deciding whether or not to
sign an authorization card.
Rep. Walberg's third amendment encouraged businesses to
combat human trafficking in the supply chain by ensuring that
actions taken to do so will not be considered evidence of a
joint-employer relationship. Companies often impose
restrictions, requirements, and protective steps on their
supply chains to combat human trafficking but under H.R. 2474,
these actions or agreements could trigger joint employment,
subjecting these businesses to additional union harassment,
litigation risk, and threatening the future of these worthwhile
initiatives. This amendment merely ensured that combatting
human trafficking will not subject businesses to additional
liability and union harassment and although it did not impact
workers' right to organize or bargain collectively, every
Committee Democrat present voted against it.
Rep. Bradley Byrne (R-AL) also offered two amendments to
protect businesses from facing legal liability and union
harassment for employees they do not directly control. Rep.
Byrne's first amendment struck H.R. 2474's ``indirect control''
joint-employer standard and replaced it with a requirement that
businesses exercise ``direct'' and ``immediate'' control over
the essential terms and conditions of employment in order to be
considered joint employers. This clear, commonsense standard
provides immediate certainty for employers and employees alike,
rather than H.R. 2474's broad, vague standard that relies on
after-the-fact assessments of business decision-making. Rep.
Byrne's amendment would reduce frivolous, unnecessary
litigation and union harassment while ensuring that employees
can more fairly organize and bargain collectively with the
employer that actually controls their terms and conditions of
employment, but every Committee Democrat present voted against
it.
Rep. Byrne's second amendment encouraged businesses to
pursue corporate social responsibility (CSR) initiatives by
ensuring that these initiatives, including those that impose
requirements on third parties such as those found in supply
chains, are not used as evidence of a joint-employer
relationship. As part of CSR initiatives, corporations
encourage business partners to enact beneficial policies such
as higher wages and stronger benefits for their own employees.
Under H.R. 2474's definition of joint employment, corporations
could be considered employers of their business partner's
employees simply because of their CSR initiatives, discouraging
or preventing them from implementing these guidelines that
often benefit workers. Even though Rep. Byrne's amendment would
benefit workers by ensuring that businesses are not subject to
union harassment and litigation because of CSR initiatives,
every Committee Democrat present voted against it.
Rep. Lloyd Smucker (R-PA) offered several amendments to
ensure fairness under the law and to protect worker's rights.
His first amendment equally applied H.R. 2474's civil penalties
and punitive damage assessments for employer unfair labor
practices to union unfair labor practices. H.R. 2474 departs
from the longstanding intent of the NLRA by punishing rather
than remedying wrongdoing and if Congress is to endorse this
radical change, then it should do so equally, regardless of
whether the labor law violation is committed by an employer or
a labor organization. Although this amendment merely ensured
equality under the law and without impacting the right of
employees to organize or bargain collectively, every Committee
Democrat present voted against this amendment.
Rep. Smucker's second amendment protected workers by making
it an unfair labor practice for a union to take any action that
seeks to keep a union member from working or that punishes a
union member for working during a labor dispute. Currently,
unions can fine or punish union members who choose to earn a
living for their families rather than participate in a union
strike. Union members, just like non-members, should be free to
earn a living rather than forced to picket against their will.
This amendment would have merely protected workers from being
punished for choosing to work without impacting workers' right
to organize or bargain collectively, yet every Committee
Democrat present voted against this amendment.
Rep. Smucker's third amendment protected workers from being
forced to fund political speech against their will by requiring
unions to receive express consent before using a worker's union
dues for purposes other than collective bargaining. Rather than
being forced to endure a lengthy and confusing process to keep
from funding speech with which they disagree, in 2018, the
Supreme Court upheld this fundamental protection for public
employees and private sector workers deserve the same
right.\86\ While this amendment would in no way diminish
unions' freedom to engage in the political process or spend
dues to fund causes and candidates they support, nor would it
impact the right to organize or bargain collectively, every
Committee Democrat present voted against allowing workers to
control how their own hard-earned union dues are spent.
---------------------------------------------------------------------------
\86\See Janus v. Am. Fed'n of State, County, & Mun. Emp., Council
31, 138 S. Ct. 2448 (2018).
---------------------------------------------------------------------------
In another attempt to preserve equal protection under the
law, Rep. Brett Guthrie (R-KY) offered an amendment striking
the provision in H.R. 2474 that eliminates employers' standing
before the NLRB regarding questions of union representation.
Currently, both the union and the employer present their case
before the Board regarding questions pertaining to union
organizing, but H.R. 2474 provides that only the union is able
to make its case before the Board on questions such as the
makeup of the bargaining unit, which workers are supervisors
rather than employees subject to union organizing, and more.
