Protecting the Right to Organize Act of 2021

IIB 117TH CONGRESS 1ST SESSION H. R. 842 IN THE SENATE OF THE UNITED STATES MARCH 11, 2021 Received; read twice and referred to the Committee on Health, Education, Labor, and Pensions AN ACT To amend the National Labor Relations Act, the Labor Management Relations Act, 1947, and the Labor-Man- agement Reporting and Disclosure Act of 1959, and for other purposes. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 VerDate Sep 11 2014 21:15 Mar 11, 2021 Jkt 019200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\H842.RFS H842 pamtmann on DSKBC07HB2PROD with BILLS 2 HR 842 RFS SECTION 1. SHORT TITLE; TABLE OF CONTENTS. 1 (a) SHORT TITLE.—This Act may be cited as the 2 ‘‘Protecting the Right to Organize Act of 2021’’. 3 (b) TABLE OF CONTENTS.—The table of contents for 4 this Act is as follows: 5 Sec. 1. Short title; table of contents. TITLE I—AMENDMENTS TO THE NATIONAL LABOR RELATIONS ACT Sec. 101. Definitions. Sec. 102. Reports. Sec. 103. Appointment. Sec. 104. Unfair labor practices. Sec. 105. Representatives and elections. Sec. 106. Damages for unfair labor practices. Sec. 107. Enforcing compliance with orders of the board. Sec. 108. Injunctions against unfair labor practices involving discharge or other serious economic harm. Sec. 109. Penalties. Sec. 110. Limitations on the right to strike. Sec. 111. Fair share agreements permitted. TITLE II—AMENDMENTS TO THE LABOR MANAGEMENT RELA- TIONS ACT, 1947 AND THE LABOR-MANAGEMENT REPORTING AND DISCLOSURE ACT OF 1959 Sec. 201. Conforming amendments to the Labor Management Relations Act, 1947. Sec. 202. Amendments to the Labor-Management Reporting and Disclosure Act of 1959. TITLE III—OTHER MATTERS Sec. 301. Electronic voting in Union elections. Sec. 302. GAO report on sectoral bargaining. Sec. 303. Severability. Sec. 304. Authorization of appropriations. Sec. 305. Rule of Construction. Sec. 306. Rule of Construction. Sec. 307. Rule of Construction. Sec. 308. Rule of Construction. Sec. 309. GAO Report. VerDate Sep 11 2014 21:15 Mar 11, 2021 Jkt 019200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6211 E:\BILLS\H842.RFS H842 pamtmann on DSKBC07HB2PROD with BILLS 3 HR 842 RFS TITLE I—AMENDMENTS TO THE 1 NATIONAL LABOR RELATIONS 2 ACT 3 SEC. 101. DEFINITIONS. 4 (a) JOINT EMPLOYER.—Section 2(2) of the National 5 Labor Relations Act (29 U.S.C. 152(2)) is amended by 6 adding at the end the following: ‘‘Two or more persons 7 shall be employers with respect to an employee if each 8 such person codetermines or shares control over the em- 9 ployee’s essential terms and conditions of employment. In 10 determining whether such control exists, the Board or a 11 court of competent jurisdiction shall consider as relevant 12 direct control and indirect control over such terms and 13 conditions, reserved authority to control such terms and 14 conditions, and control over such terms and conditions ex- 15 ercised by a person in fact: Provided, That nothing herein 16 precludes a finding that indirect or reserved control stand- 17 ing alone can be sufficient given specific facts and cir- 18 cumstances.’’. 19 (b) EMPLOYEE.—Section 2(3) of the National Labor 20 Relations Act (29 U.S.C. 152(3)) is amended by adding 21 at the end the following: ‘‘An individual performing any 22 service shall be considered an employee (except as pro- 23 vided in the previous sentence) and not an independent 24 contractor, unless— 25 VerDate Sep 11 2014 21:15 Mar 11, 2021 Jkt 019200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H842.RFS H842 pamtmann on DSKBC07HB2PROD with BILLS 4 HR 842 RFS ‘‘(A) the individual is free from control and 1 direction in connection with the performance of 2 the service, both under the contract for the per- 3 formance of service and in fact; 4 ‘‘(B) the service is performed outside the 5 usual course of the business of the employer; 6 and 7 ‘‘(C) the individual is customarily engaged 8 in an independently established trade, occupa- 9 tion, profession, or business of the same nature 10 as that involved in the service performed.’’