[Congressional Record Volume 164, Number 40 (Wednesday, March 7, 2018)]
[Senate]
[Pages S1454-S1460]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS
By Mr. BARRASSO:
S. 2507. A bill to require short-term limited duration insurance
issuers to renew or continue in force such coverage at the option of
the enrollees; to the Committee on Health, Education, Labor, and
Pensions.
Mr. BARRASSO. Mr. President, over the next couple of weeks, Congress
is going to need to finalize government appropriations for the
remainder of this year. Among the things that some people are talking
about is including money for a couple of ObamaCare programs. One of
them is money for the so-called cost-sharing reduction payments.
Funding for these payments was never appropriated by Congress. The
Obama administration paid the insurance companies anyway. President
Trump stopped these illegal payments last October. Now, some people in
Congress are talking about funding them again.
We all know that ObamaCare has been a disaster for millions and
millions of families all across the country. We know that for the
people who live in States that use the Federal healthcare.gov exchange,
average premiums have doubled since the law took effect. Certainly
Wyoming is one of those States that experienced it; I heard about it in
Clark County just last week. We know it. We hear about it in letters
from the people who write to us. No matter where they are from in the
State of Wyoming, we continue to hear about the costs going up. I am
sure there is a similar situation in the State of Arkansas, the
Presiding Officer's State, as well.
According to Gallup, the number of uninsured people actually
increased last year by 3 million. Many people are finding that they
just can't afford to have ObamaCare insurance. It is especially hard
for hard-working families who don't qualify for subsidies under the
healthcare law. So we know there is a problem, and we know we have to
do something to help people who are struggling in ObamaCare markets.
If people are going to discuss using this government spending law to
spend more money on the collapsing ObamaCare markets, there are other
things we should be discussing as well. We should discuss finding a
real solution to rising healthcare costs--one that doesn't just
continue the unworkable, unaffordable, and, frankly, unfair system that
ObamaCare created. We should discuss actually giving people more
freedom and more flexibility to choose a healthcare plan that is right
for them.
I am introducing a bill today to do just that. My legislation will
build on a step that President Trump and the Trump administration took
last month. The administration reversed a last-minute Obama-era policy
that had all but killed short-term health plans. These are less
expensive health plans that are free from the expensive and intrusive
and burdensome regulations that ObamaCare placed on other insurers, so
they are a much more affordable option for many Americans who have been
priced out of ObamaCare.
President Trump is on the right path with this new rule. It is
absolutely the right decision. He is giving people back an option so
they can decide for themselves if it is a right choice for them. I
think we should go a step further, and that is why I am introducing
this legislation. We should go a step further in the omnibus spending
bill. We should make this more affordable choice permanent. Making it
permanent protects people. It protects people so a future
administration doesn't do what President Obama did and try to wipe out
choices for Americans.
This legislation I am introducing today gives people a choice to have
these plans for not just 90 days--which was allowed at the end of the
Obama administration--but for a full 364 days. So it is up to a year.
It also makes sure people can then renew these plans, if they want
to, so it can become their permanent insurance, free from the mandates
of the Obama healthcare law. It protects them from being dropped if
they are sick. Remember, that was one of the biggest promises of
ObamaCare that was broken. President Obama said: If you like your plan,
you can keep your plan. Almost immediately, people found out it wasn't
true at all. In fact, it was called by some of the press the ``Lie of
the Year.''
In 2013 alone, there were 4.7 million Americans who got letters from
their insurance companies telling them that their insurance plan had
been canceled. Under my proposal, people with these short-term plans
wouldn't have to worry about getting a cancellation letter. They would
be protected from their insurance company, and they would be protected
from Washington, DC.
States are much better suited than Washington to regulate their
insurance markets in ways that work best for the citizens of their
State. These simple changes in my legislation will help give people
back--help give to them--the freedom ObamaCare took away. That is what
we are looking at, the need for freedom for the American people. We can
essentially give people an escape hatch to get out of the ObamaCare
plan entirely. We can give them the freedom to choose the coverage that
works for them and works best for their families.
That is the right way to bring down healthcare costs for Americans:
Give them options, give them choices, give them freedom, not make them
buy a one-size-fits-all government plan.
People living in more than half of America's counties have only one
choice of insurance in the ObamaCare exchange--only one--half of the
counties in the country. It is not a choice. They don't have options.
It is a monopoly.
The left-leaning Urban Institute estimates that 4.2 million Americans
would enroll in short-term plans next year if we just let them keep
their plan as long as a year. That is the kind of pent-up demand that
is out there for these more affordable, more flexible plans with much
more freedom.
Just the one change could make a difference in the lives of 4 million
Americans. My legislation does just that, and it has other benefits as
well.
I think it would be an attractive option for many more Americans, but
a lot of Democrats in Washington don't want to talk about options. No.
They know ObamaCare markets are collapsing; they don't seem to care.
They know costs are soaring out of control; it doesn't seem to concern
as many as it should. They know middle-class families are being
squeezed the hardest by these rising ObamaCare premiums. Their answer?
We have heard it. We have heard it on the floor of the Senate: Try to
push everyone--everyone in America, want it or not, everyone in
America--into a single, government-run insurance plan that looks a lot
like Medicaid. That is exactly the opposite of what we should be doing
and what I am proposing today.
What the Democrats are proposing is more of the same failed idea that
caused Americans so many problems under ObamaCare: government control.
If there is going to be talk of propping up the ObamaCare markets
during the omnibus spending bill, then we should also be talking about
helping people get out of the ObamaCare markets. Give them the freedom,
give them the escape hatch.
We should protect people who want health insurance but who don't want
ObamaCare health insurance. They know what works best for them and
their families, and we should trust the American people to know what is
best for them and their families. We should give people the freedom and
the flexibility to make those decisions for themselves, and we should
give them more opportunities to escape from the disastrous,
destructive, and extremely expensive ObamaCare markets.
______
By Mr. ALEXANDER (for himself, Mrs. Capito, Mr. Daines, Mr.
Gardner, Mr. Heinrich, Mr. King, Mr. Manchin, and Mr. Tillis):
S. 2509. A bill to establish the National Park Restoration Fund, and
for other purposes; to the Committee on Energy and Natural Resources.
Mr. ALEXANDER. Mr. President, probably every single one of us in the
Senate would agree that it is hard to get here, it is hard to stay
here, and it is wonderful to be able to accomplish something worthwhile
while you are here. That is why I am here today--because I want to call
attention to an announcement that was made this morning by a bipartisan
group of U.S. Senators and the Secretary of the Interior, Ryan Zinke,
which could take away
[[Page S1455]]
the $11.6 billion of national park maintenance backlog in the 417
national parks that we have. The proposal we made this morning could
eliminate that backlog over the next 10 years.
