Protecting the Right to Organize Act of 2021

II 117TH CONGRESS 1ST SESSION S. 420 To amend the National Labor Relations Act, the Labor Management Rela- tions Act, 1947, and the Labor-Management Reporting and Disclosure Act of 1959, and for other purposes. IN THE SENATE OF THE UNITED STATES FEBRUARY 24, 2021 Mrs. MURRAY (for herself, Mr. SCHUMER, Mr. BLUMENTHAL, Ms. DUCKWORTH, Mr. BOOKER, Ms. WARREN, Mr. WYDEN, Mrs. GILLI- BRAND, Ms. CANTWELL, Mr. MURPHY, Ms. HASSAN, Mr. CASEY, Mr. CARDIN, Mr. MERKLEY, Mr. WHITEHOUSE, Mr. REED, Mr. DURBIN, Mr. KAINE, Ms. KLOBUCHAR, Mr. BROWN, Mr. LUJA´N, Mr. MENENDEZ, Ms. BALDWIN, Mr. SANDERS, Ms. CORTEZ MASTO, Mr. VAN HOLLEN, Mr. MARKEY, Mr. HEINRICH, Ms. HIRONO, Mr. SCHATZ, Ms. SMITH, Mr. LEAHY, Mr. CARPER, Mr. BENNET, Ms. STABENOW, Mr. COONS, Ms. ROSEN, Mr. TESTER, Mr. PETERS, Mr. PADILLA, Mrs. SHAHEEN, Mrs. FEINSTEIN, Mr. OSSOFF, Mr. WARNOCK, and Mr. HICKENLOOPER) intro- duced the following bill; which was read twice and referred to the Com- mittee on Health, Education, Labor, and Pensions A BILL 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 23:55 Mar 17, 2021 Jkt 019200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S420.IS S420 kjohnson on DSK79L0C42PROD with BILLS 2 •S 420 IS 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. Severability. Sec. 302. Authorization of appropriations. TITLE I—AMENDMENTS TO THE 6 NATIONAL LABOR RELATIONS 7 ACT 8 SEC. 101. DEFINITIONS. 9 (a) JOINT EMPLOYER.—Section 2(2) of the National 10 Labor Relations Act (29 U.S.C. 152(2)) is amended by 11 adding at the end the following: ‘‘Two or more persons 12 VerDate Sep 11 2014 23:55 Mar 17, 2021 Jkt 019200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S420.IS S420 kjohnson on DSK79L0C42PROD with BILLS 3 •S 420 IS shall be employers with respect to an employee if each 1 such person codetermines or shares control over the em- 2 ployee’s essential terms and conditions of employment. In 3 determining whether such control exists, the Board or a 4 court of competent jurisdiction shall consider as relevant 5 direct control and indirect control over such terms and 6 conditions, reserved authority to control such terms and 7 conditions, and control over such terms and conditions ex- 8 ercised by a person in fact: Provided, That nothing herein 9 precludes a finding that indirect or reserved control stand- 10 ing alone can be sufficient given specific facts and cir- 11 cumstances.’’. 12 (b) EMPLOYEE.—Section 2(3) of the National Labor 13 Relations Act (29 U.S.C. 152(3)) is amended by adding 14 at the end the following: ‘‘An individual performing any 15 service shall be considered an employee (except as pro- 16 vided in the previous sentence) and not an independent 17 contractor, unless— 18 ‘‘(A) the individual is free from control and 19 direction in connection with the performance of 20 the service, both under the contract for the per- 21 formance of service and in fact; 22 ‘‘(B) the service is performed outside the 23 usual course of the business of the employer; 24 and 25 VerDate Sep 11 2014 23:55 Mar 17, 2021 Jkt 019200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S420.IS S420 kjohnson on DSK79L0C42PROD with BILLS 4 •S 420 IS ‘‘(C) the individual is customarily engaged 1 in an independently established trade, occupa- 2 tion, profession, or business of the same nature 3 as that involved in the service performed.’’. 4 (c) SUPERVISOR.—Section 2(11) of the National 5 Labor Relations Act (29 U.S.C. 152(11)) is amended— 6 (1) by inserting ‘‘and for a majority of the indi- 7 vidual’s worktime’’ after ‘‘interest of the employer’’; 8 (2) by striking ‘‘assign,’’; and 9 (3) by striking ‘‘or responsibly to direct them,’’. 10 SEC. 102. REPORTS. 11 Section 3(c) of the National Labor Relations Act is 12 amended— 13 (1) by striking ‘‘The Board’’ and inserting ‘‘(1) 14 The Board’’; and 15 (2) by adding at the end the following: 16 ‘‘(2) Effective January 1, 2023, section 3003 of the 17 Federal Reports Elimination and Sunset Act of 1995 18 (Public Law 166–44; 31 U.S.C. 1113 note) shall not apply 19 with respect to reports required under this subsection. 