Labor Issues Legislative Update 113th Congress, Second Session The U.S. Chamber of Commerce Labor, Immigration and Employee Benefits Division is monitoring the following labor legislative issues. Issues are not presented in any specific order. Union and Organizing Issues Bills Introduced in Reaction to the Noel Canning Decision Advice and Consent Restoration Act On January 30, 2013, Sen. Roy Blunt (R-MO) introduced S.188, the “Advice and Consent Restoration Act.” The bill would forbid an individual from “receiving any salary or payment for services performed as a member of the National Labor Relations Board” unless the individual has been nominated by the President and confirmed by the Senate. The bill also states that “notwithstanding any other provision of law, an unconstitutional quorum of the National Labor Relations Board shall not convene or take any agency action, as defined in section 551 of title 5, United State Code, and including any determination, hearing, investigation, direction of election, certification, order, rule, regulation, or review of any determination, until the date on which final judgment is entered in all cases challenging the constitutionality of the purported appointment of individuals to such Board that are pending before a Federal court on the date of enactment of this Act.” On February 6, 2013, Rep. Mike Kelly (R-PA) introduced the companion bill, H.R. 557. NLRB Freeze Act of 2013 On January 30, 2013, Sen. John Barrasso (R-WY) introduced S. 180, the “NLRB Freeze Act of 2013.” The bill states that “notwithstanding any other provision of law, any determinations made by the National Relations Board with respect to which unconstitutional members were part of the Board’s quorum, shall not be given any force or effect until the date on which final judgment is entered in all cases challenging the constitutionality of the appointment of members to such Board during a recess of the Senate that are pending before a Federal court on the date of enactment of this Act.” Restoring the Constitutional Balance of Power Act On January 31, 2013, Sen. Mike Johanns (R-NE) introduced S. 190, the “Restoring the Constitutional Balance of Power Act of 2013.” The bill would bar federal funds from being used “by the National Labor Relations Board to undertake or enforce activities commencing on or after January 4, 2012 that require authorization by not less than a quorum of the members of the Board.” The Act would terminate when the Board reaches a quorum “consistent with the advice and consent requirement of the United States Constitution, as determined in accordance with the decision of United States Court of Appeals for the District of Columbia Circuit in the case of Noel Canning v. National Labor Relations Board.” To Declare that Certain Agency Actions by the National Labor Relations Board Shall Have No Force or Effect until Final Disposition is Made in Certain Actions Relating to the Appointment… On March 5, 2013, Rep. Steve Womack (R-AR) introduced H.R. 976. The legislation states that “any agency action taken by the National Labor Relations Board since January 4, 2012 shall have no force or effect unless each member of the Board has been appointed by and with the advice and consent of the Senate, in accordance with clause 2 of section 2 of Article II of the United States Constitution; or appropriately in accordance with clause 3 of section 2 of Article II of the United States Constitution.” The bill would forbid the National Labor Relations Board from taking further action until the constitutionality of the recess appointments are decided by the judicial system, and clarifies that the term “agency” under the National Labor Relations Act (NLRA) does not include activities taken by the office of General Counsel. Preventing Greater Uncertainty in Labor-Management Relations Act On March 13, 2013, Rep. David “Phil” Roe (R-TN) introduced H.R. 1120, the “Preventing Greater Uncertainty in Labor-Management Relations Act.” The legislation would prohibit the Board from enforcing any action taken on or after January 4, 2012 that required a quorum and to cease all activity that required a quorum. The bill would remove the restrictions on the Board’s authority in the following circumstances: the Senate confirms appointments made by the President in order to meet the quorum threshold; the Supreme Court rules on the constitutionality of the recess appointments; and/or the terms of the recess appointments expire when the First Session of the 113th Congress adjourns. On March 20, 2013, the House Education & Workforce Committee marked up the bill with a clarification that the Board could not make any interagency appointments that requires a Board quorum. The House Education & Workforce Committee voted to approve the legislation by a vote of 23-16. On April 