I want to give Secretary Zinke and the President a lot of credit for
this because they have agreed to do something that no other President
and no other Secretary of the Interior have ever agreed to do, as far
as I know, and that is to allow us to use revenues from energy
development on Federal lands as mandatory spending to pay for the
maintenance backlog in our National Park System.
Ken Burns called our national parks ``America's Best Idea.'' I would
say that the best idea to support America's best idea is the proposal
that Secretary Zinke has made to take care of the maintenance backlog
in our national parks.
Half of that maintenance backlog is our roads. Of course, when we pay
for the roads this way, that means all the money that is now being
taken away from all the other purposes at our national parks--I am
talking about the National Mall, where I get up in the morning and walk
every day, or the Great Smoky Mountains National Park, where I walk
when I go home on the weekends--could be used for other purposes there,
in all 417 of those parks.
If we don't do this, we will never catch up because this backlog--
this $11.6 billion backlog--is four times the annual appropriations for
the National Park Service. Everyone who cares about our national
parks--and that should be almost every American--should welcome this
proposal.
As I said, our use of Federal dollars in this way is unprecedented,
but the principle is not unprecedented. The principle is a very simple
principle, and that is this: If we create an environmental burden,
which energy exploration does, whether it is wind turbines or whether
it is spreading solar panels all over hundreds and hundreds of acres or
whether it is oil and gas exploration. If we create an environmental
burden, we should create a corresponding environmental benefit. That
principle is well established in our laws and has been supported by
almost every major environmental and conservation group I know of.
Let's start with the 1962 Outdoor Recreation Resources Review
Commission that Laurance Rockefeller chaired. That Commission, which
took a look at America for the next generation to see what we should do
to protect the outdoors so we could all enjoy it, recommended, and the
Congress adopted, the idea of the Land and Water Conservation Fund.
There was a Federal side and a State side. Over all of the years since
1964, $18 billion has been spent in the Land and Water Conservation
Fund. That is the environmental benefit. Where did the money come from?
It came from drilling on Federal offshore properties.
In 1986, I chaired President Reagan's Commission on Americans
Outdoors. We reaffirmed our support for the idea that an environmental
burden means we should have an environmental benefit. We urged Congress
to make permanent the funding for the Land and Water Conservation Fund.
So we reaffirmed that again for the next generation.
Then, in 2006, with the leadership of Senator Domenici, Senator
Bingaman, and others--many of us worked on it--Congress decided we
would take some of the revenues from new drilling in the Gulf of Mexico
and apply those to the State side of the Land and Water Conservation
Fund--again, an environmental burden and a corresponding environmental
benefit.
That is why this proposal is so exciting to me. That is why this
proposal has such strong bipartisan support.
In the Senate, the supporters include Senator King of Maine, Senator
Daines of Montana, and Senator Heinrich of New Mexico. It is a
bipartisan group. Supporters also include Senator Capito and Senator
Manchin, Senator Gardner and Senator Tillis; all of us support and are
cosponsoring this legislation we are introducing today.
In the House of Representatives, we also have two cosponsors.
Congressman Mike Simpson of Idaho, who is chairman of the House Energy
and Water Development Subcommittee, and Congressman Kurt Schrader from
Oregon is also a cosponsor in the House of Representatives.
So I believe this is an unprecedented day; for all of those who care
about and love our national parks and who have struggled to imagine how
we can deal with this $11.6 billion maintenance backlog--a backlog that
is four times the annual appropriation--we can pay this all off with
this proposal, which is supported by the President and his Office of
Management and Budget, a bipartisan group of Senators, and a bipartisan
group in the House.
I look forward to working with Senator Murkowski and Senator Cantwell
in the Energy and Natural Resources Committee. Hopefully, it can be
moved promptly through that committee. There are other important things
we would like to do, but I can't think of anything much more important
than our National Park System.
I mentioned a little earlier that we have 417 national parks in the
country. I grew up camping and hiking in one of those, and I live
within 2 miles of that park. It is the Great Smoky Mountains National
Park. It has more visitors than any other national park--nearly twice
as many as the closest one. Eleven million people a year come to the
park.
Many of my best memories are from that park. I remember, when I was
15 years old, my dad dropped me and a couple of other boys at the
highest point of the park, Clingmans Dome, one day around
Christmastime. There was 3 feet of snow. He said: I will pick you up in
Gatlinburg. Well, he did, and that was about 8 or 9 hours later.
Later that same year in the summertime we were camping on Spence
Field. That is at about 5,000 or 6,000 feet as well. We had taken
blueberry pancake mix up there. We picked the blueberries. We had all
of the materials for a good breakfast, but we made one mistake. We left
the breakfast in our packs in the tent, and during the night a bear
crawled in there with us, took it out, and we ended up on top of the
trail shelter banging the pans together trying to run the bear off.
That was the last time we left our breakfast materials nearby the
sleeping area when we were camping in the park.
The park is a good place for lessons and learning and appreciating
beauty. It is a good place for the rich. It is a good place for the
poor. Parents bring their children out of a digital diet to feast on a
world of natural splendor. We learn our history in a place where
history comes alive; not just the history of the world but the history
of East Tennessee, the history of Wyoming, the history of Maine, the
history of Montana.
Let me give my colleagues a sense of just what this $11 billion
backlog means. I have already said it is nearly four times what the
National Park Service receives in annual appropriations. We can talk
about the Smokies alone. Between Tennessee and North Carolina, there is
about a $215 million backlog of projects; 75 percent of that is roads.
We get nearly twice as many visitors as any other park. These visitors
come to see our majestic views. They spend 400,000 nights camping in 9
frontcountry campgrounds and 100 backcountry camp sites.
In 2013, the park had to close Look Rock Campground and the picnic
area due to funding shortfalls in replacing the water treatment
facilities. In order to open this recreation area for visitors, the
park needs $3 million to replace the water treatment facility, repair
the road infrastructure, and replace aging picnic tables and campground
pads. This proposal could do that.
The funding provided in the National Park Restoration Act, which is
what we call our legislation, could help reopen this campground for the
enjoyment of the over 11 million visitors to the Smokies.
The Smokies also supports a vast trail system, with almost 850 miles
of maintained trails for hikers, backpackers, and visitors. The current
deferred maintenance backlog for trails in the Smokies is $18.5
million. This proposal would take care of that.
In August 2017, I visited the Smokies with Interior Secretary Ryan
Zinke, and I saw firsthand with him the work that is needed on the
trails. We hiked the Rainbow Falls Trail, where a 2-year project is
underway to rehabilitate the trail.
Crews from Trails Forever, a partnership between the Great Smoky
Mountains National Park and the Friends of
[[Page S1456]]
the Smokies, and the American Conservation Experience are working to
build a rock staircase along the trail to reduce erosion and improve
visitor safety and enjoyment.
