H.R. 1277 (106^th): Workplace Democracy Act of 1999

HR 1277 IH

To amend the National Labor Relations Act, to establish the National Public Employment Relations Commission, and to amend title I of the Employment Retirement Income Security Act of 1974 to provide for joint trusteeship of single-employer pension plans.

March 24, 1999

Mr. SANDERS introduced the following bill; which was referred to the Committee on Education and the Workforce

To amend the National Labor Relations Act, to establish the National Public Employment Relations Commission, and to amend title I of the Employment Retirement Income Security Act of 1974 to provide for joint trusteeship of single-employer pension plans.

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

SECTION 1. SHORT TITLE AND TABLE OF CONTENTS.

(a) SHORT TITLE- This Act may be cited as the ‘Workplace Democracy Act of 1999’.

(b) TABLE OF CONTENTS- The table of contents for this Act is as follows:

Sec. 1. Short title and table of contents.

Sec. 2. Declaration of purpose and policy.

Sec. 3. Application of Act.

TITLE I--GENERAL PROVISIONS REGARDING RIGHTS OF EMPLOYEES AND ENFORCEMENT AUTHORITY OF THE NATIONAL LABOR RELATIONS BOARD

Sec. 101. Right to first contract.

Sec. 102. Strikes, boycotts, and hot cargo agreements.

Sec. 103. Treatment of guards.

Sec. 104. Card recognition for collective bargaining units.

Sec. 105. Enforcement and authority of National Labor Relations Board.

Sec. 106. Repealing prohibition authority.

TITLE II--GENERAL PROVISIONS REGARDING RIGHTS OF EMPLOYEES AND ENFORCEMENT AUTHORITY FOR THE NATIONAL LABOR RELATIONS BOARD

Sec. 201. Definitions.

Sec. 202. National Public Employment Relations Commission.

Sec. 203. Rights of employees and employee organizations.

Sec. 204. Representatives and collective-bargaining units.

Sec. 205. Impasse in collective bargaining over the terms and conditions of employment and other matters of mutual concern relating thereto.

Sec. 206. Disputes over the interpretation or application of agreements.

Sec. 207. Strikes.

Sec. 208. Impasse procedures for firefighters and public safety officers.

Sec. 209. Strikes and firefighters and public safety officers.

Sec. 210. Unlawful acts.

Sec. 211. Prevention of unlawful acts.

Sec. 212. Applicability of this Act.

Sec. 213. Miscellaneous.

Sec. 214. Effective date.

TITLE III--GENERAL PROVISIONS REGARDING PENSION PLANS

Sec. 301. Requirements relating to trusteeship of single-employer plans.

Sec. 302. Effective date.

SEC. 2. DECLARATION OF PURPOSE AND POLICY.

(a) STATUTORY PROTECTION- Experience in both private and public employment indicates that the statutory protection of the right of employees to organize and bargain collectively safeguards the public interest and promotes economic stability and prosperity. Such protection facilitates and encourages the amicable settlement of disputes between employees and their employers involving the terms and conditions of employment and other matters of mutual concern.

(b) RESTORE INTENT- It is the purpose of this Act to amend the National Labor Relations Act, the law which governs the rights of workers to organize and to bargain collectively, to reestablish its original intent, to give workers the power to protect their interests in the workplace, restore democracy, and promote the free and unobstructed flow of commerce.

(c) PUBLIC EMPLOYMENT- This Act prescribes certain rights and obligations of the employees of the States, territories and possessions of the United States, and the political subdivisions thereof, to establish procedures governing the relationship between such employees and their employers which are designed to meet the special requirements and needs of public employment.

SEC. 3. APPLICATION OF ACT.

The provisions of the National Labor Relations Act shall apply to United States companies and their subsidiaries operating in any country that is a signatory to a Free Trade Agreement. Workers of such companies and subsidiaries shall have the right to file unfair labor practice complaints against the United States parent company under this Act and under the laws of the signatory country.

TITLE I--GENERAL PROVISIONS REGARDING RIGHTS OF EMPLOYEES AND ENFORCEMENT AUTHORITY OF THE NATIONAL LABOR RELATIONS BOARD

SEC. 101. RIGHT TO FIRST CONTRACT.