11, 2013, prior to the vote on the House floor, the Chamber sent a letter to the House, supporting the legislation. On April 12, 2013, the House passed the legislation on a party-line vote of 219-209, with 10 Republicans voting against the bill. On April 25, 2013, Sen. Lamar Alexander (R-TN) introduced the companion bill in the Senate, S. 850. May 1, 2014 2 Other Bills Binding Arbitration of First Contracts On January 4, 2013, Rep. Gene Green (D-TX) introduced H.R. 169, the “Labor Relations First Contract Negotiations Act of 2013.” The bill would require the arbitration of initial contract negotiation disputes. Under the bill, if an employer and union cannot agree on a first contract within 60 days after certification, the employer and representative of the union must select a “mediator” to resolve any outstanding disputes and if after 30 days after the selection of the mediator, the parties are still unable to agree on the outstanding issues, either party could request the matter be arbitrated by the Federal Mediation and Conciliation Services (FMCS). National Right to Work Act On January 31, 2013, Sen. Ron Paul (R-KY) introduced S. 204, the “National Right-to- Work Act.” The bill would amend the National Labor Relations Act and the Railway Labor Act to repeal the provisions in these Acts that permit employers, pursuant to a collective bargaining agreement that contains a union security agreement, to require employees to join a union as a condition of employment, and require the payment of union dues or fees as a condition of employment. On March 5, 2013, Rep. Steve King (R-IA) introduced the companion bill in the House, H.R. 946. Protecting American Jobs Act On February 15, 2013, Rep. Austin Scott (R-GA) introduced H.R. 795, the “Protecting American Jobs Act.” The bill would eliminate NLRB adjudication of unfair labor practices, and permit an “aggrieved party” to file a lawsuit in federal court. Salting On April 25, 2013, Rep. Steve King (R-IA) introduced H.R. 1746, “The Truth in Employment Act of 2013.” The bill would amend the National Labor Relations Act (NLRA) so an employer is not required “to employ any person who seeks or has sought employment with the employer in furtherance of other employment or agency status.” This bill would prevent the practice of “salting,” where union employees apply for jobs with a specific intent to organize or cause disruption in the workplace. The bill would overturn a Supreme Court decision that found this to be protected activity. Union Coercion Prevention Act On April 26, 2013, Rep. Steve Stockman (R-TX) introduced H.R. 1815, the “Union Coercion Prevention Act.” The legislation would amend the National Labor Relations Act (NLRA) to mandate a secret ballot election for all union-held elections, and redefine the term May 1, 2014 3 “majority” to “mean the majority of all the employees in the unit, and not the majority of employees voting in the election.” The bill also reverses the NLRB’s proposed rulemaking on representation procedures by among things, mandating that the Board hold an election “no less than 40 calendar days following the filing of an election petition with the employer;” and stipulating that an election for the union is not held until a hearing is conducted, and outstanding issues are resolved by the Regional Director or the Board. Furthermore, election results would not be final until the Board has ruled on “each pre-election issue” after conducting a hearing. The legislation would require a “labor organization” to be “liable for wages lost and union dues or fees collected unlawfully, if any and an additional amount as liquidated damages” if the union is found to have “interfered with, restrained, or coerced employees in their exercise of their rights under section 7 to form or join a labor organization or to refrain therefrom, including the filing of a decertification petition.” The bill would also prohibit a “labor organization” from filing objections to an election for decertification if the union has been found to have “interfered with, restrained, or coerced an employee in connection with the filing of a decertification petition.” Tribal Labor Sovereignty Act of 2013 On March 15, 2013, Rep. Kristi Noem (R-SD) introduced H.R. 1226, the “Tribal Labor Sovereignty Act of 2013.” The legislation would amend the National Labor Relations Act to provide that any enterprise or institution owned and operated by an Indian tribe and located on its lands is not considered an employer (thus excluding such enterprises or institutions from coverage by the Act). On July 16, 2013, the Chamber sent a letter to Rep. Noem (R-SD), applauding introduction of the bill. On August 2, 2013, Sen. Jerry Moran (R-KS) introduced the companion bill in the Senate, S. 1477. Worker Anti-Retaliation Act On June 11, 2013, Rep.