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[Congressional Bills 113th Congress]
[From the U.S. Government Publishing Office]
[H.R. 3637 Introduced in House (IH)]

113th CONGRESS
  1st Session
                                H. R. 3637

 To amend the Labor-Management Reporting and Disclosure Act of 1959 to 
         provide whistleblower protection for union employees.

_______________________________________________________________________

                    IN THE HOUSE OF REPRESENTATIVES

                            December 3, 2013

   Mr. Salmon (for himself, Mr. DesJarlais, Mr. Bishop of Utah, Mr. 
   Huelskamp, Mr. Jordan, Mr. Bentivolio, Mr. Brooks of Alabama, Mr. 
Fleming, Mr. Cramer, Mr. Schweikert, Mr. King of Iowa, Mr. Perry, Mrs. 
   Bachmann, Mr. Gohmert, Mr. LaMalfa, Mr. Price of Georgia, and Mr. 
    Gosar) introduced the following bill; which was referred to the 
                Committee on Education and the Workforce

_______________________________________________________________________

                                 A BILL

 
 To amend the Labor-Management Reporting and Disclosure Act of 1959 to 
         provide whistleblower protection for union employees.

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

SECTION 1. WHISTLEBLOWER PROTECTION FOR UNION EMPLOYEES.

    The Labor-Management Reporting and Disclosure Act of 1959 (29 
U.S.C. 401 et seq.) is amended--
            (1) by redesignating section 611 (29 U.S.C. 531) as section 
        612; and
            (2) by inserting after section 610 (29 U.S.C. 530), the 
        following new section:

             ``whistleblower protection for union employees

    ``Sec. 611.  (a) In General.--No labor organization shall terminate 
or in any other way discriminate against, or cause to be terminated or 
discriminated against, any covered employee of the labor organization 
by reason of the fact that such employee, whether at the initiative of 
the employee or in the ordinary course of the duties of the employee 
(or any person acting pursuant to a request of the employee), has--
            ``(1) provided, caused to be provided, or is about to 
        provide or cause to be provided, information to the labor 
        organization, the Department of Labor, or any other State, 
        local, or Federal government authority or law enforcement 
        agency relating to any violation of, or any act or omission 
        that the employee reasonably believes to be a violation of, any 
        provision of this Act or any other provision of law that is 
        subject to the jurisdiction of the Department of Labor, the 
        National Labor Relations Board, or any rule, order, standard, 
        or prohibition prescribed by the Department of Labor or the 
        National Labor Relations Board;
            ``(2) testified or will testify in any proceeding resulting 
        from the administration or enforcement of any provision of this 
        Act or any other provision of law that is subject to the 
        jurisdiction of the Department of Labor or National Labor 
        Relations Board, or any rule, order, standard, or prohibition 
        prescribed by the Department of Labor or the National Labor 
        Relations Board;
            ``(3) filed, instituted, or caused to be filed or 
        instituted any proceeding under this Act; or
            ``(4) objected to, or refused to participate in, any 
        activity, policy, practice, or assigned task that the employee 
        (or other such person) reasonably believed to be in violation 
        of any law, rule, order, standard, or prohibition, subject to 
        the jurisdiction of, or enforceable by, the Department of Labor 
        or the National Labor Relations Board.
    ``(b) Definition of Covered Employee.--For the purposes of this 
section, the term `covered employee' means any employee of a labor 
organization who receives financial compensation for his or her 
services to the labor organization, including officers of the labor 
organization.
    ``(c) Procedures and Timetables.--
            ``(1) Complaint.--
                    ``(A) In general.--A person who believes that he or 
                she has been discharged or otherwise discriminated 
                against by any person in violation of subsection (a) 
                may file (or have any person file on his or her behalf) 
                a complaint with the Secretary of Labor alleging such 
                discharge or discrimination and identifying the person 
                responsible for such act. Such a complaint must be 
                filed not later than either--
                            ``(i) 180 days after the date on which such 
                        alleged violation occurs; or
                            ``(ii) 180 days after the conclusion of any 
                        internal appeals, review, or other judicial or 
                        investigative process conducted by the labor 
                        organization employing such person.
                    ``(B) Actions of secretary of labor.--Upon receipt 
                of such a complaint, the Secretary of Labor shall 
                notify, in writing, the person named in the complaint 
                who is alleged to have committed the violation, of--
                            ``(i) the filing of the complaint;
                            ``(ii) the allegations contained in the 
                        complaint;
                            ``(iii) the substance of evidence 
                        supporting the complaint; and
                            ``(iv) opportunities that will be afforded 
                        to such person under paragraph (2).
            ``(2) Investigation by secretary of labor.--
                    ``(A) In general.--Not later than 60 days after the 
                date of receipt of a complaint filed under paragraph 
                (1), and after affording the complainant and the person 
                named in the complaint who is alleged to have committed 
                the violation that is the basis for the complaint an 
                opportunity to submit to the Secretary of Labor a 
                written response to the complaint and an opportunity to 
                meet with a representative of the Secretary of Labor to 
                present statements from witnesses, the Secretary of 
                Labor shall--
                            ``(i) initiate an investigation and 
                        determine whether there is reasonable cause to 
                        believe that the complaint has merit; and
                            ``(ii) notify the complainant and the 
                        person alleged to have committed the violation 
                        of subsection (a), in writing, of such 
                        determination.
                    ``(B) Notice of relief available.--If the Secretary 
                of Labor concludes that there is reasonable cause to 
                believe that a violation of subsection (a) has 
                occurred, the Secretary of Labor shall, together with 
                the notice under subparagraph (A)(ii), issue a 
                preliminary order providing the relief prescribed by 
                paragraph (4)(B).
                    ``(C) Request for hearing.--Not later than 30 days 
                after the date of receipt of notification of a 
                determination of the Secretary of Labor under this 
                paragraph, either the person alleged to have committed 
                the violation or the complainant may file objections to 
                the findings or preliminary order, or both, and request 
                a hearing on the record. The filing of such objections 
                shall not operate to stay any reinstatement remedy 
                contained in the preliminary order. Any such hearing 
                shall be conducted expeditiously, and if a hearing is 
                not requested in such 30-day period, the preliminary 
                order shall be deemed a final order that is not subject 
                to judicial review.
            ``(3) Grounds for determination of complaints.--
                    ``(A) In general.--The Secretary of Labor shall 
                dismiss a complaint filed under this subsection, and 
                shall not conduct an investigation otherwise required 
                under paragraph (2), unless the complainant makes a 
                prima facie showing that any behavior described in 
                paragraphs (1) through (4) of subsection (a) was a 
                contributing factor in the unfavorable personnel action 
                alleged in the complaint.
                    ``(B) Rebuttal evidence.--Notwithstanding a finding 
                by the Secretary of Labor that the complainant has made 
                the showing required under subparagraph (A), no 
                investigation otherwise required under paragraph (2) 
                shall be conducted, if the labor organization 
                demonstrates, by clear and convincing evidence, that 
                the labor organization would have taken the same 
                unfavorable personnel action in the absence of that 
                behavior.
                    ``(C) Evidentiary standards.--The Secretary of 
                Labor may determine that a violation of subsection (a) 
                has occurred only if the complainant demonstrates that 
                any behavior described in paragraphs (1) through (4) of 
                subsection (a) was a contributing factor in the 
                unfavorable personnel action alleged in the complaint. 
                Relief may not be ordered under subparagraph (A) if the 
                labor organization demonstrates by clear and convincing 
                evidence that the labor organization would have taken 
                the same unfavorable personnel action in the absence of 
                that behavior.
            ``(4) Issuance of final orders; review procedures.--
                    ``(A) Timing.--Not later than 120 days after the 
                date of conclusion of any hearing under paragraph (2), 
                the Secretary of Labor shall issue a final order 
                providing the relief prescribed by this paragraph or 
                denying the complaint. At any time before issuance of a 
                final order, a proceeding under this subsection may be 
                terminated on the basis of a settlement agreement 
                entered into by the Secretary of Labor, the 
