Protecting the Right to Organize Act of 2019

II 116TH CONGRESS 1ST SESSION S. 1306 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 MAY 2, 2019 Mrs. MURRAY (for herself, Mr. SCHUMER, Ms. BALDWIN, Mr. BLUMENTHAL, Mr. BOOKER, Mr. BROWN, Ms. CANTWELL, Mr. CARDIN, Mr. CARPER, Mr. CASEY, Mr. COONS, Ms. CORTEZ MASTO, Ms. DUCKWORTH, Mr. DURBIN, Mrs. FEINSTEIN, Mrs. GILLIBRAND, Ms. HARRIS, Ms. HASSAN, Mr. HEINRICH, Ms. HIRONO, Ms. KLOBUCHAR, Mr. LEAHY, Mr. MAR- KEY, Mr. MENENDEZ, Mr. MERKLEY, Mr. MURPHY, Mr. PETERS, Mr. REED, Ms. ROSEN, Mr. SANDERS, Mr. SCHATZ, Mrs. SHAHEEN, Ms. SMITH, Ms. STABENOW, Mr. TESTER, Mr. UDALL, Mr. VAN HOLLEN, Ms. WARREN, Mr. WHITEHOUSE, and Mr. WYDEN) introduced the fol- lowing bill; which was read twice and referred to the Committee 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 21:26 May 07, 2019 Jkt 089200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S1306.IS S1306 pamtmann on DSKBFK8HB2PROD with BILLS 2 •S 1306 IS SECTION 1. SHORT TITLE. 1 This Act may be cited as the ‘‘Protecting the Right 2 to Organize Act of 2019’’. 3 SEC. 2. FINDINGS. 4 Congress finds the following: 5 (1) The National Labor Relations Act (29 6 U.S.C. 151 et seq.) was enacted to encourage the 7 practice of collective bargaining and to protect the 8 exercise by workers of full freedom of association in 9 the workplace. Since its enactment in 1935, tens of 10 millions of workers have bargained with their em- 11 ployers over wages, benefits, and other terms and 12 conditions of employment and have raised the stand- 13 ard of living for all workers. 14 (2) According to the Bureau of Labor Statis- 15 tics, union members earn 25.6 percent more than 16 workers who are not covered by a collective bar- 17 gaining agreement. Workers who are represented by 18 a union are 28 percent more likely to be offered 19 health insurance through work and nearly five times 20 more likely to have defined benefit pensions. The 21 wage differential is significant for women and people 22 of color. African-American union members earn 25 23 percent more than African-American workers who 24 are not covered by a collective bargaining agreement, 25 and Latino union members earn 42.6 percent more 26 VerDate Sep 11 2014 21:26 May 07, 2019 Jkt 089200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S1306.IS S1306 pamtmann on DSKBFK8HB2PROD with BILLS 3 •S 1306 IS than Latino workers who are not covered by a collec- 1 tive bargaining agreement. Women union members 2 earn 30 percent more than women who are not cov- 3 ered by a collective bargaining agreement, and the 4 wage gap between men and women is much smaller 5 at workplaces covered by a collective bargaining 6 agreement because collective bargaining agreements 7 ensure the same rate is paid to workers for a par- 8 ticular job without regard to gender. The wage and 9 benefit gains achieved through collective bargaining 10 agreements benefit both workers and their commu- 11 nities. 12 (3) Unions and collective bargaining ensure 13 that productivity gains are shared by working peo- 14 ple. The decline in the percentage of workers covered 15 by collective bargaining has contributed to sky- 16 rocketing income inequality and wage stagnation for 17 the average worker. 18 (4) The National Labor Relations Act protects 19 the right of workers to join together with their co- 20 workers in concerted activities for their mutual aid 21 or protection. This protection applies broadly to all 22 concerted activities by workers aimed at improving 23 the terms and conditions of their employment or aid- 24 ing each other in any way, regardless of whether 25 VerDate Sep 11 2014 21:26 May 07, 2019 Jkt 089200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S1306.IS S1306 pamtmann on DSKBFK8HB2PROD with BILLS 4 •S 1306 IS workers are seeking to form a union or engage in 1 collective bargaining with their employer. 2 (5) The Act protects the right of workers to 3 discuss issues like pay and benefits without retalia- 4 tion or interference by employers. However, the 5 awareness of workers regarding their rights under 6 the Act is lacking, due in part to the absence of any 7 legally required notice informing workers of the 8 rights and responsibilities under the Act. Many em- 9 ployers maintain policies that restrict the ability of 10 workers to discuss workplace issues with each other, 11 directly contravening these rights. Research shows 12 that more than one half of workers report that their 13 employers have policies that prohibit or discourage 14 workers from discussing pay with their coworkers. 