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[Congressional Bills 115th Congress]
[From the U.S. Government Publishing Office]
[H.R. 4548 Introduced in House (IH)]

<DOC>

115th CONGRESS
  1st Session
                                H. R. 4548

To amend the National Labor Relations Act to strengthen protections for 
employees to exercise their rights to organize and collectively bargain 
for improved wages, hours, or other terms and conditions of employment, 
 to sanction violations of such rights and assure meaningful remedies, 
   to establish a process by which employers and employees conclude 
   initial collective bargaining agreements, and for other purposes.

_______________________________________________________________________

                    IN THE HOUSE OF REPRESENTATIVES

                            December 5, 2017

    Mr. Scott of Virginia (for himself, Mr. Sablan, Mr. Takano, Mr. 
DeSaulnier, Mr. Norcross, Ms. DeLauro, Ms. Kaptur, Ms. Schakowsky, Mr. 
  Brendan F. Boyle of Pennsylvania, Mr. Nadler, Mrs. Napolitano, Mr. 
Pocan, Ms. Clark of Massachusetts, Mr. Ryan of Ohio, Mr. Espaillat, Mr. 
  Cummings, Ms. Bonamici, Mr. DeFazio, Mr. Brady of Pennsylvania, Mr. 
Pallone, Mr. Langevin, Mr. Serrano, Ms. Wilson of Florida, Ms. Sanchez, 
  Ms. Adams, Mr. Huffman, Mr. Raskin, Ms. Hanabusa, Mr. Ellison, Mr. 
Gutierrez, Ms. Norton, Mr. Khanna, and Ms. Shea-Porter) introduced the 
 following bill; which was referred to the Committee on Education and 
                             the Workforce

_______________________________________________________________________

                                 A BILL

 
To amend the National Labor Relations Act to strengthen protections for 
employees to exercise their rights to organize and collectively bargain 
for improved wages, hours, or other terms and conditions of employment, 
 to sanction violations of such rights and assure meaningful remedies, 
   to establish a process by which employers and employees conclude 
   initial collective bargaining agreements, and for other purposes.

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

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Workplace Action for a Growing 
Economy Act'' or the ``WAGE Act''.

SEC. 2. FINDINGS.

