To amend the National Labor Relations Act to establish an efficient system to enable employees to form or become members of labor organizations, and for other purposes.

July 31 (legislative day, July 21), 2003

Mr. SCHUMER introduced the following bill; which was read twice and referred to the Committee on Health, Education, Labor, and Pensions

To amend the National Labor Relations Act to establish an efficient system to enable employees to form or become members of labor organizations, and for other purposes.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This Act may be cited as the `Employee Right to Choose Act'.

SEC. 2. STREAMLINING UNIONIZATION PROCESS.

The National Labor Relations Act (29 U.S.C. 151 et seq.) is amended--

(1) in section 3(b), in the second sentence--

(A) by striking `and to' and inserting `to'; and

(B) by striking `and certify the results thereof,' and inserting `, and to make the certifications provided for in section 9,';

(2) in section 8--

(A) in subsection (b)(7)(C), in the first proviso--

(i) by striking `the provisions of section 9(c)(1) or'; and

(ii) by striking `direct an election in such unit as the Board finds to be appropriate and shall certify the results thereof' and inserting `process the petition in accordance with section 9(c)(1)'; and

(B) by striking subsection (d) and inserting the following:

`(d) COLLECTIVE BARGAINING-

`(1) IN GENERAL- For the purposes of this section, to bargain collectively is the performance of the mutual obligation of the employer and the representative of the employees to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment, or the negotiation of an agreement, or any question arising thereunder, and the execution of a written contract incorporating any agreement reached if requested by either party, but such obligation does not compel either party to agree to a proposal or require the making of a concession: Provided, That where there is in effect a collective-bargaining contract covering employees in an industry affecting commerce, the duty to bargain collectively shall also mean that no party to such contract shall terminate or modify such contract, unless the party desiring such termination or modification--

`(A) serves a written notice upon the other party to the contract of the proposed termination or modification 60 days prior to the expiration date thereof, or in the event such contract contains no expiration date, 60 days prior to the time it is proposed to make such termination or modification;

`(B) offers to meet and confer with the other party for the purpose of negotiating a new contract or a contract containing the proposed modifications;

`(C) notifies the Federal Mediation and Conciliation Service within 30 days after such notice of the existence of a dispute, and simultaneously therewith notifies any State or Territorial agency established to mediate and conciliate disputes within the State or Territory where the dispute occurred, provided no agreement has been reached by that time; and

`(D) continues in full force and effect, without resorting to strike or lock-out, all the terms and conditions of the existing contract for a period of 60 days after such notice is given or until the expiration date of such contract, whichever occurs later:

The duties imposed upon employers, employees, and labor organizations by subparagraphs (B), (C), and (D) shall become inapplicable upon an intervening certification of the Board, under which the labor organization or individual, which is a party to the contract, has been superseded as or ceased to be the representative of the employees subject to the provisions of section 9(a), and the duties so imposed shall not be construed as requiring either party to discuss or agree to any modification of the terms and conditions contained in a contract for a fixed period, if such modification is to become effective before such terms and conditions can be reopened under the provisions of the contract. Any employee

who engages in a strike within any notice period specified in this subsection, or who engages in any strike within the appropriate period specified in subsection (g), shall lose his status as an employee of the employer engaged in the particular labor dispute, for the purposes of sections 8, 9, and 10 of this Act, as amended, but such loss of status for such employee shall terminate if and when he is reemployed by such employer.

`(2) BARGAINING FOR EMPLOYEES OF A HEALTH CARE INSTITUTION- Whenever the collective bargaining involves employees of a health care institution, the provisions of this subsection shall be modified as follows:

`(A) The notice of paragraph (1)(A) shall be 90 days; the notice of paragraph (1)(C) shall be 60 days; and the contract period of paragraph (1)(D) shall be 90 days.

`(B) Where the bargaining is for an initial agreement following certification or recognition, at least 30 days' notice of the existence of a dispute shall be given by the labor organization to the agencies set forth in paragraph (1)(C).

`(C) After notice is given to the Federal Mediation and Conciliation Service under either clause (A) or (B) of this sentence, the Service shall promptly communicate with the parties and use its best efforts, by mediation and conciliation, to bring them to agreement. The parties shall participate fully and promptly in such meetings as may be undertaken by the Service for the purpose of aiding in a settlement of the dispute.

`(3) BARGAINING FOR AN INITIAL AGREEMENT- Whenever the collective bargaining is for an initial agreement following certification or recognition, the provisions of this subsection shall be modified as follows:

`(A) Not later than 10 days after receiving a written request for collective bargaining from an individual or labor organization that has been newly recognized or certified as a representative, as described in 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.

`(B) If after 180 days from the commencement of bargaining, or such further period as the parties 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 the parties to agreement.