15 These policies and practices impede workers from 16 exercising their rights under the Act and impair 17 their freedom of association at work. 18 (6) Retaliation by employers against workers 19 who exercise their rights under the National Labor 20 Relations Act persists at troubling levels. Employers 21 routinely fire workers for trying to form a union at 22 their workplace. In one out of three organizing cam- 23 paigns, one or more workers are discharged for sup- 24 porting or joining a union. 25 VerDate Sep 11 2014 21:26 May 07, 2019 Jkt 089200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S1306.IS S1306 pamtmann on DSKBFK8HB2PROD with BILLS 5 •S 1306 IS (7) The current remedies are inadequate to 1 deter employers from violating the National Labor 2 Relations Act. The remedies and penalties for viola- 3 tions of the Act are far weaker than for other labor 4 and employment laws. Unlike other major labor and 5 employment laws, there are no civil penalties for vio- 6 lations of the National Labor Relations Act. Work- 7 ers cannot go to court to pursue relief on their own 8 and must rely on the National Labor Relations 9 Board to prosecute their case. Should the Board de- 10 cline to prosecute for any reason, aggrieved workers 11 have no other remedy. 12 (8) Unlike orders of other Federal agencies, the 13 orders of the National Labor Relations Board are 14 not enforced until the Board seeks enforcement from 15 a court of appeals. As far back as 1969, the Admin- 16 istrative Conference of the United States recognized 17 that the absence of a self-enforcing agency order im- 18 poses wasteful delays in the enforcement of the Na- 19 tional Labor Relations Act, and recommended that 20 the Board’s orders be made self-enforcing like those 21 of other agencies. Congress did not act upon this 22 recommendation, and delays in the Board’s enforce- 23 ment remain a problem undermining the effective- 24 ness of the Act. 25 VerDate Sep 11 2014 21:26 May 07, 2019 Jkt 089200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S1306.IS S1306 pamtmann on DSKBFK8HB2PROD with BILLS 6 •S 1306 IS (9) Many workers do not currently enjoy the 1 protections of the National Labor Relations Act be- 2 cause they are excluded from coverage under the Act 3 or interpretations of the Act. 4 (10) Too often, workers who choose to form 5 unions are frustrated when their employers use delay 6 and other tactics to avoid reaching an initial collec- 7 tive bargaining agreement. Estimates are that in as 8 many as half of new organizing campaigns, workers 9 and their employers fail to reach an initial collective 10 bargaining agreement. 11 (11) While the National Labor Relations Act 12 guarantees workers the right to strike, courts have 13 permitted employers to ‘‘permanently replace’’ work- 14 ers who exercise their right to strike. This is con- 15 trary to Congress’s intent in enacting the National 16 Labor Relations Act and has led to confusion among 17 workers regarding their right to strike. 18 (12) Hearings under section 9 of the National 19 Labor Relations Act (29 U.S.C. 159) exist to assure 20 workers the fullest freedom in exercising the rights 21 guaranteed by the Act. However, some employers 22 have abused the representation process of the Na- 23 tional Labor Relations Board to impede workers 24 VerDate Sep 11 2014 21:26 May 07, 2019 Jkt 089200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S1306.IS S1306 pamtmann on DSKBFK8HB2PROD with BILLS 7 •S 1306 IS from freely choosing their own representatives and 1 exercising their rights under the Act. 2 (13) So-called ‘‘right-to-work’’ laws do not give 3 any worker the right to a job. While Federal law re- 4 quires unions to fairly represent all members of a 5 given bargaining unit, and thereby expend resources 6 on all unit members, many States’ so-called ‘‘right- 7 to-work’’ laws prohibit unions from charging all 8 members for the representation and services that the 9 unions are legally obliged to render. Section 14(b) of 10 the National Labor Relations Act (29 U.S.C. 11 164(b)) must be reformed to permit unions and em- 12 ployers to mutually agree that payment of fair share 13 fees shall be a condition of employment following ini- 14 tial hiring. 15 (14) Restrictions on so-called ‘‘secondary boy- 16 cotts’’ and ‘‘recognitional picketing’’ unduly impede 17 workers’ ability to engage in peaceful conduct and 18 expression. Workers must be free to act in solidarity 19 with workers in other workplaces in order to improve 20 labor standards and achieve other lawful ends for 21 mutual aid or protection. 22 (15) In order to make the right to collective 23 bargaining and freedom of association in the work- 24 VerDate Sep 11 2014 21:26 May 07, 2019 Jkt 089200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S1306.IS S1306 pamtmann on DSKBFK8HB2PROD with BILLS 8 •S 1306 IS place a reality for workers, the National Labor Rela- 1 tions Act must be strengthened. 2 SEC. 3. PURPOSES. 