    Congress finds the following:
            (1) The National Labor Relations Act (29 U.S.C. 151 et 
        seq.) was enacted to encourage the practice of collective 
        bargaining and to protect the exercise by workers of full 
        freedom of association in the workplace. Since its enactment in 
        1935, tens of millions of workers have bargained with their 
        employers over wages, benefits, and other terms and conditions 
        of employment and have raised the standard of living for all 
        workers.
            (2) According to research by the Bureau of Labor 
        Statistics, through acting collectively and bargaining with 
        their employers, workers who are unionized earn 25.2 percent 
        more than workers who are not covered by a collective 
        bargaining agreement. They are 40.8 percent more likely to be 
        offered health insurance through work and nearly 5 times as 
        likely to have employer-provided defined benefit pensions. The 
        wage differential is significant for women and people of color. 
        Unionized African-American workers earn 25.1 percent more than 
        African-American workers who are not unionized, and unionized 
        Latino workers earn 45.7 percent more than their peers who are 
        not unionized. Unionized women earn 32.1 percent more than 
        women who are not unionized, and the wage gap between men and 
        women is much smaller at unionized workplaces. The wage gains 
        achieved through collective bargaining agreements benefit 
        workers and their communities.
            (3) Unions and collective bargaining ensure that 
        productivity gains are shared by working people. The decline in 
        the percentage of workers covered by collective bargaining has 
        contributed significantly to skyrocketing income inequality and 
        flat wages.
            (4) As enacted in 1935, the National Labor Relations Act 
        (29 U.S.C. 151 et seq.) protects the right of all workers to 
        join together with their co-workers to advocate for 
        improvements in their pay, benefits, and working conditions, 
        regardless of whether they seek representation by a union. The 
        law protects the right of workers to discuss issues like pay 
        and benefits without retaliation or interference by employers. 
        However, the awareness of workers regarding their rights under 
        the law is lacking, and many employers maintain policies that 
        restrict the ability of workers to discuss workplace issues 
        with each other, directly contravening these rights. Research 
        shows that more than one-half of workers report that their 
        employers have policies that prohibit or discourage workers 
        from discussing pay with their co-workers. These policies and 
        practices impede workers from exercising their rights under the 
        law and impair their freedom of association at work.
            (5) Retaliation by employers against workers who exercise 
        their rights under the National Labor Relations Act (29 U.S.C. 
        151 et seq.) persists at troubling levels. Employers routinely 
        fire workers for trying to form a union at their workplace. In 
        one out of 3 organizing campaigns, one or more workers are 
        discharged for supporting or joining a union. From fiscal years 
        2014 through 2016, the National Labor Relations Board obtained 
        reinstatement orders for 6,997 workers and obtained awards 
        totaling over $193,000,000 for backpay and other damages for 
        workers who faced illegal retaliation for exercising their 
        rights.
            (6) The current remedies are inadequate to deter employers 
        from violating the National Labor Relations Act (29 U.S.C. 151 
        et seq.). The remedies and penalties for violations of the 
        National Labor Relations Act (29 U.S.C. 151 et seq.) are far 
        weaker than for other labor and employment laws, including the 
        Civil Rights Act of 1964 (42 U.S.C. 2000a et seq.). Unlike 
        other major labor and employment laws, there are no civil 
        penalties for violations of the law. Workers cannot go to court 
        to pursue relief on their own; they must rely on the National 
        Labor Relations Board to prosecute their case.
            (7) Unlike orders of other federal agencies, the National 
        Labor Relations Board's orders are not enforced until the Board 
        seeks enforcement from the Court of Appeals. As far back as 
        1969, the Administrative Conference of the United States 
        recognized that the absence of a self-enforcing agency order 
        imposes wasteful delays in the enforcement of the Act, and 
        recommended that the Board's orders be made self-enforcing like 
        those of other agencies. Congress did not act upon this 
        recommendation, and delays in the Board's enforcement remain a 
        problem for the Act to be an effective law.
            (8) Many workers do not currently enjoy the protections of 
        the Act because they are excluded from coverage by the statute 
        or interpretations of the statute.
            (9) Too often, workers who choose to form unions are 
        frustrated when their employers use delay and other tactics to 
        avoid reaching an initial collective bargaining agreement. 
        Estimates are that in as many as half of new organizing 
        campaigns, workers and their employers fail to reach an initial 
        collective bargaining agreement.
            (10) In order to make the right to collective bargaining 
        and freedom of association in the workplace a reality for 
        workers, the National Labor Relations Act (29 U.S.C. 151 et 
        seq.) must be strengthened.

SEC. 3. PURPOSES.

    The purposes of this Act are to--
            (1) strengthen protections for employees engaged in 
        collective action to improve their wages, hours, and terms and 
        conditions of employment;
            (2) expand coverage under the Act to more employees;
            (3) provide a process by which workers and employers can 
        successfully negotiate an initial collective bargaining 
        agreement;
            (4) provide for stronger remedies for employees who face 
        retaliation, discrimination, or other interference with the 
        legal right of the employees to engage in collective action;
            (5) provide for penalties against employers who violate the 
        rights of employees to engage in collective action, in order to 
        act as a meaningful deterrent against violating the law; and
            (6) streamline the enforcement procedures of the National 
        Labor Relations Board to provide for more timely and effective 
        enforcement of the law.

SEC. 4. STRENGTHENING REMEDIES AND ENFORCEMENT FOR EMPLOYEES EXERCISING 
              THEIR RIGHTS AT WORK.

