[Congressional Bills 116th Congress]
[From the U.S. Government Publishing Office]
[H.R. 2474 Engrossed in House (EH)]

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116th CONGRESS
  2d Session
                                H. R. 2474

_______________________________________________________________________

                                 AN ACT


 
    To amend the National Labor Relations Act, the Labor Management 
Relations Act, 1947, and the Labor-Management Reporting and Disclosure 
                  Act of 1959, and for other purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Protecting the Right to Organize Act 
of 2019''.

SEC. 2. AMENDMENTS TO THE NATIONAL LABOR RELATIONS ACT.

    (a) Definitions.--
            (1) Joint employer.--Section 2(2) of the National Labor 
        Relations Act (29 U.S.C. 152(2)) is amended by adding at the 
        end the following: ``Two or more persons shall be employers 
        with respect to an employee if each such person codetermines or 
        shares control over the employee's essential terms and 
        conditions of employment. In determining whether such control 
        exists, the Board or a court of competent jurisdiction shall 
        consider as relevant direct control and indirect control over 
        such terms and conditions, reserved authority to control such 
        terms and conditions, and control over such terms and 
        conditions exercised by a person in fact: Provided, That 
        nothing herein precludes a finding that indirect or reserved 
        control standing alone can be sufficient given specific facts 
        and circumstances.''.
            (2) Employee.--Section 2(3) of the National Labor Relations 
        Act (29 U.S.C. 152(3)) is amended by adding at the end the 
        following: ``An individual performing any service shall be 
        considered an employee (except as provided in the previous 
        sentence) and not an independent contractor, unless--
                    ``(A) the individual is free from control and 
                direction in connection with the performance of the 
                service, both under the contract for the performance of 
                service and in fact;
                    ``(B) the service is performed outside the usual 
                course of the business of the employer; and
                    ``(C) the individual is customarily engaged in an 
                independently established trade, occupation, 
                profession, or business of the same nature as that 
                involved in the service performed.''.
            (3) Supervisor.--Section 2(11) of the National Labor 
        Relations Act (29 U.S.C. 152(11)) is amended--
                    (A) by inserting ``and for a majority of the 
                individual's worktime'' after ``interest of the 
                employer'';
                    (B) by striking ``assign,''; and
                    (C) by striking ``or responsibly to direct them,''.
    (b) Reports.--Section 3(c) of the National Labor Relations Act is 
amended--
            (1) by striking ``The Board'' and inserting ``(1) The 
        Board''; and
            (2) by adding at the end the following:
    ``(2) Effective January 1, 2021, section 3003 of the Federal 
Reports Elimination and Sunset Act of 1995 (Public Law 166-44; 31 
U.S.C. 1113 note) shall not apply with respect to reports required 
under this subsection.
    ``(3) Each report issued under this subsection shall include no 
less detail than reports issued by the Board prior to the termination 
of such reports under section 3003 of the Federal Reports Elimination 
and Sunset Act of 1995 (Public Law 166-44; 31 U.S.C. 1113 note).''.
    (c) Appointment.--Section 4(a) of the National Labor Relations Act 
(29 U.S.C. 154(a)) is amended by striking ``, or for economic 
analysis''.
    (d) Unfair Labor Practices.--Section 8 of the National Labor 
Relations Act (29 U.S.C. 158) is amended--
            (1) in subsection (a)--
                    (A) in paragraph (5), by striking the period and 
                inserting ``;''; and
                    (B) by adding at the end the following:
            ``(6) to promise, threaten, or take any action--
                    ``(A) to permanently replace an employee who 
                participates in a strike as defined by section 501(2) 
                of the Labor Management Relations Act, 1947 (29 U.S.C. 
                142(2));
                    ``(B) to discriminate against an employee who is 
                working or has unconditionally offered to return to 
                work for the employer because the employee supported or 
                participated in such a strike; or
                    ``(C) to lockout, suspend, or otherwise withold 
                employment from employees in order to influence the 
                position of such employees or the representative of 
                such employees in collective bargaining prior to a 
                strike; and
            ``(7) to communicate or misrepresent to an employee under 
        section 2(3) that such employee is excluded from the definition 
        of employee under section 2(3).'';
            (2) in subsection (b)--
                    (A) by striking paragraphs (4) and (7);
                    (B) by redesignating paragraphs (5) and (6) as 
                paragraphs (4) and (5), respectively;
                    (C) in paragraph (4), as so redesignated, by 
                striking ``affected;'' and inserting ``affected; and''; 
                and
                    (D) in paragraph (5), as so redesignated, by 
                striking ``; and'' and inserting a period;
            (3) in subsection (c), by striking the period at the end 
        and inserting the following: ``: Provided, That it shall be an 
        unfair labor practice under subsection (a)(1) for any employer 
        to require or coerce an employee to attend or participate in 
        such employer's campaign activities unrelated to the employee's 
        job duties, including activities that are subject to the 
        requirements under section 203(b) of the Labor-Management 
        Reporting and Disclosure Act of 1959 (29 U.S.C. 433(b)).'';
            (4) in subsection (d)--
                    (A) by redesignating paragraphs (1) through (4) as 
                subparagraphs (A) through (D), respectively;
                    (B) by striking ``For the purposes of this 
                section'' and inserting ``(1) For purposes of this 
                section'';
                    (C) by inserting ``and to maintain current wages, 
                hours, and working conditions pending an agreement'' 
                after ``arising thereunder'';
                    (D) by inserting ``: Provided, That an employer's 
                duty to collectively bargain shall continue absent 
                decertification of the labor organization following an 
                election conducted pursuant to section 9'' after 
                ``making of a concession:'';
                    (E) by inserting ``further'' before ``, That where 
                there is in effect'';
                    (F) by striking ``The duties imposed'' and 
                inserting ``(2) The duties imposed'';
                    (G) by striking ``by paragraphs (2), (3), and (4)'' 
                and inserting ``by subparagraphs (B), (C), and (D) of 
                paragraph (1)'';
                    (H) by striking ``section 8(d)(1)'' and inserting 
                ``paragraph (1)(A)'';
                    (I) by striking ``section 8(d)(3)'' and inserting 
                ``paragraph (1)(C)'' in each place it appears;
                    (J) by striking ``section 8(d)(4)'' and inserting 
                ``paragraph (1)(D)''; and
                    (K) by adding at the end the following:
    ``(3) Whenever collective bargaining is for the purpose of 
establishing an initial collective bargaining agreement following 
certification or recognition of a labor organization, the following 
shall apply:
            ``(A) Not later than 10 days after receiving a written 
        request for collective bargaining from an individual or labor 
        organization that has been newly recognized or certified as a 
        representative as defined in section 9(a), or within such 
        further period as the parties agree upon, the parties shall 
        meet and commence to bargain collectively and shall make every 
        reasonable effort to conclude and sign a collective bargaining 
        agreement.
            ``(B) If after the expiration of the 90-day period 
        beginning on the date on which bargaining is commenced, or such 
        additional period as the parties may agree upon, the parties 
        have failed to reach an agreement, either party may notify the 
        Federal Mediation and Conciliation Service of the existence of 
        a dispute and request mediation. Whenever such a request is 
        received, it shall be the duty of the Service promptly to put 
        itself in communication with the parties and to use its best 
        efforts, by mediation and conciliation, to bring them to 
        agreement.
            ``(C) If after the expiration of the 30-day period 
        beginning on the date on which the request for mediation is 
        made under subparagraph (B), or such additional period as the 
        parties may agree upon, the Service is not able to bring the 
        parties to agreement by conciliation, the Service shall refer 
        the dispute to a tripartite arbitration panel established in 
        accordance with such regulations as may be prescribed by the 
        Service, with one member selected by the labor organization, 
        one member selected by the employer, and one neutral member 
        mutually agreed to by the parties. The labor organization and 
        employer must each select the members of the tripartite 
