Protecting the Right to Organize Act of 2019

IIB 116TH CONGRESS 2D SESSION H. R. 2474 IN THE SENATE OF THE UNITED STATES FEBRUARY 10, 2020 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 22:43 Feb 10, 2020 Jkt 099200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\H2474.RFS H2474 pamtmann on DSKBC07HB2PROD with BILLS 2 HR 2474 RFS SECTION 1. SHORT TITLE. 1 This Act may be cited as the ‘‘Protecting the Right 2 to Organize Act of 2019’’. 3 SEC. 2. AMENDMENTS TO THE NATIONAL LABOR RELA- 4 TIONS ACT. 5 (a) DEFINITIONS.— 6 (1) JOINT EMPLOYER.—Section 2(2) of the Na- 7 tional Labor Relations Act (29 U.S.C. 152(2)) is 8 amended by adding at the end the following: ‘‘Two 9 or more persons shall be employers with respect to 10 an employee if each such person codetermines or 11 shares control over the employee’s essential terms 12 and conditions of employment. In determining 13 whether such control exists, the Board or a court of 14 competent jurisdiction shall consider as relevant di- 15 rect control and indirect control over such terms and 16 conditions, reserved authority to control such terms 17 and conditions, and control over such terms and con- 18 ditions exercised by a person in fact: Provided, That 19 nothing herein precludes a finding that indirect or 20 reserved control standing alone can be sufficient 21 given specific facts and circumstances.’’. 22 (2) EMPLOYEE.—Section 2(3) of the National 23 Labor Relations Act (29 U.S.C. 152(3)) is amended 24 by adding at the end the following: ‘‘An individual 25 performing any service shall be considered an em- 26 VerDate Sep 11 2014 22:43 Feb 10, 2020 Jkt 099200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H2474.RFS H2474 pamtmann on DSKBC07HB2PROD with BILLS 3 HR 2474 RFS ployee (except as provided in the previous sentence) 1 and not an independent contractor, unless— 2 ‘‘(A) the individual is free from control and 3 direction in connection with the performance of 4 the service, both under the contract for the per- 5 formance of service and in fact; 6 ‘‘(B) the service is performed outside the 7 usual course of the business of the employer; 8 and 9 ‘‘(C) the individual is customarily engaged 10 in an independently established trade, occupa- 11 tion, profession, or business of the same nature 12 as that involved in the service performed.’’. 13 (3) SUPERVISOR.—Section 2(11) of the Na- 14 tional Labor Relations Act (29 U.S.C. 152(11)) is 15 amended— 16 (A) by inserting ‘‘and for a majority of the 17 individual’s worktime’’ after ‘‘interest of the 18 employer’’; 19 (B) by striking ‘‘assign,’’; and 20 (C) by striking ‘‘or responsibly to direct 21 them,’’. 22 (b) REPORTS.—Section 3(c) of the National Labor 23 Relations Act is amended— 24 VerDate Sep 11 2014 22:43 Feb 10, 2020 Jkt 099200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H2474.RFS H2474 pamtmann on DSKBC07HB2PROD with BILLS 4 HR 2474 RFS (1) by striking ‘‘The Board’’ and inserting ‘‘(1) 1 The Board’’; and 2 (2) by adding at the end the following: 3 ‘‘(2) Effective January 1, 2021, section 3003 of the 4 Federal Reports Elimination and Sunset Act of 1995 5 (Public Law 166–44; 31 U.S.C. 1113 note) shall not apply 6 with respect to reports required under this subsection. 7 ‘‘(3) Each report issued under this subsection shall 8 include no less detail than reports issued by the Board 9 prior to the termination of such reports under section 10 3003 of the Federal Reports Elimination and Sunset Act 11 of 1995 (Public Law 166–44; 31 U.S.C. 1113 note).’’. 12 (c) APPOINTMENT.—Section 4(a) of the National 13 Labor Relations Act (29 U.S.C. 154(a)) is amended by 14 striking ‘‘, or for economic analysis’’. 15 (d) UNFAIR LABOR PRACTICES.—Section 8 of the 16 National Labor Relations Act (29 U.S.C. 158) is amend- 17 ed— 18 (1) in subsection (a)— 19 (A) in paragraph (5), by striking the pe- 20 riod and inserting ‘‘;’’; and 21 (B) by adding at the end the following: 22 ‘‘(6) to promise, threaten, or take any action— 23 ‘‘(A) to permanently replace an employee 24 who participates in a strike as defined by sec- 25 VerDate Sep 11 2014 22:43 Feb 10, 2020 Jkt 099200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H2474.RFS H2474 pamtmann on DSKBC07HB2PROD with BILLS 5 HR 2474 RFS tion 501(2) of the Labor Management Rela- 1 tions Act, 1947 (29 U.S.C. 142(2)); 2 ‘‘(B) to discriminate against an employee 3 who is working or has unconditionally offered to 4 return to work for the employer