    (a) Backpay.--Section 10(c) of the National Labor Relations Act (29 
U.S.C. 160(c)) is amended by striking ``And provided further,'' and 
inserting ``Provided further, That if the Board finds that an employer 
has discriminated against an employee in violation of paragraph (3) or 
(4) of section 8(a) or has committed a violation of section 8(a) that 
results in the discharge of an employee or other serious economic harm 
to an employee, the Board shall award the employee back pay and an 
additional amount as liquidated damages equal to 2 times the amount of 
such back pay, without any reduction (including any reduction based on 
the employee's interim earnings or failure to earn interim earnings): 
Provided further,''.
    (b) Civil Penalties.--Section 12 of the National Labor Relations 
Act (29 U.S.C. 162) is amended--
            (1) by striking ``Sec. 12. Any person'' and inserting the 
        following:

``SEC. 12. PENALTIES.

    ``(a) Violations for Interference With Board.--Any person''; and
            (2) by adding at the end the following:
    ``(b) Civil Penalties for Violations of Posting Requirements.--If 
the Board, or any agent or agency designated by the Board for such 
purposes, determines that an employer has violated section 8(h), the 
Board shall--
            ``(1) state the findings of fact supporting such 
        determination;
            ``(2) issue and cause to be served on such employer an 
        order requiring that such employer post the notice described in 
        such section and provide the information to new employees 
        described in such section; and
            ``(3) impose a civil penalty in an amount determined 
        appropriate by the Board, except that in no case shall the 
        amount of the fine exceed $500 for each such violation.
    ``(c) Violations Causing Serious Economic Harm to Employees.--
            ``(1) In general.--Any employer who commits an unfair labor 
        practice within the meaning of paragraph (3) or (4) of section 
        8(a) or a violation of section 8(a) that results in the 
        discharge of an employee or other serious economic harm to an 
        employee shall, in addition to any remedy ordered by the Board, 
        be subject to a civil penalty. Such penalty shall be in an 
        amount not to exceed $50,000 for each violation, except that 
        the Board shall double the amount of such penalty, to an amount 
        not to exceed $100,000, in any case where the employer has 
        within the preceding 5 years committed another such violation.
            ``(2) Considerations.--In determining the amount of any 
        civil penalty under this subsection, the Board shall consider--
                    ``(A) the gravity of the unfair labor practice;
                    ``(B) the impact of the unfair labor practice on 
                the charging party, on other persons seeking to 
                exercise rights guaranteed by this Act, and on the 
                public interest; and
                    ``(C) the size of the employer.
            ``(3) Director and officer liability.--If the Board 
        determines, based on the particular facts and circumstances 
        presented, that a director or officer's personal liability is 
        warranted, a civil penalty for a violation described in this 
        subsection may also be assessed against any director or officer 
        of the employer who directed or committed the violation, had 
        established a policy that led to such violations, or had 
        knowledge of and the authority to prevent the violation and 
        failed to do so.
    ``(d) Joint and Several Liability.--An employer shall be jointly 
and severally liable under this Act for any violations of this Act 
involving one or more employees supplied by another employer to perform 
labor within the employer's usual course of business.''.
    (c) Injunctions Against Unfair Labor Practices Involving Discharge 
or Other Serious Economic Loss.--Section 10(j) of the National Labor 
Relations Act (29 U.S.C. 160(j)) is amended--
            (1) by striking ``(j) The Board'' and inserting the 
        following:
    ``(j)(1) The Board''; and
            (2) by adding at the end the following:
    ``(2) Notwithstanding subsection (m) of section 10, whenever it is 
charged that an employer has engaged in an unfair labor practice within 
the meaning of paragraph (1) or (3) of section 8(a) that significantly 
interferes with, restrains, or coerces employees in the exercise of the 
rights guaranteed under section 7, or involves discharge or other 
serious economic harm to an employee, the preliminary investigation of 
such charge shall be made forthwith and given priority over all cases 
except cases of like character in the office where it is filed or to 
which it is referred. If, after such investigation, the officer or 
regional attorney to whom the matter may be referred has reasonable 
cause to believe such charge is true and that a complaint should issue, 
he shall bring a petition for appropriate temporary relief or 
restraining order as set forth in paragraph (1). The district court 
shall grant the relief requested unless the court concludes that there 
is no reasonable likelihood that the Board will succeed on the merits 
of the Board's claim.''.
