II 114th CONGRESS 1st Session S. 2042 IN THE SENATE OF THE UNITED STATES September 16, 2015 Mrs. Murray (for herself, Ms. Mikulski , Mr. Franken , Mr. Whitehouse , Ms. Warren , Mr. Blumenthal , 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 strengthen protections for employees wishing to advocate for improved wages, hours, or other terms or conditions of employment and to provide for stronger remedies for interference with these rights, and for other purposes.

1. Short title This Act may be cited as the Workplace Action for a Growing Economy Act or the WAGE Act . 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 unionized earn 21.3 percent more than workers who are not covered by a collective bargaining agreement. They are 28.4 percent more likely to be covered by employer-provided health insurance and 30.9 percent more likely to have employer-provided pensions. The wage differential is even more pronounced for women and people of color. Unionized African-American workers earn 24.6 percent more than African-American workers who are not unionized, and unionized Latino workers earn 29.3 percent more than their peers who are not unionized. Unionized women earn 24 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 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 joining a union. In fiscal year 2014, the National Labor Relations Board obtained reinstatement orders for 3,240 workers and obtained backpay awards totaling $43,800,000 for workers who faced illegal retaliation for exercising their rights. Discrimination for organizing hurts all workers, but minorities in particular, as minorities are more likely than Whites to seek to organize and receive a larger wage premium from collective bargaining. (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) 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. 3. Purposes The purposes of this Act are— (1) to strengthen protections for employees engaged in collective action to improve their wages, hours, and terms and conditions of employment; (2) 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 action; (3) to 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 (4) to streamline the enforcement procedures of the National Labor Relations Board to provide for more timely and effective enforcement of the law. 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 loss 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: 12. Civil 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 willfully 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 loss 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 loss 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) Personal liability If the Board determines, based on the particular facts and circumstances presented, that personal liability is warranted, a civil penalty for a violation described in this subsection may also be assessed against any officer or director of the employer who committed the violation or had the authority to prevent the 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, except for purposes of subsection (e). . (c) Injunctions against unfair labor practices involving discharge or other serious economic loss (1) In general Section 10(l) of the National Labor Relations Act ( 29 U.S.C. 160(l) ) is amended— (A) by inserting after charged that the following: an employer has engaged in an unfair labor practice within the meaning of section 8(a) that significantly interferes with, restrains, or coerces employees in the exercise of the rights guaranteed under section 7 and involves discharge or other serious economic harm to an employee or ; and (B) by striking as it deems just and proper, notwithstanding any other provision of law: and inserting the following: to protect the rights guaranteed by section 7, notwithstanding any other provision of law. 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: . (2) Conforming amendment Section 10(m) of the National Labor Relations Act ( 29 U.S.C. 160(m) ) is amended by inserting under circumstances not subject to subsection (l) after section 8 . (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 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. . (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). (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 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). . 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 30 days from the date upon which notice of the order is given, unless otherwise directed by the Board. Each such orders shall continue in force indefinitely or for the period of time specified in the order, or until the Board or a court of competent jurisdiction issues a superseding order. (2) Application of the Board If any person or entity fails or neglects to obey any order of the Board while such order is in effect, the Board shall apply 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, for the enforcement of such order. The Board shall file in the court the record in the proceedings, as provided in section 2112 of title 28, United States Code. Any person that was a party to the underlying Board proceeding may join in the proceeding initiated by the Board. (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. (4) Violations of orders by the Board Any person or entity who willfully and knowingly violates any rule, regulation, restriction, condition, or order made or imposed by the Board under authority of this Act shall, in addition to any other penalties provided by law, be subject to a civil penalty of not to exceed $10,000 for each and every day during which such violation occurs, commencing with the effective date of any such rule, regulation, restriction, condition, or order. Such civil penalty may be imposed by the Board or by a court in a proceeding initiated by the Board under this subsection. . (2) Conforming amendments The National Labor Relations Act ( 29 U.S.C. 151 et seq. ) is 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) .