        arbitration panel within 14 days of the Service's referral; if 
        the labor organization or employer fail to do so, the Service 
        shall designate any members not selected by the labor 
        organization or the employer. A majority of the tripartite 
        arbitration panel shall render a decision settling the dispute 
        and such decision shall be binding upon the parties for a 
        period of 2 years, unless amended during such period by written 
        consent of the parties. Such decision shall be based on--
                    ``(i) the employer's financial status and 
                prospects;
                    ``(ii) the size and type of the employer's 
                operations and business;
                    ``(iii) the employees' cost of living;
                    ``(iv) the employees' ability to sustain 
                themselves, their families, and their dependents on the 
                wages and benefits they earn from the employer; and
                    ``(v) the wages and benefits other employers in the 
                same business provide their employees.'';
            (5) by amending subsection (e) to read as follows:
    ``(e) Notwithstanding chapter 1 of title 9, United States Code 
(commonly known as the `Federal Arbitration Act'), or any other 
provision of law, it shall be an unfair labor practice under subsection 
(a)(1) for any employer--
            ``(1) to enter into or attempt to enforce any agreement, 
        express or implied, whereby prior to a dispute to which the 
        agreement applies, an employee undertakes or promises not to 
        pursue, bring, join, litigate, or support any kind of joint, 
        class, or collective claim arising from or relating to the 
        employment of such employee in any forum that, but for such 
        agreement, is of competent jurisdiction;
            ``(2) to coerce an employee into undertaking or promising 
        not to pursue, bring, join, litigate, or support any kind of 
        joint, class, or collective claim arising from or relating to 
        the employment of such employee; or
            ``(3) to retaliate or threaten to retaliate against an 
        employee for refusing to undertake or promise not to pursue, 
        bring, join, litigate, or support any kind of joint, class, or 
        collective claim arising from or relating to the employment of 
        such employee: Provided, That any agreement that violates this 
        subsection or results from a violation of this subsection shall 
        be to such extent unenforceable and void: Provided further, 
        That this subsection shall not apply to any agreement embodied 
        in or expressly permitted by a contract between an employer and 
        a labor organization.'';
            (6) in subsection (g), by striking ``clause (B) of the last 
        sentence of section 8(d) of this Act'' and inserting 
        ``subsection (d)(2)(B)''; and
            (7) by adding at the end the following:
    ``(h)(1) The Board shall promulgate regulations requiring each 
employer to post and maintain, in conspicuous places where notices to 
employees and applicants for employment are customarily posted both 
physically and electronically, a notice setting forth the rights and 
protections afforded employees under this Act. The Board shall make 
available to the public the form and text of such notice. The Board 
shall promulgate regulations requiring employers to notify each new 
employee of the information contained in the notice described in the 
preceding two sentences.
    ``(2) Whenever the Board directs an election under section 9(c) or 
approves an election agreement, the employer of employees in the 
bargaining unit shall, not later than 2 business days after the Board 
directs such election or approves such election agreement, provide a 
voter list to a labor organization that has petitioned to represent 
such employees. Such voter list shall include the names of all 
employees in the bargaining unit and such employees' home addresses, 
work locations, shifts, job classifications, and, if available to the 
employer, personal landline and mobile telephone numbers, and work and 
personal email addresses; the voter list must be provided in a 
searchable electronic format generally approved by the Board unless the 
employer certifies that the employer does not possess the capacity to 
produce the list in the required form. Not later than 9 months after 
the date of enactment of the Protecting the Right to Organize Act of 
2019, the Board shall promulgate regulations implementing the 
requirements of this paragraph.
    ``(i) The rights of an employee under section 7 include the right 
to use electronic communication devices and systems (including 
computers, laptops, tablets, internet access, email, cellular 
telephones, or other company equipment) of the employer of such 
employee to engage in activities protected under section 7 if such 
employer has given such employee access to such devices and systems in 
the course of the work of such employee, absent a compelling business 
rationale.''.
    (e) Representatives and Elections.--Section 9 of the National Labor 
Relations Act (29 U.S.C. 159) is amended--
            (1) in subsection (c)--
                    (A) by amending paragraph (1) to read as follows:
    ``(1) Whenever a petition shall have been filed, in accordance with 
such regulations as may be prescribed by the Board, by an employee or 
group of employees or any individual or labor organization acting in 
their behalf alleging that a substantial number of employees (i) wish 
to be represented for collective bargaining and that their employer 
declines to recognize their representative as the representative 
defined in section 9(a), or (ii) assert that the individual or labor 
organization, which has been certified or is being recognized by their 
employer as the bargaining representative, is no longer a 
representative as defined in section 9(a), the Board shall investigate 
such petition and if it has reasonable cause to believe that a question 
of representation affecting commerce exists shall provide for an 
appropriate hearing upon due notice. Such hearing may be conducted by 
an officer or employee of the regional office, who shall not make any 
recommendations with respect thereto. If the Board finds upon the 
record of such hearing that such a question of representation exists, 
it shall direct an election by secret ballot and shall certify the 
results thereof. The Board shall find the labor organization's proposed 
unit to be appropriate if the employees in the proposed unit share a 
community of interest, and if the employees outside the unit do not 
share an overwhelming community of interest with employees inside. At 
the request of the labor organization, the Board shall direct that the 
election be conducted through certified mail, electronically, at the 
work location, or at a location other than one owned or controlled by 
the employer. No employer shall have standing as a party or to 
intervene in any representation proceeding under this section.'';
                    (B) in paragraph (3), by striking ``an economic 
                strike who are not entitled to reinstatement'' and 
                inserting ``a strike'';
                    (C) by redesignating paragraphs (4) and (5) as 
                paragraphs (6) and (7), respectively;
                    (D) by inserting after paragraph (3) the following:
    ``(4) If the Board finds that, in an election under paragraph (1), 
a majority of the valid votes cast in a unit appropriate for purposes 
of collective bargaining have been cast in favor of representation by 
the labor organization, the Board shall certify the labor organization 
as the representative of the employees in such unit and shall issue an 
order requiring the employer of such employees to collectively bargain 
with the labor organization in accordance with section 8(d). This order 
shall be deemed an order under section 10(c) of this Act, without need 
for a determination of an unfair labor practice.
    ``(5)(A) If the Board finds that, in an election under paragraph 
(1), a majority of the valid votes cast in a unit appropriate for 
purposes of collective bargaining have not been cast in favor of 
representation by the labor organization, the Board shall dismiss the 
petition, subject to subparagraphs (B) and (C).
    ``(B) In any case in which a majority of the valid votes cast in a 
unit appropriate for purposes of collective bargaining have not been 
cast in favor of representation by the labor organization and the Board 
determines that the election should be set aside because the employer 
has committed a violation of this Act or otherwise interfered with a 
fair election, and the employer has not demonstrated that the violation 
or other interference is unlikely to have affected the outcome of the 
election, the Board shall, without ordering a new election, certify the 
labor organization as the representative of the employees in such unit 
and issue an order requiring the employer to bargain with the labor 
organization in accordance with section 8(d) if, at any time during the 
period beginning 1 year preceding the date of the commencement of the 
election and ending on the date upon which the Board makes the 
determination of a violation or other interference, a majority of the 
employees in the bargaining unit have signed authorizations designating 
the labor organization as their collective bargaining representative.
    ``(C) In any case where the Board determines that an election under 
this paragraph should be set aside, the Board shall direct a new 
election with appropriate additional safeguards necessary to ensure a 
fair election process, except in cases where the Board issues a 
bargaining order under subparagraph (B).''; and
                    (E) by inserting after paragraph (7), as so 
                redesignated, the following:
    ``(8) Except under extraordinary circumstances--
            ``(A) a pre-election hearing under this subsection shall 
        begin not later than 8 days after a notice of such hearing is 
        served on the labor organization and shall continue from day to 
        day until completed;
            ``(B) a regional director shall transmit the notice of 
        election at the same time as the direction of election, and 
        shall transmit such notice and such direction electronically 
        (including transmission by email or facsimile) or by overnight 
        mail if electronic transmission is unavailable;
            ``(C) not later than 2 days after the service of the notice 
        of hearing, the employer shall--
                    ``(i) post the Notice of Petition for Election in 
                conspicuous places, including all places where notices 
                to employees are customarily posted;
                    ``(ii) if the employer customarily communicates 
                with employees electronically, distribute such Notice 
                electronically; and
                    ``(iii) maintain such posting until the petition is 
                dismissed or withdrawn or the Notice of Petition for 
                Election is replaced by the Notice of Election;
            ``(D) regional directors shall schedule elections for the 
        earliest date practicable, but not later than the 20th business 
        day after the direction of election; and
            ``(E) a post-election hearing under this subsection shall 
        begin not later than 14 days after the filing of objections, if 
        any.'';
            (2) in subsection (d), by striking ``(e) or'' and inserting 
        ``(d) or''; and
            (3) by adding at the end the following new subsection:
    ``(f) The Board shall dismiss any petition for an election with 
respect to a bargaining unit or any subdivision if, during the 
preceding 12-month period, the employer has recognized a labor 
organization without an election and in accordance with this Act.''.
    (f) Prevention of Unfair Labor Practices.--Section 10(c) of the 
National Labor Relations Act (29 U.S.C. 160(c)) is amended by striking 
``suffered by him'' and inserting ``suffered by such employee: Provided 
further, That if the Board finds that an employer has discriminated 
against an employee in violation of paragraph (3) or (4) of section 
8(a) or has committed a violation of section 8(a) that results in the 
discharge of an employee or other serious economic harm to an employee, 
the Board shall award the employee back pay without any reduction 
(including any reduction based on the employee's interim earnings or 
failure to earn interim earnings), front pay (when appropriate), 
consequential damages, and an additional amount as liquidated damages 
equal to two times the amount of damages awarded: Provided further, no 
relief under this subsection shall be denied on the basis that the 
employee is, or was during the time of relevant employment or during 
the back pay period, an unauthorized alien as defined in section 
274A(h)(3) of the Immigration and Nationality Act (8 U.S.C. 
1324a(h)(3)) or any other provision of Federal law relating to the 
unlawful employment of aliens''.
    (g) Enforcing Compliance With Orders of the Board.--
            (1) In general.--Section 10 of the National Labor Relations 
        Act (29 U.S.C. 160) is further amended--
                    (A) by striking subsection (e);
                    (B) by redesignating subsection (d) as subsection 
                (e);
                    (C) by inserting after subsection (c) the 
                following:
    ``(d)(1) Each order of the Board shall take effect upon issuance of 
such order, unless otherwise directed by the Board, and shall remain in 
effect unless modified by the Board or unless a court of competent 
jurisdiction issues a superseding order.
    ``(2) Any person who fails or neglects to obey an order of the 
Board shall forfeit and pay to the Board a civil penalty of not more 
than $10,000 for each violation, which shall accrue to the United 
States and may be recovered in a civil action brought by the Board to 
the district court of the United States in which the unfair labor 
practice or other subject of the order occurred, or in which such 
person or entity resides or transacts business. No action by the Board 
under this paragraph may be made until 30 days following the issuance 
of an order. Each separate violation of such an order shall be a 
separate offense, except that, in the case of a violation in which a 
person fails to obey or neglects to obey a final order of the Board, 
each day such failure or neglect continues shall be deemed a separate 
offense.
    ``(3) If, after having provided a person or entity with notice and 
an opportunity to be heard regarding a civil action under subparagraph 
(2) for the enforcement of an order, the court determines that the 
order was regularly made and duly served, and that the person or entity 
is in disobedience of the same, the court shall enforce obedience to 
such order by an injunction or other proper process, mandatory or 
otherwise, to--
            ``(A) restrain such person or entity or the officers, 
        agents, or representatives of such person or entity, from 
        further disobedience to such order; or
            ``(B) enjoin such person or entity, officers, agents, or 
        representatives to obedience to the same.'';
                    (D) in subsection (f)--
                            (i) by striking ``proceed in the same 
                        manner as in the case of an application by the 
                        Board under subsection (e) of this section,'' 
                        and inserting ``proceed as provided under 
                        paragraph (2) of this subsection'';
                            (ii) by striking ``Any'' and inserting the 
                        following: ``
            ``(1) Within 30 days of the issuance of an order, any''; 
        and
                            (iii) by adding at the end the following:
    ``(2) No objection that has not been urged before the Board, its 
member, agent, or agency shall be considered by a court, unless the 
failure or neglect to urge such objection shall be excused because of 
extraordinary circumstances. The findings of the Board with respect to 
questions of fact if supported by substantial evidence on the record 
considered as a whole shall be conclusive. If either party shall apply 
to the court for leave to adduce additional evidence and shall show to 
the satisfaction of the court that such additional evidence is material 
and that there were reasonable grounds for the failure to adduce such 
evidence in the hearing before the Board, its member, agent, or agency, 
the court may order such additional evidence to be taken before the 
Board, its member, agent, or agency, and to be made a part of the 
record. The Board may modify its findings as to the facts, or make new 
findings, by reason of additional evidence so taken and filed, and it 
shall file such modified or new findings, which findings with respect 
to questions of fact if supported by substantial evidence on the record 
considered as a whole shall be conclusive, and shall file its 
recommendations, if any, for the modification or setting aside of its 
original order. Upon the filing of the record with it the jurisdiction 
of the court shall be exclusive and its judgment and decree shall be 
final, except that the same shall be subject to review by the 
appropriate United States court of appeals if application was made to 
the district court, and by the Supreme Court of the United States upon 
writ of certiorari or certification as provided in section 1254 of 
title 28, United States Code.''; and
                    (E) in subsection (g), by striking ``subsection (e) 
                or (f) of this section'' and inserting ``subsection (d) 
                or (f)''.
            (2) Conforming amendment.--Section 18 of the National Labor 
        Relations Act (29 U.S.C. 168) is amended by striking `` section 
        10(e) or (f)'' and inserting ``subsection (d) or (f) of section 
        10''.
    (h) Injunctions Against Unfair Labor Practices Involving Discharge 
or Other Serious Economic Harm.--Section 10 of the National Labor 
Relations Act (29 U.S.C. 160) is amended--
            (1) in subsection (j)--
                    (A) by striking ``The Board'' and inserting ``(1) 
                The Board''; and
                    (B) by adding at the end the following:
    ``(2) Notwithstanding subsection (m), whenever it is charged that 
an employer has engaged in an unfair labor practice within the meaning 
of paragraph (1) or (3) of section 8(a) that significantly interferes 
with, restrains, or coerces employees in the exercise of the rights 
guaranteed under section 7, or involves discharge or other serious 
economic harm to an employee, the preliminary investigation of such 
charge shall be made forthwith and given priority over all other cases 
except cases of like character in the office where it is filed or to 
which it is referred. If, after such investigation, the officer or 
regional attorney to whom the matter may be referred has reasonable 
cause to believe such charge is true and that a complaint should issue, 
such officer or attorney shall bring a petition for appropriate 
temporary relief or restraining order as set forth in paragraph (1). 
The district court shall grant the relief requested unless the court 
concludes that there is no reasonable likelihood that the Board will 
succeed on the merits of the Board's claim.''; and
            (2) by repealing subsections (k) and (l).
    (i) Penalties.--
            (1) In general.--Section 12 of the National Labor Relations 
        Act (29 U.S.C. 162) is amended--
                    (A) by striking ``sec. 12. Any person'' and 
                inserting the following:

``SEC. 12. PENALTIES.

    ``(a) Violations for Interference With Board.--Any person''; and
                    (B) by adding at the end the following:
    ``(b) Violations for Posting Requirements and Voter List.--If the 
Board, or any agent or agency designated by the Board for such 
purposes, determines that an employer has violated section 8(h) or 
regulations issued thereunder, the Board shall--
            ``(1) state the findings of fact supporting such 
        determination;
            ``(2) issue and cause to be served on such employer an 
        order requiring that such employer comply with section 8(h) or 
        regulations issued thereunder; and
            ``(3) impose a civil penalty in an amount determined 
        appropriate by the Board, except that in no case shall the 
        amount of such penalty exceed $500 for each such violation.
    ``(c) Civil Penalties for Violations.--
            ``(1) In general.--Any employer who commits an unfair labor 
        practice within the meaning of section 8(a) shall, in addition 
        to any remedy ordered by the Board, be subject to a civil 
        penalty in an amount not to exceed $50,000 for each violation, 
        except that, with respect to an unfair labor practice within 
        the meaning of paragraph (3) or (4) of section 8(a) or a 
        violation of section 8(a) that results in the discharge of an 
        employee or other serious economic harm to an employee, the 
        Board shall double the amount of such penalty, to an amount not 
        to exceed $100,000, in any case where the employer has within 
        the preceding 5 years committed another such violation.
            ``(2) Considerations.--In determining the amount of any 
        civil penalty under this subsection, the Board shall consider--
                    ``(A) the gravity of the unfair labor practice;
                    ``(B) the impact of the unfair labor practice on 
                the charging party, on other persons seeking to 
                exercise rights guaranteed by this Act, and on the 
                public interest; and
                    ``(C) the gross income of the employer.
            ``(3) Director and officer liability.--If the Board 
        determines, based on the particular facts and circumstances 
        presented, that a director or officer's personal liability is 
        warranted, a civil penalty for a violation described in this 
        subsection may also be assessed against any director or officer 
        of the employer who directed or committed the violation, had 
        established a policy that led to such a violation, or had 
        actual or constructive knowledge of and the authority to 
        prevent the violation and failed to prevent the violation.
    ``(d) Right to Civil Action.--
            ``(1) In general.--Any person who is injured by reason of a 
        violation of paragraph (1) or (3) of section 8(a) may, after 60 
        days following the filing of a charge with the Board alleging 
        an unfair labor practice, bring a civil action in the 
        appropriate district court of the United States against the 
        employer within 90 days after the expiration of the 60-day 
        period or the date the Board notifies the person that no 
        complaint shall issue, whichever occurs earlier, provided that 
        the Board has not filed a petition under section 10(j) of this 
        Act prior to the expiration of the 60-day period. No relief 
        under this subsection shall be denied on the basis that the 
        employee is, or was during the time of relevant employment or 
        during the back pay period, an unauthorized alien as defined in 
        section 274A(h)(3) of the Immigration and Nationality Act (8 
        U.S.C. 1324a(h)(3)) or any other provision of Federal law 
        relating to the unlawful employment of aliens.
            ``(2) Available relief.--Relief granted in an action under 
        paragraph (1) may include--
                    ``(A) back pay without any reduction, including any 
                reduction based on the employee's interim earnings or 
                failure to earn interim earnings;
                    ``(B) front pay (when appropriate);
                    ``(C) consequential damages;
                    ``(D) an additional amount as liquidated damages 
                equal to two times the cumulative amount of damages 
                awarded under subparagraphs (A) through (C);
                    ``(E) in appropriate cases, punitive damages in 
                accordance with paragraph (4); and
                    ``(F) any other relief authorized by section 706(g) 
                of the Civil Rights Act of 1964 (42 U.S.C. 2000e-5(g)) 
                or by section 1977A(b) of the Revised Statutes (42 
                U.S.C. 1981a(b)).
            ``(3) Attorney's fees.--In any civil action under this 
        subsection, the court may allow the prevailing party a 
        reasonable attorney's fee (including expert fees) and other 
        reasonable costs associated with maintaining the action.
            ``(4) Punitive damages.--In awarding punitive damages under 
        paragraph (2)(E), the court shall consider--
                    ``(A) the gravity of the unfair labor practice;
                    ``(B) the impact of the unfair labor practice on 
                the charging party, on other persons seeking to 
                exercise rights guaranteed by this Act, and on the 
                public interest; and
                    ``(C) the gross income of the employer.''.
            (2) Conforming amendments.--Section 10(b) of the National 
        Labor Relations Act (29 U.S.C. 160(b)) is amended--
                    (A) by striking ``six months'' and inserting ``180 
                days''; and
                    (B) by striking ``the six-month period'' and 
                inserting ``the 180-day period''.
    (j) Limitations.--Section 13 of the National Labor Relations Act 
(29 U.S.C. 163) is amended by striking the period at the end and 
inserting the following: ``: Provided, That the duration, scope, 
frequency, or intermittence of any strike or strikes shall not render 
such strike or strikes unprotected or prohibited.''.
    (k) Fair Share Agreements Permitted.--Section 14(b) of the National 
Labor Relations Act (29 U.S.C. 164(b)) is amended by striking the 
period at the end and inserting the following: ``: Provided, That 
collective bargaining agreements providing that all employees in a 
bargaining unit shall contribute fees to a labor organization for the 
cost of representation, collective bargaining, contract enforcement, 
and related expenditures as a condition of employment shall be valid 
and enforceable notwithstanding any State or Territorial law.''.