    (d) Private Enforcement.--
            (1) Right to civil action.--Section 12 of the National 
        Labor Relations Act (29 U.S.C. 162), as amended by subsection 
        (b), is further amended by adding at the end the following:
    ``(e) Right to Civil Action.--
            ``(1) In general.--Any person who is injured by reason of 
        any violation of paragraph (1) or (3) of section 8(a) may, in 
        addition to or in lieu of filing a charge alleging such unfair 
        labor practice with the Board in accordance with this Act, 
        bring a civil action in the appropriate district court of the 
        United States against the employer within 180 days of the 
        violation.
            ``(2) Available relief.--Relief granted in an action under 
        paragraph (1) may include any relief authorized by section 
        706(g) of the Civil Rights Act of 1965 (42 U.S.C. 2000e-5(g) or 
        by section 1977A(b) of the Revised Statutes (42 U.S.C. 
        1981a(b))).
            ``(3) Attorney's fee.--In any action or proceeding under 
        this subsection, the court may allow the prevailing party a 
        reasonable attorney's fee (including expert fees) as part of 
        the costs.''.
            (2) Conforming amendment.--Section 10(b) of the National 
        Labor Relations Act is amended by striking ``six months'' and 
        inserting ``180 days''.
    (e) Ensuring Fair Remedies for All Workers.--Section 10(c) of the 
National Labor Relations Act (29 U.S.C. 160(c)) is amended by striking 
``suffered by him:'' and inserting ``suffered by such employee: 
Provided further, That back pay shall not be denied on the basis that 
the employee is, or was during the time of relevant employment or 
during the back pay period, an unauthorized alien as defined in section 
274A(h)(3) of the Immigration and Nationality Act (8 U.S.C. 
1324a(h)(3)) or any other provision of Federal law relating to the 
unlawful employment of aliens:''.
    (f) Remedying Election Interference.--Section 9(c) of the National 
Labor Relations Act (29 U.S.C. 159(c)) is amended--
            (1) by redesignating paragraphs (4) and (5) as paragraphs 
        (6) and (7), respectively; and
            (2) by inserting after paragraph (3) the following:
            ``(4) Bargaining order based on majority of votes.--If the 
        Board finds that, in an election under paragraph (1), a 
        majority of the valid votes cast in a unit appropriate for 
        purposes of collective bargaining have been cast in favor of 
        representation by the labor organization, the Board shall issue 
        an order requiring the employer to collectively bargain with 
        the labor organization in accordance with section 8(d). This 
        order shall be deemed an order under section 10(c) of the Act, 
        without need for a determination of an unfair labor practice.
            ``(5) Dismissal; bargaining orders in other situations.--
                    ``(A) Dismissal.--If the Board finds that, in an 
                election under paragraph (1), a majority of the valid 
                votes cast in a unit appropriate for purposes of 
                collective bargaining have not been cast in favor of 
                representation by the labor organization, the Board 
                shall dismiss the petition, subject to subparagraphs 
                (B) and (C).
                    ``(B) Special rules for employer violations or 
                interference.--In any case where a majority of the 
                valid votes cast in a unit appropriate for purposes of 
                collective bargaining have not been cast in favor or 
                representation by the labor organization and the Board 
                determines that the election should be set aside 
                because the employer has committed a violation of this 
                Act or otherwise interfered with a fair election, and 
                the employer has not demonstrated that the violation or 
                other interference is unlikely to have affected the 
                outcome of the election, the Board shall, without 
                ordering a new or rerun election, issue an order 
                requiring the employer to bargain with the labor 
                organization in accordance with section 8(d) if, at any 
                time during the period beginning 1 year preceding the 
                date of the commencement of the election and ending on 
                the date upon which the Board makes the determination 
                of a violation or other interference under subparagraph 
                (A), a majority of the employees in the bargaining unit 
                have signed authorizations designating the labor 
                organization as their collective bargaining 
                representative.
                    ``(C) Other election interference.--In any case 
                where the Board determines that an election under this 
                paragraph should be set aside, the Board shall direct a 
                rerun election with appropriate additional safeguards 
                necessary to ensure a fair election process, except in 
                cases where the Board issues a bargaining order under 
                subparagraph (B).''.

