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[Congressional Bills 115th Congress]
[From the U.S. Government Publishing Office]
[S. 2143 Introduced in Senate (IS)]

<DOC>

115th CONGRESS
  1st Session
                                S. 2143

To amend the National Labor Relations Act to strengthen protections for 
employees wishing to advocate for improved wages, hours, or other terms 
  or conditions of employment, to expand coverage under such Act, to 
     provide a process for achieving initial collective bargaining 
agreements, and to provide for stronger remedies for interference with 
                 these rights, and for other purposes.

_______________________________________________________________________

                   IN THE SENATE OF THE UNITED STATES

                           November 16, 2017

    Mrs. Murray (for herself, Mr. Brown, Mr. Murphy, Mr. Casey, Mr. 
 Blumenthal, Mr. Udall, Mr. Sanders, Mr. Carper, Mr. Reed, Mr. Coons, 
Mrs. Gillibrand, Mr. Booker, Mr. Van Hollen, Ms. Harris, Mr. Heinrich, 
 Ms. Hirono, and Mr. Markey) introduced the following bill; which was 
 read twice and referred to the Committee on Health, Education, Labor, 
                              and Pensions

_______________________________________________________________________

                                 A BILL

 
To amend the National Labor Relations Act to strengthen protections for 
employees wishing to advocate for improved wages, hours, or other terms 
  or conditions of employment, to expand coverage under such Act, to 
     provide a process for achieving initial collective bargaining 
agreements, and to provide for stronger remedies for interference with 
                 these rights, 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) Through acting collectively and bargaining with their 
        employers, workers who are covered by a collective bargaining 
        agreement 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 more likely to have employer-provided 
        defined benefit pensions. The wage differential is significant 
        for women and people of color. African-American workers covered 
        by a collective bargaining agreement earn 25.1 percent more 
        than African-American workers who are not covered by a 
        collective bargaining agreement, and Latino workers covered by 
        a collective bargaining agreement earn 45.7 percent more than 
        their peers who are not covered by a collective bargaining 
        agreement. Women covered by a collective bargaining agreement 
        earn 32.1 percent more than women who are not covered by a 
        collective bargaining agreement, and the wage gap between men 
        and women is much smaller at workplaces covered by a collective 
        bargaining agreement. The wage gains achieved through 
        collective bargaining agreements benefit workers and their 
        communities.
            (3) Labor organizations 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 
        protects the right of all workers to join together with their 
        coworkers to advocate for improvements in their pay, benefits, 
        and working conditions, regardless of whether they seek 
        representation by a labor organization. Such Act 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 such Act 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 coworkers. These policies and practices impede 
        workers from exercising their rights under such Act and impair 
        their freedom of association at work.
            (5) Retaliation by employers against workers who exercise 
        their rights under the National Labor Relations Act persists at 
        troubling levels. Employers routinely fire workers for trying 
        to form a labor organization at their workplace. In one out of 
        3 organizing campaigns, one or more workers are discharged for 
        supporting or joining a labor organization. In fiscal year 
        2014, the National Labor Relations Board obtained reinstatement 
        orders for 3,240 workers and obtained back pay awards totaling 
        $43,800,000 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. The remedies 
        and penalties for violations of such Act 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 National Labor Relations Act. Workers cannot 
        go to court to pursue relief on their own and must rely on the 
        National Labor Relations Board to prosecute their case.
            (7) Unlike orders of other Federal agencies, the orders of 
        the National Labor Relations Board 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 National 
        Labor Relations 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 such Act to be an effective 
        law.
            (8) Many workers do not currently enjoy the protections of 
        the National Labor Relations Act because they are excluded from 
        coverage under such Act or interpretations of such Act.
            (9) Too often, workers who choose to form labor 
        organizations 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 must be strengthened.

SEC. 3. PURPOSES.

    The purposes of this Act are--
            (1) to strengthen protections for employees engaged in 
        collective bargaining to improve their wages, hours, and terms 
        and conditions of employment;
            (2) to expand coverage under the National Labor Relations 
        Act (29 U.S.C. 151 et seq.) to more employees;
            (3) to provide a process by which workers and employers can 
        successfully negotiate an initial collective bargaining 
        agreement;
            (4) to provide for stronger remedies for employees who face 
        retaliation, discrimination, or other interference with the 
        legal right of the employees to engage in collective 
        bargaining;
            (5) to provide for penalties against employers who violate 
        the rights of employees to engage in collective bargaining, in 
        order to act as a meaningful deterrent against violating the 
        law; and
            (6) to 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) Back Pay.--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) Violations of Posting Requirements.--If the Board, or any 
agent or agency designated by the Board for such purposes, determines 
that an employer has knowingly 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 such penalty 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, or had 
        established a policy that led to such a violation, or had 
        knowledge of, and the authority to prevent, the violation and 
        failed to prevent such violation.
    ``(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.--
            (1) In general.--Section 10(j) of the National Labor 
        Relations Act (29 U.S.C. 160(j)) is amended--
                    (A) by inserting ``(1)'' before ``The Board 
                shall''; and
                    (B) by adding at the end the following:
    ``(2) Notwithstanding subsections (l) and (m), whenever it is 
charged that an employer has engaged in an unfair labor practice within 
the meaning of section 8(a)(1) or section 8(a)(3) 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 other 
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.--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 6 months 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 1964 (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.''.
    (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). Such 
        order shall be deemed an order under section 10(c), 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 of 
                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); and
                    (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 of such order, 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 in 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. No such 
        civil action may be brought by the Board prior to 30 days after 
        the issuance of the order. Each separate violation of an order 
        shall be a separate offense, except that, in the case of a 
        violation in which a person fails to obey or neglects to obey a 
        final order of the Board, each day such failure or neglect 
        continues shall be deemed a separate offense.
            ``(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.''; 
                and
                    (D) in subsection (f)--
                            (i) by striking ``Any'' and all that 
                        follows through ``the relief sought'' and 
                        inserting the following: ``(1) Within 30 days 
                        of the issuance of a final order of the Board 
                        granting or denying in whole or in part the 
                        relief sought, any person aggrieved by such 
                        order'';
                            (ii) 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)''; 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 the 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 as hereinabove provided, 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 is amended--
                    (A) in section 9(d) (29 U.S.C. 29 U.S.C. 159(d)), 
                by striking ``10(e) or'';
                    (B) in section 10(g) (29 U.S.C. 160(g)), by 
                striking ``(e) or''; and
                    (C) in section 18 (29 U.S.C. 168), by striking 
                ``(e) or''.

SEC. 6. COVERAGE.

    (a) Ensuring That Employees Are Not Wrongly Classified as 
Supervisors and Denied the Protections of the National Labor Relations 
Act.--Section 2(11) of the National Labor Relations Act (29 U.S.C. 
152(11)) is amended by--
            (1) inserting ``and for a majority of the individual's 
        worktime'' after ``interest of the employer'';
            (2) striking ``assign,''; and
            (3) striking ``or responsibly to direct them,''.
    (b) Ensuring That Employees Are Not Misclassified as Independent 
Contractors and Denied the Protections of the National Labor Relations 
Act.--Section 2(3) of the National Labor Relations Act (29 U.S.C. 
152(3)) is amended by adding at the end the following: ``An individual 
performing any service shall not have the status of an independent 
contractor unless--
            ``(1) 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;
            ``(2) the service is performed outside the usual course of 
        the business of the employer; and
            ``(3) 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, is further amended by adding at the end the 
following:
    ``(i) Initial Collective Bargaining Agreement.--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 under 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 tripartite 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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