I 
118TH CONGRESS 
1ST SESSION H. R. 3834 
To amend the National Labor Relations Act with respect to the timing 
of elections and pre-election hearings, identification of pre-election issues, 
and interpretation of employer rules and policies. 
IN THE HOUSE OF REPRESENTATIVES 
JUNE 5, 2023 
Mr. WALBERG introduced the following bill; which was referred to the 
Committee on Education and the Workforce 
A BILL 
To amend the National Labor Relations Act with respect 
to the timing of elections and pre-election hearings, iden-
tification of pre-election issues, and interpretation of em-
ployer rules and policies. 
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled, 
SECTION 1. SHORT TITLE. 
This Act may be cited as the ‘‘Workforce Democracy 
and Fairness Act’’. 
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SEC. 2. PRE-ELECTION HEARING; AMBUSH ELECTION RULE. 
Section 9(c)(1) of the National Labor Relations Act 
(29 U.S.C. 159(c)(1)) is amended in the matter following 
subparagraph (B)— 
(1) by inserting ‘‘, but in no circumstances ear-
lier than 14 calendar days after the filing of the pe-
tition’’ after ‘‘upon due notice’’; 
(2) by inserting after ‘‘with respect thereto.’’ 
the following: ‘‘An appropriate hearing shall be one 
that is non-adversarial with the hearing officer 
charged, in collaboration with the parties, with the 
responsibility of identifying any relevant and mate-
rial pre-election issues and thereafter making a full 
record thereon. Relevant and material pre-election 
issues shall include, in addition to unit appropriate-
ness, the Board’s jurisdiction and any other issue 
the resolution of which may make an election unnec-
essary or may reasonably be expected to impact the 
outcome of the election. Parties may independently 
raise any relevant and material pre-election issue or 
assert any relevant and material position at any 
time prior to the close of the hearing. It shall not 
constitute or be evidence of an unfair labor practice 
under any of the provisions of this Act for any party 
or their counsel to pose any question at the hearing: 
Provided, That this shall not limit the authority of 
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the hearing officer to rule on objections and other-
wise to conduct the hearing consistent with this 
Act.’’; and 
(3) by striking ‘‘and shall certify the results 
thereof’’ and inserting ‘‘to be conducted as soon as 
practicable but no earlier than 20 business days 
after the Board directs that an election be held. The 
Board shall certify the results of the election after 
it has ruled on each pre-election issue not resolved 
before the election and any additional issue per-
taining to the conduct or results of the election’’. 
SEC. 3. APPROPRIATE UNITS FOR COLLECTIVE BAR-
GAINING. 
Section 9(b) of the National Labor Relations Act (29 
U.S.C. 159(b)) is amended— 
(1) by redesignating paragraphs (1) through 
(3) as subparagraphs (A) through (C), respectively; 
(2) by striking ‘‘The Board shall decide’’ and 
all that follows through ‘‘or subdivision thereof:’’ 
and inserting the following: ‘‘(1) In each case, prior 
to an election, the Board shall determine, in order 
to assure to employees the fullest freedom in exer-
cising the rights guaranteed by this Act, the unit ap-
propriate for the purposes of collective bargaining. 
Unless otherwise stated in this Act, and excluding 
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any bargaining unit determination promulgated 
through rulemaking before August 26, 2011, the 
unit appropriate for purposes of collective bargaining 
shall consist of employees that share a sufficient 
community of interest. In determining whether em-
ployees share a sufficient community of interest, the 
Board shall consider— 
‘‘(A) similarity of wages, benefits, and working 
conditions; 
‘‘(B) similarity of skills and training; 
‘‘(C) centrality of management and common su-
pervision; 
‘‘(D) extent of interchange and frequency of 
contact between employees; 
‘‘(E) integration of the work flow and inter-
relationship of the production process; 
‘‘(F) the consistency of the unit with the em-
ployer’s organizational structure; 
‘‘(G) similarity of job functions and work; and 
‘‘(H) the bargaining history in the particular 
unit and the industry. 
To avoid the proliferation or fragmentation of bargaining 
units, no employee shall be excluded from the unit unless 
the interests of the group seeking a separate unit are suffi-
ciently distinct from those of other employees to warrant 
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the establishment of a separate unit. Whether additional 
employees should be included in a proposed unit shall be 
determined based on whether such additional employees 
and proposed unit members share a sufficient community 
of interest, and when considering or deciding to include 
such additional employees in the proposed unit the Board 
shall give no consideration to whether they share an over-
whelming community of interest with proposed unit mem-
bers: Provided, That when evaluating proposed accretions 
to an existing unit the inclusion of additional employees 
may be based on whether such additional employees and 
existing unit members share an overwhelming community 
of interest and the additional employees have little or no 
separate identity.’’; and 
(3) by striking ‘‘Provided, That the Board’’ and 
inserting the following: 
‘‘(2) The Board’’. 
SEC. 4. HANDBOOKS. 
Section 8 of the National Labor Relations Act (29 
U.S.C. 158) is amended by inserting after subsection (g) 
the following: 
‘‘(h)(1) The Board shall find that facially neutral 
rules, policies and employee handbook provisions adopted 
or maintained by an employer are lawful under this Act, 
unless the Board applies the principles and makes findings 
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set forth in paragraphs (2) and (3). For the purposes of 
this subsection, ‘facially neutral’ refers to rules, policies, 
and employee handbook provisions that contain no explicit 
reference to and prohibition against specific activities 
mentioned in this Act (such as forming, joining or assist-
ing labor organizations, bargaining collectively, or refrain-
ing from such activities as provided in section 7). A rule, 
policy, or employee handbook provision that explicitly up-
holds prohibitions on discrimination set forth under title 
VII of the Civil Rights Act of 1964 (42 U.S.C. 2000e et 
seq.) shall be deemed ‘facially neutral’. 
‘‘(2) When considering claims that the adoption or 
maintenance of a facially neutral rule, policy, or employee 
handbook provision violates this Act, the Board in each 
case must consider and make findings regarding both— 
‘‘(A) the justifications associated with the rule, 
policy, or handbook provision; and 
‘‘(B) the nature and extent of the impact on 
protected rights, if any. 
‘‘(3) The Board shall find that the adoption or main-
tenance of a facially neutral rule, policy, or employee 
handbook provision violates this Act only if the General 
Counsel 16 shows by clear and convincing evidence that— 
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‘‘(A) adoption or maintenance of the rule, pol-
icy, or employee handbook provision has an adverse 
impact on the exercise of rights under section 7; and 
‘‘(B) the adverse impact described in subpara-
graph (A) outweighs the justification associated with 
the rule, policy, or handbook. 
‘‘(4) If a facially neutral rule, policy, or employee 
handbook provision, which is lawful and consistent with 
this subsection, is found to have been applied in a case 
involving the exercise of rights under section 7, and if the 
Board concludes that said application violates section 
8(a)(1) or another provision of this Act, the Board’s rem-
edy shall not include the rescission or modification of such 
rule, policy, or employee handbook provision.’’. 
Æ 
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