SEC. 5. MODERNIZATION.

    (a) Prevention of Unfair Labor Practices.--Section 8 of the 
National Labor Relations Act (29 U.S.C. 158) is amended by adding at 
the end the following:
    ``(h) Postings of Notice.--
            ``(1) In general.--The Board shall promulgate regulations 
        requiring each employer to post and maintain, in conspicuous 
        places where notices to employees and applicants for employment 
        are customarily posted both physically and electronically, a 
        notice setting forth the rights and protections afforded 
        employees under this Act. The Board shall provide to employers 
        the form and text of such notice.
            ``(2) Notification of new employees.--The Board shall 
        promulgate regulations requiring employers to notify each new 
        employee of the information contained in the notice described 
        in paragraph (1).''.
    (b) Enforcing Compliance With Orders of the Board.--
            (1) In general.--Section 10 of the National Labor Relations 
        Act (29 U.S.C. 160) is amended--
                    (A) by striking subsection (e);
                    (B) by redesignating subsection (d) as subsection 
                (e);
                    (C) by inserting after subsection (c) the 
                following:
    ``(d) Enforcing Compliance With Orders of the Board.--
            ``(1) In general.--Each order of the Board shall take 
        effect upon issuance, unless otherwise directed by the Board, 
        and shall remain in effect, unless modified by the Board or 
        unless a court of competent jurisdiction issues a superseding 
        order.
            ``(2) Violations of orders by the board.--Any person who 
        fails or neglects to obey an order of the Board shall forfeit 
        and pay to the Board a civil penalty of not more than $10,000 
        for each violation, which shall accrue to the Board and may be 
        recovered in a civil action brought by the Board to the 
        district court of the United States in which the unfair labor 
        practice or other subject of the order occurred, or in which 
        such person or entity resides or transacts business. Each 
        separate violation of such an order shall be a separate 
        offense, except that in a case of violation through continuing 
        failure to obey or neglect to obey a final order of the Board, 
        each day of continuance of such failure or neglect shall be 
        deemed a separate offense. No action by the Board under this 
        paragraph may be made until 30 days following the issuance of 
        an order.
            ``(3) Procedure.--If, after having provided a person or 
        entity with notice and an opportunity to be heard regarding a 
        request under paragraph (2) for the enforcement of an order, 
        the court determines that the order was regularly made and duly 
        served, and that the person or entity is in disobedience of the 
        same, the court shall enforce obedience to such order by a writ 
        of injunction or other proper process, mandatory or otherwise, 
        to--
                    ``(A) restrain such person or entity or the 
                officers, agents, or representatives of such person or 
                entity, from further disobedience of such order; or
                    ``(B) enjoin upon such person or entity, officers, 
                agents, or representatives obedience to the same.'';
                    (D) in subsection (f)--
                            (i) by striking ``proceed in the same 
                        manner as in the case of an application by the 
                        Board under subsection (e) of this section'' 
                        and inserting ``proceed as provided under 
                        paragraph (2) of this subsection'';
                            (ii) by striking ``Any'' and inserting the 
                        following:
            ``(1) Within 30 days of the issuance of an order, any''; 
        and
                            (iii) by adding at the end the following:
            ``(2) No objection that has not been urged before the 
        Board, its member, agent, or agency, shall be considered by a 
        court, unless the failure or neglect to urge such objection 
        shall be excused because of extraordinary circumstances. The 
        findings of the Board with respect to questions of fact if 
        supported by substantial evidence on the record considered as a 
        whole shall be conclusive. If either party shall apply to the 
        court for leave to adduce additional evidence and shall show to 
        the satisfaction of the court that such additional evidence is 
        material and that there were reasonable grounds for the failure 
        to adduce such evidence in the hearing before the Board, its 
        member, agent, or agency, the court may order such additional 
        evidence to be taken before the Board, its member, agent, or 
        agency, and to be made a part of the record. The Board may 
        modify its findings as to the facts, or make new findings, by 
        reason of additional evidence so taken and filed, and it shall 
        file such modified or new findings, which findings with respect 
        to questions of fact if supported by substantial evidence on 
        the record considered as a whole shall be conclusive, and shall 
        file its recommendations, if any, for the modification or 
        setting aside of its original order. Upon the filing of the 
        record with it the jurisdiction of the court shall be exclusive 
        and its judgment and decree shall be final, except that the 
        same shall be subject to review by the appropriate United 
        States court of appeals if application was made to the district 
        court, and by the Supreme Court of the United States upon writ 
        of certiorari or certification as provided in section 1254 of 
        title 28, United States Code.''.
            (2) Conforming amendments.--The National Labor Relations 
        Act (29 U.S.C. 151 et seq.) is further amended--
                    (A) in section 9(d), by striking ``section 10(e) or 
                10(f)'' and inserting ``subsection (d) or (f) of 
                section 10''; and
                    (B) in section 10--
                            (i) in subsection (f), by striking 
                        ``subsection (e) of this section'' and 
                        inserting ``subsection (d)''; and
                            (ii) in subsection (g), by striking 
                        ``subsection (e) or (f) of this section'' and 
                        inserting ``subsection (d) or (f)''.

