II 115th CONGRESS 1st Session S. 2143 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.

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 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. 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. 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 S ec. 12 . Any person and inserting the following: 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). . 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 . 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. . 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. .