I

103D CONGRESS

2D SESSION H. R. 5126

To amend the National Labor Relations Act, to establish the National Public

Employment Relations Commission, and to amend title I of the Employment Retirement Income Security Act of 1974 to provide for joint trusteeship of single-employer pension plans.

IN THE HOUSE OF REPRESENTATIVES

SEPTEMBER 28, 1994

Mr. SANDERS (for himself and Mr. OWENS) introduced the following bill;

which was referred to the Committee on Education and Labor

A BILL

To amend the National Labor Relations Act, to establish

the National Public Employment Relations Commission,

and to amend title I of the Employment Retirement

Income Security Act of 1974 to provide for joint trusteeship of single-employer pension plans.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE AND TABLE OF CONTENTS.

4 (a) SHORT TITLE.—This Act may be cited as the

5 ‘‘Workplace Democracy Act of 1992’’.

6 (b) TABLE OF CONTENTS.—The table of contents for

7 this Act is as follows:
2

•HR 5126 IH

Sec. 1. Short title and table of contents.

Sec. 2. Declaration of purpose and policy.

Sec. 3. Application of Act.

TITLE I—GENERAL PROVISIONS REGARDING RIGHTS OF EMPLOYEES AND ENFORCEMENT AUTHORITY OF THE NATIONAL

LABOR RELATIONS BOARD.

Sec. 101. Right to first contract.

Sec. 102. Strikes, boycotts, and hot cargo agreements.

Sec. 103. Treatment of guards.

Sec. 104. Card recognition for collective bargaining units.

Sec. 105. Enforcement and authority of National Labor Relations Board.

Sec. 106. Repealing prohibition authority.

TITLE II—GENERAL PROVISIONS REGARDING RIGHTS OF EMPLOYEES AND ENFORCEMENT AUTHORITY FOR THE NATIONAL

LABOR RELATIONS BOARD

Sec. 201. Definitions.

Sec. 202. National Public Employment Relations Commission.

Sec. 203. Rights of employees and employee organizations.

Sec. 204. Representatives and collective-bargaining units.

Sec. 205. Impasse in collective bargaining over the terms and conditions of employment and other matters of mutual concern relating thereto.

Sec. 206. Disputes over the interpretation or application of agreements.

Sec. 207. Strikes.

Sec. 208. Impasse procedures for firefighters and public safety officers.

Sec. 209. Strikes and firefighters and public safety officers.

Sec. 210. Unlawful acts.

Sec. 211. Prevention of unlawful acts.

Sec. 212. Applicability of this Act.

Sec. 213. Miscellaneous.

Sec. 214. Effective date.

TITLE III—GENERAL PROVISIONS REGARDING PENSION PLANS

Sec. 301. Requirements relating to trusteeship of single-employer plans.

Sec. 302. Effective date.

1 SEC. 2. DECLARATION OF PURPOSE AND POLICY.

2 (a) STATUTORY PROTECTION.—Experience in both

3 private and public employment indicates that the statutory

4 protection of the right of employees to organize and bar5 gain collectively safeguards the public interest and pro6 motes economic stability and prosperity. Such protection

7 facilitates and encourages the amicable settlement of dis-
3

•HR 5126 IH

1 putes between employees and their employers involving the

2 terms and conditions of employment and other matters of

3 mutual concern.

4 (b) RESTORE INTENT.—It is the purpose of this Act

5 to amend the National Labor Relations Act, the law which

6 governs the rights of workers to organize and to bargain

7 collectively, to reestablish its original intent, to give work8 ers the power to protect their interests in the workplace,

9 restore democracy, and promote the free and unobstructed

10 flow of commerce.

11 (c) PUBLIC EMPLOYMENT.—This Act prescribes cer12 tain rights and obligations of the employees of the States,

13 territories and possessions of the United States, and the

14 political subdivisions thereof, to establish procedures gov15 erning the relationship between such employees and their

16 employers which are designed to meet the special require17 ments and needs of public employment.

18 SEC. 3. APPLICATION OF ACT.

19 The provisions of the National Labor Relations Act

20 shall apply to United States companies and their subsidi21 aries operating in any country that is a signatory to a

22 Free Trade Agreement. Workers of such companies and

23 subsidiaries shall have the right to file unfair labor prac24 tice complaints against the United States parent company
4

•HR 5126 IH

1 under this Act and under the laws of the signatory coun2 try.

3 TITLE I—GENERAL PROVISIONS REGARDING

4 RIGHTS OF EMPLOYEES AND ENFORCE5 MENT AUTHORITY OF THE NATIONAL

6 LABOR RELATIONS BOARD.

7 SEC. 101. RIGHT TO FIRST CONTRACT.

8 Section 8(d) of the National Labor Relations Act (29

9 U.S.C. 158) is amended by inserting the following after

10 the word ‘‘Provided,’’ the first time it appears:

11 ‘‘If not later than 45 days after certification, a collec12 tive bargaining agreement has not been reached, the union

13 shall have the option of sending the contract dispute to

14 compulsory and binding arbitration.’’.

15 SEC. 102. STRIKES, BOYCOTTS, AND HOT CARGO AGREE16 MENTS.

17 Section 8(b)(4) and subsection (e) of the National

18 Labor Relations Act are repealed.

19 SEC. 103. TREATMENT OF GUARDS.

20 Section 9(b) of the National Labor Relations Act is

21 repealed.
5

•HR 5126 IH

1 SEC. 104. CARD RECOGNITION FOR COLLECTIVE BARGAIN2 ING UNITS.

3 Section 9 of the National Labor Relations Act is

4 amended by inserting at the end the following new sub5 sections:

6 ‘‘(f) The National Labor Relations Board shall pro7 mulgate rules which plainly define the characteristics of

8 employee units appropriate for collective bargaining

9 groups. Appropriate units include groups of employees (of

10 an employer) who have a community of interests that

11 should be included in the same collective bargaining unit.

12 ‘‘(g) The National Labor Relations Board, upon re13 ceipt of a majority of signed union recognition cards of

14 employees in an appropriate bargaining unit (as deter15 mined by the workers themselves within the guidelines es16 tablished by the Board as specified in subsection (f)) shall

17 certify such labor organizations as the exclusive represent18 atives of all the employees in such unit for the purposes

19 of collective bargaining and mutual aid.’’.

20 SEC. 105. ENFORCEMENT AND AUTHORITY OF NATIONAL

21 LABOR RELATIONS BOARD.

22 (a) Section 10(c) of the National Labor Relations Act

23 is amended by—

24 (1) inserting ‘‘(1)’’ after ‘‘(e)’’;
6

•HR 5126 IH

1 (2) striking out the fifth sentence of paragraph

2 (1) (as redesignated by this section) and inserting in

3 lieu thereof the following:

4 ‘‘If upon the preponderance of the testimony taken

5 the Board shall not be of the opinion that the person

6 named in the complaint has engaged in or is engaging in

7 any such unfair labor practice, or has willfully violated or

8 is willfully violating a final order as specified in subsection

9 (b) of this section, then the Board shall state its findings

10 of fact and shall issue an order dismissing the said com11 plaint.’’;

12 (3) by adding at the end thereof the following

13 new paragraph:

14 ‘‘(2) If upon the preponderance of testimony taken

15 the Board shall be of the opinion that the allegation in

16 the complaint that a person has willfully violated or is will17 fully violating a final order as specified in subsection (b)

18 of this section has been sustained, then the Board shall

19 state its findings of fact and shall issue and cause to be

20 served on such person an order certifying the identifica21 tion of that person to the Secretary of Labor. Notwith22 standing any other law, unless the Secretary of Labor de23 termines that because of unusual circumstances the na24 tional interest requires otherwise, the Secretary shall cer25 tify the identity of such person to the Comptroller General.
7

•HR 5126 IH

1 The Comptroller General shall distribute a list to all agen2 cies of the United States containing the names of persons

3 certified by the Secretary of Labor pursuant to this sub4 section. Unless the agency of the United States concerned,

5 after notice and opportunity for hearing to all interested

6 parties, certifies to the Secretary of Labor that there is

7 no other source of material or services furnished by the

8 person affected by the Board order, no contracts shall be

9 awarded to such person for a reasonable, definitely stated

10 period of time commensurate with the seriousness of the

11 violation, as determined by the Secretary of Labor, but

12 such period shall not exceed three years. A debarment may

13 be removed or the period may be reduced by the Secretary

14 of Labor upon the submission of an application, supported

15 by documentary evidence, setting forth appropriate

16 grounds for the granting of relief, including without limi17 tation compliance with the final order found to have been

18 willfully violated, bona fide change of ownership or man19 agement, a fraud or misrepresentation of the charging

20 party: Provided, That this subparagraph shall restrict the

21 award of contracts solely to the products or service per22 formed at the particular facility or facilities where the will23 ful violation occurs or of the business entity legally respon24 sible for the willful violation or to the local, intermediate,
8

•HR 5126 IH

1 national or international labor organization legally respon2 sible for the willful violation.’’.