This one-sided provision undermines an employer's right to
petition the government and deprives the Board of an important
source of information. As it merely ensured that employers are
able to make their case to the federal government throughout
that process, Rep. Guthrie's amendment would in no way impact
the right to organize and bargain collectively, but rather than
uphold equal protection under the law, every Committee Democrat
present voted against this amendment.
Rep. Mark Walker (R-NC) offered an amendment stripping the
Obama DOL's Persuader Rule from H.R. 2474, to help protect
employers' freedom of speech and ensure that employers and
attorneys are not forced to disclose to the federal government
arrangements that do not involve any direct communication to
the employees. These arrangements are subject to the attorney-
client privilege, which is why the American Bar Association
opposed the Obama Persuader Rule. Regrettably this commonsense
amendment to defend employers' freedom of speech and the
attorney-client privilege was voted down by every Committee
Democrat present.
Rep. Russ Fulcher (R-ID) offered an amendment with two
provisions to protect workers' voting rights. The first sought
to codify a ``vote-and-impound'' procedure for union
decertification elections when the union has levied an unfair
labor practice charge against the employer for interference, so
that the election is not delayed or prevented by frivolous
charges. Under vote-and-impound, the votes are cast and
impounded while the charge is resolved. If the charge is
upheld, the Board conducts a revote, but if the charges are
dismissed, the votes are counted, and the results stand. The
second provision in the Fulcher amendment allowed workers a 45-
day window to petition for an election in the event of an
employer's voluntary recognition of a union. Currently, upon
voluntary recognition, a union can be certified as the
employees' exclusive bargaining representative without ever
winning a secret ballot election. This amendment would in no
way diminish the right to organize or bargain collectively as
it merely ensured that workers are able to vote on the union
seeking to represent them. Rather than uphold fundamental
workplace democracy, every Committee Democrat present voted
against this amendment.
Rep. Virginia Foxx (R-NC), Ranking Member of the Committee,
offered five amendments to protect the rights of employees and
a sixth amendment to rename the bill with a more accurate
title. Rep. Foxx's first amendment revoked the exclusive
bargaining status of a union that engaged in or encouraged acts
of violence. The amendment also prevented the NLRB from
reinstating employees who are fired for engaging in violence.
Currently, because of a loophole in the Hobbs Act, unions can
commit acts of violence without federal criminal repercussion
so long as those acts are in pursuit of ``legitimate'' labor
ends.\87\ Rep. Foxx's amendment ensured that unions are
punished for acts of violence regardless of their end goals and
that employers, employees, and customers are not forced to
employ, work, or do business with former employees who may pose
a continuing threat of violence in the workplace. Rather than
supporting an important effort to combat workplace violence,
every Committee Democrat present voted against this amendment.
---------------------------------------------------------------------------
\87\United States v. Enmons, 410 U.S. 396 (1973).
---------------------------------------------------------------------------
H.R. 2474 requires a massive invasion of employee privacy,
potentially exposes the information to hackers and unauthorized
third parties, and subjects employees to harassment and
intimidation from union organizers coming and going from work,
at home, and in public. Rep. Foxx's second amendment protected
employee privacy by striking the provision of H.R. 2474
requiring employers to turn over reams of employees' personal
information to union organizers, in searchable electronic
format, without employees having any say in the matter instead
specifying that employees can select the one form of contact
information they wish to share with a union. While it in no way
impacted the right to organize and bargain collectively, every
Committee Democrat present voted against this amendment to
protect worker privacy.
Rep. Foxx's third amendment protected union members'
private health insurance plans from a government takeover of
health care, as House Democrats have proposed in H.R. 1384, the
Medicare for All Act of 2019. This Medicare-for-All bill, which
a majority of House Democrats have cosponsored, forces every
American into a government-run health insurance plan, thereby
eliminating generous union-negotiated private health plans
which is why Rep. Foxx's amendment codified health insurance as
a mandatory subject of collective bargaining notwithstanding
any other legislation, protecting private union health plans
from Medicare-for-All. Rather than protect unions' right to
negotiate private health insurance plans for its members, all
Committee Democrats present expressed their support for
Medicare-for-All by voting to reject this amendment and
allowing union workers to be forced into a government-run
health plan.
Rep. Foxx's fourth amendment sought to protect workers'
right to decide their own employment contract by striking the
section of H.R. 2474 stating that in the event of a first-
contract bargaining impasse, following mediation, a panel of
arbitrators determines a binding two-year collective bargaining
agreement. In so doing, H.R. 2474 empowers a third-party panel
with determining a collective bargaining agreement with
substantial implications for workers' livelihoods without
workers ever having the opportunity to vote to accept or reject
the terms. Depriving employers and employees alike the
opportunity to determine the terms of their first contract
short circuits the bargaining process, undermines freedom of
contract and risks subjecting employers to costs they cannot
afford and employees to undesirable employment terms. Although
Rep. Foxx's amendment ensured that employers and employees
alike can determine the terms of a collective bargaining
agreement for themselves, every Committee Democrat present
voted against this amendment rather than allow workers to keep
control of their own wages and benefits.