. 11 (c) SUPERVISOR.—Section 2(11) of the National 12 Labor Relations Act (29 U.S.C. 152(11)) is amended— 13 (1) by inserting ‘‘and for a majority of the indi- 14 vidual’s worktime’’ after ‘‘interest of the employer’’; 15 (2) by striking ‘‘assign,’’; and 16 (3) by striking ‘‘or responsibly to direct them,’’. 17 SEC. 102. REPORTS. 18 Section 3(c) of the National Labor Relations Act is 19 amended— 20 (1) by striking ‘‘The Board’’ and inserting ‘‘(1) 21 The Board’’; and 22 (2) by adding at the end the following: 23 ‘‘(2) Effective January 1, 2023, section 3003 of the 24 Federal Reports Elimination and Sunset Act of 1995 25 VerDate Sep 11 2014 21:15 Mar 11, 2021 Jkt 019200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H842.RFS H842 pamtmann on DSKBC07HB2PROD with BILLS 5 HR 842 RFS (Public Law 166–44; 31 U.S.C. 1113 note) shall not apply 1 with respect to reports required under this subsection. 2 ‘‘(3) Each report issued under this subsection shall— 3 ‘‘(A) include no less detail than reports issued by the 4 Board prior to the termination of such reports under sec- 5 tion 3003 of the Federal Reports Elimination and Sunset 6 Act of 1995 (Public Law 166–44; 31 U.S.C. 1113 note); 7 ‘‘(B) list each case in which the Designated Agency 8 Ethics Official provided advice regarding whether a Mem- 9 ber should be recused from participating in a case or rule- 10 making; and 11 ‘‘(C) list each case in which the Designated Agency 12 Ethics Official determined that a Member should be 13 recused from participating in a case or rulemaking.’’. 14 SEC. 103. APPOINTMENT. 15 Section 4(a) of the National Labor Relations Act (29 16 U.S.C. 154(a)) is amended by striking ‘‘, or for economic 17 analysis’’. 18 SEC. 104. UNFAIR LABOR PRACTICES. 19 Section 8 of the National Labor Relations Act (29 20 U.S.C. 158) is amended— 21 (1) in subsection (a)— 22 (A) in paragraph (5), by striking the pe- 23 riod and inserting ‘‘;’’; and 24 (B) by adding at the end the following: 25 VerDate Sep 11 2014 21:15 Mar 11, 2021 Jkt 019200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H842.RFS H842 pamtmann on DSKBC07HB2PROD with BILLS 6 HR 842 RFS ‘‘(6) to promise, threaten, or take any action— 1 ‘‘(A) to permanently replace an employee 2 who participates in a strike as defined by sec- 3 tion 501(2) of the Labor Management Rela- 4 tions Act, 1947 (29 U.S.C. 142(2)); 5 ‘‘(B) to discriminate against an employee 6 who is working or has unconditionally offered to 7 return to work for the employer because the 8 employee supported or participated in such a 9 strike; or 10 ‘‘(C) to lockout, suspend, or otherwise 11 withold employment from employees in order to 12 influence the position of such employees or the 13 representative of such employees in collective 14 bargaining prior to a strike; and 15 ‘‘(7) to communicate or misrepresent to an em- 16 ployee under section 2(3) that such employee is ex- 17 cluded from the definition of employee under section 18 2(3).’’; 19 (2) in subsection (b)— 20 (A) by striking paragraphs (4) and (7); 21 (B) by redesignating paragraphs (5) and 22 (6) as paragraphs (4) and (5), respectively; 23 VerDate Sep 11 2014 21:15 Mar 11, 2021 Jkt 019200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H842.RFS H842 pamtmann on DSKBC07HB2PROD with BILLS 7 HR 842 RFS (C) in paragraph (4), as so redesignated, 