3 (b) ADDITIONAL REMEDIES.—The third sentence of

4 section 10(c) of the National Labor Relations Act is

5 amended—

6 (1) by striking ‘‘and’’ immediately before ‘‘to

7 take such affirmative action’’; and

8 (2) by inserting after ‘‘with or without back

9 pay’’ the following: ‘‘and including making employ10 ees whole for the loss of economic benefits resulting

11 from a violation of section 8(a)(5) and to provide

12 such other remedial relief’’.

13 (c) INJUNCTIVE RELIEF AND DAMAGES.—Section 10

14 of the National Labor Relations Act is amended by adding

15 at the end the following subsection:

16 ‘‘(n) Notwithstanding the provisions of subsection (j),

17 the National Labor Relations Board shall use the injunc18 tion power provided under such subsection whenever the

19 Board determines that an employer has engaged in a will20 ful violation of the unfair labor practice provisions under

21 section 8.

22 ‘‘(o) The National Labor Relations Board will assess

23 civil money penalties of not less than $10,000 against em24 ployers for each willful violation of the Act.
9

•HR 5126 IH

1 ‘‘(p) Upon issuance of a complaint which alleges an

2 unfair labor practice under section 8 of the National

3 Labor Relations Act, an employer shall reinstate a dis4 charged employee pending adjudication and final review

5 of such complaint.’’.

6 (d) TREBLE DAMAGES.—Section 303 of the Manage7 ment Relations Act of 1947 is amended by adding at the

8 end the following new subsection:

9 ‘‘(c) Any person who suffers financial injury by rea10 son of any violation of section 8(a)(3) of the National

11 Labor Relations Act may bring an action in any district

12 court of the United States in the district in which the de13 fendant resides or is found or has an agent, without re14 spect to the amount in controversy, and shall recover an

15 amount equal to 300 percent of the damages sustained

16 by him, and the cost of the action, including reasonable

17 attorneys’ fees. A final judgment or decree rendered by

18 the Board to the effect that a defendant has violated sec19 tion 8(a)(3) shall be prima facie evidence against such de20 fendant in any action brought by any person under this

21 subsection.’’.

22 SEC. 106. REPEALING PROHIBITION AUTHORITY.

23 Subsection (b) of section 14 of the National Labor

24 Relations Act is repealed.
10

•HR 5126 IH

1 TITLE II—GENERAL PROVISIONS

2 REGARDING RIGHTS OF EM3 PLOYEES AND ENFORCEMENT

4 AUTHORITY FOR THE NA5 TIONAL LABOR RELATIONS

6 BOARD

7 SEC. 201. DEFINITIONS.

8 As used in this Act:

9 (1) The term ‘‘person’’ includes one or more in10 dividuals, organizations, unions, associations, part11 nerships, corporations, boards, committees, commis12 sions, agencies, or other entity, or their representa13 tives.

14 (2) The term ‘‘employer’’ includes any State,

15 territory, or possession of the United States, or any

16 political subdivision thereof, including, without limi17 tation, any town, city, county, borough, district,

18 school board, board of regents, social service or wel19 fare agency, public or quasi-public corporations,

20 housing authority or other entity which is tax sup21 ported, and any person acting as an agent thereof.

22 (3) The term ‘‘employee’’ includes any person

23 employed by an employer, whether or not in the clas24 sified service of the employer, except the chief execu25 tive officer of the employer and other officers of the
11

•HR 5126 IH

1 employer appointed or elected pursuant to statute to

2 policymaking positions. The term shall not be lim3 ited to the employees of a particular employer, and

4 shall include any person whose work has ceased as

5 a consequence of, or in connection with, any unlaw6 ful act as defined in section 210 of this Act.

7 (4) The term ‘‘employee organization’’ includes

8 any organization, union, association, committee,

9 council, or group of any kind in which employees

10 participate, and which exists for the purpose, in

11 whole or in part, of bargaining collectively with em12 ployers over the terms and conditions of employment

13 and other matters of mutual concerns relating there14 to.

15 (5) The term ‘‘exclusive representative’’ in16 cludes any employee organization which has been—

17 (A) selected or designated pursuant to the

18 provisions of section 204 of this Act as the rep19 resentative of the employees in an appropriate

20 collective bargaining unit; or

21 (B) recognized by an employer prior to the

22 effective date of this Act as the exclusive rep23 resentative of the employees in an appropriate

24 collective bargaining unit.
12

•HR 5126 IH

1 (6) The term ‘‘supervisor’’ includes any em2 ployee having authority in the interest of an em3 ployer to hire, direct, assign, promote, reward, trans4 fer, layoff, recall, suspend, discipline, or discharge

5 other employees, or to adjust their grievances, or to

6 effectively recommend such action if in connection

7 with the foregoing the exercise of such authority is

8 not merely routine or clerical in nature but calls for

9 the consistent exercise of independent judgment:

10 Provided, That with respect to firefighters, the term

11 ‘‘supervisor’’ shall include only those employees who

12 perform a preponderance of the above-specified acts

13 of authority.

14 (7) The term ‘‘professional’’ includes any em15 ployee whose work—

16 (A) is predominantly intellectual and var17 ied in character;

18 (B) requires the consistent exercise of

19 independent judgment;

20 (C) requires knowledge of an advanced na21 ture in a field of learning customarily acquired

22 by specialized study in an institution of higher

23 education or its equivalent; and
13

•HR 5126 IH

1 (D) is of such character that the output or

2 result accomplished cannot be standardized in

3 relation to a given period of time.

4 (8) The term ‘‘public safety officer’’ includes

5 any employee engaged in—

6 (A) the enforcement of the criminal laws,

7 including highway patrol;

8 (B) a correctional program, facility, or in9 stitution where the activity is potentially dan10 gerous because of contact with criminal sus11 pects, defendants, prisoners, probationers, or

12 parolees; or

13 (C) a court having criminal or juvenile de14 linquent jurisdiction where the activity is poten15 tially dangerous because of contact with crimi16 nal suspects, defendants, prisoners, probation17 ers, or parolees.

18 (9) The term ‘‘firefighter’’ includes any em19 ployee engaged in the performance of work directly

20 connected with the control and extinguishment of

21 fires or the maintenance and use of firefighting ap22 paratus and equipment.

23 (10) The term ‘‘educational employee’’ includes

24 any employee of a school system, college or univer25 sity who—
14

•HR 5126 IH

1 (A) has regular contact with students;

2 (B) participates in the development, imple3 mentation, or evaluation of an educational pro4 gram; or

5 (C) is otherwise involved in the educational

6 process.

7 (11) The term ‘‘Commission’’ means the Na8 tional Public Employment Relations Commission es9 tablished by section 202 of this Act.

10 (12) The term ‘‘Service’’ means the Federal

11 Mediation and Concilation Service established by

12 chapter 29 of title 172, United States Code.

13 (13) The term ‘‘collective bargaining’’ or ‘‘bar14 gaining’’ means the performance of the mutual obli15 gation of the representatives of the employer and the

16 exclusive representative to meet at reasonable times,

17 in light of the budgetmaking process and other rel18 evant factors, and to confer, consult, and bargain in

19 a good faith effort to reach agreement with respect

20 to the terms and conditions of employment and

21 other matters of mutual concern relating thereto,

22 and to execute, if requested by either party, a writ23 ten document incorporating any agreements reached,

24 but such obligation does not compel either party to

25 agree to a proposal or to make a concession. The
15

•HR 5126 IH

1 duty to negotiate shall extend to matters which are

2 or may be the subject of a statute, ordinance, regu3 lation, or other enactment by a State, territory, or

4 possession of the United States, or a political sub5 division thereof, and if legislative action is necessary

6 to implement any agreement reached, shall include

7 the obligation of the employer to submit such agree8 ment to the appropriate governmental body for ac9 tion.

10 (14) The term ‘‘labor dispute’’ means any con11 troversy concerning terms and conditions of employ12 ment or other matters of mutual concerns relating

13 thereto, or concerning the representation of employ14 ees for the purpose of collective bargaining, regard15 less of whether the disputants stand in the proxi16 mate relation of employer and employee.