Section 8(d) of the National Labor Relations Act (29 U.S.C. 158) is amended by inserting the following after the word ‘Provided,’ the first time it appears:

‘If not later than 45 days after certification, a collective bargaining agreement has not been reached, the union shall have the option of sending the contract dispute to compulsory and binding arbitration.’.

SEC. 102. STRIKES, BOYCOTTS, AND HOT CARGO AGREEMENTS.

Section 8(b)(4) and subsection (e) of the National Labor Relations Act are repealed.

SEC. 103. TREATMENT OF GUARDS.

Section 9(b) of the National Labor Relations Act is repealed.

SEC. 104. CARD RECOGNITION FOR COLLECTIVE BARGAINING UNITS.

Section 9 of the National Labor Relations Act is amended by inserting at the end the following new subsections:

‘(f) The National Labor Relations Board shall promulgate rules which plainly define the characteristics of employee units appropriate for collective bargaining groups. Appropriate unit includes groups of employees (of an employer) who have a community of interests that should be included in the same collective bargaining unit.

‘(g) The National Labor Relations Board, upon receipt of a majority of signed union recognition cards of employees in an appropriate bargaining unit (as determined by the workers themselves within the guidelines established by the Board as specified in subsection (f)) shall certify such labor organizations as the exclusive representatives of all the employees in such unit for the purposes of collective bargaining and mutual aid.’.

SEC. 105. ENFORCEMENT AND AUTHORITY OF NATIONAL LABOR RELATIONS BOARD.

(a) Section 10(c) of the National Labor Relations Act is amended by--

(1) inserting ‘(1)’ after ‘(e)’;

(2) striking out the fifth sentence of paragraph (1) (as redesignated by this section) and inserting in lieu thereof the following:

‘If upon the preponderance of the testimony taken the Board shall not be of the opinion that the person named in the complaint has engaged in or is engaging in any such unfair labor practice, or has willfully violated or is willfully violating a final order as specified in subsection (b) of this section, then the Board shall state its findings of fact and shall issue an order dismissing the said complaint.’;

(3) by adding at the end thereof the following new paragraph:

‘(2) If upon the preponderance of testimony taken the Board shall be of the opinion that the allegation in the complaint that a person has willfully violated or is willfully violating a final order as specified in subsection (b) of this section has been sustained, then the Board shall state its findings of fact and shall issue and cause to be served on such person an order certifying the identification of that person to the Secretary of Labor. Notwithstanding any other law, unless the Secretary of Labor determines that because of unusual circumstances the national interest requires otherwise, the Secretary shall certify the identity of such person to the Comptroller General. The Comptroller General shall distribute a list to all agencies of the United States containing the names of persons certified by the Secretary of Labor pursuant to this subsection. Unless the agency of the United States concerned, after notice and opportunity for hearing to all interested parties, certifies to the Secretary of Labor that there is no other source of material or services furnished by the person affected by the Board order, no contracts shall be awarded to such person for a reasonable, definitely stated period of time commensurate with the seriousness of the violation, as determined by the Secretary of Labor, but such period shall not exceed three years. A debarment may be removed or the period may be reduced by the Secretary of Labor upon the submission of an application, supported by documentary evidence, setting forth appropriate grounds for the granting of relief, including without limitation compliance with the final order found to have been willfully violated, bona fide change of ownership or management, a fraud or misrepresentation of the charging party: Provided, That this subparagraph shall restrict the award of contracts solely to the products or service performed at the particular facility or facilities where the willful violation occurs or of the business entity legally responsible for the willful violation or to the local, intermediate, national or international labor organization legally responsible for the willful violation.’

(b) ADDITIONAL REMEDIES- The third sentence of section 10(c) of the National Labor Relations Act is amended--

(1) by striking ‘and’ immediately before ‘to take such affirmative action’; and

(2) by inserting after ‘with or without back pay’ the following: ‘and including making employees whole for the loss of economic benefits resulting from a violation of section 8(a)(5) and to provide such other remedial relief’.

(c) INJUNCTIVE RELIEF AND DAMAGES- Section 10 of the National Labor Relations Act is amended by adding at the end the following subsection:

‘(n) Notwithstanding the provisions of subsection (j), the National Labor Relations Board shall use the injunction power provided under such subsection whenever the Board determines that an employer has engaged in a willful violation of the unfair labor practice provisions under section 8.