Rep. Foxx's fifth amendment allowed workers to hold their
unions accountable by providing greater financial transparency
in union spending by codifying union reporting requirements
under the LMRDA that were rescinded by the Obama administration
and allowing workers to see with greater detail how their union
dues are being spent to more easily uncover potential conflicts
of interest within union leadership. These transparency
measures would reduce the risk of union corruption and help
ensure that unions are meeting the needs of their members.
Instead of giving workers more information about how their
hard-earned dues are spent, every Committee Democrat present
voted to protect union leaders from accountability by voting
against this amendment.
Finally, Rep. Foxx's sixth amendment renamed H.R. 2474 the
``Socialist Solutions for Labor Unions Act,'' to more
accurately reflect the true purpose and consequence of the
bill. By voice vote, Committee Democrats rejected this
amendment to more accurately title the bill.
Conclusion
H.R. 2474 attempts the most radical rewrite of federal
labor law in more than 80 years. This misguided, disturbing,
and reckless legislation disrupts decades of precedent that has
promoted labor peace by striking a reasonable and appropriate
legal balance between labor and management. At the expense of
worker rights and economic freedom, H.R. 2474 is structured to
bail out the failing labor union business model that is being
widely rejected by American workers in the modern economy. If
labor unions would adapt to the needs of a 21st century
workforce and dedicate more attention and resources to
organizing and representing workers, then they would not need
to demand that their political allies in Congress enact
socialist solutions like H.R. 2474. Rather than adjust their
model and improve transparency and accountability to better
serve workers, union leaders are seeking to enact radical
legislation that returns America to the chaotic and adversarial
labor regime of the 1930s. H.R. 2474 is a win for union leaders
but a loss for workers, employers, and America's economy and
global competitiveness.
Under H.R. 2474, millions of workers who do not wish to be
classified as traditional employees, let alone represented by a
union, lose freedom and flexibility and are subject to union
organizing. Their private, personal information would be shared
with a union against their will and potentially exposed to
hackers and other third parties, while being subjected to
harassment and intimidation . A union would not be subject to
accountability for misusing workers' private, personal
information or allowing it to fall into the wrong hands. In
addition, a union could be certified as the workers' exclusive
representative, banning workers from representing themselves at
work, without ever voting for that union or the union ever
winning a fair secret ballot election. If an election were to
be held, then it could happen in as few as 11 days, without
employers ever given an equal opportunity to communicate their
perspective to the workers or to the NLRB, and ballots could be
cast electronically or by mail, subject to fraud or tampering.
Virtually any contact that the employer has with an attorney
about the organizing effort would be disclosed to the federal
government.
Once a union is certified, workers would be forced to pay
hundreds of dollars per year in union dues, even if they do not
want or need union representation, and the union could use
those dues to support political causes and candidates the
workers oppose, such as Medicare-for-All that would eliminate
private health insurance for workers and their families. The
union would bargain on workers' behalf, but in the event of an
impasse, a third-party panel would impose a binding contract on
the workers and the employer without allowing either party any
say in the matter. Throughout that bargaining process, the
union could harass, boycott, and picket countless other
businesses in the workers' community and beyond. In the event
of an unintentional or minor violation of complicated federal
labor law, the employer and the business owner could both be
hit with fines as high as $100,000, and these legal missteps
are made more likely because employers would be forced to
disclose private arrangements with attorneys to the federal
government. Coupled with damage assessments and an arbitration-
imposed contract, such an unprecedented penalty would be enough
to completely shut down many small businesses, ultimately
depriving countless employees of their jobs. This is the
reality of H.R. 2474, with every Committee Democrat voting at
the markup supporting the legislation.
H.R. 2474 is not a win for workers, employers or the modern
American economy. It only benefits union bosses, trial lawyers,
and American competitors like China who will benefit from the
many ways this bill makes it much harder to invest in a strong
American workforce. H.R. 2474 is a backwards-looking wish-list
of proposals aimed at leveraging the power of the federal
government to foist labor unions on workers and employers
throughout the country. The bill does nothing to meet the needs
of workers, employers, or the 21st century economy and for
these reasons, and those set forth above, we strongly oppose
the enactment of H.R. 2474 as reported by the Committee on
Education and Labor.
Virginia Foxx, Ranking Member.
David P. Roe, M.D.
Glenn ``GT'' Thompson.
Tim Walberg.
Brett Guthrie.
Bradley Byrne.
Glenn Grothman.
Rick W. Allen.
Lloyd Smucker.
Jim Banks.
Mark Walker.
James Comer.
Russ Fulcher.
Van Taylor.
Steve C. Watkins, Jr.
Ron Wright.
Daniel Meuser.
Dusty Johnson.
Fred Keller
Gregory F. Murphy.
[all]