17 (15) In determining whether any person is act18 ing as an ‘‘agent’’ of another person so as to make

19 such other person responsible for his acts, the ques20 tion of whether the specific acts performed were ac21 tually authorized or subsequently ratified shall not

22 be controlling.
16

•HR 5126 IH

1 SEC. 202. NATIONAL PUBLIC EMPLOYMENT RELATIONS

2 COMMISSION.

3 (a) There is hereby created the ‘‘National Public Em4 ployment Relations Commission’’, which shall consist of

5 five members who shall be appointed by the President by

6 and with the advice and consent of the Senate. One of

7 the original members shall be appointed for a term of one

8 year, one for a term of two years, one for a term of three

9 years, one for a term of four years, and one for a term

10 of five years. Their successors shall be appointed for terms

11 of five years each, except that any person chosen to fill

12 a vacancy shall be appointed only for the unexpired term

13 of the member whom he/she succeeds. Commission mem14 bers shall be eligible for reappointment. The President

15 shall designate one member to serve as Chair of the Com16 mission. Any member of the Commission may be removed

17 by the President; upon notice and hearing, for neglect of

18 duty or malfeasance in office, but for no other cause.

19 (b) A vacancy in the Commission shall not impair the

20 right of the remaining members to exercise all the powers

21 of the Commission, and three members of the Commission

22 shall, at all times, constitute a quorum. The Commission

23 shall have an official seal which shall be judicially noticed.

24 (c) Members of the Commission shall not engage in

25 any other business, vocation, or employment. The Com26 mission shall appoint an Executive Director and may ap-
17

•HR 5126 IH

1 point State or regional directors, attorneys, and such other

2 persons as it may from time to time find necessary for

3 the proper performance of its functions and as may from

4 time to time be appropriated for by the Congress. Attor5 neys appointed under this section may, at the direction

6 of the Commission, appear for and represent the Commis7 sion in any case in court.

8 (d) There shall be a General Counsel of the Commis9 sion who shall be appointed by the President, by and with

10 the advice and consent of the Senate, for a term of five

11 years. The General Counsel shall be authorized to inves12 tigate alleged violations of the Act, to file and prosecute

13 complaints filed under the Act, and to exercise such other

14 powers as the Commission may prescribe. If a vacancy oc15 curs in the Office of General Counsel, the President shall

16 promptly designate an Acting General Counsel, and shall

17 submit a nomination for a replacement to Congress within

18 forty days after the vacancy has occurred, unless Congress

19 shall have adjourned before the expiration of said forty20 day period, in which event the President shall submit a

21 nomination not later than 10 days after Congress recon22 venes.

23 (e) All of the expenses of the Commission, including

24 all necessary traveling and subsistence expenses outside

25 the District of Columbia incurred by the members, em-
18

•HR 5126 IH

1 ployees, or agents of the Commission under it orders, shall

2 be allowed and paid on the presentation of itemized vouch3 ers therefor approved by the Commission or by any indi4 vidual it designates for that purpose.

5 (f) The principal office of the Commission shall be

6 in the District of Columbia, but it may meet and exercise

7 any or all of its powers at any other place, and may estab8 lish and operate State and regional offices. The Commis9 sion may, by one or more of its members or by such agents

10 or agencies as it may designate, prosecute any inquiry nec11 essary to its functions in any part of the United States.

12 Members who participate in such an inquiry shall not be

13 disqualified from subsequently participating in a decision

14 of the Commission in the same case.

15 (g) The Commission is authorized to issue, amend,

16 and rescind, in the manner prescribed by subchapter II

17 of chapter 5 of title 5, United States Code, such rules and

18 regulations as may be necessary to carry out the provi19 sions of this Act and is expressly empowered and directed

20 to prevent any person from engaging in conduct in viola21 tion of this Act. In order to carry out its functions under

22 this Act, the Commission is authorized to hold hearings,

23 subpoena witnesses, administer oaths and take the testi24 mony or deposition of any person under oath, and in con25 nection therewith, to issue subpoenas requiring the pro-
19

•HR 5126 IH

1 duction and examination of any books or papers, including

2 those of the Federal Government or any employer, relating

3 to any matter pending before it and to take such other

4 action as may be necessary.

5 (h)(1) Section 5314 of title 5, United States Code,

6 is amended by adding at the end thereof the following new

7 paragraph:

8 ‘‘(54) Chair, National Public Employment Rela9 tions Commission.’’.

10 (2) Section 5315 of title 5, United States Code, is

11 amended by adding at the end thereof the following new

12 paragraph:

13 ‘‘(92) Members, National Public Employment

14 Relations Commission.’’.

15 SEC. 203. RIGHTS OF EMPLOYEES AND EMPLOYEE ORGANI16 ZATIONS.

17 (a) Employees shall have the right to form, join, or

18 assist employee organizations, to participate in collective

19 bargaining with employers through representatives of their

20 own choosing and to engage in other activities, individually

21 or in concert, for the purpose of establishing, maintaining,

22 or improving terms and conditions of employment and

23 other matters of mutual concern relating thereto.

24 (b) Employee organizations shall have—
20

•HR 5126 IH

1 (1) access at reasonable times to areas in which

2 employees work, the right to use the employer’s bul3 letin boards, mailboxes, and other communication

4 media, subject to reasonable regulation, and the

5 right to use the employer’s facilities at reasonable

6 times for the purpose of meetings concerned with

7 the exercise of the rights guaranteed by this Act:

8 Provided, That if an exclusive representative has

9 been recognized, an employer shall deny such access

10 and usage to any employee organization other than

11 such representative until such time as a lawful and

12 timely challenge to the majority status of the rep13 resentative is raised pursuant to the provisions of

14 section 6 of this Act; and

15 (2) the right to have deducted from the salary

16 of employees, upon receipt of an appropriate author17 ization form which shall not be irrevocable for a pe18 riod of more than one year, an amount equal to the

19 fees and dues required for membership: Provided,

20 That if an exclusive representative has been recog21 nized, an employer shall deny such deduction to any

22 employee organization other than such representa23 tive.

24 (c) If an exclusive representative has been recognized

25 for the employees in an appropriate collective bargaining
21

•HR 5126 IH

1 unit, each employee in such a unit who is not a member

2 of the recognized organization shall be required, as condi3 tion of continued employment, to pay to such organization

4 for the period that it is the exclusive representative, an

5 amount equal to the dues, fees, and assessments that a

6 member is charged. Such payments shall be made in ac7 cordance with rules and regulations prescribed for such

8 purpose by the Commission.

9 SEC. 204. REPRESENTATIVES AND COLLECTIVE-BARGAIN10 ING UNITS.

11 (a) The employee organization designated or selected

12 for the purpose of collective bargaining by the majority

13 of the employees in an appropriate collective-bargaining

14 unit shall be the exclusive representative of all the employ15 ees in such a unit for such purpose, and an employer shall

16 not bargain in regard to matters covered by this Act with

17 any employee, group of employees, or other employee orga18 nization: Provided, That nothing contained in this sub19 section shall prevent employees, individually or as a group,

20 from presenting complaints informally to an employer, and

21 from having such complaints adjusted without the inter22 vention of the exclusive representative for the collective23 bargaining unit of which they are a part, as long as such

24 representative is given an opportunity to be present at said

25 adjustment and to make its views known, and as long as
22

•HR 5126 IH

1 the adjustment is not inconsistent with the terms of an

2 agreement between the employer and the exclusive rep3 resentative which is then in effect: Provided further, That

4 such employer or employees shall not be represented by

5 an officer or agent of any employee organization other

6 than the exclusive representative.