because the 5 employee supported or participated in such a 6 strike; or 7 ‘‘(C) to lockout, suspend, or otherwise 8 withold employment from employees in order to 9 influence the position of such employees or the 10 representative of such employees in collective 11 bargaining prior to a strike; and 12 ‘‘(7) to communicate or misrepresent to an em- 13 ployee under section 2(3) that such employee is ex- 14 cluded from the definition of employee under section 15 2(3).’’; 16 (2) in subsection (b)— 17 (A) by striking paragraphs (4) and (7); 18 (B) by redesignating paragraphs (5) and 19 (6) as paragraphs (4) and (5), respectively; 20 (C) in paragraph (4), as so redesignated, 21 by striking ‘‘affected;’’ and inserting ‘‘affected; 22 and’’; and 23 (D) in paragraph (5), as so redesignated, 24 by striking ‘‘; and’’ and inserting a period; 25 VerDate Sep 11 2014 22:43 Feb 10, 2020 Jkt 099200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H2474.RFS H2474 pamtmann on DSKBC07HB2PROD with BILLS 6 HR 2474 RFS (3) in subsection (c), by striking the period at 1 the end and inserting the following: ‘‘: Provided, 2 That it shall be an unfair labor practice under sub- 3 section (a)(1) for any employer to require or coerce 4 an employee to attend or participate in such employ- 5 er’s campaign activities unrelated to the employee’s 6 job duties, including activities that are subject to the 7 requirements under section 203(b) of the Labor- 8 Management Reporting and Disclosure Act of 1959 9 (29 U.S.C. 433(b)).’’; 10 (4) in subsection (d)— 11 (A) by redesignating paragraphs (1) 12 through (4) as subparagraphs (A) through (D), 13 respectively; 14 (B) by striking ‘‘For the purposes of this 15 section’’ and inserting ‘‘(1) For purposes of this 16 section’’; 17 (C) by inserting ‘‘and to maintain current 18 wages, hours, and working conditions pending 19 an agreement’’ after ‘‘arising thereunder’’; 20 (D) by inserting ‘‘: Provided, That an em- 21 ployer’s duty to collectively bargain shall con- 22 tinue absent decertification of the labor organi- 23 zation following an election conducted pursuant 24 to section 9’’ after ‘‘making of a concession:’’; 25 VerDate Sep 11 2014 22:43 Feb 10, 2020 Jkt 099200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H2474.RFS H2474 pamtmann on DSKBC07HB2PROD with BILLS 7 HR 2474 RFS (E) by inserting ‘‘further’’ before ‘‘, That 1 where there is in effect’’; 2 (F) by striking ‘‘The duties imposed’’ and 3 inserting ‘‘(2) The duties imposed’’; 4 (G) by striking ‘‘by paragraphs (2), (3), 5 and (4)’’ and inserting ‘‘by subparagraphs (B), 6 (C), and (D) of paragraph (1)’’; 7 (H) by striking ‘‘section 8(d)(1)’’ and in- 8 serting ‘‘paragraph (1)(A)’’; 9 (I) by striking ‘‘section 8(d)(3)’’ and in- 10 serting ‘‘paragraph (1)(C)’’ in each place it ap- 11 pears; 12 (J) by striking ‘‘section 8(d)(4)’’ and in- 13 serting ‘‘paragraph (1)(D)’’; and 14 (K) by adding at the end the following: 15 ‘‘(3) Whenever collective bargaining is for the pur- 16 pose of establishing an initial collective bargaining agree- 17 ment following certification or recognition of a labor orga- 18 nization, the following shall apply: 19 ‘‘(A) Not later than 10 days after receiving a 20 written request for collective bargaining from an in- 21 dividual or labor organization that has been newly 22 recognized or certified as a representative as defined 23 in section 9(a), or within such further period as the 24 parties agree upon, the parties shall meet and com- 25 VerDate Sep 11 2014 22:43 Feb 10, 2020 Jkt 099200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\H2474.RFS H2474 pamtmann on DSKBC07HB2PROD with BILLS 8 HR 2474 RFS mence to bargain collectively and shall make every 1 reasonable effort to conclude and sign a collective 2 bargaining agreement. 3 ‘‘(B) If after the expiration of the 90-day pe- 4 riod beginning on the date on which bargaining is 5 commenced, or such additional period as the parties 6 may agree upon, the parties have failed to reach an 7 agreement, either party may notify the Federal Me- 8 diation and Conciliation Service of the existence of 9 a dispute and request mediation. Whenever such a 10 request is received, it shall be the duty of the Service 11 promptly to put itself in communication with the 12 parties and to use its best efforts, by mediation and 13 conciliation, to bring them to agreement. 