SEC. 3. CONFORMING AMENDMENTS TO THE LABOR MANAGEMENT RELATIONS ACT, 
              1947.

    The Labor Management Relations Act, 1947 is amended--
            (1) in section 213(a) (29 U.S.C. 183(a)), by striking 
        ``clause (A) of the last sentence of section 8(d) (which is 
        required by clause (3) of such section 8(d)), or within 10 days 
        after the notice under clause (B)'' and inserting ``section 
        8(d)(2)(A) of the National Labor Relations Act (which is 
        required by section 8(d)(1)(C) of such Act), or within 10 days 
        after the notice under section 8(d)(2)(B) of such Act''; and
            (2) by repealing section 303 (29 U.S.C. 187).

SEC. 4. AMENDMENTS TO THE LABOR-MANAGEMENT REPORTING AND DISCLOSURE ACT 
              OF 1959.

    (a) In General.--Section 203(c) of the Labor-Management Reporting 
and Disclosure Act of 1959 (29 U.S.C. 433(c)) is amended by striking 
the period at the end and inserting the following ``: Provided, That 
this subsection shall not exempt from the requirements of this section 
any arrangement or part of an arrangement in which a party agrees, for 
an object described in subsection (b)(1), to plan or conduct employee 
meetings; train supervisors or employer representatives to conduct 
meetings; coordinate or direct activities of supervisors or employer 
representatives; establish or facilitate employee committees; identify 
employees for disciplinary action, reward, or other targeting; or draft 
or revise employer personnel policies, speeches, presentations, or 
other written, recorded, or electronic communications to be delivered 
or disseminated to employees.''.
    (b) Whistleblower Protections.--The Labor-Management Reporting and 
Disclosure Act of 1959 (29 U.S.C. 401 et seq.) is further amended--
            (1) by redesignating section 611 (29 U.S.C. 531) as section 
        612; and
            (2) by inserting after section 610 (29 U.S.C. 530), the 
        following new section:

                      ``whistleblower protections

    ``Sec. 611.  (a) In General.--No employer or labor organization 
shall terminate or in any other way discriminate against, or cause to 
be terminated or discriminated against, any applicant, covered 
employee, or former covered employee, of the employer or the labor 
organization by reason of the fact that such applicant, covered 
employee, or former covered employee does, or the employer or labor 
organization perceives the employee to do, any of the following:
            ``(1) Provide, cause to be provided, or is about to provide 
        or cause to be provided, information to the labor organization, 
        the Department of Labor, or any other State, local, or Federal 
        Government authority or law enforcement agency relating to any 
        violation of, or any act or omission that such employee 
        reasonably believes to be a violation of, any provision of this 
        Act.
            ``(2) Testify or plan to testify or otherwise participate 
        in any proceeding resulting from the administration or 
        enforcement of any provision of this Act.
            ``(3) File, institute, or cause to be filed or instituted, 
        any proceeding under this Act.
            ``(4) Assist in any activity described in paragraphs (1) 
        through (3).
            ``(5) Object to, or refuse to participate in, any activity, 
        policy, practice, or assigned task that such covered employee 
        reasonably believes to be in violation of any provision of this 
        Act.
    ``(b) Definition of Covered Employee.--For the purposes of this 
section, the term `covered employee' means any employee or agent of an 
employer or labor organization, including any person with management 
responsibilities on behalf of the employer or labor organization.
    ``(c) Procedures and Timetables.--
            ``(1) Complaint.--
                    ``(A) In general.--An applicant, covered employee, 
                or former covered employee who believes that he or she 
                has been terminated or in any other way discriminated 
                against by any person in violation of subsection (a) 
                may file (or have any person file on his or her behalf) 
                a complaint with the Secretary of Labor alleging such 
                violation. Such a complaint must be filed not later 
                than either--
                            ``(i) 180 days after the date on which such 
                        alleged violation occurs; or
                            ``(ii) 180 days after the date upon which 
                        the employee knows or should reasonably have 
                        known that such alleged violation in subsection 
                        (a) occurred.
                    ``(B) Actions of secretary of labor.--Upon receipt 
                of such a complaint, the Secretary of Labor shall 
                notify, in writing, the person named in the complaint 
                who is alleged to have committed the violation, of--
                            ``(i) the filing of the complaint;
                            ``(ii) the allegations contained in the 
                        complaint;
                            ``(iii) the substance of evidence 
                        supporting the complaint; and
                            ``(iv) opportunities that will be afforded 
                        to such person under paragraph (2).
            ``(2) Investigation by secretary of labor.--
                    ``(A) In general.--Not later than 60 days after the 
                date of receipt of a complaint filed under paragraph 
                (1), and after affording the complainant and the person 
                named in the complaint who is alleged to have committed 
                the violation that is the basis for the complaint an 
                opportunity to submit to the Secretary of Labor a 
                written response to the complaint and an opportunity to 
                meet with a representative of the Secretary of Labor to 
                present statements from witnesses, the Secretary of 
                Labor shall--
                            ``(i) initiate an investigation and 
                        determine whether there is reasonable cause to 
                        believe that the complaint has merit; and
                            ``(ii) notify the complainant and the 
                        person alleged to have committed the violation 
                        of subsection (a), in writing, of such 
                        determination.
                    ``(B) Grounds for determination of complaints.--The 
                Secretary of Labor shall dismiss a complaint filed 
                under this subsection, and shall not conduct an 
                investigation otherwise required under paragraph (2), 
                unless the complainant makes a prima facie showing that 
                any behavior described in paragraphs (1) through (5) of 
                subsection (a) was a contributing factor in the 
                unfavorable personnel action alleged in the complaint.
            ``(3) Burdens of proof.--
                    ``(A) Criteria for determination.--In making a 
                determination or adjudicating a complaint pursuant to 
                this subsection, the Secretary, an administrative law 
                judge or a court may determine that a violation of 
                subsection (a) has occurred only if the complainant 
                demonstrates that any conduct described in subsection 
                (a) with respect to the complainant was a contributing 
                factor in the adverse action alleged in the complaint.
                    ``(B) Prohibition.--Notwithstanding subparagraph 
                (A), a decision or order that is favorable to the 
                complainant shall not be issued in any administrative 
                or judicial action pursuant to this subsection if the 
                respondent demonstrates by clear and convincing 
                evidence that the respondent would have taken the same 
                adverse action in the absence of such conduct.
                    ``(C) Notice of relief available.--If the Secretary 
                of Labor concludes that there is reasonable cause to 
                believe that a violation of subsection (a) has 
                occurred, the Secretary of Labor shall, together with 
                the notice under subparagraph (A)(ii), issue a 
                preliminary order providing the relief prescribed by 
                paragraph (4)(B).
                    ``(D) Request for hearing.--Not later than 30 days 
                after the date of receipt of notification of a 
                determination of the Secretary of Labor under this 
                paragraph, either the person alleged to have committed 
                the violation or the complainant may file objections to 
                the findings or preliminary order, or both, and request 
                a hearing on the record. The filing of such objections 
                shall not operate to stay any reinstatement remedy 
                contained in the preliminary order. Any such hearing 
                shall be conducted expeditiously, and if a hearing is 
                not requested in such 30-day period, the preliminary 
                order shall be deemed a final order that is not subject 
                to judicial review.
                    ``(E) Procedures.--
                            ``(i) In general.--A hearing requested 
                        under this paragraph shall be conducted 
                        expeditiously and in accordance with rules 
                        established by the Secretary for hearings 
                        conducted by administrative law judges.
                            ``(ii) Subpoenas; production of evidence.-- 
                        In conducting any such hearing, the 
                        administrative law judge may issue subpoenas. 
                        The respondent or complainant may request the 
                        issuance of subpoenas that require the 
                        deposition of, or the attendance and testimony 
                        of, witnesses and the production of any 
                        evidence (including any books, papers, 
                        documents, or recordings) relating to the 
                        matter under consideration.
            ``(4) Issuance of final orders; review procedures.--
                    ``(A) Timing.--Not later than 120 days after the 
                date of conclusion of any hearing under paragraph (2), 
                the Secretary of Labor shall issue a final order 
                providing the relief prescribed by this paragraph or 
                denying the complaint. At any time before issuance of a 
                final order, a proceeding under this subsection may be 
                terminated on the basis of a settlement agreement 
                entered into by the Secretary of Labor, the 
                complainant, and the person alleged to have committed 
                the violation.
                    ``(B) Available relief.--
                            ``(i) Order of secretary of labor.--If, in 
                        response to a complaint filed under paragraph 
                        (1), the Secretary of Labor determines that a 