7 (b) Any employee organization may file a request for

8 recognition as the exclusive representative under sub9 section (a) of this section with an employer and the Com10 mission. Such request shall allege that a majority of the

11 employees in an appropriate collective-bargaining unit

12 wish to be represented for the purpose of collective bar13 gaining by such organization, shall describe the grouping

14 of jobs or positions which constitute the unit claimed to

15 be appropriate, shall be supported by credible evidence in

16 accordance with rules prescribed by the Commission dem17 onstrating that a majority of the employees in the appro18 priate unit desire the organization requesting recognition

19 as their exclusive representative, and shall indicate the

20 name, address, and telephone number of any other inter21 ested employee organization, if known to the requesting

22 organization. The employer shall, at the direction of the

23 Commission, post a copy of such request on a bulletin

24 board at each facility in which members of the unit

25 claimed to be appropriate are employed. The request shall
23

•HR 5126 IH

1 remain posted for a period of 21 days from the date on

2 which the Commission directs that it be posted. The Com3 mission shall maintain a public docket of all requests filed

4 under this section. Such docket shall contain a copy of

5 the request but shall not include any accompanying evi6 dence of support. The request shall remain on the public

7 docket until the case is closed. Such request for recogni8 tion shall be granted by the employer unless—

9 (1) the employer has a good faith doubt as to

10 the accuracy or validity of the evidence demonstrat11 ing majority support in an appropriate unit or as to

12 the appropriateness of the claimed unit;

13 (2) there is currently in effect a lawful written

14 collective-bargaining agreement between the em15 ployer and another employee organization covering

16 any employees included in the unit described in the

17 request for recognition;

18 (3) within the previous 12 months another em19 ployee organization has been lawfully recognized or

20 certified as the exclusive representative of any em21 ployees included in the unit described in the request

22 for recognition; or

23 (4) the Commission has, within the previous 12

24 months, conducted a secret ballot election involving

25 any employees included in the unit described in the
24

•HR 5126 IH

1 request for recognition in which a majority of the

2 valid ballots cast chose not to be represented by any

3 employee organization: Provided, That an employer

4 shall not grant a request for recognition filed pursu5 ant to this subsection (c)(2) below if another em6 ployee organization files with the employer a compet7 ing request for recognition within 21 days after the

8 posting or notice of the original request, which com9 peting request is supported by credible evidence

10 demonstrating that at least 10 percent of the em11 ployees in the appropriate collective-bargaining unit

12 desire such organization as their exclusive represent13 ative.

14 (c) A petition may be filed with the Commission in

15 accordance with rules and regulations prescribed by it for

16 such dealings, asking it to investigate and decide the ques17 tion of whether employees have selected or designated an

18 exclusive representative under subsection (a) of this sec19 tion by—

20 (1) an employee organization alleging that 30

21 percent of the employees in an appropriate collective22 bargaining unit wish to be represented for the pur23 pose of collective bargaining by such organization,

24 which petition shall describe the grouping of jobs or

25 positions which constitute the unit claimed to be ap-
25

•HR 5126 IH

1 propriate, shall be supported by credible evidence in

2 accordance with rules prescribed by the Commission

3 demonstrating the claimed employee support, and

4 shall indicate the name, address, and telephone

5 number of any other interested employee organiza6 tion, if known to the requesting organization. The

7 employer shall, at the direction of the Commission,

8 post a copy of such request on a bulletin board at

9 each facility in which members of the unit claimed

10 to be appropriate are employed. The request shall

11 remain posted for a period of 21 days from the date

12 on which the Commission directs that it be posted.

13 The Commission shall maintain a public docket of

14 all requests filed under this section. Such docket

15 shall contain a copy of the request but shall not in16 clude any accompanying evidence of support. The re17 quest shall remain on the public docket until the

18 case is closed;

19 (2) an employer alleging that it has received a

20 request for exclusive recognition from one or more

21 employee organizations; or

22 (3) by one or more employees in an appropriate

23 collective-bargaining unit asserting that the employ24 ees in an appropriate unit no longer desire a par25 ticular employee organization as their exclusive rep-
26

•HR 5126 IH

1 resentative: Provided, That such petition is sup2 ported by signed statements to that effect from at

3 least 30 percent of the employees in the appropriate

4 collective-bargaining unit.

5 (d) Upon receipt of such a petition, the Commission

6 or its agents shall conduct such inquiries and investiga7 tions or hold such hearings as it shall deem necessary in

8 order to decide the question raised by the petition. The

9 Commission’s determination may be based upon the evi10 dence adduced in such inquires, investigations, or hearings

11 as it or its agents shall make or hold or upon the results

12 of a secret ballot election as it shall direct and conduct

13 if deemed necessary: Provided, That employee organiza14 tion shall appear on a ballot unless it submits credible evi15 dence demonstrating that at least 10 percent of the em16 ployees in the appropriate collective-bargaining unit desire

17 it as their exclusive representative: Provided further, That

18 whenever one or more additional employee organizations

19 has filed a timely request to intervene in the proceedings,

20 which request is supported by credible evidence dem21 onstrating that at least 10 percent of the employees in

22 the appropriate collective-bargaining unit desire it as their

23 exclusive representative, the Commission shall direct an

24 election by secret ballot and shall certify the results there25 of: Provided further, That the Commission shall dismiss
27

•HR 5126 IH

1 without determining the questions raised therein any peti2 tion filed pursuant to subsection (c) of this section if—

3 (1) the petition is filed pursuant to subsection

4 (c)(1) and is not supported by credible evidence

5 demonstrating that at least 30 percent of the em6 ployees in the collective-bargaining unit described

7 therein wish to be represented for the purpose of col8 lective bargaining by the organization seeking rec9 ognition;

10 (2) there is currently in effect a lawful written

11 collective-bargaining agreement between such em12 ployer and employee organization other than the pe13 titioner covering any employees included in the unit

14 described in the petition, unless such agreement has

15 been in effect for more than three years, or unless

16 the request for recognition if filed less than sixty

17 days prior to the said expiration date as the Com18 mission may determine is reasonable because of the

19 budget-making procedure of the employer;

20 (3) within the previous 12 months an employee

21 organization other then the petitioner, or other than

22 the employee organization challenged if the petition

23 if filed pursuant to subsection (c)(3), has been law24 fully recognized or certified as the exclusive rep-
28

•HR 5126 IH

1 resentative of any employees included in the unit de2 scribed in the petition; or

3 (4) the Commission has, within the previous 12

4 months, conducted a secret ballot election involving

5 any employee included in the unit described in the

6 petition in which a majority of the valid ballot cast

7 chose not to be represented by any employee organi8 zation.

9 (e) The Commission shall certify an employee organi10 zation as the exclusive representative of the employee in

11 an appropriate collective-bargaining unit if—

12 (1) the organization receives a majority of the

13 valid ballots cast in an election conducted pursuant

14 to subsection (d) of this section;

15 (2) the Commission determines, as provided in

16 subsection (d) of this section, without an election

17 that the organization represents an uncoerced ma18 jority of the employees in such unit and that such

19 majority status was achieved without the benefit of

20 unlawful employer assistance as defined in section

21 10(a) of this Act or that the organization would rep22 resent such an uncoerced majority if the employer

23 had not engaged in unlawful acts as defined in sec24 tion 10(a) of this Act; or
29

•HR 5126 IH

1 (3) upon request of an employee’s organization

2 that has been recognized by an employer pursuant

3 to subsection (b) of this section, the Commission is

4 satisfied that the organization represents an

5 uncoerced majority of employees in such unit and

6 that such majority status was achieved without the

7 benefit of unlawful employer assistance as defined in

8 section 10(a) of this Act.

9 (f) In each case where the appropriateness of the

10 claimed unit is in issue, the Commission shall decide the

11 question on the basis of the community of interest among

12 the public employees; wages, hours and other working con13 ditions of the public employees involved; the history of col14 lective bargaining; the efficiency of the operations and the

15 administrative structure of the public employer; and the

16 adverse effect of overfragmentation: Provided, That—

17 (1) except in regard to firefighters and public

18 safety officers, a unit shall not be considered appro19 priate if it includes both supervisors and

20 nonsupervisors; in regard to firefighters, a unit that

21 includes both supervisors and nonsupervisors may be

22 considered appropriate; and in regard to public safe23 ty officers, a unit that includes both supervisors and

24 nonsupervisors may be considered appropriate if a

25 majority of the employees in each category indicate
30

•HR 5126 IH

1 by vote or other credible evidence that they desire to

2 be included in such unit; and

3 (2) a unit including both professionals and non4 professionals shall not be appropriate unless a ma5 jority of the employees in each category indicate by

6 vote or other credible evidence that they desire to be

7 included in such unit.

8 (g) A determination by the Commission that an em9 ployee organization has been selected as the exclusive rep10 resentative for the employees in an appropriate unit shall

11 not be subject to judicial review or other collateral attack.