Crews use rigging systems to move large rocks, split them using
drills and chisels, and then set them into place to provide long-
lasting trail structures for those hoping to see the rainbow formed by
mist from the 80-foot waterfall along the Rainbow Falls Trail.
Secretary Zinke and I worked to split and place one of those rock
steps. It is not very easy to do. Volunteer crews will work to
rehabilitate over 6 miles of that trail.
In addition to the crews, every Wednesday volunteers head up the
trail to help restore it for future visitors. In 2017, volunteers
donated 900 hours of work on that trail.
The Smokies is full of wonderful volunteers like those working on the
Rainbow Falls Trail. Over 2,800 volunteers donated over 115,000 hours
last year alone, but we must do more to get the funding to our parks to
help address the maintenance needs and support the countless
volunteers.
In the Smokies, 75 percent of that maintenance work is roads, which
isn't surprising, since millions of visitors to the park each year
experience it behind the wheel. The park maintains and operates nearly
400 miles of roads, including 6 tunnels and 146 bridges, which allow
visitors to traverse the park's mountainous landscape.
The Smokies is working hard to address these maintenance needs, and
later this year they will open 16 miles of the Foothills Parkway. We
are all looking forward to that in East Tennessee. Driving the
Foothills Parkway will give you a spectacular view of the highest
mountains in the Eastern United States. Tennesseans are excited that
these new 16 miles of the parkway will soon be open to the public. It
is scheduled for this fall.
Due to funding shortfalls, building and repairing the 16-mile stretch
of the Foothills Parkway took over 50 years and will be completed
nearly 75 years after Congress first authorized the Foothills Parkway.
Completing just 1.6 miles of the parkway took nearly 30 years.
In 1944, Congress authorized the Foothills Parkway but prohibited
Federal funds from being used to purchase and acquire the land, so the
State of Tennessee purchased the land and gave it to the Federal
Government to create a scenic parkway to provide views of the Great
Smoky Mountains National Park.
For 75 years, Tennesseans and visitors have been waiting to enjoy the
majestic views of the Foothills Parkway because there hasn't been
sufficient Federal funding to address the maintenance needs of our
national parks. Other roadways in the Smokies, including Newfound Gap
Road and Clingmans Dome Road, remain on this backlog list.
Clingmans Dome Road takes visitors to Clingmans Dome--the highest
point in Tennessee and the third highest mountain east of the
Mississippi. At 6,643 feet, Clingmans Dome offers panoramic views of
the Smoky Mountains.
Additional funding is desperately needed for the Smokies and all of
our National Parks to help repair and rebuild campgrounds, trails, and
roads. Doing that will bring more visitors, more tourists, and more
jobs to Tennessee and to national park communities throughout our
country.
According to the Outdoor Industry Association, the outdoor recreation
economy generates 7.6 million direct jobs and $887 billion in consumer
spending. In Tennessee, the outdoor recreation economy generates
188,000 direct jobs and over $21 billion in consumer spending.
In 2016, the visitors to the Great Smoky Mountains National Park
alone spent nearly $950 million in communities surrounding the park.
The over 11 million visitors to the park supported nearly 15,000 jobs
and $1.3 billion in economic output in these communities.
Restoring our parks not only helps to preserve our land for
generations but helps to grow our economy.
Now, here is what our bill does. I see the Senator from North
Carolina is coming to preside, and he is one of the principal
cosponsors of the bill. The National Park Restoration Act will use
revenues from energy production on Federal lands to help pay for the
$11 billion maintenance backlog at our national parks. It will provide
mandatory funding on top of annual appropriations for the National Park
Service--for the priority-deferred maintenance needs that support
critical infrastructure and visitor services at our parks.
The National Park Restoration Fund created by the legislation will
receive 50 percent of revenues from energy production on Federal lands
over the 2018 projections that are not already allocated to other
purposes.
This legislation includes revenues from all sources of energy
production on Federal land: oil, gas, coal, renewables, and alternative
energy.
The legislation protects all existing obligations for revenues from
energy production on Federal land, including payments to States,
payments to the Land and Water Conservation Fund, and payments to the
Reclamation Fund.
Finally, I want to acknowledge the work that Senators Portman and
Warner have done. They have introduced similar legislation. They have
many of the same objectives. I know there are many other Senators who
care deeply about this issue, other than the bipartisan group of us who
introduced the legislation today. We can all work together in the
Energy and Natural Resources Committee where this bill will be
referred. We will put our heads together with Senator Murkowski and
Senator Cantwell. We will come out with the best possible bill--
something that President Trump can continue to support and that the
full Senate and then the House of Representatives can pass. Then, we
can get on with it and begin to deal with the deferred maintenance
backlog in our national parks.
Theodore Roosevelt once said that nothing short of defending this
country in wartime ``compares in importance with the great central task
of leaving this land even a better land for our descendants than it is
for us.'' We must all work together to restore our national treasures
so future generations have the same opportunity to enjoy them, as we
have.
In conclusion, let me reiterate something personal about this. In
1985, the Secretary of the Interior called and asked me, when I was
Governor of Tennessee, to chair the President's Commission on Americans
Outdoors. I did that, along with Gil Grosvenor, the chairman of the
National Geographic Society, and a variety of people. One of our major
recommendations was to pick up the recommendation of the Rockefeller
Commission from 1964, which said, if there is an environmental burden,
there should be an environmental benefit. They are the ones who
recommended, to begin with, that we take land from energy exploration
and use it to pay for the Land and Water Conservation Fund.
We reaffirmed that in 1986. We reaffirmed that principle in 2006 when
we used revenues from drilling for the State side of the Land and Water
Conservation Fund.
So while this proposal is unprecedented in the sense that it is the
first time that I know of that a President and his Office of Management
and Budget have approved mandatory funding using revenues from energy
production on Federal lands to deal with national park maintenance
needs, the principle of matching an environmental burden with an
environmental benefit is well established.
I am grateful to the President, and I am especially grateful to
Secretary Zinke for his initiative. I look forward to working with a
bipartisan group of Senators in the Energy Committee to develop a bill,
pass it, and get started on the work of America's best idea for
restoring America's best idea--our National Park System.
______
By Mr. DURBIN (for himself, Mr. Whitehouse, and Mr. Brown):
S. 2518. A bill to amend title 11, United States Code, to improve
protections for employees and retirees in business bankruptcies; to the
Committee on the Judiciary.
Mr. DURBIN. Mr. President, I ask unanimous consent that the text of
the bill be printed in the Record.
There being no objection, the text of the bill was ordered to be
printed in the Record, as follows:
S. 2518
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
[[Page S1457]]
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the ``Protecting
Employees and Retirees in Business Bankruptcies Act of
2018''.