                        violation of subsection (a) has occurred, the 
                        Secretary of Labor shall order the person who 
                        committed such violation--
                                    ``(I) to take affirmative action to 
                                abate the violation;
                                    ``(II) to reinstate the complainant 
                                to his or her former position, together 
                                with compensation (including back pay 
                                with interest) and restore the terms, 
                                conditions, and privileges associated 
                                with his or her employment;
                                    ``(III) to provide compensatory 
                                damages to the complainant; and
                                    ``(IV) expungement of all warnings, 
                                reprimands, or derogatory references 
                                that have been placed in paper or 
                                electronic records or databases of any 
                                type relating to the actions by the 
                                complainant that gave rise to the 
                                unfavorable personnel action, and, at 
                                the complainant's direction, 
                                transmission of a copy of the decision 
                                on the complaint to any person whom the 
                                complainant reasonably believes may 
                                have received such unfavorable 
                                information.
                            ``(ii) Costs and expenses.--If an order is 
                        issued under clause (i), the Secretary of 
                        Labor, at the request of the complainant, shall 
                        assess against the person against whom the 
                        order is issued, a sum equal to the aggregate 
                        amount of all costs and expenses (including 
                        attorney fees and expert witness fees) 
                        reasonably incurred, as determined by the 
                        Secretary of Labor, by the complainant for, or 
                        in connection with, the bringing of the 
                        complaint upon which the order was issued.
                    ``(C) Frivolous claims.--If the Secretary of Labor 
                finds that a complaint under paragraph (1) is frivolous 
                or has been brought in bad faith, the Secretary of 
                Labor may award to the prevailing employer or labor 
                organization a reasonable attorney fee, not exceeding 
                $1,000, to be paid by the complainant.
                    ``(D) De novo review.--
                            ``(i) Failure of the secretary to act.--If 
                        the Secretary of Labor has not issued a final 
                        order within 270 days after the date of filing 
                        of a complaint under this subsection, or within 
                        90 days after the date of receipt of a written 
                        determination, the complainant may bring an 
                        action at law or equity for de novo review in 
                        the appropriate district court of the United 
                        States having jurisdiction, which shall have 
                        jurisdiction over such an action without regard 
                        to the amount in controversy, and which action 
                        shall, at the request of either party to such 
                        action, be tried by the court with a jury.
                            ``(ii) Procedures.--A proceeding under 
                        clause (i) shall be governed by the same legal 
                        burdens of proof specified in paragraph (3). 
                        The court shall have jurisdiction to grant all 
                        relief necessary to make the employee whole, 
                        including injunctive relief and compensatory 
                        damages, including--
                                    ``(I) reinstatement with the same 
                                seniority status that the employee 
                                would have had, but for the discharge 
                                or discrimination;
                                    ``(II) the amount of back pay, with 
                                interest;
                                    ``(III) compensation for any 
                                special damages sustained as a result 
                                of the discharge or discrimination, 
                                including litigation costs, expert 
                                witness fees, and reasonable attorney 
                                fees; and
                                    ``(IV) expungement of all warnings, 
                                reprimands, or derogatory references 
                                that have been placed in paper or 
                                electronic records or databases of any 
                                type relating to the actions by the 
                                complainant that gave rise to the 
                                unfavorable personnel action, and, at 
                                the complainant's direction, 
                                transmission of a copy of the decision 
                                on the complaint to any person whom the 
                                complainant reasonably believes may 
                                have received such unfavorable 
                                information.
                    ``(E) Other appeals.--Unless the complainant brings 
                an action under subparagraph (D), any person adversely 
                affected or aggrieved by a final order issued under 
                subparagraph (A) may file a petition for review of the 
                order in the United States Court of Appeals for the 
                circuit in which the violation with respect to which 
                the order was issued, allegedly occurred or the circuit 
                in which the complainant resided on the date of such 
                violation, not later than 60 days after the date of the 
                issuance of the final order of the Secretary of Labor 
                under subparagraph (A). Review shall conform to chapter 
                7 of title 5, United States Code. The commencement of 
                proceedings under this subparagraph shall not, unless 
                ordered by the court, operate as a stay of the order. 
                An order of the Secretary of Labor with respect to 
                which review could have been obtained under this 
                subparagraph shall not be subject to judicial review in 
                any criminal or other civil proceeding.
            ``(5) Failure to comply with order.--
                    ``(A) Actions by the secretary.--If any person has 
                failed to comply with a final order issued under 
                paragraph (4), the Secretary of Labor may file a civil 
                action in the United States district court for the 
                district in which the violation was found to have 
                occurred, or in the United States district court for 
                the District of Columbia, to enforce such order. In 
                actions brought under this paragraph, the district 
                courts shall have jurisdiction to grant all appropriate 
                relief including injunctive relief, compensatory and 
                punitive damages.
                    ``(B) Civil actions to compel compliance.--A person 
                on whose behalf an order was issued under paragraph (4) 
                may commence a civil action against the person to whom 
                such order was issued to require compliance with such 
                order. The appropriate United States district court 
                shall have jurisdiction, without regard to the amount 
                in controversy or the citizenship of the parties, to 
                enforce such order.
                    ``(C) Award of costs authorized.--The court, in 
                issuing any final order under this paragraph, may award 
                costs of litigation (including reasonable attorney and 
                expert witness fees) to any party, whenever the court 
                determines such award is appropriate.
                    ``(D) Mandamus proceedings.--Any nondiscretionary 
                duty imposed by this section shall be enforceable in a 
                mandamus proceeding brought under section 1361 of title 
                28, United States Code.
    ``(d) Unenforceability of Certain Agreements.--Notwithstanding any 
other provision of law, the rights and remedies provided for in this 
section may not be waived by any agreement, policy, form, or condition 
of employment, including by any predispute arbitration agreement.
    ``(e) Savings.--Nothing in this subsection shall be construed to 
diminish the rights, privileges, or remedies of any employee who 
exercises rights under any Federal or State law or common law, or under 
any collective bargaining agreement.''.