1 by striking ‘‘affected;’’ and inserting ‘‘affected; 2 and’’; and 3 (D) in paragraph (5), as so redesignated, 4 by striking ‘‘; and’’ and inserting a period; 5 (3) in subsection (c), by striking the period at 6 the end and inserting the following: ‘‘: Provided, 7 That it shall be an unfair labor practice under sub- 8 section (a)(1) for any employer to require or coerce 9 an employee to attend or participate in such employ- 10 er’s campaign activities unrelated to the employee’s 11 job duties, including activities that are subject to the 12 requirements under section 203(b) of the Labor- 13 Management Reporting and Disclosure Act of 1959 14 (29 U.S.C. 433(b)).’’; 15 (4) in subsection (d)— 16 (A) by redesignating paragraphs (1) 17 through (4) as subparagraphs (A) through (D), 18 respectively; 19 (B) by striking ‘‘For the purposes of this 20 section’’ and inserting ‘‘(1) For purposes of this 21 section’’; 22 (C) by inserting ‘‘and to maintain current 23 wages, hours, and terms and conditions of em- 24 VerDate Sep 11 2014 21:15 Mar 11, 2021 Jkt 019200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\H842.RFS H842 pamtmann on DSKBC07HB2PROD with BILLS 8 HR 842 RFS ployment pending an agreement’’ after ‘‘arising 1 thereunder’’; 2 (D) by inserting ‘‘: Provided, That an em- 3 ployer’s duty to collectively bargain shall con- 4 tinue absent decertification of the labor organi- 5 zation following an election conducted pursuant 6 to section 9’’ after ‘‘making of a concession:’’; 7 (E) by inserting ‘‘further’’ before ‘‘, That 8 where there is in effect’’; 9 (F) by striking ‘‘The duties imposed’’ and 10 inserting ‘‘(2) The duties imposed’’; 11 (G) by striking ‘‘by paragraphs (2), (3), 12 and (4)’’ and inserting ‘‘by subparagraphs (B), 13 (C), and (D) of paragraph (1)’’; 14 (H) by striking ‘‘section 8(d)(1)’’ and in- 15 serting ‘‘paragraph (1)(A)’’; 16 (I) by striking ‘‘section 8(d)(3)’’ and in- 17 serting ‘‘paragraph (1)(C)’’ in each place it ap- 18 pears; 19 (J) by striking ‘‘section 8(d)(4)’’ and in- 20 serting ‘‘paragraph (1)(D)’’; and 21 (K) by adding at the end the following: 22 ‘‘(3) Whenever collective bargaining is for the pur- 23 pose of establishing an initial collective bargaining agree- 24 VerDate Sep 11 2014 21:15 Mar 11, 2021 Jkt 019200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\H842.RFS H842 pamtmann on DSKBC07HB2PROD with BILLS 9 HR 842 RFS ment following certification or recognition of a labor orga- 1 nization, the following shall apply: 2 ‘‘(A) Not later than 10 days after receiving a 3 written request for collective bargaining from an in- 4 dividual or labor organization that has been newly 5 recognized or certified as a representative as defined 6 in section 9(a), or within such further period as the 7 parties agree upon, the parties shall meet and com- 8 mence to bargain collectively and shall make every 9 reasonable effort to conclude and sign a collective 10 bargaining agreement. 11 ‘‘(B) If after the expiration of the 90-day pe- 12 riod beginning on the date on which bargaining is 13 commenced, or such additional period as the parties 14 may agree upon, the parties have failed to reach an 15 agreement, either party may notify the Federal Me- 16 diation and Conciliation Service of the existence of 17 a dispute and request mediation. Whenever such a 18 request is received, it shall be the duty of the Service 19 promptly to put itself in communication with the 20 parties and to use its best efforts, by mediation and 21 conciliation, to bring them to agreement. 