(b) Table of Contents.--The table of contents of this Act
is as follows:
Sec. 1. Short title; table of contents.
Sec. 2. Findings.
TITLE I--IMPROVING RECOVERIES FOR EMPLOYEES AND RETIREES
Sec. 101. Increased wage priority.
Sec. 102. Claim for stock value losses in defined contribution plans.
Sec. 103. Priority for severance pay.
Sec. 104. Financial returns for employees and retirees.
Sec. 105. Priority for WARN Act damages.
TITLE II--REDUCING EMPLOYEES' AND RETIREES' LOSSES
Sec. 201. Rejection of collective bargaining agreements.
Sec. 202. Payment of insurance benefits to retired employees.
Sec. 203. Protection of employee benefits in a sale of assets.
Sec. 204. Claim for pension losses.
Sec. 205. Payments by secured lender.
Sec. 206. Preservation of jobs and benefits.
Sec. 207. Termination of exclusivity.
Sec. 208. Claim for withdrawal liability.
TITLE III--RESTRICTING EXECUTIVE COMPENSATION PROGRAMS
Sec. 301. Executive compensation upon exit from bankruptcy.
Sec. 302. Limitations on executive compensation enhancements.
Sec. 303. Assumption of executive benefit plans.
Sec. 304. Recovery of executive compensation.
Sec. 305. Preferential compensation transfer.
TITLE IV--OTHER PROVISIONS
Sec. 401. Union proof of claim.
Sec. 402. Exception from automatic stay.
SEC. 2. FINDINGS.
The Congress finds the following:
(1) Business bankruptcies have increased sharply in recent
years and remain at high levels. These bankruptcies include
several of the largest business bankruptcy filings in
history. As the use of bankruptcy has expanded, job
preservation and retirement security are placed at greater
risk.
(2) Laws enacted to improve recoveries for employees and
retirees and limit their losses in bankruptcy cases have not
kept pace with the increasing and broader use of bankruptcy
by businesses in all sectors of the economy. However, while
protections for employees and retirees in bankruptcy cases
have eroded, management compensation plans devised for those
in charge of troubled businesses have become more prevalent
and are escaping adequate scrutiny.
(3) Changes in the law regarding these matters are urgently
needed as bankruptcy is used to address increasingly more
complex and diverse conditions affecting troubled businesses
and industries.
TITLE I--IMPROVING RECOVERIES FOR EMPLOYEES AND RETIREES
SEC. 101. INCREASED WAGE PRIORITY.
Section 507(a) of title 11, United States Code, is
amended--
(1) in paragraph (4)--
(A) by striking ``$10,000'' and inserting ``$20,000'';
(B) by striking ``within 180 days''; and
(C) by striking ``or the date of the cessation of the
debtor's business, whichever occurs first,'';
(2) in paragraph (5)--
(A) in subparagraph (A)--
(i) by striking ``within 180 days''; and
(ii) by striking ``or the date of the cessation of the
debtor's business, whichever occurs first''; and
(B) by striking subparagraph (B) and inserting the
following:
``(B) for each such plan, to the extent of the number of
employees covered by each such plan, multiplied by
$20,000.''.
SEC. 102. CLAIM FOR STOCK VALUE LOSSES IN DEFINED
CONTRIBUTION PLANS.
Section 101(5) of title 11, United States Code, is
amended--
(1) in subparagraph (A), by striking ``or'' at the end;
(2) in subparagraph (B), by striking the period at the end
and inserting ``; or''; and
(3) by adding at the end the following:
``(C) right or interest in equity securities of the debtor,
or an affiliate of the debtor, if--
``(i) the equity securities are held in a defined
contribution plan (within the meaning of section 3(34) of the
Employee Retirement Income Security Act of 1974 (29 U.S.C.
1002(34))) for the benefit of an individual who is not an
insider, a senior executive officer, or any of the 20 next
most highly compensated employees of the debtor (if 1 or more
are not insiders);
``(ii) the equity securities were attributable to either
employer contributions by the debtor or an affiliate of the
debtor, or elective deferrals (within the meaning of section
402(g) of the Internal Revenue Code of 1986), and any
earnings thereon; and
``(iii) an employer or plan sponsor who has commenced a
case under this title has committed fraud with respect to
such plan or has otherwise breached a duty to the participant
that has proximately caused the loss of value.''.
SEC. 103. PRIORITY FOR SEVERANCE PAY.
Section 503(b) of title 11, United States Code, is
amended--
(1) in paragraph (8)(B), by striking ``and'' at the end;
(2) in paragraph (9), by striking the period and inserting
a semicolon; and
(3) by adding at the end the following:
``(10) severance pay owed to employees of the debtor (other
than to an insider, other senior management, or a consultant
retained to provide services to the debtor), under a plan,
program, or policy generally applicable to employees of the
debtor (but not under an individual contract of employment),
or owed pursuant to a collective bargaining agreement, for
layoff or termination on or after the date of the filing of
the petition, which pay shall be deemed earned in full upon
such layoff or termination of employment; and''.
SEC. 104. FINANCIAL RETURNS FOR EMPLOYEES AND RETIREES.
Section 1129(a) of title 11, United States Code is
amended--
(1) by striking paragraph (13) and inserting the following:
``(13) With respect to retiree benefits, as that term is
defined in section 1114(a), the plan--
``(A) provides for the continuation after the effective
date of the plan of payment of all retiree benefits at the
level established pursuant to subsection (e)(1)(B) or (g) of
section 1114 at any time before the date of confirmation of
the plan, for the duration of the period for which the debtor
has obligated itself to provide such benefits, or if no
modifications are made before confirmation of the plan, the
continuation of all such retiree benefits maintained or
established in whole or in part by the debtor before the date
of the filing of the petition; and
``(B) provides for recovery of claims arising from the
modification of retiree benefits or for other financial
returns, as negotiated by the debtor and the authorized
representative (to the extent that such returns are paid
under, rather than outside of, a plan).''; and
(2) by adding at the end the following:
``(17) The plan provides for recovery of damages payable
for the rejection of a collective bargaining agreement, or
for other financial returns as negotiated by the debtor and
the authorized representative under section 1113 (to the
extent that such returns are paid under, rather than outside
of, a plan).''.
SEC. 105. PRIORITY FOR WARN ACT DAMAGES.