12 SEC. 205. IMPASSE IN COLLECTIVE BARGAINING OVER THE

13 TERMS AND CONDITIONS OF EMPLOYMENT

14 AND OTHER MATTERS OF MUTUAL CONCERN

15 RELATING THERETO.

16 (a) Either an employer or an exclusive representative

17 may declare that an impasse has been reached between

18 them in collective bargaining over the terms and condi19 tions of employment and other matters of mutual concern

20 relating thereto, and may request the Service to appoint

21 a mediator for the purpose of assisting them in reconciling

22 their differences and resolving the controversy on terms

23 which are mutually acceptable. If the Service determines

24 that an impasse exists, it shall, in no event later than five

25 days after the receipt of a request, appoint a mediator in
31

•HR 5126 IH

1 accordance with rules and regulations for such appoint2 ment prescribed by the Service. The Service may, on its

3 own volition, declare impasse has been reached in collec4 tive bargaining over the terms and conditions of employ5 ment and other matters of mutual concern relating thereto

6 and appoint a mediator. The mediator shall meet with the

7 parties or their representatives, or both, forthwith, either

8 jointly or separately, and shall take such other steps as

9 he or she may deem appropriate in order to persuade the

10 parties to resolve their differences and effect a mutually

11 acceptable agreement: Provided, That the mediator shall

12 not, without the consent of both parties, make findings

13 of fact or recommend terms of settlement. The services

14 of the mediator, including, if any, per diem expenses, shall

15 be provided by the Service without cost to the parties.

16 Nothing in this subsection shall be construed to prevent

17 the parties from mutually agreeing upon their own medi18 ation procedure and in the event of such agreement, the

19 Service shall not appoint its own mediator unless failure

20 to do so would be inconsistent with the effectuation of the

21 purpose and policy of this Act. Representatives of the em22 ployer and the exclusive representative have a mutual obli23 gation to meet for negotiations at reasonable times in light

24 of the budgetmaking process.
32

•HR 5126 IH

1 (b)(1) If the mediator is unable to effect settlement

2 of the controversy within 15 days after his or her appoint3 ment, either party may, by written notification to the

4 other, request that their differences be submitted to fact5 finding with recommendations. Such recommendations

6 shall be advisory only, unless within 5 days after giving

7 or receiving the aforesaid written request, the exclusive

8 representative notifies the employer, in writing, that it de9 sires the recommendations of the fact finder to be binding.

10 Within 10 days after receipt of the aforesaid written re11 quest for factfinding, the parties shall select a person to

12 serve as fact finder and obtain a commitment from said

13 person to serve. If they are unable to agree upon a fact

14 finder or to obtain such a commitment within said time,

15 either party may request the Service to designate a fact

16 finder. The Service shall, within 5 days after receipt of

17 such a request, designate a fact finder in accordance with

18 rules and regulations for such designation prescribed by

19 the Service. The fact finder so designated shall not, with20 out the consent of both parties, be the same person who

21 was appointed mediator pursuant to subsection (a) of this

22 section.

23 (2) The fact finder shall, within 10 days after his or

24 her appointment, meet with the parties of their represent25 atives, or both, forthwith, either jointly or separately, and
33

•HR 5126 IH

1 may make inquiries and investigations, hold hearings, and

2 take such other steps as he or she may deem appropriate.

3 For the purpose of such hearings, investigations, and in4 quiries, the fact finder shall have the power to issue sub5 poenas requiring the attendance and testimony of wit6 nesses and the production of evidence. The several depart7 ments, commissions, divisions, authorities, boards, bu8 reaus, agencies, and officers of the United States or of

9 the State, territory, or possession affected, or any political

10 subdivision thereof, shall furnish the fact finder, upon his

11 or her request, with all records, papers, and information

12 in their possession relating to any matter under investiga13 tion by or in issue before the fact finder. If the dispute

14 is not settled within thirty days after his or her appoint15 ment, the fact finder shall make findings of fact and rec16 ommend terms of settlement, which recommendations

17 shall be advisory only, unless the exclusive representative

18 has previously notified the employer that such rec19 ommendations are to be binding in which case they shall

20 be binding.

21 (c) If the recommendations of the fact finder are

22 binding—

23 (1) the exclusive representative shall be prohib24 ited from engaging and employees shall be prohib25 ited from participating in a strike for the purpose of
34

•HR 5126 IH

1 resolving a dispute which has been submitted to the

2 fact finder and in regard to which he or she has rec3 ommended terms of settlement and nothing con4 tained in this Act or in any other law of the United

5 States shall prevent a court from granting a re6 straining order or temporary or permanent injunc7 tion in a case involving a strike for such purpose;

8 and

9 (2) the parties shall comply with the rec10 ommendations of the fact finder: Provided, That if

11 the employer does not have the legal authority to

12 comply with such recommendations or any part

13 thereof, it shall take such actions as may be nec14 essary to enable it to comply, including the submis15 sion of requests to appropriate legislative bodies.

16 (d) If the recommendations of the fact finder are ad17 visory only, they shall, together with the findings of fact,

18 be submitted in writing to the parties and the Service pri19 vately before they are made public. Either the Service, the

20 fact finder, the employer, or the exclusive representative

21 may make such findings and recommendations public if

22 the dispute is not settled within 10 days after their receipt

23 from the fact finder.

24 (e) The costs for the services of the fact finder, in25 cluding, if any, per diem expenses and actual and nec-
35

•HR 5126 IH

1 essary travel and subsistence expenses, and any other mu2 tually incurred costs, shall be borne equally by the em3 ployer and the exclusive representative. Any individually

4 incurred costs shall be borne by the party incurring them.

5 (f) Nothing in this section shall be construed to pro6 hibit an employer and an exclusive representative from

7 agreeing to substitute their own procedure for resolving

8 impasse in collective bargaining for that provided herein

9 or from agreeing to utilize for the purposes of this section

10 any other governmental or other agency or person in lieu

11 of the Service.

12 SEC. 206. DISPUTES OVER THE INTERPRETATION OR AP13 PLICATION OF AGREEMENTS.

14 (a) An employer and an exclusive representative who

15 enter into an agreement covering terms and conditions of

16 employment and other matters of mutual concern relating

17 thereto may include in such agreement procedures for

18 binding arbitration of such disputes as may arise involving

19 the interpretation or application of such agreement or of

20 established policies or practices of such employer affecting

21 terms and conditions of employment and other matters of

22 mutual concern relating thereto.

23 (b) If such agreement does not include procedures of

24 the type provided for in subsection (a) of this section, ei25 ther party to the agreement may submit such disputes to
36

•HR 5126 IH

1 binding arbitration pursuant to rules and regulations pre2 scribed for such purpose by the Commission.

3 (c) Where a party to such agreement is aggrieved by

4 the failure, neglect, or refusal of the other party to proceed

5 to arbitration pursuant to the procedures provided there6 for in such agreement or pursuant to subsection (b) of

7 this section, such aggrieved party may file a complaint in

8 the appropriate district court of the United States or the

9 appropriate court of the affected State, territory, or pos10 session of the United States for a summary action without

11 jury seeking an order directing that the arbitration pro12 ceed pursuant to the procedures provided therefor in such

13 agreement or pursuant to subsection (b) of this section.

14 (d) Unless the award of the arbitrator is deficient be15 cause—

16 (1) it was procured by corruption, fraud, or

17 other misconduct;

18 (2) of partiality of the arbitrator; or

19 (3) the arbitrator exceeded his or her powers or

20 so imperfectly executed them that a final and defi21 nite award upon the subject matter was not made,

22 such award shall be final and binding upon the par23 ties and may be enforced by the appropriate district

24 court of the United States or the appropriate court
37

•HR 5126 IH

1 of the affected State, territory, or possession of the

2 United States.

3 SEC. 207. STRIKES.

4 (a) Except as otherwise expressly provided in sub5 sections (b) and (c) of this section and in Section 209 and

6 in subsection (c) of section 7, nothing in this Act or in

7 any other law or enactment of the United States, or of

8 any State, territory, or possession of the United States,

9 or any political subdivision thereof, shall be construed to

10 interfere with, impede, or diminish the right of an exclu11 sive representative to engage or of an employee to partici12 pate in a strike arising out of or in connection with a labor

13 dispute.

14 (b) A restraining order or temporary or permanent

15 injunction may be granted in a case involving a strike by

16 an exclusive representative arising out of or in connection

17 with a labor dispute, only on the basis of findings of fact

18 made by the appropriate district court of the United

19 States after due notice and hearing prior to the issuance

20 of such restraining order or injunction that—

21 (1) the commencement or continuance of such

22 strike poses a clear and present danger to the public

23 health or safety which in light of all relevant cir24 cumstances it is in the best public interest to pre25 vent: Provided, That any restraining order or injunc-
38

•HR 5126 IH

1 tion issued by a court for this reason shall prohibit

2 only such specific act or acts as shall be expressly

3 determined in said findings of fact to pose such clear

4 and present danger and shall remain in effect only

5 for so long as such clear and present danger contin6 ues to exist; or

7 (2) the exclusive representative has failed to

8 make a reasonable effort to utilize the procedures

9 provided in section 7 of this Act for the resolution

10 of impasse in collective bargaining: Provided, That

11 any restraining order or injunction issued by a court

12 for this reason shall indicate the specific act or acts

13 which the representative has failed to perform and

14 shall remain in effect only until said act or acts shall

15 have been performed.

