[Congressional Bills 118th Congress]
[From the U.S. Government Publishing Office]
[H.R. 3834 Introduced in House (IH)]

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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, identification of pre-election 
       issues, and interpretation of employer rules and policies.

    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 ``Workforce Democracy and Fairness 
Act''.

SEC. 2. PRE-ELECTION HEARING; AMBUSH ELECTION RULE.

    Section 9(c)(1) of the National Labor Relations Act (29 U.S.C. 
159(c)(1)) is amended in the matter following subparagraph (B)--
            (1) by inserting ``, but in no circumstances earlier than 
        14 calendar days after the filing of the petition'' after 
        ``upon due notice'';
            (2) by inserting after ``with respect thereto.'' the 
        following: ``An appropriate hearing shall be one that is non-
        adversarial with the hearing officer charged, in collaboration 
        with the parties, with the responsibility of identifying any 
        relevant and material pre-election issues and thereafter making 
        a full record thereon. Relevant and material pre-election 
        issues shall include, in addition to unit appropriateness, the 
        Board's jurisdiction and any other issue the resolution of 
        which may make an election unnecessary or may reasonably be 
        expected to impact the outcome of the election. Parties may 
        independently raise any relevant and material pre-election 
        issue or assert any relevant and material position at any time 
        prior to the close of the hearing. It shall not constitute or 
        be evidence of an unfair labor practice under any of the 
        provisions of this Act for any party or their counsel to pose 
        any question at the hearing: Provided, That this shall not 
        limit the authority of the hearing officer to rule on 
        objections and otherwise to conduct the hearing consistent with 
        this Act.''; and
            (3) by striking ``and shall certify the results thereof'' 
        and inserting ``to be conducted as soon as practicable but no 
        earlier than 20 business days after the Board directs that an 
        election be held. The Board shall certify the results of the 
        election after it has ruled on each pre-election issue not 
        resolved before the election and any additional issue 
        pertaining to the conduct or results of the election''.

SEC. 3. APPROPRIATE UNITS FOR COLLECTIVE BARGAINING.

    Section 9(b) of the National Labor Relations Act (29 U.S.C. 159(b)) 
is amended--
            (1) by redesignating paragraphs (1) through (3) as 
        subparagraphs (A) through (C), respectively;
            (2) by striking ``The Board shall decide'' and all that 
        follows through ``or subdivision thereof:'' and inserting the 
        following: ``(1) In each case, prior to an election, the Board 
        shall determine, in order to assure to employees the fullest 
        freedom in exercising the rights guaranteed by this Act, the 
        unit appropriate for the purposes of collective bargaining. 
        Unless otherwise stated in this Act, and excluding any 
        bargaining unit determination promulgated through rulemaking 
        before August 26, 2011, the unit appropriate for purposes of 
        collective bargaining shall consist of employees that share a 
        sufficient community of interest. In determining whether 
        employees share a sufficient community of interest, the Board 
        shall consider--
            ``(A) similarity of wages, benefits, and working 
        conditions;
            ``(B) similarity of skills and training;
            ``(C) centrality of management and common supervision;
            ``(D) extent of interchange and frequency of contact 
        between employees;
            ``(E) integration of the work flow and interrelationship of 
        the production process;
            ``(F) the consistency of the unit with the employer's 
        organizational structure;
            ``(G) similarity of job functions and work; and
            ``(H) the bargaining history in the particular unit and the 
        industry.
To avoid the proliferation or fragmentation of bargaining units, no 
employee shall be excluded from the unit unless the interests of the 
group seeking a separate unit are sufficiently distinct from those of 
other employees to warrant the establishment of a separate unit. 
Whether additional employees should be included in a proposed unit 
shall be determined based on whether such additional employees and 
proposed unit members share a sufficient community of interest, and 
when considering or deciding to include such additional employees in 
the proposed unit the Board shall give no consideration to whether they 
share an overwhelming community of interest with proposed unit members: 
Provided, That when evaluating proposed accretions to an existing unit 
the inclusion of additional employees may be based on whether such 
additional employees and existing unit members share an overwhelming 
community of interest and the additional employees have little or no 
separate identity.''; and
            (3) by striking ``Provided, That the Board'' and inserting 
        the following:
    ``(2) The Board''.

SEC. 4. HANDBOOKS.

    Section 8 of the National Labor Relations Act (29 U.S.C. 158) is 
amended by inserting after subsection (g) the following:
    ``(h)(1) The Board shall find that facially neutral rules, policies 
and employee handbook provisions adopted or maintained by an employer 
are lawful under this Act, unless the Board applies the principles and 
makes findings set forth in paragraphs (2) and (3). For the purposes of 
this subsection, `facially neutral' refers to rules, policies, and 
employee handbook provisions that contain no explicit reference to and 
prohibition against specific activities mentioned in this Act (such as 
forming, joining or assisting labor organizations, bargaining 
collectively, or refraining from such activities as provided in section 
7). A rule, policy, or employee handbook provision that explicitly 
upholds prohibitions on discrimination set forth under title VII of the 
Civil Rights Act of 1964 (42 U.S.C. 2000e et seq.) shall be deemed 
`facially neutral'.
    ``(2) When considering claims that the adoption or maintenance of a 
facially neutral rule, policy, or employee handbook provision violates 
this Act, the Board in each case must consider and make findings 
regarding both--
            ``(A) the justifications associated with the rule, policy, 
        or handbook provision; and
            ``(B) the nature and extent of the impact on protected 
        rights, if any.
    ``(3) The Board shall find that the adoption or maintenance of a 
facially neutral rule, policy, or employee handbook provision violates 
this Act only if the General Counsel 16 shows by clear and convincing 
evidence that--
            ``(A) adoption or maintenance of the rule, policy, or 
        employee handbook provision has an adverse impact on the 
        exercise of rights under section 7; and
            ``(B) the adverse impact described in subparagraph (A) 
        outweighs the justification associated with the rule, policy, 
        or handbook.
    ``(4) If a facially neutral rule, policy, or employee handbook 
provision, which is lawful and consistent with this subsection, is 
found to have been applied in a case involving the exercise of rights 
under section 7, and if the Board concludes that said application 
violates section 8(a)(1) or another provision of this Act, the Board's 
remedy shall not include the rescission or modification of such rule, 
policy, or employee handbook provision.''.
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