Workforce Democracy and Fairness Act

I 118TH CONGRESS 1ST SESSION H. R. 3834 To amend the National Labor Relations Act with respect to the timing of elections and pre-election hearings, identification of pre-election issues, and interpretation of employer rules and policies. IN THE HOUSE OF REPRESENTATIVES JUNE 5, 2023 Mr. WALBERG introduced the following bill; which was referred to the Committee on Education and the Workforce A BILL To amend the National Labor Relations Act with respect to the timing of elections and pre-election hearings, iden- tification of pre-election issues, and interpretation of em- ployer rules and policies. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE. 3 This Act may be cited as the ‘‘Workforce Democracy 4 and Fairness Act’’. 5 VerDate Sep 11 2014 05:12 Jun 28, 2023 Jkt 039200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\H3834.IH H3834 kjohnson on DSK79L0C42PROD with BILLS 2 •HR 3834 IH SEC. 2. PRE-ELECTION HEARING; AMBUSH ELECTION RULE. 1 Section 9(c)(1) of the National Labor Relations Act 2 (29 U.S.C. 159(c)(1)) is amended in the matter following 3 subparagraph (B)— 4 (1) by inserting ‘‘, but in no circumstances ear- 5 lier than 14 calendar days after the filing of the pe- 6 tition’’ after ‘‘upon due notice’’; 7 (2) by inserting after ‘‘with respect thereto.’’ 8 the following: ‘‘An appropriate hearing shall be one 9 that is non-adversarial with the hearing officer 10 charged, in collaboration with the parties, with the 11 responsibility of identifying any relevant and mate- 12 rial pre-election issues and thereafter making a full 13 record thereon. Relevant and material pre-election 14 issues shall include, in addition to unit appropriate- 15 ness, the Board’s jurisdiction and any other issue 16 the resolution of which may make an election unnec- 17 essary or may reasonably be expected to impact the 18 outcome of the election. Parties may independently 19 raise any relevant and material pre-election issue or 20 assert any relevant and material position at any 21 time prior to the close of the hearing. It shall not 22 constitute or be evidence of an unfair labor practice 23 under any of the provisions of this Act for any party 24 or their counsel to pose any question at the hearing: 25 Provided, That this shall not limit the authority of 26 VerDate Sep 11 2014 05:12 Jun 28, 2023 Jkt 039200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H3834.IH H3834 kjohnson on DSK79L0C42PROD with BILLS 3 •HR 3834 IH the hearing officer to rule on objections and other- 1 wise to conduct the hearing consistent with this 2 Act.’’; and 3 (3) by striking ‘‘and shall certify the results 4 thereof’’ and inserting ‘‘to be conducted as soon as 5 practicable but no earlier than 20 business days 6 after the Board directs that an election be held. The 7 Board shall certify the results of the election after 8 it has ruled on each pre-election issue not resolved 9 before the election and any additional issue per- 10 taining to the conduct or results of the election’’. 11 SEC. 3. APPROPRIATE UNITS FOR COLLECTIVE BAR- 12 GAINING. 13 Section 9(b) of the National Labor Relations Act (29 14 U.S.C. 159(b)) is amended— 15 (1) by redesignating paragraphs (1) through 16 (3) as subparagraphs (A) through (C), respectively; 17 (2) by striking ‘‘The Board shall decide’’ and 18 all that follows through ‘‘or subdivision thereof:’’ 19 and inserting the following: ‘‘(1) In each case, prior 20 to an election, the Board shall determine, in order 21 to assure to employees the fullest freedom in exer- 22 cising the rights guaranteed by this Act, the unit ap- 23 propriate for the purposes of collective bargaining. 24 Unless otherwise stated in this Act, and excluding 25 VerDate Sep 11 2014 05:12 Jun 28, 2023 Jkt 039200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H3834.IH H3834 kjohnson on DSK79L0C42PROD with BILLS 4 •HR 3834 IH any bargaining unit determination promulgated 1 through rulemaking before August 26, 2011, the 2 unit appropriate for purposes of collective bargaining 3 shall consist of employees that share a sufficient 4 community of interest. In determining whether em- 5 ployees share a sufficient community of interest, the 6 Board shall consider— 7 ‘‘(A) similarity of wages, benefits, and working 8 conditions; 9 ‘‘(B) similarity of skills and training; 10 ‘‘(C) centrality of management and common su- 11 pervision; 12 ‘‘(D) extent of interchange and frequency of 13 contact between employees; 14 ‘‘(E) integration of the work flow and inter- 15 relationship of the production process; 16 ‘‘(F) the consistency of the unit with the em- 17 ployer’s organizational structure; 18 ‘‘(G) similarity of job functions and work; and 19 ‘‘(H) the bargaining history in the particular 20 unit and the industry. 