3 The purposes of this Act are— 4 (1) to strengthen protections for workers en- 5 gaged in collective bargaining to improve their 6 wages, hours, and terms and conditions of employ- 7 ment; 8 (2) to expand coverage under the National 9 Labor Relations Act (29 U.S.C. 151 et seq.) to more 10 workers; 11 (3) to provide a process by which workers and 12 employers can successfully negotiate an initial collec- 13 tive bargaining agreement; 14 (4) to provide a stronger deterrent and fairer 15 remedies for workers who face retaliation, discrimi- 16 nation, or other interference with their legal rights 17 to act concertedly, join a union, or engage in collec- 18 tive bargaining; 19 (5) to broadly protect workers’ right to engage 20 in concerted activities for mutual aid or protection; 21 (6) to streamline the enforcement procedures of 22 the National Labor Relations Board to provide for 23 more timely and effective enforcement of the law; 24 VerDate Sep 11 2014 21:26 May 07, 2019 Jkt 089200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S1306.IS S1306 pamtmann on DSKBFK8HB2PROD with BILLS 9 •S 1306 IS (7) to safeguard the right to strike by prohib- 1 iting ‘‘permanent replacement’’ of striking workers; 2 (8) to repeal specific prohibitions on collective 3 action and peaceful expression; 4 (9) to permit fair share fee arrangements in 5 order to promote workers’ freedom of association 6 and encourage the practice of collective bargaining; 7 (10) to improve the purchasing power of wage 8 earners in industry; 9 (11) to promote the stabilization of fair wage 10 rates and humane working conditions within and be- 11 tween industries; and 12 (12) to redress the inequality of bargaining 13 power between workers and employers. 14 SEC. 4. AMENDMENTS TO THE NATIONAL LABOR RELA- 15 TIONS ACT. 16 (a) DEFINITIONS.— 17 (1) JOINT EMPLOYER.—Section 2(2) of the Na- 18 tional Labor Relations Act (29 U.S.C. 152(2)) is 19 amended by adding at the end the following: ‘‘Two 20 or more persons shall be employers with respect to 21 an employee if each such person codetermines or 22 shares control over the employee’s essential terms 23 and conditions of employment. In determining 24 whether such control exists, the Board or a court of 25 VerDate Sep 11 2014 21:26 May 07, 2019 Jkt 089200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S1306.IS S1306 pamtmann on DSKBFK8HB2PROD with BILLS 10 •S 1306 IS competent jurisdiction shall consider as relevant di- 1 rect control and indirect control over such terms and 2 conditions, reserved authority to control such terms 3 and conditions, and control over such terms and con- 4 ditions exercised by a person in fact: Provided, That 5 nothing herein precludes a finding that indirect or 6 reserved control standing alone can be sufficient 7 given specific facts and circumstances.’’. 8 (2) EMPLOYEE.—Section 2(3) of the National 9 Labor Relations Act (29 U.S.C. 152(3)) is amended 10 by adding at the end the following: ‘‘An individual 11 performing any service shall be considered an em- 12 ployee (except as provided in the previous sentence) 13 and not an independent contractor, unless— 14 ‘‘(A) the individual is free from control and 15 direction in connection with the performance of 16 the service, both under the contract for the per- 17 formance of service and in fact; 18 ‘‘(B) the service is performed outside the 19 usual course of the business of the employer; 20 and 21 ‘‘(C) the individual is customarily engaged 22 in an independently established trade, occupa- 23 tion, profession, or business of the same nature 24 as that involved in the service performed.’’. 25 VerDate Sep 11 2014 21:26 May 07, 2019 Jkt 089200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S1306.IS S1306 pamtmann on DSKBFK8HB2PROD with BILLS 11 •S 1306 IS (3) SUPERVISOR.—Section 2(11) of the Na- 1 tional Labor Relations Act (29 U.S.C. 152(11)) is 2 amended— 3 (A) by inserting ‘‘and for a majority of the 4 individual’s worktime’’ after ‘‘interest of the 5 employer’’; 6 (B) by striking ‘‘assign,’’; and 7 (C) by striking ‘‘or responsibly to direct 8 them,’’. 9 (b) APPOINTMENT.—Section 4(a) of the National 10 Labor Relations Act (29 U.S.C. 154(a)) is amended by 11 striking ‘‘, or for economic analysis’’. 12 (c) UNFAIR LABOR PRACTICES.—Section 8 of the 13 National Labor Relations Act (29 U.S.C. 158) is amend- 14 ed— 15 (1) in subsection (a)— 16 (A) in paragraph (5), by striking the pe- 17 riod and inserting ‘‘; and’’; and 18 (B) by adding at the end the following: 19 ‘‘(6) to promise, threaten, or take any action— 20 ‘‘(A) to permanently replace an employee 21 who participates in a strike as defined by sec- 22 tion 501(2) of the Labor Management Rela- 23 tions Act, 1947 (29 U.S.C. 142(2)); or 24 VerDate Sep 11 2014 21:26 May 07, 2019 Jk [Text truncated for display. Full text available on Congress.gov.]