Section 503(b)(1)(A)(ii) of title 11, United States Code is
amended to read as follows:
``(ii) wages and benefits awarded pursuant to a judicial
proceeding or a proceeding of the National Labor Relations
Board as back pay or damages attributable to any period of
time occurring after the date of commencement of the case
under this title, as a result of a violation of Federal or
State law by the debtor, without regard to the time of the
occurrence of unlawful conduct on which the award is based or
to whether any services were rendered on or after the
commencement of the case, including an award by a court under
section 5 of the Worker Adjustment and Retraining
Notification Act (29 U.S.C. 2104) of up to 60 days' pay and
benefits following a layoff that occurred or commenced at a
time when such award period includes a period on or after the
commencement of the case, if the court determines that
payment of wages and benefits by reason of the operation of
this clause will not substantially increase the probability
of layoff or termination of current employees or of
nonpayment of domestic support obligations during the case
under this title;''.
TITLE II--REDUCING EMPLOYEES' AND RETIREES' LOSSES
SEC. 201. REJECTION OF COLLECTIVE BARGAINING AGREEMENTS.
Section 1113 of title 11, United States Code, is amended by
striking subsections (a) through (f) and inserting the
following:
``(a) The debtor in possession, or the trustee if one has
been appointed under this chapter, other than a trustee in a
case covered by subchapter IV of this chapter and by title I
of the Railway Labor Act (45 U.S.C. 151 et seq.), may reject
a collective bargaining agreement only in accordance with
this section. In this section, a reference to the trustee
includes the debtor in possession.
``(b) No provision of this title shall be construed to
permit the trustee to unilaterally terminate or alter any
provision of a collective bargaining agreement before
complying with this section. The trustee shall timely pay all
monetary obligations arising under the terms of the
collective bargaining agreement. Any such payment required to
be made before a plan confirmed under section 1129 is
effective has the status of an allowed administrative expense
under section 503.
``(c)(1) If the trustee seeks modification of a collective
bargaining agreement, the trustee shall provide notice to the
labor organization representing the employees covered by the
collective bargaining agreement that modifications are being
proposed under this section, and shall promptly provide an
initial proposal for modifications to the collective
bargaining agreement. Thereafter, the trustee shall confer in
good faith with the labor organization, at reasonable times
and for a reasonable period in light of the complexity of the
case, in attempting to reach mutually acceptable
modifications of the collective bargaining agreement.
``(2) The initial proposal and subsequent proposals by the
trustee for modification of a collective bargaining agreement
shall be based upon a business plan for the reorganization of
the debtor, and shall reflect the most complete and reliable
information available. The trustee shall provide to the
[[Page S1458]]
labor organization all information that is relevant for
negotiations. The court may enter a protective order to
prevent the disclosure of information if disclosure could
compromise the position of the debtor with respect to the
competitors in the industry of the debtor, subject to the
needs of the labor organization to evaluate the proposals of
the trustee and any application for rejection of the
collective bargaining agreement or for interim relief
pursuant to this section.
``(3) In consideration of Federal policy encouraging the
practice and process of collective bargaining and in
recognition of the bargained-for expectations of the
employees covered by the collective bargaining agreement,
modifications proposed by the trustee--
``(A) shall be proposed only as part of a program of
workforce and nonworkforce cost savings devised for the
reorganization of the debtor, including savings in management
personnel costs;
``(B) shall be limited to modifications designed to achieve
a specified aggregate financial contribution for the
employees covered by the collective bargaining agreement
(taking into consideration any labor cost savings negotiated
within the 12-month period before the filing of the
petition), and shall be not more than the minimum savings
essential to permit the debtor to exit bankruptcy, such that
confirmation of a plan of reorganization is not likely to be
followed by the liquidation, or the need for further
financial reorganization, of the debtor (or any successor to
the debtor) in the short term; and
``(C) shall not be disproportionate or overly burden the
employees covered by the collective bargaining agreement,
either in the amount of the cost savings sought from such
employees or the nature of the modifications.
``(d)(1) If, after a period of negotiations, the trustee
and the labor organization have not reached an agreement over
mutually satisfactory modifications, and further negotiations
are not likely to produce mutually satisfactory
modifications, the trustee may file a motion seeking
rejection of the collective bargaining agreement after notice
and a hearing. Absent agreement of the parties, no such
hearing shall be held before the expiration of the 21-day
period beginning on the date on which notice of the hearing
is provided to the labor organization representing the
employees covered by the collective bargaining agreement.
Only the debtor and the labor organization may appear and be
heard at such hearing. An application for rejection shall
seek rejection effective upon the entry of an order granting
the relief.
``(2) In consideration of Federal policy encouraging the
practice and process of collective bargaining and in
recognition of the bargained-for expectations of the
employees covered by the collective bargaining agreement, the
court may grant a motion seeking rejection of a collective
bargaining agreement only if, based on clear and convincing
evidence--
``(A) the court finds that the trustee has complied with
the requirements of subsection (c);
``(B) the court has considered alternative proposals by the
labor organization and has concluded that such proposals do
not meet the requirements of subsection (c)(3)(B);
``(C) the court finds that further negotiations regarding
the proposal of the trustee or an alternative proposal by the
labor organization are not likely to produce an agreement;
``(D) the court finds that implementation of the proposal
of the trustee shall not--
``(i) cause a material diminution in the purchasing power
of the employees covered by the collective bargaining
agreement;
``(ii) adversely affect the ability of the debtor to retain
an experienced and qualified workforce; or
``(iii) impair the labor relations of the debtor such that
the ability to achieve a feasible reorganization would be
compromised; and
``(E) the court concludes that rejection of the collective
bargaining agreement and immediate implementation of the
proposal of the trustee is essential to permit the debtor to
exit bankruptcy, such that confirmation of a plan of
reorganization is not likely to be followed by liquidation,
or the need for further financial reorganization, of the
debtor (or any successor to the debtor) in the short term.
``(3) If the trustee has implemented a program of incentive
pay, bonuses, or other financial returns for insiders, senior
executive officers, or the 20 next most highly compensated
employees or consultants providing services to the debtor
during the bankruptcy, or such a program was implemented
within 180 days before the date of the filing of the
petition, the court shall presume that the trustee has failed
to satisfy the requirements of subsection (c)(3)(C).
``(4) In no case shall the court enter an order rejecting a
collective bargaining agreement that would result in
modifications to a level lower than the level proposed by the
trustee in the proposal found by the court to have complied
with the requirements of this section.
``(5) At any time after the date on which an order
rejecting a collective bargaining agreement is entered, or in
the case of a collective bargaining agreement entered into
between the trustee and the labor organization providing
mutually satisfactory modifications, at any time after that
collective bargaining agreement has been entered into, the
labor organization may apply to the court for an order
seeking an increase in the level of wages or benefits, or
relief from working conditions, based upon changed
circumstances. The court shall grant the request only if the
increase or other relief is not inconsistent with the
standard set forth in paragraph (2)(E).