20 ‘‘(3) Each report issued under this subsection shall— 21 ‘‘(A) include no less detail than reports issued by the 22 Board prior to the termination of such reports under sec- 23 tion 3003 of the Federal Reports Elimination and Sunset 24 Act of 1995 (Public Law 166–44; 31 U.S.C. 1113 note); 25 VerDate Sep 11 2014 23:55 Mar 17, 2021 Jkt 019200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S420.IS S420 kjohnson on DSK79L0C42PROD with BILLS 5 •S 420 IS ‘‘(B) list each case in which the Designated Agency 1 Ethics Official provided advice regarding whether a Mem- 2 ber should be recused from participating in a case or rule- 3 making; and 4 ‘‘(C) list each case in which the Designated Agency 5 Ethics Official determined that a Member should be 6 recused from participating in a case or rulemaking.’’. 7 SEC. 103. APPOINTMENT. 8 Section 4(a) of the National Labor Relations Act (29 9 U.S.C. 154(a)) is amended by striking ‘‘, or for economic 10 analysis’’. 11 SEC. 104. UNFAIR LABOR PRACTICES. 12 Section 8 of the National Labor Relations Act (29 13 U.S.C. 158) is amended— 14 (1) in subsection (a)— 15 (A) in paragraph (5), by striking the pe- 16 riod and inserting ‘‘;’’; and 17 (B) by adding at the end the following: 18 ‘‘(6) to promise, threaten, or take any action— 19 ‘‘(A) to permanently replace an employee 20 who participates in a strike as defined by sec- 21 tion 501(2) of the Labor Management Rela- 22 tions Act, 1947 (29 U.S.C. 142(2)); 23 ‘‘(B) to discriminate against an employee 24 who is working or has unconditionally offered to 25 VerDate Sep 11 2014 23:55 Mar 17, 2021 Jkt 019200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S420.IS S420 kjohnson on DSK79L0C42PROD with BILLS 6 •S 420 IS return to work for the employer because the 1 employee supported or participated in such a 2 strike; or 3 ‘‘(C) to lockout, suspend, or otherwise 4 withold employment from employees in order to 5 influence the position of such employees or the 6 representative of such employees in collective 7 bargaining prior to a strike; and 8 ‘‘(7) to communicate or misrepresent to an em- 9 ployee under section 2(3) that such employee is ex- 10 cluded from the definition of employee under section 11 2(3).’’; 12 (2) in subsection (b)— 13 (A) by striking paragraphs (4) and (7); 14 (B) by redesignating paragraphs (5) and 15 (6) as paragraphs (4) and (5), respectively; 16 (C) in paragraph (4), as so redesignated, 17 by striking ‘‘affected;’’ and inserting ‘‘affected; 18 and’’; and 19 (D) in paragraph (5), as so redesignated, 20 by striking ‘‘; and’’ and inserting a period; 21 (3) in subsection (c), by striking the period at 22 the end and inserting the following: ‘‘: Provided, 23 That it shall be an unfair labor practice under sub- 24 section (a)(1) for any employer to require or coerce 25 VerDate Sep 11 2014 23:55 Mar 17, 2021 Jkt 019200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S420.IS S420 kjohnson on DSK79L0C42PROD with BILLS 7 •S 420 IS an employee to attend or participate in such employ- 1 er’s campaign activities unrelated to the employee’s 2 job duties, including activities that are subject to the 3 requirements under section 203(b) of the Labor- 4 Management Reporting and Disclosure Act of 1959 5 (29 U.S.C. 433(b)).’’; 6 (4) in subsection (d)— 7 (A) by redesignating paragraphs (1) 8 through (4) as subparagraphs (A) through (D), 9 respectively; 10 (B) by striking ‘‘For the purposes of this 11 section’’ and inserting ‘‘(1) For purposes of this 12 section’’; 13 (C) by inserting ‘‘and to maintain current 14 wages, hours, and terms and conditions of em- 15 ployment pending an agreement’’ after ‘‘arising 16 thereunder’’; 17 (D) by inserting ‘‘: Provided, That an em- 18 ployer’s duty to collectively bargain shall con- 19 tinue absent decertification of the labor organi- 20 zation following an election conducted pursuant 21 to section 9’’ after ‘‘making of a concession:’’; 22 (E) by inserting ‘‘further’’ before ‘‘, That 23 where there is in effect’’; 24 VerDate Sep 11 2014 23:55 Mar 17, 2021 Jkt 019200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S420.IS S420 kjohnson on DSK79L0C42PROD with BILLS 8 •S 420 IS (F) by striking ‘‘The duties imposed’’ and 1 inserting ‘‘(2) The duties imposed’’; 2 (G) by striking ‘‘by paragraphs (2), (3), 3 and (4)’’ and inserting ‘‘by subparagraphs (B), 4 (C), and (D) of paragraph (1)’’; 5 (H) by striking ‘‘section 8(d)(1)’’ and in- 6 serting ‘‘paragraph (1)(A)’’; 7 (I) by striking ‘‘section 8(d)(3)’’ and in- 8 serting ‘‘paragraph (1)(C)’’ in each place it ap- 9 pears; 10 (J) by striking ‘‘section 8(d)(4)’’ and in- 11 serting ‘‘paragraph (1)(D)’’; and 12 (K) by adding at the end the following: 13 ‘‘(3) Whenever collective bargaining is for the pur- 14 pose of establishing an initial collective bargaining agree- 15 ment following certification or recognition of a labor orga- 16 nization, the following shall apply: 17 ‘‘(A) Not later than 10 days after receiving a 18 written request for collective bargaining from an in- 19 dividual or labor organization that has been newly 20 recognized or certified as a representative as defined 21 in section 9(a), or within such further period as the 22 parties agree upon, the parties shall meet and com- 23 mence to bargain collectively and shall make every 24 VerDate Sep 11 2014 23:55 Mar 17, 2021 Jkt 019200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S420.IS S420 kjohnson on DSK79L0C42PROD with BILLS 9 •S 420 IS reasonable effort to conclude and sign a collective 1 bargaining agreement. 