[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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