16 (c) Nothing contained in this Act shall prevent a

17 court from granting a restraining order or temporary or

18 permanent injunction in a case involving a strike in viola19 tion of any lawful provision of an agreement covering

20 terms and conditions of employment and other matters of

21 mutual concern relating thereto.

22 SEC. 208. IMPASSE PROCEDURES FOR FIREFIGHTERS AND

23 PUBLIC SAFETY OFFICERS.

24 (a) ARBITRATION PANEL.—
39

•HR 5126 IH

1 (1) If an employer or an exclusive representa2 tive declares that an impasse exists on any issue

3 later than 60 days after the date on which collective

4 bargaining proceedings begin, the issue of dispute

5 shall be brought before an arbitration panel for a

6 final and binding resolution. Such panel shall be

7 comprised of 3 arbitrators—

8 (A) one appointed by the employer and one

9 appointed by the exclusive representative within

10 15 days after the date of request by the party

11 declaring impasse; and

12 (B) an impartial arbitrator (who shall

13 serve as chair) selected by the arbitrators ap14 pointed under subparagraph (A) within 5 days

15 after the date of their appointment.

16 (2) In the event that the arbitrators appointed

17 under paragraph (1)(A) are unable to agree on the

18 selection of the impartial arbitrator, such arbitrators

19 shall immediately request a panel of arbitrators from

20 the Federal Mediation and Conciliation Service.

21 Each such arbitrator shall advise the Service of his

22 or her order of preference within 5 days after receipt

23 of the names on the panel and appointment of the

24 third arbitrator shall then be made in accordance
40

•HR 5126 IH

1 with the procedure outlined in section 1401.13(b)(2)

2 of title 29, Code of Federal Regulations.

3 (3) The arbitration panel shall conduct a hear4 ing, within 14 days after the date of appointment of

5 its chair, at a place within the locality of the munici6 pal government involved, where feasible. The chair

7 shall notify the representatives of the employer and

8 the exclusive representative as to date and place of

9 such hearing not less than 7 days before the date on

10 which the hearing is to be conducted.

11 (b) HEARING BEFORE ARBITRATION PANEL.—

12 (1) The chair shall preside over the hearing and

13 shall take testimony. Upon application and for good

14 cause shown, a person, labor organization or govern15 mental unit having substantial interest in the pro16 ceedings may be granted leave to intervene by the

17 arbitration panel. The proceedings shall be informal.

18 Any oral or documentary evidence and other data

19 deemed relevant by the arbitration panel may be re20 ceived into evidence.

21 (2) The arbitrators shall have the power to ad22 minister oaths and to require by subpoenas the at23 tendance and testimony of witnesses, the production

24 of books, records, and other evidence relative to or
41

•HR 5126 IH

1 pertinent to the issues presented to them for deter2 mination.

3 (3) If any person refuses to obey a subpoena,

4 or refuses to be sworn or to testify, or if any wit5 ness, party or attorney is guilty of any contempt

6 while in attendance at any hearing, the arbitration

7 panel shall invoke the aid of the district court of the

8 United States within the jurisdiction in which the

9 hearing is being held. Such court shall issue an ap10 propriate order.

11 (c) RECORD AND TRANSCRIPTS; DECISION.—

12 (1) A record of the proceedings shall be kept,

13 and the chair shall arrange for the necessary record14 ing service. Transcripts may be ordered at the ex15 pense of the party ordering them, but the transcripts

16 shall not be necessary for an award by the panel.

17 The hearing may be continued at the discretion of

18 the panel, but shall be concluded within 30 days

19 after the time of commencement. At the conclusion

20 of the hearing, each party shall submit a written

21 statement containing its final position with respect

22 to each of the issues in dispute to the panel, which

23 shall take such statements under advisement.

24 (2) Within 10 days after conclusion of the hear25 ing, a majority of the panel shall issue a statement
42

•HR 5126 IH

1 of its findings and conclusions and shall give written

2 notice of the panel’s decision of the issue or issues

3 at impasse. The decision of the panel shall be final

4 and binding upon the parties and upon the appro5 priate legislative body.

6 (d) AWARDS; ENFORCEMENT.—Any award of the ar7 bitration panel may be retroactive to the expiration date

8 of the last contract. If an employer or an exclusive rep9 resentative willfully disobeys a lawful decision of the arbi10 tration panel or willfully encourages or offers resistance

11 to such order, the other party may seek enforcement of

12 the order in the district court of the United States within

13 the jurisdiction in which the hearing is held.

14 (e) ARBITRATION COSTS.—The costs of arbitration

15 shall be shared equally by the parties, including any inter16 venor.

17 SEC. 209. STRIKES AND FIREFIGHTERS AND PUBLIC SAFE18 TY OFFICERS.

19 No firefighter or public safety officer or exclusive rep20 resentative thereof shall engage in a strike or induce, en21 courage or condone any strike, work stoppage, slowdown,

22 or withholding of service by fire fighters or public safety

23 officers.

24 SEC. 210. UNLAWFUL ACTS.

25 (a) It shall be unlawful for an employer to—
43

•HR 5126 IH

1 (1) impose or threaten to impose reprisals on

2 any employee, discriminate, or threaten to discrimi3 nate against any employee or otherwise interfere

4 with, restrain, or coerce any employee because of his

5 or her exercise of rights guaranteed by this Act;

6 (2) dominate, interfere with, or assist in the

7 formation or administration of any employee organi8 zation;

9 (3) encourage or discourage membership in any

10 employee organization by discrimination in regard to

11 hire, tenure of employment, or any term or condition

12 of employment: Provided, That nothing contained in

13 this subsection shall prevent an employer from re14 quiring, as a condition of continued employment,

15 payment to or membership in an exclusive represent16 ative pursuant to section 5(c) and section 5(d) of

17 this Act, respectively: Provided further, That no em18 ployer shall justify any discrimination against any

19 employee for non-membership in any employee orga20 nization if he or she has reasonable grounds for be21 lieving such membership was—

22 (A) not available to the employee on the

23 same terms and conditions generally applicable

24 to other members; or
44

•HR 5126 IH

1 (B) denied or terminated for reasons other

2 than the failure of the employee to tender the

3 dues, fees, and assessments uniformly required

4 as a condition of acquiring or retaining mem5 bership;

6 (4) deny to any employee organization the

7 rights guaranteed to it by this Act;

8 (5) refuse to bargain in good faith with an ex9 clusive representative if requested to do so; or

10 (6) fail to comply with any provision of this

11 Act.

12 (b) It shall be unlawful for—

13 (1) an employee organization to restrain or co14 erce any employee in the exercise of the rights guar15 anteed to him or her by this Act: Provided, That

16 this subsection shall not impair the right of an em17 ployee organization to prescribe its own rules with

18 respect to the acquisition or retention of membership

19 therein;

20 (2) an employee organization to restrain or co21 erce an employer in the selection of its representa22 tive for the purpose of collective bargaining or the

23 adjustment of grievances; or
45

•HR 5126 IH

1 (3) an exclusive representative to refuse or fail

2 to bargain in good faith with an employer if re3 quested to do so.

4 SEC. 211. PREVENTION OF UNLAWFUL ACTS.

5 (a) The Commission is empowered, as hereinafter

6 provided, to prevent any person from engaging in any un7 lawful act as defined in section 10 of this Act. This power

8 shall not be affected by any other means of adjustment

9 or prevention that has been or may be established by

10 agreement, law, or otherwise.

11 (b) Whenever it is charged that any person has en12 gaged in or is engaging in any such unlawful act, the Com13 mission or any agent or agency designated by the Commis14 sion for such purpose, shall have the power to issue and

15 cause to be served upon such person a complaint stating

16 the charges in that respect, and containing a notice of

17 hearing before the Commission or a member thereof, or

18 before a designated agent or agency, at a place therein

19 fixed, not less than five days after the serving of said com20 plaint: Provided, That no complaint shall issue based upon

21 any unlawful act occurring more than 6 months prior to

22 the filing of the charge with the Commission and the serv23 ice of a copy thereof upon the person against whom such

24 charge is made, unless the person aggrieved thereby was

25 prevented from filing such a charge by reason of service
46

•HR 5126 IH

1 in the Armed Forces, in which event the 6-month period

2 shall be computed from the date of his or her discharge.