``(e) During a period during which a collective bargaining
agreement at issue under this section continues in effect,
and if essential to the continuation of the business of the
debtor or in order to avoid irreparable damage to the estate,
the court, after notice and a hearing, may authorize the
trustee to implement interim changes in the terms,
conditions, wages, benefits, or work rules provided by the
collective bargaining agreement. Any hearing under this
subsection shall be scheduled in accordance with the needs of
the trustee. The implementation of such interim changes shall
not render the application for rejection moot.
``(f)(1) Rejection of a collective bargaining agreement
constitutes a breach of the collective bargaining agreement,
and shall be effective no earlier than the entry of an order
granting such relief.
``(2) Notwithstanding paragraph (1), solely for purposes of
determining and allowing a claim arising from the rejection
of a collective bargaining agreement, rejection shall be
treated as rejection of an executory contract under section
365(g) and shall be allowed or disallowed in accordance with
section 502(g)(1). No claim for rejection damages shall be
limited by section 502(b)(7). Economic self-help by a labor
organization shall be permitted upon a court order granting a
motion to reject a collective bargaining agreement under
subsection (d) or pursuant to subsection (e), and no
provision of this title or of any other provision of Federal
or State law may be construed to the contrary.
``(g) The trustee shall provide for the reasonable fees and
costs incurred by a labor organization under this section,
upon request and after notice and a hearing.
``(h) A collective bargaining agreement that is assumed
shall be assumed in accordance with section 365.''.
SEC. 202. PAYMENT OF INSURANCE BENEFITS TO RETIRED EMPLOYEES.
Section 1114 of title 11, United States Code, is amended--
(1) in subsection (a), by inserting ``, without regard to
whether the debtor asserts a right to unilaterally modify
such payments under such plan, fund, or program'' before the
period at the end;
(2) in subsection (b)(2), by inserting ``, and a labor
organization serving as the authorized representative under
subsection (c)(1),'' after ``section'';
(3) by striking subsection (f) and inserting the following:
``(f)(1) If a trustee seeks modification of retiree
benefits, the trustee shall provide a notice to the
authorized representative that modifications are being
proposed pursuant to this section, and shall promptly provide
an initial proposal. Thereafter, the trustee shall confer in
good faith with the authorized representative at reasonable
times and for a reasonable period in light of the complexity
of the case in attempting to reach mutually satisfactory
modifications.
``(2) The initial proposal and subsequent proposals by the
trustee shall be based upon a business plan for the
reorganization of the debtor and shall reflect the most
complete and reliable information available. The trustee
shall provide to the authorized representative all
information that is relevant for the negotiations. The court
may enter a protective order to prevent the disclosure of
information if disclosure could compromise the position of
the debtor with respect to the competitors in the industry of
the debtor, subject to the needs of the authorized
representative to evaluate the proposals of the trustee and
an application pursuant to subsection (g) or (h).
``(3) Modifications proposed by the trustee--
``(A) shall be proposed only as part of a program of
workforce and nonworkforce cost savings devised for the
reorganization of the debtor, including savings in management
personnel costs;
``(B) shall be limited to modifications that are designed
to achieve a specified aggregate financial contribution for
the retiree group represented by the authorized
representative (taking into consideration any cost savings
implemented within the 12-month period before the date of
filing of the petition with respect to the retiree group),
and shall be no more than the minimum savings essential to
permit the debtor to exit bankruptcy, such that confirmation
of a plan of reorganization is not likely to be followed by
the liquidation, or the need for further financial
reorganization, of the debtor (or any successor to the
debtor) in the short term; and
``(C) shall not be disproportionate or overly burden the
retiree group, either in the amount of the cost savings
sought from such group or the nature of the modifications.'';
(4) in subsection (g)--
(A) by striking the subsection designation and all that
follows through the semicolon at the end of paragraph (3) and
inserting the following:
``(g)(1) If, after a period of negotiations, the trustee
and the authorized representative have not reached agreement
over mutually satisfactory modifications and further
negotiations are not likely to produce mutually satisfactory
modifications, the trustee may file a motion seeking
modifications in the payment of retiree benefits after notice
and a hearing. Absent agreement of the parties, no such
hearing shall be held before the
[[Page S1459]]
expiration of the 21-day period beginning on the date on
which notice of the hearing is provided to the authorized
representative. Only the debtor and the authorized
representative may appear and be heard at such hearing.
``(2) The court may grant a motion to modify the payment of
retiree benefits only if, based on clear and convincing
evidence--
``(A) the court finds that the trustee has complied with
the requirements of subsection (f);
``(B) the court has considered alternative proposals by the
authorized representative and has determined that such
proposals do not meet the requirements of subsection
(f)(3)(B);
``(C) the court finds that further negotiations regarding
the proposal of the trustee or an alternative proposal by the
authorized representative are not likely to produce a
mutually satisfactory agreement;
``(D) the court finds that implementation of the proposal
shall not cause irreparable harm to the affected retirees;
and
``(E) the court concludes that an order granting the motion
and immediate implementation of the proposal of the trustee
is essential to permit the debtor to exit bankruptcy, such
that confirmation of a plan of reorganization is not likely
to be followed by liquidation, or the need for further
financial reorganization, of the debtor (or a successor to
the debtor) in the short term.
``(3) If a trustee has implemented a program of incentive
pay, bonuses, or other financial returns for insiders, senior
executive officers, or the 20 next most highly compensated
employees or consultants providing services to the debtor
during the bankruptcy, or such a program was implemented
within 180 days before the date of the filing of the
petition, the court shall presume that the trustee has failed
to satisfy the requirements of subparagraph (f)(3)(C).''; and
(B) in the matter following paragraph (3)--
(i) by striking ``except that in no case'' and inserting
the following:
``(4) In no case''; and
(ii) by striking ``is consistent with the standard set
forth in paragraph (3)'' and inserting ``assures that all
creditors, the debtor, and all of the affected parties are
treated fairly and equitably, and is clearly favored by the
balance of the equities''; and
(5) by striking subsection (k) and redesignating
subsections (l) and (m) as subsections (k) and (l),
respectively.
SEC. 203. PROTECTION OF EMPLOYEE BENEFITS IN A SALE OF
ASSETS.
Section 363(b) of title 11, United States Code, is amended
by adding at the end the following:
``(3) In approving a sale under this subsection, the court
shall consider the extent to which a bidder has offered to
maintain existing jobs, preserve terms and conditions of
employment, and assume or match pension and retiree health
benefit obligations in determining whether an offer
constitutes the highest or best offer for such property.''.
SEC. 204. CLAIM FOR PENSION LOSSES.