‘(o) The National Labor Relations Board will assess civil money penalties of not less than $10,000 against employers for each willful violation of the Act.

‘(p) Upon issuance of a complaint which alleges an unfair labor practice under section 8 of the National Labor Relations Act, an employer shall reinstate a discharged employee pending adjudication and final review of such complaint.’.

(d) TREBLE DAMAGES- Section 303 of the Management Relations Act of 1947 is amended by adding at the end the following new subsection:

‘(c) Any person who suffers financial injury by reason of any violation of section 8(a)(3) of the National Labor Relations Act may bring an action in any district court of the United States in the district in which the defendant resides or is found or has an agent, without respect to the amount in controversy, and shall recover an amount equal to 300 percent of the damages sustained by him, and the cost of the action, including reasonable attorneys’ fees. A final judgment or decree rendered by the Board to the effect that a defendant has violated section 8(a)(3) shall be prima facie evidence against such defendant in any action brought by any person under this subsection.’.

SEC. 106. REPEALING PROHIBITION AUTHORITY.

Subsection (b) of section 14 of the National Labor Relations Act is repealed.

TITLE II--GENERAL PROVISIONS REGARDING RIGHTS OF EMPLOYEES AND ENFORCEMENT AUTHORITY FOR THE NATIONAL LABOR RELATIONS BOARD

SEC. 201. DEFINITIONS.

As used in this Act--

(1) The term ‘person’ includes one or more individuals, organizations, unions, associations, partnerships, corporations, boards, committees, commissions, agencies, or other entity, or their representatives.

(2) The term ‘employer’ includes any State, territory, or possession of the United States, or any political subdivision thereof, including, without limitation, any town, city, county, borough, district, school board, board of regents, social service or welfare agency, public or quasi-public corporations, housing authority or other entity which is tax supported, and any person acting as an agent thereof.

(3) The term ‘employee’ includes any person employed by an employer, whether or not in the classified service of the employer, except the chief executive officer of the employer and other officers of the

employer appointed or elected pursuant to statute to policymaking positions. The term shall not be limited to the employees of a particular employer, and shall include any person whose work has ceased as a consequence of, or in connection with, any unlawful act as defined in section 210 of this Act.

(4) The term ‘employee organization’ includes any organization, union, association, committee, council, or group of any kind in which employees participate, and which exists for the purpose, in whole or in part, of bargaining collectively with employers over the terms and conditions of employment and other matters of mutual concerns relating thereto.

(5) The term ‘exclusive representative’ includes any employee organization which has been--

(A) selected or designated pursuant to the provisions of section 204 of this Act as the representative of the employees in an appropriate collective bargaining unit; or

(B) recognized by an employer prior to the effective date of this Act as the exclusive representative of the employees in an appropriate collective bargaining unit.

(6) The term ‘supervisor’ includes any employee having authority in the interest of an employer to hire, direct, assign, promote, reward, transfer, layoff, recall, suspend, discipline, or discharge other employees, or to adjust their grievances, or to effectively recommend such action if in connection with the foregoing the exercise of such authority is not merely routine or clerical in nature but calls for the consistent exercise of independent judgment: Provided, That with respect to firefighters, the term ‘supervisor’ shall include only those employees who perform a preponderance of the above-specified acts of authority.

(7) The term ‘professional’ includes any employee whose work--

(A) is predominantly intellectual and varied in character;

(B) requires the consistent exercise of independent judgment;

(C) requires knowledge of an advanced nature in a field of learning customarily acquired by specialized study in an institution of higher education or its equivalent; and

(D) is of such character that the output or result accomplished cannot be standardized in relation to a given period of time.

(8) The term ‘public safety officer’ includes any employee engaged in--

(A) the enforcement of the criminal laws, including highway patrol;

(B) a correctional program, facility, or institution where the activity is potentially dangerous because of contact with criminal suspects, defendants, prisoners, probationers, or parolees; or

(C) a court having criminal or juvenile delinquent jurisdiction where the activity is potentially dangerous because of contact with criminal suspects, defendants, prisoners, probationers, or parolees.