SEC. 5. RULE OF CONSTRUCTION.

    The amendments made under this Act shall not be construed to amend 
section 274A of the Immigration and Nationality Act (8 U.S.C. 1324a).

SEC. 6. GAO REPORT ON SECTORAL BARGAINING.

    (a) In General.--Not later than 2 years after the date of enactment 
of this Act, the Comptroller General, in consultation with the persons 
described in subsection (b), shall prepare and submit to the Committee 
on Education and Labor of the House of Representatives and the 
Committee on Health, Education, Labor, and Pensions of the Senate a 
report, that--
            (1) identifies and analyzes the laws, policies, and 
        procedures in countries outside the United States governing 
        collective bargaining at the level of an industry sector, 
        including the laws, policies, and procedures involved in--
                    (A) the administrative system facilitating such 
                bargaining;
                    (B) how collective bargaining agreements are 
                rendered binding on all firms in an industry sector;
                    (C) defining an industry sector;
                    (D) the relationship between collective bargaining 
                at the level of an individual employer or group of 
                employers and at the level of an industry sector;
                    (E) the designation of representatives for 
                collective bargaining at the level of an industry 
                sector;
                    (F) the scope of collective bargaining and impasses 
                at the level of an industry sector; and
                    (G) the provision or administration of benefits by 
                labor organizations (such as unemployment insurance), 
                or union security at the firm level or the level of an 
                industry sector, to cover the costs of collective 
                bargaining at the level of an industry sector;
            (2) conducts a comparative analysis of the laws, policies, 
        and procedures specified in paragraph (1) that have been 
        enacted in countries outside the United States;
            (3) to the extent practicable, identifies the effects of 
        such laws, policies, and procedures on--
                    (A) the wages and compensation of employees;
                    (B) the number of employees, disaggregated by full-
                time and part-time employees;
                    (C) prices, sales, and revenues;
                    (D) employee turnover and retention;
                    (E) hiring and training costs;
                    (F) productivity and absenteeism; and
                    (G) the development of emerging industries, 
                including those that engage their workforces through 
                technology; and
            (4) describes the methodology used to generate the 
        information in the report.
    (b) Expert Consultation.--The persons described in this subsection 
are--
            (1) workers and the labor organizations representing such 
        workers;
            (2) representatives of businesses;
            (3) the National Labor Relations Board;
            (4) the International Labor Organization; and
            (5) the International Labor Affairs Bureau of the 
        Department of Labor.
    (c) Congressional Assessment and Recommendations.--Not later than 
60 days after the date on which the report is submitted under 
subsection (a), the Committee on Education and Labor of the House of 
Representatives and the Committee on Health, Education, Labor, and 
Pensions of the Senate shall--
            (1) assess the findings of such report; and
            (2) make recommendations with respect to actions of 
        Congress to address the findings of such report.

SEC. 7. RULE OF CONSTRUCTION.

     The amendments made under this Act shall not be construed to 
affect the definitions of ``employer'' or ``employee'' under the laws 
of any State that govern the wages, work hours, workers' compensation, 
or unemployment insurance of employees.

SEC. 8. RULE OF CONSTRUCTION.

    The amendments made under this Act shall not be construed to affect 
the privacy of employees with respect to voter lists provided to labor 
organizations by employers pursuant to elections directed by the Board.

SEC. 9. RULE OF CONSTRUCTION.

    The amendments made by this Act shall not be construed to affect 
the jurisdictional standards of the National Labor Relations Board, 
including any standards that measure the size of a business with 
respect to revenues, that are used to determine whether an industry is 
affecting commerce for purposes of determining coverage under the 
National Labor Relations Act (29 U.S.C. 151 et seq.).

SEC. 10. AUTHORIZATION OF APPROPRIATIONS.

    There are authorized to be appropriated such sums as may be 
necessary to carry out the provisions of this Act, including any 
amendments made by this Act.

            Passed the House of Representatives February 6, 2020.

            Attest:

                                                                 Clerk.
116th CONGRESS

  2d Session

                               H. R. 2474

_______________________________________________________________________

                                 AN ACT

    To amend the National Labor Relations Act, the Labor Management 
Relations Act, 1947, and the Labor-Management Reporting and Disclosure 
                  Act of 1959, and for other purposes.