Section 502 of title 11, United States Code, is amended by
adding at the end the following:
``(l) The court shall allow a claim asserted by an active
or retired participant, or by a labor organization
representing such participants, in a defined benefit plan
terminated under section 4041 or 4042 of the Employee
Retirement Income Security Act of 1974 (29 U.S.C. 1341,
1342), for any shortfall in pension benefits accrued as of
the effective date of the termination of such pension plan as
a result of the termination of the plan and limitations upon
the payment of benefits imposed pursuant to section 4022 of
that Act (29 U.S.C. 1342), notwithstanding any claim asserted
and collected by the Pension Benefit Guaranty Corporation
with respect to such termination.
``(m) The court shall allow a claim of a kind described in
section 101(5)(C) by an active or retired participant in a
defined contribution plan (within the meaning of section
3(34) of the Employee Retirement Income Security Act of 1974
(29 U.S.C. 1002(34))), or by a labor organization
representing such participants. The amount of such claim
shall be measured by the market value of the stock at the
time of contribution to, or purchase by, the plan and the
value as of the commencement of the case.''.
SEC. 205. PAYMENTS BY SECURED LENDER.
Section 506(c) of title 11, United States Code, is amended
by adding at the end the following: ``If employees have not
received wages, accrued vacation, severance, or other
benefits owed under the policies and practices of the debtor,
or pursuant to the terms of a collective bargaining
agreement, for services rendered on and after the date of the
commencement of the case, such unpaid obligations shall be
deemed necessary costs and expenses of preserving, or
disposing of, property securing an allowed secured claim and
shall be recovered even if the trustee has otherwise waived
the provisions of this subsection under an agreement with the
holder of the allowed secured claim or a successor or
predecessor in interest.''.
SEC. 206. PRESERVATION OF JOBS AND BENEFITS.
Chapter 11 of title 11, United States Code, is amended--
(1) by inserting before section 1101 the following:
``Sec. 1100. Statement of purpose
``A debtor commencing a case under this chapter shall have
as its principal purpose the reorganization of its business
to preserve going concern value to the maximum extent
possible through the productive use of its assets and the
preservation of jobs that will sustain productive economic
activity.'';
(2) in section 1129--
(A) in subsection (a), as amended by section 104, by adding
at the end the following:
``(18) The debtor has demonstrated that the reorganization
preserves going concern value to the maximum extent possible
through the productive use of the assets of the debtor and
preserves jobs that sustain productive economic activity.'';
and
(B) in subsection (c)--
(i) by inserting ``(1)'' after ``(c)''; and
(ii) by striking the last sentence and inserting the
following:
``(2) If the requirements of subsections (a) and (b) are
met with respect to more than 1 plan, the court shall, in
determining which plan to confirm--
``(A) consider the extent to which each plan would preserve
going concern value through the productive use of the assets
of the debtor and the preservation of jobs that sustain
productive economic activity; and
``(B) confirm the plan that better serves such interests.
``(3) A plan that incorporates the terms of a settlement
with a labor organization representing employees of the
debtor shall presumptively constitute the plan that satisfies
this subsection.''; and
(3) in the table of sections, by inserting before the item
relating to section 1101 the following:
``1100. Statement of purpose.''.
SEC. 207. TERMINATION OF EXCLUSIVITY.
Section 1121(d) of title 11, United States Code, is amended
by adding at the end the following:
``(3) For purposes of this subsection, cause for reducing
the 120-day period or the 180-day period includes--
``(A) the filing of a motion pursuant to section 1113
seeking rejection of a collective bargaining agreement if a
plan based upon an alternative proposal by the labor
organization is reasonably likely to be confirmed within a
reasonable time; and
``(B) the proposed filing of a plan by a proponent other
than the debtor, which incorporates the terms of a settlement
with a labor organization if such plan is reasonably likely
to be confirmed within a reasonable time.''.
SEC. 208. CLAIM FOR WITHDRAWAL LIABILITY.
Section 503(b) of title 11, United States Code, as amended
by section 103 of this Act, is amended by adding at the end
the following:
``(11) with respect to withdrawal liability owed to a
multiemployer pension plan for a complete or partial
withdrawal pursuant to section 4201 of the Employee
Retirement Income Security Act of 1974 (29 U.S.C. 1381) where
such withdrawal occurs on or after the commencement of the
case, an amount equal to the amount of vested benefits
payable from such pension plan that accrued as a result of
employees' services rendered to the debtor during the period
beginning on the date of commencement of the case and ending
on the date of the withdrawal from the plan.''.
TITLE III--RESTRICTING EXECUTIVE COMPENSATION PROGRAMS
SEC. 301. EXECUTIVE COMPENSATION UPON EXIT FROM BANKRUPTCY.
Section 1129(a) of title 11, United States Code, is
amended--
(1) in paragraph (4), by adding at the end the following:
``Except for compensation subject to review under paragraph
(5), payments or other distributions under the plan to or for
the benefit of insiders, senior executive officers, and any
of the 20 next most highly compensated employees or
consultants providing services to the debtor, shall not be
approved except as part of a program of payments or
distributions generally applicable to employees of the
debtor, and only to the extent that the court determines that
such payments are not excessive or disproportionate compared
to distributions to the nonmanagement workforce of the
debtor.''; and
(2) in paragraph (5)--
(A) in subparagraph (A)(ii), by striking ``and'' at the
end;
(B) in subparagraph (B), by striking the period at the end
and inserting ``; and''; and
(C) by adding at the end the following:
``(C) the compensation disclosed pursuant to subparagraph
(B) has been approved by, or is subject to the approval of,
the court as--
``(i) reasonable when compared to individuals holding
comparable positions at comparable companies in the same
industry; and
``(ii) not disproportionate in light of economic
concessions by the nonmanagement workforce of the debtor
during the case.''.
SEC. 302. LIMITATIONS ON EXECUTIVE COMPENSATION ENHANCEMENTS.
Section 503(c) of title 11, United States Code, is
amended--
(1) in paragraph (1), in the matter preceding subparagraph
(A)--
(A) by inserting ``, a senior executive officer, or any of
the 20 next most highly compensated employees or
consultants'' after ``an insider'';
(B) by inserting ``or for the payment of performance or
incentive compensation, or a bonus of any kind, or other
financial returns designed to replace or enhance incentive,
stock, or other compensation in effect before the date of the
commencement of the case,'' after ``remain with the debtor's
business,''; and
(C) by inserting ``clear and convincing'' before ``evidence
in the record''; and
[[Page S1460]]
(2) by amending paragraph (3) to read as follows:
``(3) other transfers or obligations to or for the benefit
of insiders, senior executive officers, managers, or
consultants providing services to the debtor, in the absence
of a finding by the court, based upon clear and convincing
evidence, and without deference to the request of the debtor
for such payments, that such transfers or obligations are
essential to the survival of the business of the debtor or
(in the case of a liquidation of some or all of the assets of
the debtor) essential to the orderly liquidation and
maximization of value of the assets of the debtor, in either
case, because of the essential nature of the services
provided, and then only to the extent that the court finds
such transfers or obligations are reasonable compared to
individuals holding comparable positions at comparable
companies in the same industry and not disproportionate in
light of economic concessions by the nonmanagement workforce
of the debtor during the case.''.