(9) The term ‘firefighter’ includes any employee engaged in the performance of work directly connected with the control and extinguishment of fires or the maintenance and use of firefighting apparatus and equipment.

(10) The term ‘educational employee’ includes any employee of a school system, college or university who--

(A) has regular contact with students;

(B) participates in the development, implementation, or evaluation of an educational program; or

(C) is otherwise involved in the educational process.

(11) The term ‘Commission’ means the National Public Employment Relations Commission established by section 202 of this Act.

(12) The term ‘Service’ means the Federal Mediation and Conciliation Service established by section 172 of chapter 29, United States Code.

(13) The term ‘collective bargaining’ or ‘bargaining’ means the performance of the mutual obligation of the representatives of the employer and the exclusive representative to meet at reasonable times, in light of the budgetmaking process and other relevant factors, and to confer, consult, and bargain in a good faith effort to reach agreement with respect to the terms and conditions of employment and other matters of mutual concern relating thereto, and to execute, if requested by either party, a written document incorporating any agreements reached, but such obligation does not compel either party to agree to a proposal or to make a concession. The duty to negotiate shall extend to matters which are or may be the subject of a statute, ordinance, regulation, or other enactment by a State, territory, or possession of the United States, or a political subdivision thereof, and if legislative action is necessary to implement any agreement reached, shall include the obligation of the employer to submit such agreement to the appropriate governmental body for action.

(14) The term ‘labor dispute’ means any controversy concerning terms and conditions of employment or other matters of mutual concerns relating thereto, or concerning the representation of employees for the purpose of collective bargaining, regardless of whether the disputants stand in the proximate relation of employer and employee.

(15) In determining whether any person is acting as an ‘agent’ of another person so as to make such other person responsible for his acts, the question of whether the specific acts performed were actually authorized or subsequently ratified shall not be controlling.

SEC. 202. NATIONAL PUBLIC EMPLOYMENT RELATIONS COMMISSION.

(a) There is hereby created the ‘National Public Employment Relations Commission’, which shall consist of five members who shall be appointed by the President by and with the advice and consent of the Senate. One of the original members shall be appointed for a term of one year, one for a term of two years, one for a term of three years, one for a term of four years, and one for a term of five years. Their successors shall be appointed for terms of five years each, except that any person chosen to fill a vacancy shall be appointed only for the unexpired term of the member whom he/she succeeds. Commission members shall be eligible for reappointment. The President shall designate one member to serve as Chair of the Commission. Any member of the Commission may be removed by the President, upon notice and hearing, for neglect of duty or malfeasance in office, but for no other cause.

(b) A vacancy in the Commission shall not impair the right of the remaining members to exercise all the powers of the Commission, and three members of the Commission shall, at all times, constitute a quorum. The Commission shall have an official seal which shall be judicially noticed.

(c) Members of the Commission shall not engage in any other business, vocation, or employment. The Commission shall appoint an Executive Director and may appoint State or regional directors, attorneys, and such other persons as it may from time to time find necessary for the proper performance of its functions and as may from time to time be appropriated for by the Congress. Attorneys appointed under this section may, at the direction of the Commission, appear for and represent the Commission in any case in court.

(d) There shall be a General Counsel of the Commission who shall be appointed by the President, by and with the advice and consent of the Senate, for a term of five years. The General Counsel shall be authorized to investigate alleged violations of the Act, to file and prosecute complaints filed under the Act, and to exercise such other powers as the Commission may prescribe. If a vacancy occurs in the Office of General Counsel, the President shall promptly designate an Acting General Counsel, and shall submit a nomination for a replacement to Congress within forty days after the vacancy has occurred, unless Congress shall have adjourned before the expiration of said forty-day period, in which event the President shall submit a nomination not later than ten days after Congress reconvenes.

(e) All of the expenses of the Commission, including all necessary traveling and subsistence expenses outside the District of Columbia incurred by the members, employees, or agents of the Commission under it orders, shall be allowed and paid on the presentation of itemized vouchers therefor approved by the Commission or by any individual it designates for that purpose.