21 To avoid the proliferation or fragmentation of bargaining 22 units, no employee shall be excluded from the unit unless 23 the interests of the group seeking a separate unit are suffi- 24 ciently distinct from those of other employees to warrant 25 VerDate Sep 11 2014 05:12 Jun 28, 2023 Jkt 039200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H3834.IH H3834 kjohnson on DSK79L0C42PROD with BILLS 5 •HR 3834 IH the establishment of a separate unit. Whether additional 1 employees should be included in a proposed unit shall be 2 determined based on whether such additional employees 3 and proposed unit members share a sufficient community 4 of interest, and when considering or deciding to include 5 such additional employees in the proposed unit the Board 6 shall give no consideration to whether they share an over- 7 whelming community of interest with proposed unit mem- 8 bers: Provided, That when evaluating proposed accretions 9 to an existing unit the inclusion of additional employees 10 may be based on whether such additional employees and 11 existing unit members share an overwhelming community 12 of interest and the additional employees have little or no 13 separate identity.’’; and 14 (3) by striking ‘‘Provided, That the Board’’ and 15 inserting the following: 16 ‘‘(2) The Board’’. 17 SEC. 4. HANDBOOKS. 18 Section 8 of the National Labor Relations Act (29 19 U.S.C. 158) is amended by inserting after subsection (g) 20 the following: 21 ‘‘(h)(1) The Board shall find that facially neutral 22 rules, policies and employee handbook provisions adopted 23 or maintained by an employer are lawful under this Act, 24 unless the Board applies the principles and makes findings 25 VerDate Sep 11 2014 05:12 Jun 28, 2023 Jkt 039200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H3834.IH H3834 kjohnson on DSK79L0C42PROD with BILLS 6 •HR 3834 IH set forth in paragraphs (2) and (3). For the purposes of 1 this subsection, ‘facially neutral’ refers to rules, policies, 2 and employee handbook provisions that contain no explicit 3 reference to and prohibition against specific activities 4 mentioned in this Act (such as forming, joining or assist- 5 ing labor organizations, bargaining collectively, or refrain- 6 ing from such activities as provided in section 7). A rule, 7 policy, or employee handbook provision that explicitly up- 8 holds prohibitions on discrimination set forth under title 9 VII of the Civil Rights Act of 1964 (42 U.S.C. 2000e et 10 seq.) shall be deemed ‘facially neutral’. 11 ‘‘(2) When considering claims that the adoption or 12 maintenance of a facially neutral rule, policy, or employee 13 handbook provision violates this Act, the Board in each 14 case must consider and make findings regarding both— 15 ‘‘(A) the justifications associated with the rule, 16 policy, or handbook provision; and 17 ‘‘(B) the nature and extent of the impact on 18 protected rights, if any. 19 ‘‘(3) The Board shall find that the adoption or main- 20 tenance of a facially neutral rule, policy, or employee 21 handbook provision violates this Act only if the General 22 Counsel 16 shows by clear and convincing evidence that— 23 VerDate Sep 11 2014 05:12 Jun 28, 2023 Jkt 039200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H3834.IH H3834 kjohnson on DSK79L0C42PROD with BILLS 7 •HR 3834 IH ‘‘(A) adoption or maintenance of the rule, pol- 1 icy, or employee handbook provision has an adverse 2 impact on the exercise of rights under section 7; and 3 ‘‘(B) the adverse impact described in subpara- 4 graph (A) outweighs the justification associated with 5 the rule, policy, or handbook. 6 ‘‘(4) If a facially neutral rule, policy, or employee 7 handbook provision, which is lawful and consistent with 8 this subsection, is found to have been applied in a case 9 involving the exercise of rights under section 7, and if the 10 Board concludes that said application violates section 11 8(a)(1) or another provision of this Act, the Board’s rem- 12 edy shall not include the rescission or modification of such 13 rule, policy, or employee handbook provision.’’. 14 Æ VerDate Sep 11 2014 05:12 Jun 28, 2023 Jkt 039200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6301 E:\BILLS\H3834.IH H3834 kjohnson on DSK79L0C42PROD with BILLS