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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).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    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'').
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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).
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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).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------

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\
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------

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\
---------------------------------------------------------------------------
    \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.
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    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.
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 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\
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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\
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------

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\
---------------------------------------------------------------------------
    \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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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/.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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:
---------------------------------------------------------------------------
    \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\
---------------------------------------------------------------------------
    \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\
---------------------------------------------------------------------------
    \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\
---------------------------------------------------------------------------
    \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\
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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\
---------------------------------------------------------------------------
    \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\
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    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]