II 

109TH CONGRESS 

1ST SESSION S. 842 

To amend the National Labor Relations Act to establish an efficient system 

to enable employees to form, join, or assist labor organizations, to provide 

for mandatory injunctions for unfair labor practices during organizing 

efforts, and for other purposes. 

IN THE SENATE OF THE UNITED STATES 

APRIL 19, 2005 

Mr. KENNEDY (for himself, Mr. SPECTER, Mr. REID, Mr. DURBIN, Mr. SCHUMER, Mr. DODD, Mr. BINGAMAN, Mr. HARKIN, Ms. MIKULSKI, Mrs. 

MURRAY, Mrs. CLINTON, Mr. BYRD, Mr. INOUYE, Mr. BIDEN, Mr. 

LEAHY, Mr. SARBANES, Mr. LEVIN, Mr. KERRY, Mr. ROCKEFELLER, Mr. 

LIEBERMAN, Mr. AKAKA, Mr. DORGAN, Mrs. BOXER, Mr. FEINGOLD, 

Mr. WYDEN, Ms. LANDRIEU, Mr. BAYH, Mr. CARPER, Ms. STABENOW, 

Ms. CANTWELL, Mr. CORZINE, Mr. DAYTON, Mr. LAUTENBERG, Mr. 

OBAMA, Mr. SALAZAR, and Mr. REED) 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 establish 

an efficient system to enable employees to form, join, 

or assist labor organizations, to provide for mandatory 

injunctions for unfair labor practices during organizing 

efforts, and for other purposes.

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

2 This Act may be cited as the ‘‘Employee Free Choice 

3 Act’’. 

4 SEC. 2. STREAMLINING UNION CERTIFICATION. 

5 (a) IN GENERAL.—Section 9(c) of the National 

6 Labor Relations Act (29 U.S.C. 159(c)) is amended by 

7 adding at the end the following: 

8 ‘‘(6) Notwithstanding any other provision of this sec9 tion, whenever a petition shall have been filed by an em10 ployee or group of employees or any individual or labor 

11 organization acting in their behalf alleging that a majority 

12 of employees in a unit appropriate for the purposes of col13 lective bargaining wish to be represented by an individual 

14 or labor organization for such purposes, the Board shall 

15 investigate the petition. If the Board finds that a majority 

16 of the employees in a unit appropriate for bargaining has 

17 signed authorizations designating the individual or labor 

18 organization specified in the petition as their bargaining 

19 representative and that no other individual or labor orga20 nization is currently certified or recognized as the exclu21 sive representative of any of the employees in the unit, 

22 the Board shall not direct an election but shall certify the 

23 individual or labor organization as the representative de24 scribed in subsection (a). 

25 ‘‘(7) The Board shall develop guidelines and proce26 dures for the designation by employees of a bargaining 
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1 representative in the manner described in paragraph (6). 

2 Such guidelines and procedures shall include— 

3 ‘‘(A) model collective bargaining authorization 

4 language that may be used for purposes of making 

5 the designations described in paragraph (6); and 

6 ‘‘(B) procedures to be used by the Board to es7 tablish the authenticity of signed authorizations des8 ignating bargaining representatives.’’. 

9 (b) CONFORMING AMENDMENTS.— 

10 (1) NATIONAL LABOR RELATIONS BOARD.—Sec11 tion 3(b) of the National Labor Relations Act (29 

12 U.S.C. 153(b)) is amended, in the second sentence— 

13 (A) by striking ‘‘and to’’ and inserting 

14 ‘‘to’’; and 

15 (B) by striking ‘‘and certify the results 

16 thereof,’’ and inserting ‘‘, and to issue certifi17 cations as provided for in that section,’’. 

18 (2) UNFAIR LABOR PRACTICES.—Section 8(b) 

19 of the National Labor Relations Act (29 U.S.C. 

20 158(b)) is amended— 

21 (A) in paragraph (7)(B) by striking ‘‘, or’’ 

22 and inserting ‘‘or a petition has been filed 

23 under section 9(c)(6), or’’; and 

24 (B) in paragraph (7)(C) by striking ‘‘when 

25 such a petition has been filed’’ and inserting 
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1 ‘‘when such a petition other than a petition 

2 under section 9(c)(6) has been filed’’. 

3 SEC. 3. FACILITATING INITIAL COLLECTIVE BARGAINING 

4 AGREEMENTS. 

5 Section 8 of the National Labor Relations Act (29 

6 U.S.C. 158) is amended by adding at the end the fol7 lowing: 

8 ‘‘(h) Whenever collective bargaining is for the pur9 pose of establishing an initial agreement following certifi10 cation or recognition, the provisions of subsection (d) shall 

11 be modified as follows: 

12 ‘‘(1) Not later than 10 days after receiving a 

13 written request for collective bargaining from an in14 dividual or labor organization that has been newly 

15 organized or certified as a representative as defined 

16 in section 9(a), or within such further period as the 

17 parties agree upon, the parties shall meet and com18 mence to bargain collectively and shall make every 

19 reasonable effort to conclude and sign a collective 

20 bargaining agreement. 

