118 HR 3834 IH: Workforce Democracy and Fairness Act
U.S. House of Representatives
2023-06-05
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I
118th CONGRESS
1st Session
H. R. 3834
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.
1.

Short title
This Act may be cited as the “Workforce Democracy and Fairness Act”.
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”.
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”.
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.”.