SEC. 6. COVERAGE.

    (a) Ensuring That Employees Are Not Wrongly Classified as 
Supervisors and Denied the Protections of the Act.--Section 2(11) of 
the National Labor Relations Act (29 U.S.C. 152(11)) is amended--
            (1) by inserting ``and for a majority of the individual's 
        worktime'' after ``interest of the employer'';
            (2) by striking ``assign,''; and
            (3) by striking ``or responsibly to direct them,''.
    (b) Ensuring That Employees Are Not Misclassified as Independent 
Contractors and Denied the Protections of the Act.--Section 2(3) of the 
National Labor Relations Act (29 U.S.C. 152(3)) is amended by inserting 
at the end of the section the following: ``An individual performing any 
service shall be considered to be an employee and not an independent 
contractor unless--
            ``(A) the individual is free from control and direction in 
        connection with the performance of the service, both under the 
        contract for the performance of service and in fact;
            ``(B) the service is performed outside the usual course of 
        the business of the employer; and
            ``(C) the individual is customarily engaged in an 
        independently established trade, occupation, profession or 
        business of the same nature as that involved in the service 
        performed.''.

SEC. 7. FACILITATING INITIAL COLLECTIVE BARGAINING AGREEMENTS.

    Section 8 of the National Labor Relations Act (29 U.S.C. 158), as 
amended by section 5(a), is further amended by adding at the end the 
following:
    ``(i) Whenever collective bargaining is for the purpose of 
establishing an initial agreement following certification or 
recognition, the provisions of subsection (d) shall be modified as 
follows:
            ``(1) Not later than 10 days after receiving a written 
        request for collective bargaining from an individual or labor 
        organization that has been newly organized or certified as a 
        representative as defined in section 9(a), or within such 
        further period as the parties agree upon, the parties shall 
        meet and commence to bargain collectively and shall make every 
        reasonable effort to conclude and sign a collective bargaining 
        agreement.
            ``(2) If after the expiration of the 90-day period 
        beginning on the date on which bargaining is commenced, or such 
        additional period as the parties may agree upon, the parties 
        have failed to reach an agreement, either party may notify the 
        Federal Mediation and Conciliation Service of the existence of 
        a dispute and request mediation. Whenever such a request is 
        received, it shall be the duty of the Service promptly to put 
        itself in communication with the parties and to use its best 
        efforts, by mediation and conciliation, to bring them to 
        agreement.
            ``(3) If after the expiration of the 30-day period 
        beginning on the date on which the request for mediation is 
        made under paragraph (2), or such additional period as the 
        parties may agree upon, the Service is not able to bring the 
        parties to agreement by conciliation, the Service shall refer 
        the dispute to a tripartite arbitration panel established in 
        accordance with such regulations as may be prescribed by the 
        Service. The arbitration panel shall render a decision settling 
        the dispute and such decision shall be binding upon the parties 
        for a period of 2 years, unless amended during such period by 
        written consent of the parties.''.
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