22 ‘‘(C) If after the expiration of the 30-day period 23 beginning on the date on which the request for me- 24 diation is made under subparagraph (B), or such ad- 25 VerDate Sep 11 2014 21:15 Mar 11, 2021 Jkt 019200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\H842.RFS H842 pamtmann on DSKBC07HB2PROD with BILLS 10 HR 842 RFS ditional period as the parties may agree upon, the 1 Service is not able to bring the parties to agreement 2 by conciliation, the Service shall refer the dispute to 3 a tripartite arbitration panel established in accord- 4 ance with such regulations as may be prescribed by 5 the Service, with one member selected by the labor 6 organization, one member selected by the employer, 7 and one neutral member mutually agreed to by the 8 parties. The labor organization and employer must 9 each select the members of the tripartite arbitration 10 panel within 14 days of the Service’s referral; if the 11 labor organization or employer fail to do so, the 12 Service shall designate any members not selected by 13 the labor organization or the employer. A majority 14 of the tripartite arbitration panel shall render a deci- 15 sion settling the dispute as soon as practicable and 16 not later than within 120 days, absent extraordinary 17 circumstances or by agreement or permission of the 18 parties, and such decision shall be binding upon the 19 parties for a period of 2 years, unless amended dur- 20 ing such period by written consent of the parties. 21 Such decision shall be based on— 22 ‘‘(i) the employer’s financial status and 23 prospects; 24 VerDate Sep 11 2014 21:15 Mar 11, 2021 Jkt 019200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\H842.RFS H842 pamtmann on DSKBC07HB2PROD with BILLS 11 HR 842 RFS ‘‘(ii) the size and type of the employer’s 1 operations and business; 2 ‘‘(iii) the employees’ cost of living; 3 ‘‘(iv) the employees’ ability to sustain 4 themselves, their families, and their dependents 5 on the wages and benefits they earn from the 6 employer; and 7 ‘‘(v) the wages and benefits other employ- 8 ers in the same business provide their employ- 9 ees.’’; 10 (5) by amending subsection (e) to read as fol- 11 lows: 12 ‘‘(e) Notwithstanding chapter 1 of title 9, United 13 States Code (commonly known as the ‘Federal Arbitration 14 Act’), or any other provision of law, it shall be an unfair 15 labor practice under subsection (a)(1) for any employer— 16 ‘‘(1) to enter into or attempt to enforce any 17 agreement, express or implied, whereby prior to a 18 dispute to which the agreement applies, an employee 19 undertakes or promises not to pursue, bring, join, 20 litigate, or support any kind of joint, class, or collec- 21 tive claim arising from or relating to the employ- 22 ment of such employee in any forum that, but for 23 such agreement, is of competent jurisdiction; 24 VerDate Sep 11 2014 21:15 Mar 11, 2021 Jkt 019200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\H842.RFS H842 pamtmann on DSKBC07HB2PROD with BILLS 12 HR 842 RFS ‘‘(2) to coerce an employee into undertaking or 1 promising not to pursue, bring, join, litigate, or sup- 2 port any kind of joint, class, or collective claim aris- 3 ing from or relating to the employment of such em- 4 ployee; or 5 ‘‘(3) to retaliate or threaten to retaliate against 6 an employee for refusing to undertake or promise 7 not to pursue, bring, join, litigate, or support any 8 kind of joint, class, or collective claim arising from 9 or relating to the employment of such employee: 10 Provided, That any agreement that violates this sub- 11 section or results from a violation of this subsection 12 shall be to such extent unenforceable and void: Pro- 13 vided further, That this subsection shall not apply to 14 any agreement embodied in or expressly permitted 15 by a cont [Text truncated for display. 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