2 ‘‘(B) If after the expiration of the 90-day pe- 3 riod beginning on the date on which bargaining is 4 commenced, or such additional period as the parties 5 may agree upon, the parties have failed to reach an 6 agreement, either party may notify the Federal Me- 7 diation and Conciliation Service of the existence of 8 a dispute and request mediation. Whenever such a 9 request is received, it shall be the duty of the Service 10 promptly to put itself in communication with the 11 parties and to use its best efforts, by mediation and 12 conciliation, to bring them to agreement. 13 ‘‘(C) If after the expiration of the 30-day period 14 beginning on the date on which the request for me- 15 diation is made under subparagraph (B), or such ad- 16 ditional period as the parties may agree upon, the 17 Service is not able to bring the parties to agreement 18 by conciliation, the Service shall refer the dispute to 19 a tripartite arbitration panel established in accord- 20 ance with such regulations as may be prescribed by 21 the Service, with one member selected by the labor 22 organization, one member selected by the employer, 23 and one neutral member mutually agreed to by the 24 parties. The labor organization and employer must 25 VerDate Sep 11 2014 23:55 Mar 17, 2021 Jkt 019200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S420.IS S420 kjohnson on DSK79L0C42PROD with BILLS 10 •S 420 IS each select the members of the tripartite arbitration 1 panel within 14 days of the Service’s referral; if the 2 labor organization or employer fail to do so, the 3 Service shall designate any members not selected by 4 the labor organization or the employer. A majority 5 of the tripartite arbitration panel shall render a deci- 6 sion settling the dispute and such decision shall be 7 binding upon the parties for a period of 2 years, un- 8 less amended during such period by written consent 9 of the parties. Such decision shall be based on— 10 ‘‘(i) the employer’s financial status and 11 prospects; 12 ‘‘(ii) the size and type of the employer’s 13 operations and business; 14 ‘‘(iii) the employees’ cost of living; 15 ‘‘(iv) the employees’ ability to sustain 16 themselves, their families, and their dependents 17 on the wages and benefits they earn from the 18 employer; and 19 ‘‘(v) the wages and benefits other employ- 20 ers in the same business provide their employ- 21 ees.’’; 22 (5) by amending subsection (e) to read as fol- 23 lows: 24 VerDate Sep 11 2014 23:55 Mar 17, 2021 Jkt 019200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S420.IS S420 kjohnson on DSK79L0C42PROD with BILLS 11 •S 420 IS ‘‘(e) Notwithstanding chapter 1 of title 9, United 1 States Code (commonly known as the ‘Federal Arbitration 2 Act’), or any other provision of law, it shall be an unfair 3 labor practice under subsection (a)(1) for any employer— 4 ‘‘(1) to enter into or attempt to enforce any 5 agreement, express or implied, whereby prior to a 6 dispute to which the agreement applies, an employee 7 undertakes or promises not to pursue, bring, join, 8 litigate, or support any kind of joint, class, or collec- 9 tive claim arising from or relating to the employ- 10 ment of such employee in any forum that, but for 11 such agreement, is of competent jurisdiction; 12 ‘‘(2) to coerce an employee into undertaking or 13 promising not to pursue, bring, join, litigate, or sup- 14 port any kind of joint, class, or collective claim aris- 15 ing from or relating to the employment of such em- 16 ployee; or 17 ‘‘(3) to retaliate or threaten to retaliate against 18 an employee for refusing to undertake or promise 19 not to pursue, bring, join, litigate, or support any 20 kind of joint, class, or collective claim arising from 21 or relating to the employment of such employee: 22 Provided, That any agreement that violates this sub- [Text truncated for display. 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