14 ‘‘(C) If after the expiration of the 30-day period 15 beginning on the date on which the request for me- 16 diation is made under subparagraph (B), or such ad- 17 ditional period as the parties may agree upon, the 18 Service is not able to bring the parties to agreement 19 by conciliation, the Service shall refer the dispute to 20 a tripartite arbitration panel established in accord- 21 ance with such regulations as may be prescribed by 22 the Service, with one member selected by the labor 23 organization, one member selected by the employer, 24 and one neutral member mutually agreed to by the 25 VerDate Sep 11 2014 22:43 Feb 10, 2020 Jkt 099200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\H2474.RFS H2474 pamtmann on DSKBC07HB2PROD with BILLS 9 HR 2474 RFS parties. The labor organization and employer must 1 each select the members of the tripartite arbitration 2 panel within 14 days of the Service’s referral; if the 3 labor organization or employer fail to do so, the 4 Service shall designate any members not selected by 5 the labor organization or the employer. A majority 6 of the tripartite arbitration panel shall render a deci- 7 sion settling the dispute and such decision shall be 8 binding upon the parties for a period of 2 years, un- 9 less amended during such period by written consent 10 of the parties. Such decision shall be based on— 11 ‘‘(i) the employer’s financial status and 12 prospects; 13 ‘‘(ii) the size and type of the employer’s 14 operations and business; 15 ‘‘(iii) the employees’ cost of living; 16 ‘‘(iv) the employees’ ability to sustain 17 themselves, their families, and their dependents 18 on the wages and benefits they earn from the 19 employer; and 20 ‘‘(v) the wages and benefits other employ- 21 ers in the same business provide their employ- 22 ees.’’; 23 (5) by amending subsection (e) to read as fol- 24 lows: 25 VerDate Sep 11 2014 22:43 Feb 10, 2020 Jkt 099200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\H2474.RFS H2474 pamtmann on DSKBC07HB2PROD with BILLS 10 HR 2474 RFS ‘‘(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- 23 section or results from a violation of this subsection 24 shall be to such extent unenforceable and void: Pro- 25 VerDate Sep 11 2014 22:43 Feb 10, 2020 Jkt 099200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\H2474.RFS H2474 pamtmann on DSKBC07HB2PROD with BILLS 11 HR 2474 RFS vided further, That this subsection shall not apply to 1 any agreement embodied in or expressly permitted 2 by a contract between an employer and a labor orga- 3 nization.’’; 4 (6) in subsection (g), by striking ‘‘clause (B) of 5 the last sentence of section 8(d) of this Act’’ and in- 6 serting ‘‘subsection (d)(2)(B)’’; and 7 (7) by adding at the end the following: 8 ‘‘(h)(1) The Board shall promulgate regulations re- 9 quiring each employer to post and maintain, in con- 10 spicuous places where notices to employees and applicants 11 for employment are customarily posted both physically and 12 electronically, a notice setting forth the rights and protec- 13 tions afforded employees under this Act. The Board shall 14 make available to the public the form and text of such 15 notice. The Board shall promulgate regulations requiring 16 employers to notify each new employee of the information 17 contained in the notice described in the preceding two sen- 18 tences. 19 ‘‘(2) Whenever the Board directs an election under 20 section 9(c) or approves an election agreement, the em- 21 ployer of employees in the bargaining unit shall, not later 22 than 2 business days after the Board directs such election 23 or approves such election agreement, provide a voter list 24 to a labor organization that has petitioned to represent 25 VerDate Sep 11 2014 22:43 Feb 10, 2020 Jkt 099200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\H2474.RFS H2474 pamtmann on DSKBC07HB2PROD with BILLS 12 HR 2474 RFS such employees. Such voter list shall include the names 1 of all employees in the bargaining unit and such employ- 2 ees’ home addresses, work locations, shifts, job classifica- 3 tions, and, if available to the employer, personal landline 4 and mobile telephone numbers, and work and personal 5 email addresses; the voter list must be provided in a 6 searchable electronic format generally approved by the 7 Board unless the employer certifies that the employer does 8 not possess the capacity to produce the list in the required 9 form. Not later than 9 months after the date of enactment [Text truncated for display. Full text available on Congress.gov.]