(f) The principal office of the Commission shall be in the District of Columbia, but it may meet and exercise any or all of its powers at any other place, and may establish and operate State and regional offices. The Commission may, by one or more of its members or by such agents or agencies as it may designate, prosecute any inquiry necessary to its functions in any part of the United States. Members who participate in such an inquiry shall not be disqualified from subsequently participating in a decision of the Commission in the same case.

(g) The Commission is authorized to issue, amend, and rescind, in the manner prescribed by subchapter II of chapter 5 of title 5, United States Code, such rules and regulations as may be necessary to carry out the provisions of this Act and is expressly empowered and directed to prevent any person from engaging in conduct in violation of this Act. In order to carry out its functions under this Act, the Commission is authorized to hold hearings, subpoena witnesses, administer oaths and take the testimony or deposition of any person under oath, and in connection therewith, to issue subpoenas requiring the production and examination of any books or papers, including those of the Federal Government or any employer, relating to any matter pending before it and to take such other action as may be necessary.

(h)(1) Section 5314 of title 5, United States Code, is amended by adding at the end thereof the following new paragraph:

‘(54) Chair, National Public Employment Relations Commission.’.

(2) Section 5315 of title 5, United States Code, is amended by adding at the end thereof the following new paragraph:

‘(92) Members, National Public Employment Relations Commission.’.

SEC. 203. RIGHTS OF EMPLOYEES AND EMPLOYEE ORGANIZATIONS.

(a) Employees shall have the right to form, join, or assist employee organizations, to participate in collective bargaining with employers through representatives of their own choosing and to engage in other activities, individually or in concert, for the purpose of establishing, maintaining, or improving terms and conditions of employment and other matters of mutual concern relating thereto.

(b) Employee organizations shall have--

(1) access at reasonable times to areas in which employees work, the right to use the employer’s bulletin boards, mailboxes, and other communication media, subject to reasonable regulation, and the right to use the employer’s facilities at reasonable times for the purpose of meetings concerned with the exercise of the rights guaranteed by this Act: Provided, That if an exclusive representative has been recognized, an employer shall deny such access and usage to any employee organization other than such representative until such time as a lawful and timely challenge to the majority status of the representative is raised pursuant to the provisions of section 6 of this Act; and

(2) the right to have deducted from the salary of employees, upon receipt of an appropriate authorization form which shall not be irrevocable for a period of more than one year, an amount equal to the fees and dues required for membership: Provided, That if an exclusive representative has been recognized, an employer shall deny such deduction to any employee organization other than such representative.

(c) If an exclusive representative has been recognized for the employees in an appropriate collective bargaining unit, each employee in such a unit who is not a member of the recognized organization shall be required, as condition of continued employment, to pay to such organization for the period that it is the exclusive representative, an amount equal to the dues, fees, and assessments that a member is charged. Such payments shall be made in accordance with rules and regulations prescribed for such purpose by the Commission.

SEC. 204. REPRESENTATIVES AND COLLECTIVE-BARGAINING UNITS.

(a) The employee organization designated or selected for the purpose of collective bargaining by the majority of the employees in an appropriate collective-bargaining unit shall be the exclusive representative of all the employees in such a unit for such purpose, and an employer shall not bargain in regard to matters covered by this Act with any employee, group of employees, or other employee organization: Provided, That nothing contained in this subsection shall prevent employees, individually or as a group, from presenting complaints informally to an employer, and from having such complaints adjusted without the intervention of the exclusive representative for the collective-bargaining unit of which they are a part, as long as such representative is given an opportunity to be present at said adjustment and to make its views known, and as long as the adjustment is not inconsistent with the terms of an agreement between the employer and the exclusive representative which is then in effect: Provided further, That such employer or employees shall not be represented by an officer or agent of any employee organization other than the exclusive representative.