21 ‘‘(2) If after the expiration of the 90-day period 

22 beginning on the date on which bargaining is com23 menced, or such additional period as the parties may 

24 agree upon, the parties have failed to reach an 

25 agreement, either party may notify the Federal Me-
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1 diation and Conciliation Service of the existence of 

2 a dispute and request mediation. Whenever such a 

3 request is received, it shall be the duty of the Service 

4 promptly to put itself in communication with the 

5 parties and to use its best efforts, by mediation and 

6 conciliation, to bring them to agreement. 

7 ‘‘(3) If after the expiration of the 30-day period 

8 beginning on the date on which the request for me9 diation is made under paragraph (2), or such addi10 tional period as the parties may agree upon, the 

11 Service is not able to bring the parties to agreement 

12 by conciliation, the Service shall refer the dispute to 

13 an arbitration board established in accordance with 

14 such regulations as may be prescribed by the Serv15 ice. The arbitration panel shall render a decision set16 tling the dispute and such decision shall be binding 

17 upon the parties for a period of 2 years, unless 

18 amended during such period by written consent of 

19 the parties.’’. 

20 SEC. 4. STRENGTHENING ENFORCEMENT. 

21 (a) INJUNCTIONS AGAINST UNFAIR LABOR PRAC22 TICES DURING ORGANIZING DRIVES.— 

23 (1) IN GENERAL.—Section 10(l) of the National 

24 Labor Relations Act (29 U.S.C. 160(l)) is amend25 ed— 
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1 (A) in the second sentence, by striking ‘‘If, 

2 after such’’ and inserting the following: 

3 ‘‘(2) If, after such’’; and 

4 (B) by striking the first sentence and in5 serting the following: 

6 ‘‘(1) Whenever it is charged— 

7 ‘‘(A) that any employer— 

8 ‘‘(i) discharged or otherwise discriminated 

9 against an employee in violation of subsection 

10 (a)(3) of section 8; 

11 ‘‘(ii) threatened to discharge or to other12 wise discriminate against an employee in viola13 tion of subsection (a)(1) of section 8; or 

14 ‘‘(iii) engaged in any other unfair labor 

15 practice within the meaning of subsection (a)(1) 

16 that significantly interferes with, restrains, or 

17 coerces employees in the exercise of the rights 

18 guaranteed in section 7; 

19 while employees of that employer were seeking rep20 resentation by a labor organization or during the pe21 riod after a labor organization was recognized as a 

22 representative defined in section 9(a) until the first 

23 collective bargaining contract is entered into between 

24 the employer and the representative; or 
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1 ‘‘(B) that any person has engaged in an unfair 

2 labor practice within the meaning of subparagraph 

3 (A), (B) or (C) of section 8(b)(4), section 8(e), or 

4 section 8(b)(7); 

5 the preliminary investigation of such charge shall be 

6 made forthwith and given priority over all other 

7 cases except cases of like character in the office 

8 where it is filed or to which it is referred.’’. 

9 (2) CONFORMING AMENDMENT.—Section 10(m) 

10 of the National Labor Relations (29 U.S.C. 160(m)) 

11 is amended by inserting ‘‘under circumstances not 

12 subject to section 10(l)’’ after ‘‘section 8’’. 

13 (b) REMEDIES FOR VIOLATIONS.— 

14 (1) BACKPAY.—Section 10(c) of the National 

15 Labor Relations Act (29 U.S.C. 160(c)) is amended 

16 by striking ‘‘And provided further,’’ and inserting 

17 ‘‘Provided further, That if the Board finds that an 

18 employer has discriminated against an employee in 

19 violation of subsection (a)(3) of section 8 while em20 ployees of the employer were seeking representation 

21 by a labor organization, or during the period after 

22 a labor organization was recognized as a representa23 tive defined in subsection (a) of section 9 until the 

24 first collective bargaining contract was entered into 

25 between the employer and the representative, the 
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1 Board in such order shall award the employee back 

2 pay and, in addition, 2 times that amount as liq3 uidated damages: Provided further,’’. 

4 (2) CIVIL PENALTIES.—Section 12 of the Na5 tional Labor Relations Act (29 U.S.C. 162) is 

6 amended— 

7 (A) by striking ‘‘Any’’ and inserting ‘‘(a) 

8 Any’’; and 

9 (B) by adding at the end the following: 

10 ‘‘(b) Any employer who willfully or repeatedly com11 mits any unfair labor practice within the meaning of sub12 sections (a)(1) or (a)(3) of section 8 while employees of 

13 the employer are seeking representation by a labor organi14 zation or during the period after a labor organization has 

15 been recognized as a representative defined in subsection 

16 (a) of section 9 until the first collective bargaining con17 tract is entered into between the employer and the rep18 resentative shall, in addition to any make-whole remedy 

19 ordered, be subject to a civil penalty of not to exceed 

20 $20,000 for each violation. In determining the amount of 

21 any penalty under this section, the Board shall consider 

22 the gravity of the unfair labor practice and the impact 

23 of the unfair labor practice on the charging party, on other 
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1 persons seeking to exercise rights guaranteed by this Act, 

2 or on the public interest.’’.

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