                complainant, and the person alleged to have committed 
                the violation.
                    ``(B) Penalties.--
                            ``(i) Order of secretary of labor.--If, in 
                        response to a complaint filed under paragraph 
                        (1), the Secretary of Labor determines that a 
                        violation of subsection (a) has occurred, the 
                        Secretary of Labor shall order the person who 
                        committed such violation--
                                    ``(I) to take affirmative action to 
                                abate the violation;
                                    ``(II) to reinstate the complainant 
                                to his or her former position, together 
                                with compensation (including back pay) 
                                and restore the terms, conditions, and 
                                privileges associated with his or her 
                                employment; and
                                    ``(III) to provide compensatory 
                                damages to the complainant.
                            ``(ii) Penalty.--If an order is issued 
                        under clause (i), the Secretary of Labor, at 
                        the request of the complainant, shall assess 
                        against the person against whom the order is 
                        issued, a sum equal to the aggregate amount of 
                        all costs and expenses (including attorney fees 
                        and expert witness fees) reasonably incurred, 
                        as determined by the Secretary of Labor, by the 
                        complainant for, or in connection with, the 
                        bringing of the complaint upon which the order 
                        was issued.
                    ``(C) Penalty for frivolous claims.--If the 
                Secretary of Labor finds that a complaint under 
                paragraph (1) is frivolous or has been brought in bad 
                faith, the Secretary of Labor may award to the 
                prevailing labor organization a reasonable attorney 
                fee, not exceeding $1,000, to be paid by the 
                complainant.
                    ``(D) De novo review.--
                            ``(i) Failure of the secretary to act.--If 
                        the Secretary of Labor has not issued a final 
                        order within 210 days after the date of filing 
                        of a complaint under this subsection, or within 
                        90 days after the date of receipt of a written 
                        determination, the complainant may bring an 
                        action at law or equity for de novo review in 
                        the appropriate district court of the United 
                        States having jurisdiction, which shall have 
                        jurisdiction over such an action without regard 
                        to the amount in controversy, and which action 
                        shall, at the request of either party to such 
                        action, be tried by the court with a jury.
                            ``(ii) Procedures.--A proceeding under 
                        clause (i) shall be governed by the same legal 
                        burdens of proof specified in paragraph (3). 
                        The court shall have jurisdiction to grant all 
                        relief necessary to make the employee whole, 
                        including injunctive relief and compensatory 
                        damages, including--
                                    ``(I) reinstatement with the same 
                                seniority status that the employee 
                                would have had, but for the discharge 
                                or discrimination;
                                    ``(II) the amount of back pay, with 
                                interest; and
                                    ``(III) compensation for any 
                                special damages sustained as a result 
                                of the discharge or discrimination, 
                                including litigation costs, expert 
                                witness fees, and reasonable attorney 
                                fees.
                    ``(E) Other appeals.--Unless the complainant brings 
                an action under subparagraph (D), any person adversely 
                affected or aggrieved by a final order issued under 
                subparagraph (A) may file a petition for review of the 
                order in the United States Court of Appeals for the 
                circuit in which the violation with respect to which 
                the order was issued, allegedly occurred or the circuit 
                in which the complainant resided on the date of such 
                violation, not later than 60 days after the date of the 
                issuance of the final order of the Secretary of Labor 
                under subparagraph (A). Review shall conform to chapter 
                7 of title 5, United States Code. The commencement of 
                proceedings under this subparagraph shall not, unless 
                ordered by the court, operate as a stay of the order. 
                An order of the Secretary of Labor with respect to 
                which review could have been obtained under this 
                subparagraph shall not be subject to judicial review in 
                any criminal or other civil proceeding.
            ``(5) Failure to comply with order.--
                    ``(A) Actions by the secretary.--If any person has 
                failed to comply with a final order issued under 
                paragraph (4), the Secretary of Labor may file a civil 
                action in the United States district court for the 
                district in which the violation was found to have 
                occurred, or in the United States district court for 
                the District of Columbia, to enforce such order. In 
                actions brought under this paragraph, the district 
                courts shall have jurisdiction to grant all appropriate 
                relief including injunctive relief and compensatory 
                damages.
                    ``(B) Civil actions to compel compliance.--A person 
                on whose behalf an order was issued under paragraph (4) 
                may commence a civil action against the person to whom 
                such order was issued to require compliance with such 
                order. The appropriate United States district court 
                shall have jurisdiction, without regard to the amount 
                in controversy or the citizenship of the parties, to 
                enforce such order.
                    ``(C) Award of costs authorized.--The court, in 
                issuing any final order under this paragraph, may award 
                costs of litigation (including reasonable attorney and 
                expert witness fees) to any party, whenever the court 
                determines such award is appropriate.
                    ``(D) Mandamus proceedings.--Any nondiscretionary 
                duty imposed by this section shall be enforceable in a 
                mandamus proceeding brought under section 1361 of title 
                28, United States Code.
    ``(d) Limitation of Preemption.--Nothing in this Act shall be 
construed--
            ``(1) to limit the ability of members of a labor 
        organization to remove their elected or appointed officials 
        through a democratic election conducted among such members; or
            ``(2) to preempt a State or local government from providing 
        additional protections to employees of labor organizations who 
        allege violations of subsection (a), provided that such 
        protections do not limit the ability of members of a labor 
        organization to remove their elected or appointed officials 
        through a democratic ballot.
    ``(e) Unenforceability of Certain Agreements.--
            ``(1) No waiver of rights and remedies.--Notwithstanding 
        any other provision of law, the rights and remedies provided 
        for in this section may not be waived by any agreement, policy, 
        form, or condition of employment, including by any predispute 
        arbitration agreement.
            ``(2) No predispute arbitration agreements.--
        Notwithstanding any other provision of law, no predispute 
        arbitration agreement shall be valid or enforceable to the 
        extent that it requires arbitration of a dispute arising under 
        this section.''.
                                 <all>
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