(b) Any employee organization may file a request for recognition as the exclusive representative under subsection (a) of this section with an employer and the Commission. Such request shall allege that a majority of the employees in an appropriate collective-bargaining unit wish to be represented for the purpose of collective bargaining by such organization, shall describe the grouping of jobs or positions which constitute the unit claimed to be appropriate, shall be supported by credible evidence in accordance with rules prescribed by the Commission demonstrating that a majority of the employees in the appropriate unit desire the organization requesting recognition as their exclusive representative, and shall indicate the name, address, and telephone number of any other interested employee organization, if known to the requesting organization. The employer shall, at the direction of the Commission, post a copy of such request on a bulletin board at each facility in which members of the unit claimed to be appropriate are employed. The request shall remain posted for a period of 21 days from the date on which the Commission directs that it be posted. The Commission shall maintain a public docket of all requests filed under this section. Such docket shall contain a copy of the request but shall not include any accompanying evidence of support. The request shall remain on the public docket until the case is closed. Such request for recognition shall be granted by the employer unless--

(1) the employer has a good faith doubt as to the accuracy or validity of the evidence demonstrating majority support in an appropriate unit or as to the appropriateness of the claimed unit;

(2) there is currently in effect a lawful written collective-bargaining agreement between the employer and another employee organization covering any employees included in the unit described in the request for recognition;

(3) within the previous 12 months another employee organization has been lawfully recognized or certified as the exclusive representative of any employees included in the unit described in the request for recognition; or

(4) the Commission has, within the previous 12 months, conducted a secret ballot election involving any employees included in the unit described in the

request for recognition in which a majority of the valid ballots cast chose not to be represented by any employee organization: Provided, That an employer shall not grant a request for recognition filed pursuant to this subsection (c)(2) below if another employee organization files with the employer a competing request for recognition within 21 days after the posting or notice of the original request, which competing request is supported by credible evidence demonstrating that at least 10 percent of the employees in the appropriate collective-bargaining unit desire such organization as their exclusive representative.

(c) A petition may be filed with the Commission in accordance with rules and regulations prescribed by it for such dealings, asking it to investigate and decide the question of whether employees have selected or designated an exclusive representative under subsection (a) of this section by--

(1) an employee organization alleging that 30 percent of the employees in an appropriate collective bargaining unit wish to be represented for the purpose of collective bargaining by such organization, which petition shall describe the grouping of jobs or positions which constitute the unit claimed to be appropriate, shall be supported by credible evidence in accordance with rules prescribed by the Commission demonstrating the claimed employee support, and shall indicate the name, address, and telephone number of any other interested employee organization, if known to the requesting organization. The employer shall, at the direction of the Commission, post a copy of such request on a bulletin board at each facility in which members of the unit claimed to be appropriate are employed. The request shall remain posted for a period of 21 days from the date on which the Commission directs that it be posted. The Commission shall maintain a public docket of all requests filed under this section. Such docket shall contain a copy of the request but shall not include any accompanying evidence of support. The request shall remain on the public docket until the case is closed;

(2) an employer alleging that it has received a request for exclusive recognition from one or more employee organizations; or

(3) by one or more employees in an appropriate collective-bargaining unit asserting that the employees in an appropriate unit no longer desire a particular employee organization as their exclusive representative: Provided, That such petition is supported by signed statements to that effect from at least 30 percent of the employees in the appropriate collective-bargaining unit.

(d) Upon receipt of such a petition, the Commission or its agents shall conduct such inquiries and investigations or hold such hearings as it shall deem necessary in order to decide the question raised by the petition. The Commission’s determination may be based upon the evidence adduced in such inquiries, investigations, or hearings as it or its agents shall make or hold or upon the results of a secret ballot election as it shall direct and conduct if deemed necessary: Provided, That employee organization shall appear on a ballot unless it submits credible evidence demonstrating that at least 10 percent of the employees in the appropriate collective bargaining unit desire it as their exclusive representative: Provided further, That whenever one or more additional employee organizations has filed a timely request to intervene in the proceedings, which request is supported by credible evidence demonstrating that at least 10 percent of the employees in the appropriate collective bargaining unit desire it as their exclusive representative, the Commission shall direct an election by secret ballot and shall certify the results thereof: Provided further, That the Commission shall dismiss

without determining the questions raised therein any petition filed pursuant to subsection (c) of this section if--

(1) the petition is filed pursuant to subsection (c)(1) and is not supported by credible evidence demonstrating that at least 30 percent of the employees in the collective-bargaining unit described therein wish to be represented for the purpose of collective bargaining by the organization seeking recognition;

(2) there is currently in effect a lawful written collective-bargaining agreement between such employer and employee organization other than the petitioner covering any employees included in the unit described in the petition, unless such agreement has been in effect for more than three years, or unless the request for recognition if filed less than sixty days prior to the said expiration date as the Commission may determine is reasonable because of the budget-making procedure of the employer;

(3) within the previous 12 months an employee organization other then the petitioner, or other than the employee organization challenged if the petition if filed pursuant to subsection (c)(3), has been lawfully recognized or certified as the exclusive representative of any employees included in the unit described in the petition; or

(4) the Commission has, within the previous 12 months, conducted a secret ballot election involving any employee included in the unit described in the petition in which a majority of the valid ballot cast chose not to be represented by any employee organization.