3 Any such complaint may be amended by the member,

4 agent, or agency conducting the hearing or the Commis5 sion in its discretion at any time prior to the issuance of

6 an order based thereon: Provided, That the person com7 plained of is not unfairly prejudiced by such amendment.

8 The person so complained of shall have the right to file

9 an answer to the original or amended complaint and to

10 appear in person or otherwise and give testimony at the

11 time and place fixed in the complaint. In the discretion

12 of the member, agent, or agency conducting the hearing

13 or the Commission, any other person may be allowed to

14 intervene in the said proceeding and to present testimony.

15 Any such proceeding shall, so far as practicable, be con16 ducted in accordance with the provisions of subchapter II

17 of chapter 5 of title 5, United States Code: Provided fur18 ther, That the rules of evidence, whether statutory, com19 mon law, or adopted by rules of court, shall not be control20 ling.

21 (c) The testimony taken by such member, agent, or

22 agency of the Commission shall be reduced to writing and

23 filed with the Commission. Thereafter, in its discretion,

24 the Commission, upon notice, may take further testimony

25 or hear argument. If upon the preponderance of the testi-
47

•HR 5126 IH

1 mony taken, the Commission shall be of the opinion that

2 any person named in the complaint has engaged in or is

3 engaging in any such unlawful act, then the Commission

4 shall state its findings of fact and shall issue and cause

5 to be served upon such person, an order requiring such

6 person to cease and desist from such unlawful act, and

7 to take such affirmative action as will effectuate the pur8 pose and policy of this Act, including the payment of dam9 ages and/or the reinstatement of employees: Provided,

10 That where an order directs reinstatement of an employee,

11 back pay may be required of the employer and/or the em12 ployee organization, as the case may be, responsible for

13 the discrimination suffered by him or her. Such order may

14 further require such person to make reports from time to

15 time showing the extent to which it has complied with the

16 order. If upon the preponderance of the testimony taken

17 the Commission shall not be of the opinion that the person

18 named in the complaint has engaged in or is engaging in

19 any such unlawful act, then the Commission shall state

20 its findings of fact and shall issue an order dismissing the

21 said complaint. No order of the Commission shall require

22 the reinstatement of any individual as an employee who

23 has been suspended or discharged, or the payment to him

24 or her of any back pay, if such individual was suspended

25 or discharged for cause. In case the evidence is presented
48

•HR 5126 IH

1 before a member of the Commission, or before an agent

2 or agency thereof, as the case may be, shall issue and

3 cause to be served upon the parties to the proceeding a

4 proposed report, together with a recommended order,

5 which shall be filed with the Commission and if no excep6 tions are filed within twenty days after service thereof

7 upon such parties, or with such further period as the Com8 mission may authorize, such recommended order shall be9 come the order of the Commission and become effective

10 as therein prescribed.

11 (d) If exceptions are filed to the proposed report and

12 recommended order, the Commission shall determine

13 whether such exceptions raise substantial issues of fact or

14 law. If it determines that the exceptions do raise such is15 sues, it shall grant a review. If the Commission determines

16 that the exceptions do not raise such issues, it shall refuse

17 to grant a review, and such recommended order shall be18 come the order of the Commission, and become effective

19 as therein provided.

20 (e) Until the record in a case shall have been filed

21 in a court, as hereinafter provided, the Commission may

22 at any time, upon reasonable notice and in such manner

23 as it shall deem proper, modify, or set aside, in whole or

24 in part, any finding or order made or issued by it.
49

•HR 5126 IH

1 (f) The Commission or the charging party shall have

2 power to petition any court of appeals of the United States

3 in the circuit, wherein the unlawful act in question oc4 curred or wherein the person named in the complaint re5 sides or transacts business, for the enforcement of such

6 order and for appropriate temporary relief or restraining

7 order, and shall file in the court the record in the proceed8 ings, as provided in section 2112 of title 28, United States

9 Code. Upon the filing of such petition, the court shall

10 cause notice thereof to be served upon such person, and

11 thereupon shall have jurisdiction of the proceeding and of

12 the question determined therein, and shall have power to

13 grant such temporary relief or restraining order as it

14 deems just and proper, and to make and enter a decree

15 enforcing, modifying, and enforcing as so modified, or set16 ting aside in whole or in part the order of the Commission.

17 No objection that has not been urged before the Commis18 sion, or its member, agent, or agency, shall be considered

19 by the court, unless the failure of neglect to urge such

20 objection shall be excused because of extraordinary cir21 cumstances. The findings of the Commission with respect

22 to questions of fact, if supported by substantial evidence

23 on the record considered as a whole shall be conclusive.

24 If any person shall apply to the court for leave to adduce

25 additional evidence, and shall show to the satisfaction of
50

•HR 5126 IH

1 the court that such additional evidence is material, and

2 that there were reasonable grounds for the failure to ad3 duce such evidence in the hearing before the Commission,

4 or its member, agent, or agency, the court may order such

5 additional evidence to be taken before the Commission, or

6 its member, agent, or agency, and to be made a part of

7 the record. The Commission may modify its findings as

8 to the facts, or make new findings by reason of additional

9 evidence so taken and filed, and it shall file such modified

10 or new findings, which findings with respect to questions

11 of fact if supported by substantial evidence on the record

12 considered as a whole shall be conclusive, and shall file

13 its recommendations, if any, for the modification or set14 ting aside of its original order. Upon the filing of the

15 record with it, the jurisdiction of the court shall be exclu16 sive and its judgment and decree shall be final, except that

17 the same shall be subject to review by the Supreme Court

18 of the United States upon writ of certiorari or certification

19 as provided in section 1254 of title 28, United States

20 Code.

21 (g) Any person aggrieved by a final order of the Com22 mission granting or denying, in whole or in part, the relief

23 sought may obtain a review of such order in any circuit

24 court of appeals of the United States in the circuit wherein

25 the unlawful act in question was alleged to have occurred
51

•HR 5126 IH

1 or wherein such person resides or transacts business, or

2 in the United States Court of Appeals for the District of

3 Columbia, by filing in such court within 60 days, a written

4 petition praying that the order of the Commission be

5 modified or set aside. A copy of such petition shall be

6 forthwith transmitted by the clerk of the court to the Com7 mission, and thereupon the aggrieved person shall file in

8 the court the record of the proceeding, certified by the

9 Commission, as provided in section 2112 of title 28,

10 United States Code. Upon the filing of such petition, the

11 court shall proceed in the same manner as in the case of

12 an application by the Commission under subsection (e) of

13 this section, and shall have the same jurisdiction to grant

14 to the Commission such temporary relief or restraining

15 order as it deems just and proper, and in like manner to

16 make and enter a decree enforcing, modifying, and enforc17 ing as so modified, or setting aside, in whole or in part,

18 the order of the Commission. The findings of the Commis19 sion with respect to questions of fact, if supported by sub20 stantial evidence on the record considered as a whole, shall

21 in like manner be conclusive.

22 (h) In any proceeding for enforcement or review of

23 a Commission order held pursuant to this section, evidence

24 adduced during a representation proceeding held pursuant

25 to section 6 of the Act shall not be included in the record
52

•HR 5126 IH

1 required to be filed under section 11(f) and (g) of the Act,

2 nor shall the court consider the record of such proceeding.

3 (i) The commencement of proceedings under sub4 section (e) or (f) of this section shall not, unless specifi5 cally ordered by the court, operate as a stay of the Com6 mission’s order.

7 (j) When granting temporary relief or restraining

8 order, or making and entering a decree enforcing, modify9 ing, and enforcing as so modified, or setting aside in whole

10 or in part, an order of the Commission, as provided in

11 this section, the jurisdiction of courts sitting in equity

12 shall not be limited by the provisions of section 20 of the

13 Act entitled ‘‘An Act to supplement existing laws against

14 unlawful restraints and monopolies and for other pur15 poses’’, approved October 15, 1914, as amended (29

16 U.S.C. 52), or the provisions of the Act entitled ‘‘An Act

17 to amend the Judicial Code and to define and limit the

18 jurisdiction of courts sitting in equity, and for other pur19 poses’’, approved March 23, 1932 (29 U.S.C. 101–115).

20 (k) Petitions filed under this Act shall be heard expe21 ditiously, and if possible within 10 days after they have

22 been docketed.