SEC. 303. ASSUMPTION OF EXECUTIVE BENEFIT PLANS.
Section 365 of title 11, United States Code, is amended--
(1) in subsection (a), by striking ``and (d)'' and
inserting ``(d), (q), and (r)''; and
(2) by adding at the end the following:
``(q) No deferred compensation arrangement for the benefit
of insiders, senior executive officers, or any of the 20 next
most highly compensated employees of the debtor shall be
assumed if a defined benefit plan for employees of the debtor
has been terminated pursuant to section 4041 or 4042 of the
Employee Retirement Income Security Act of 1974 (29 U.S.C.
1341, 1342), on or after the date of the commencement of the
case or within 180 days before the date of the commencement
of the case.
``(r) No plan, fund, program, or contract to provide
retiree benefits for insiders, senior executive officers, or
any of the 20 next most highly compensated employees of the
debtor shall be assumed if the debtor has obtained relief
under subsection (g) or (h) of section 1114 to impose
reductions in retiree benefits or under subsection (d) or (e)
of section 1113 to impose reductions in the health benefits
of active employees of the debtor, or reduced or eliminated
health benefits for active or retired employees within 180
days before the date of the commencement of the case.''.
SEC. 304. RECOVERY OF EXECUTIVE COMPENSATION.
(a) In General.--Subchapter III of chapter 5 of title 11,
United States Code, is amended by inserting after section 562
the following:
``Sec. 563. Recovery of executive compensation
``(a) If a debtor has obtained relief under section 1113(d)
or section 1114(g), by which the debtor reduces the cost of
its obligations under a collective bargaining agreement or a
plan, fund, or program for retiree benefits (as defined in
section 1114(a)), the court, in granting relief, shall
determine the percentage diminution in the value of the
obligations when compared to the obligations of the debtor
under the collective bargaining agreement, or with respect to
retiree benefits, as of the date of the commencement of the
case under this title before granting such relief. In making
its determination, the court shall include reductions in
benefits, if any, as a result of the termination pursuant to
section 4041 or 4042 of the Employee Retirement Income
Security Act of 1974 (29 U.S.C. 1341, 1342), of a defined
benefit plan administered by the debtor, or for which the
debtor is a contributing employer, effective at any time on
or after 180 days before the date of the commencement of a
case under this title. The court shall not take into account
pension benefits paid or payable under that Act as a result
of any such termination.
``(b) If a defined benefit pension plan administered by the
debtor, or for which the debtor is a contributing employer,
has been terminated pursuant to section 4041 or 4042 of the
Employee Retirement Income Security Act of 1974 (29 U.S.C.
1341, 1342), effective at any time on or after 180 days
before the date of the commencement of a case under this
title, but a debtor has not obtained relief under section
1113(d), or section 1114(g), the court, upon motion of a
party in interest, shall determine the percentage diminution
in the value of benefit obligations when compared to the
total benefit liabilities before such termination. The court
shall not take into account pension benefits paid or payable
under title IV of the Employee Retirement Income Security Act
of 1974 (29 U.S.C. 1301 et seq.) as a result of any such
termination.
``(c) Upon the determination of the percentage diminution
in value under subsection (a) or (b), the estate shall have a
claim for the return of the same percentage of the
compensation paid, directly or indirectly (including any
transfer to a self-settled trust or similar device, or to a
nonqualified deferred compensation plan under section
409A(d)(1) of the Internal Revenue Code of 1986) to any
officer of the debtor serving as member of the board of
directors of the debtor within the year before the date of
the commencement of the case, and any individual serving as
chairman or lead director of the board of directors at the
time of the granting of relief under section 1113 or 1114 or,
if no such relief has been granted, the termination of the
defined benefit plan.
``(d) The trustee or a committee appointed pursuant to
section 1102 may commence an action to recover such claims,
except that if neither the trustee nor such committee
commences an action to recover such claim by the first date
set for the hearing on the confirmation of plan under section
1129, any party in interest may apply to the court for
authority to recover such claim for the benefit of the
estate. The costs of recovery shall be borne by the estate.
``(e) The court shall not award postpetition compensation
under section 503(c) or otherwise to any person subject to
subsection (c) of this section if there is a reasonable
likelihood that such compensation is intended to reimburse or
replace compensation recovered by the estate under this
section.''.
(b) Technical and Conforming Amendment.--The table of
sections for chapter 5 of title 11, United States Code, is
amended by inserting after the item relating to section 562
the following:
``563. Recovery of executive compensation.''.
SEC. 305. PREFERENTIAL COMPENSATION TRANSFER.
Section 547 of title 11, United States Code, is amended by
adding at the end the following:
``(j)(1) The trustee may avoid a transfer--
``(A) made--
``(i) to or for the benefit of an insider (including an
obligation incurred for the benefit of an insider under an
employment contract) made in anticipation of bankruptcy; or
``(ii) in anticipation of bankruptcy to a consultant who is
formerly an insider and who is retained to provide services
to an entity that becomes a debtor (including an obligation
under a contract to provide services to such entity or to a
debtor); and
``(B) made or incurred on or within 1 year before the
filing of the petition.
``(2) No provision of subsection (c) shall constitute a
defense against the recovery of a transfer described in
paragraph (1).
``(3) The trustee or a committee appointed pursuant to
section 1102 may commence an action to recover a transfer
described in paragraph (1), except that, if neither the
trustee nor such committee commences an action to recover the
transfer by the time of the commencement of a hearing on the
confirmation of a plan under section 1129, any party in
interest may apply to the court for authority to recover the
claims for the benefit of the estate. The costs of recovery
shall be borne by the estate.''.
TITLE IV--OTHER PROVISIONS
SEC. 401. UNION PROOF OF CLAIM.
Section 501(a) of title 11, United States Code, is amended
by inserting ``, including a labor organization,'' after ``A
creditor''.
SEC. 402. EXCEPTION FROM AUTOMATIC STAY.
Section 362(b) of title 11, United States Code, is
amended--
(1) in paragraph (27), by striking ``and'' at the end;
(2) in paragraph (28), by striking the period at the end
and inserting ``; and''; and
(3) by inserting after paragraph (28) the following:
``(29) of the commencement or continuation of a grievance,
arbitration, or similar dispute resolution proceeding
established by a collective bargaining agreement that was or
could have been commenced against the debtor before the
filing of a case under this title, or the payment or
enforcement of an award or settlement under such
proceeding.''.
____________________