(e) The Commission shall certify an employee organization as the exclusive representative of the employee in an appropriate collective-bargaining unit if--

(1) the organization receives a majority of the valid ballots cast in an election conducted pursuant to subsection (d) of this section;

(2) the Commission determines, as provided in subsection (d) of this section, without an election that the organization represents an uncoerced majority of the employees in such unit and that such majority status was achieved without the benefit of unlawful employer assistance as defined in section 10(a) of this Act or that the organization would represent such an uncoerced majority if the employer had not engaged in unlawful acts as defined in section 10(a) of this Act; or

(3) upon request of an employee’s organization that has been recognized by an employer pursuant to subsection (b) of this section, the Commission is satisfied that the organization represents an uncoerced majority of employees in such unit and that such majority status was achieved without the benefit of unlawful employer assistance as defined in section 10(a) of this Act.

(f) In each case where the appropriateness of the claimed unit is in issue, the Commission shall decide the question on the basis of the community of interest among the public employees; wages, hours and other working conditions of the public employees involved; the history of collective bargaining; the efficiency of the operations and the administrative structure of the public employer; and the adverse effect of overfragmentation: Provided, That--

(1) except in regard to firefighters and public safety officers, a unit shall not be considered appropriate if it includes both supervisors and nonsupervisors; in regard to firefighters, a unit that includes both supervisors and nonsupervisors may be considered appropriate; and in regard to public safety officers, a unit that includes both supervisors and nonsupervisors may be considered appropriate if a majority of the employees in each category indicate by vote or other credible evidence that they desire to be included in such unit; and

(2) a unit including both professionals and nonprofessionals shall not be appropriate unless a majority of the employees in each category indicate by vote or other credible evidence that they desire to be included in such unit.

(g) A determination by the Commission that an employee organization has been selected as the exclusive representative for the employees in an appropriate unit shall not be subject to judicial review or other collateral attack.

SEC. 205. IMPASSE IN COLLECTIVE BARGAINING OVER THE TERMS AND CONDITIONS OF EMPLOYMENT AND OTHER MATTERS OF MUTUAL CONCERN RELATING THERETO.

(a) Either an employer or an exclusive representative may declare that an impasse has been reached between them in collective bargaining over the terms and conditions of employment and other matters of mutual concern relating thereto, and may request the Service to appoint a mediator for the purpose of assisting them in reconciling their differences and resolving the controversy on terms which are mutually acceptable. If the Service determines that an impasse exists, it shall, in no event later than five days after the receipt of a request, appoint a mediator in accordance with rules and regulations for such appointment prescribed by the Service. The Service may, on its own volition, declare impasse has been reached in collective bargaining over the terms and conditions of employment and other matters of mutual concern relating thereto and appoint a mediator. The mediator shall meet with the parties or their representatives, or both, forthwith, either jointly or separately, and shall take such other steps as he or she may deem appropriate in order to persuade the parties to resolve their differences and effect a mutually acceptable agreement: Provided, That the mediator shall not, without the consent of both parties, make findings of fact or recommend terms of settlement. The services of the mediator, including, if any, per diem expenses, shall be provided by the Service without cost to the parties. Nothing in this subsection shall be construed to prevent the parties from mutually agreeing upon their own mediation procedure and in the event of such agreement, the Service shall not appoint its own mediator unless failure to do so would be inconsistent with the effectuation of the purpose and policy of this Act. Representatives of the employer and the exclusive representative have a mutual obligation to meet for negotiations at reasonable times in light of the budgetmaking process.