`(C) If after 30 days from the request for mediation, or such further period as the parties agree upon, the Service is not able to bring the parties to agreement by conciliation, the Service shall refer the dispute to an arbitration board established in accordance with such regulations as may be prescribed by the Service. The 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.'; and

(3) in section 9--

(A) by striking subsection (c) and inserting the following:

`(c) HEARINGS ON QUESTIONS AFFECTING COMMERCE; RULES AND REGULATIONS-

`(1) IN GENERAL- Whenever a petition shall have been filed, in accordance with such regulations as may be prescribed by the Board--

`(A) by an employee or group of employees or any individual or labor organization acting in their behalf alleging that a substantial number of employees wish to be represented for collective bargaining and that their employer declines to recognize their representative as the representative described in subsection (a); or

`(B) by an employer, alleging that an individual or labor organization has presented to the employer a claim to be recognized as the representative described in subsection (a),

the Board shall investigate such petition and if the Board has reasonable causes to believe that a question of representation affecting commerce exists, shall provide for an appropriate hearing upon due notice. Such hearing may be conducted by an officer or employee of the regional office, who shall not make any recommendations with respect thereto. If the Board finds upon the record of such hearing that such a question of representation exists, the

Board shall direct an election by secret ballot and shall certify the results thereof: Provided, That if the Board finds that, as of the date of the filing of the petition or such other date as the Board considers appropriate, a majority of the employees in a unit appropriate for collective bargaining have signed authorizations designating the individual or labor organization specified in the petition as their bargaining representative, and there is no other individual or labor organization that has been so designated by 30 percent or more of the employees, the Board shall not direct an election but shall certify the individual or labor organization as the representative described in subsection (a).

`(2) INDIVIDUAL OR LABOR ORGANIZATION NO LONGER REPRESENTATIVE- Whenever a petition shall have been filed, in accordance with such regulations as may be prescribed by the Board by an employee or group of employees or any individual or labor organization acting in their behalf alleging that a substantial number of employees assert that the individual or labor organization, which has been certified or is being currently recognized by their employer as the bargaining representative, is no longer a representative as described in subsection (a), the Board shall investigate such petition and if the Board has reasonable cause to believe that a question of representation affecting commerce exists shall provide for an appropriate hearing upon due notice. Such hearing may be conducted by an officer or employee of the regional office, who shall not make any recommendations with respect thereto. If the Board finds upon the record of such hearing that such a question of representation exists, it shall direct an election by secret ballot and shall certify the results thereof.

`(3) REGULATIONS AND RULES OF DECISION- In determining whether or not a question of representation affecting commerce exists, the same regulations and rules of decision shall apply irrespective of the identity of the persons filing the petition or the kind of relief sought and in no case shall the Board deny a labor organization a place on the ballot by reason of an order with respect to such labor organization or its predecessor not issued in conformity with section 10.

`(4) LIMITATION ON ELECTION- No election shall be directed in any bargaining unit or any subdivision within which, in the preceding 12-month period, a valid election shall have been held, and no bargaining representative shall be certified on the basis of a showing of majority support obtained within the 12-month period following such an election. Employees engaged in an economic strike who are not entitled to reinstatement shall be eligible to vote under such regulations as the Board shall find are consistent with the purposes and provisions of this subchapter in any election conducted within 12 months after the commencement of the strike. In any election where none of the choices on the ballot receives a majority, a run-off shall be conducted, the ballot providing for a selection between the 2 choices receiving the largest and second largest number of valid votes cast in the election.

`(5) RULE OF CONSTRUCTION- Nothing in this section shall be construed to prohibit the waiving of hearings by stipulation for the purpose of a consent election in conformity with regulations and rules of decision of the Board.

`(6) DETERMINATION OF APPROPRIATE UNIT- In determining whether a unit is appropriate for the purposes specified in subsection (b), the extent to which the employees have organized shall not be controlling.

`(7) GUIDELINES AND PROCEDURES- The Board shall develop guidelines and procedures for the designation by employees of a bargaining representative as described in subsection (a). Such guidelines and procedures shall include--

`(A) model collective bargaining authorization language that may be used for purposes of making the designations described in paragraph (1); and

`(B) procedures to be used by the Board to establish the authenticity of signed authorizations designating bargaining representatives.'; and

(B) by striking subsection (e).

SEC. 3. CONFORMING AMENDMENTS.

Section 8 of the National Labor Relations Act (29 U.S.C. 158) is amended--

(1) in subsection (a)(3)(ii), by striking `section 9(e)' and inserting `section 9(c)(1)'; and

(2) in subsection (f), by striking `9(e)' and inserting `9(c)(1)'.

END