23 (l) The Commission shall have power, upon issuance

24 of a complaint as provided in subsection (b) of this section

25 charging that any person has engaged in or is engaging
53

•HR 5126 IH

1 in an unlawful act as defined in section 10 of this Act,

2 to petition any district court of the United States (includ3 ing the District Court of the United States for the District

4 of Columbia), within any district wherein the unlawful act

5 in question is alleged to have occurred or wherein such

6 person resides or transacts business, for appropriate tem7 porary relief or restraining order. Upon the filing of any

8 such petition the court shall cause notice thereof to be

9 served upon such person, and thereupon shall have juris10 diction to grant to the Commission such temporary relief

11 or restraining order as it deems just and proper.

12 (m)(1) For the purpose of all hearings and investiga13 tions which the Commission determines are necessary and

14 proper for the exercise of its powers under this Act, the

15 Commission or its duly authorized agent or agency shall

16 at all reasonable times have access to, for the purpose of

17 examination, and the right to copy any evidence of any

18 person being investigated or proceeded against that relates

19 to any matter under investigation or in question. The

20 Commission, or any member thereof, shall upon applica21 tion of any party to such proceeding, forthwith issue to

22 such party subpoenas requiring the attendance and testi23 mony of witnesses or the production of any evidence in

24 such proceeding or investigation requested in such applica25 tion. Within 5 days after the service of a subpoena upon
54

•HR 5126 IH

1 any person requiring the production of any evidence in his

2 or her possession or under his or her control, such person

3 may petition the Commission to revoke, and the Commis4 sion shall revoke, such subpoena if in its opinion the evi5 dence whose production is required does not relate to any

6 matter under investigation, or any matter in question in

7 such proceeding, or if in its opinion such subpoena does

8 not describe with sufficient particularity the evidence

9 whose production is required. Any member of the Commis10 sion, or any agent or agency designated by the Commis11 sion for such purposes, may administer oaths and affirma12 tions, examine witnesses, and receive evidence. Such at13 tendance of witnesses and the production of such evidence

14 may be required from any place in any State, territory,

15 or possession of the United States, at any designated place

16 of hearing.

17 (2) In case of contumacy or refusal to obey a sub18 poena issued to any person, any district court of the Unit19 ed States, including the District Court of the United

20 States for the District of Columbia, or the United States

21 courts of any territory or possession, within the jurisdic22 tion of which the inquiry is carried on or within the juris23 diction of which said person guilty of contumacy or refusal

24 to obey is found or resides or transacts business, upon

25 application by the Commission shall have jurisdiction to
55

•HR 5126 IH

1 issue to such person an order requiring such person to

2 appear before the Commission, its member, agent, or

3 agency, there to produce evidence if so ordered, or there

4 to give testimony touching the matter under investigation

5 or in question; and any failure to obey such order of the

6 court may be punished by said court as a contempt there7 of.

8 (3) Nor person shall be excused from attending and

9 testifying or from producing books, records, correspond10 ence, documents, or other evidence in obedience to sub11 poena of the Commission, on the ground that the testi12 mony or evidence required of him or her may tend to in13 criminate him or her or subject him or her to a penalty

14 of forfeiture; but no individual shall be prosecuted or sub15 jected to any penalty or forfeiture for or on account of

16 any transaction, matter, or thing concerning which he or

17 she is compelled, after having claimed his or her privilege

18 against self-incrimination, to testify or produce evidence,

19 except that such individual so testifying shall not be ex20 empt from prosecution and punishment for perjury com21 mitted in so testifying.

22 (4) Complaints, orders, and other process and papers

23 of the Commission, its member, agent, or agency, may be

24 served either personally, by registered mail, by telegraph,

25 or by leaving a copy thereof at a the principal office or
56

•HR 5126 IH

1 place of business of the person required to be served. The

2 verified return by the individual so serving the same set3 ting forth the manner of such service shall be proof of

4 the same, and the return post office receipt or telegraph

5 receipt therefor when registered and mailed or telegraphed

6 as aforesaid shall be proof of service of the same. Wit7 nesses summoned before the Commission, its members,

8 agent, or agency shall be paid the same fees and mileage

9 that are paid witnesses in the courts of the United States,

10 and witnesses whose depositions are taken and the persons

11 taking the same shall be entitled to the same fees as are

12 paid for like services in the courts of the United States.

13 (5) All process of any court to which application may

14 be made under this Act may be served in the judicial dis15 trict wherein the defendant or other person required to

16 be served resides or may be found.

17 (6) Any person who shall willfully resist, prevent, im18 pede, or interfere with any member of the Commission of

19 a member, agent, or agency thereof in the performance

20 of duties pursuant to this Act shall be punished by a fine

21 of not more than $5,000 or by imprisonment for not more

22 than one year, or both.
57

•HR 5126 IH

1 SEC. 212. APPLICABILITY OF THIS ACT.

2 Nothing in this law shall preclude or limit any State

3 from adopting rules by law or regulation that give employ4 ees additional rights than those required by this Act.

5 SEC. 213. MISCELLANEOUS.

6 (a) Except as otherwise expressly provided herein,

7 nothing in this Act shall be construed to annul, modify,

8 or preclude the renewal or continuation of any lawful

9 agreement entered into prior to the effective date of this

10 Act between an employer and an employee organization

11 covering terms and conditions of employment and other

12 matters of mutual concern relating thereto.

13 (b) All laws or parts of laws of the United States

14 inconsistent with the provisions of this Act are modified

15 or repealed as necessary to remove such inconsistency, and

16 this Act shall take precedence over all ordinances, rules,

17 regulations, or other enactments of any State, territory,

18 or possession of the United States or any political subdivi19 sion thereof. Except as otherwise expressly provided here20 in, nothing contained in this Act shall be construed to

21 deny or otherwise abridge any rights, privileges, or bene22 fits granted by law to employees.

23 (c) If any provision of this Act shall be held invalid,

24 other provisions of this Act shall not be affected thereby.
58

•HR 5126 IH

1 SEC. 214. EFFECTIVE DATE.

2 The Act shall take effect 120 days following its enact3 ment.

4 TITLE III—GENERAL PROVI5 SIONS REGARDING PENSION

6 PLANS

7 SEC. 301. REQUIREMENTS RELATING TO TRUSTEESHIP OF

8 SINGLE-EMPLOYER PLANS.

9 (a) IN GENERAL.—Section 403(a) of the Employee

10 Retirement Income Security Act of 1974 (29 U.S.C.

11 1103(a)) is amended—

12 (1) by redesignating paragraphs (1) and (2) as

13 subparagraphs (A) and (B), respectively;

14 (2) by inserting ‘‘(1)’’ after ‘‘(a)’’; and

15 (3) by adding at the end the following new

16 paragraph:

17 ‘‘(2)(A) The assets of a single-employer plan

18 shall be held in trust by a joint board of trustees,

19 which shall consist of 2 or more trustees represent20 ing on an equal basis the interests of the employer

21 or employers maintaining the plan and the interests

22 of the participants and their beneficiaries.

23 ‘‘(B)(i) Except as provided in clause (ii), in any

24 case in which the plan is maintained pursuant to one

25 or more collective bargaining agreements between

26 one or more employee organizations and one or more
59

•HR 5126 IH

1 employers, the trustees representing the interests of

2 the participants and their beneficiaries shall be des3 ignated by such employee organizations.

4 ‘‘(ii) Clause (i) shall not apply with respect to

5 a plan described in such clause if the employee orga6 nization (or all employee organizations, if more than

7 one) referred to in such clause file with the Sec8 retary, in such form and manner as shall be pre9 scribed in regulations of the Secretary, a written

10 waiver of their rights under clause (i).

11 ‘‘(iii) In any case in which clause (i) does not

12 apply with respect to a single-employer plan because

13 the plan is not described in clause (i) or because of

14 a waiver filed pursuant to clause (ii), the trustee or

15 trustees representing the interests of the partici16 pants and their beneficiaries shall consist of 1 or

17 more participants under the plan elected to serve as

18 such in accordance with this clause. The Secretary

19 shall provide by regulation for a secret ballot of the

20 participants under the plan for the purposes of such

21 election, and for certification of the results thereof

22 to the participants (and any employee organization

23 referred to in clause (ii)) and to the employer.’’.
60

•HR 5126 IH

1 SEC. 302. EFFECTIVE DATE.

2 The amendments made by section 1 shall apply with

3 respect to plan years beginning after 180 days after the

4 date of the enactment of this Act. The Secretary of Labor

5 shall prescribe the initial regulations necessary to carry

6 out the provisions of such amendments not later than 90

7 days after the date of the enactment of this Act.

Æ

HR 5126 IH——2

HR 5126 IH——3

HR 5126 IH——4

HR 5126 IH——5