(b)(1) If the mediator is unable to effect settlement of the controversy within 15 days after his or her appointment, either party may, by written notification to the other, request that their differences be submitted to factfinding with recommendations. Such recommendations shall be advisory only, unless within 5 days after giving or receiving the aforesaid written request, the exclusive representative notifies the employer, in writing, that it desires the recommendations of the fact finder to be binding. Within 10 days after receipt of the aforesaid written request for factfinding, the parties shall select a person to serve as fact finder and obtain a commitment from said person to serve. If they are unable to agree upon a fact finder or to obtain such a commitment within said time, either party may request the Service to designate a fact finder. The Service shall, within 5 days after receipt of such a request, designate a fact finder in accordance with rules and regulations for such designation prescribed by the Service. The fact finder so designated shall not, without the consent of both parties, be the same person who was appointed mediator pursuant to subsection (a) of this section.

(2) The fact finder shall, within 10 days after his or her appointment, meet with the parties of their representatives, or both, forthwith, either jointly or separately, and

may make inquiries and investigations, hold hearings, and take such other steps as he or she may deem appropriate. For the purpose of such hearings, investigations, and inquiries, the fact finder shall have the power to issue subpoenas requiring the attendance and testimony of witnesses and the production of evidence. The several departments, commissions, divisions, authorities, boards, bureaus, agencies, and officers of the United States or of the State, territory, or possession affected, or any political subdivision thereof, shall furnish the fact finder, upon his or her request, with all records, papers, and information in their possession relating to any matter under investigation by or in issue before the fact finder. If the dispute is not settled within thirty days after his or her appointment, the fact finder shall make findings of fact and recommend terms of settlement, which recommendations shall be advisory only, unless the exclusive representative has previously notified the employer that such recommendations are to be binding in which case they shall be binding.

(c) If the recommendations of the fact finder are binding--

(1) the exclusive representative shall be prohibited from engaging and employees shall be prohibited from participating in a strike for the purpose of resolving a dispute which has been submitted to the fact finder and in regard to which he or she has recommended terms of settlement and nothing contained in this Act or in any other law of the United States shall prevent a court from granting a restraining order or temporary or permanent injunction in a case involving a strike for such purpose; and

(2) the parties shall comply with the recommendations of the fact finder: Provided, That if the employer does not have the legal authority to comply with such recommendations or any part thereof, it shall take such actions as may be necessary to enable it to comply, including the submission of requests to appropriate legislative bodies.

(d) If the recommendations of the fact finder are advisory only, they shall, together with the findings of fact, be submitted in writing to the parties and the Service privately before they are made public. Either the Service, the fact finder, the employer, or the exclusive representative may make such findings and recommendations public if the dispute is not settled within 10 days after their receipt from the fact finder.

(e) The costs for the services of the fact finder, including, if any, per diem expenses and actual and necessary travel and subsistence expenses, and any other mutually incurred costs, shall be borne equally by the employer and the exclusive representative. Any individually incurred costs shall be borne by the party incurring them.

(f) Nothing in this section shall be construed to prohibit an employer and an exclusive representative from agreeing to substitute their own procedure for resolving impasse in collective bargaining for that provided herein or from agreeing to utilize for the purposes of this section any other governmental or other agency or person in lieu of the Service.

SEC. 206. DISPUTES OVER THE INTERPRETATION OR APPLICATION OF AGREEMENTS.

(a) An employer and an exclusive representative who enter into an agreement covering terms and conditions of employment and other matters of mutual concern relating thereto may include in such agreement procedures for binding arbitration of such disputes as may arise involving the interpretation or application of such agreement or of established policies or practices of such employer affecting terms and conditions of employment and other matters of mutual concern relating thereto.

(b) If such agreement does not include procedures of the type provided for in subsection (a) of this section, either party to the agreement may submit such disputes to binding arbitration pursuant to rules and regulations prescribed for such purpose by the Commission.

(c) Where a party to such agreement is aggrieved by the failure, neglect, or refusal of the other party to proceed to arbitration pursuant to the procedures provided therefor in such agreement or pursuant to subsection (b) of this section, such aggrieved party may file a complaint in the appropriate district court of the United States or the appropriate court of the affected State, territory, or possession of the United States for a summary action without jury seeking an order directing that the arbitration proceed pursuant to the procedures provided therefor in such agreement or pursuant to subsection (b) of this section.

(d) Unless the award of the arbitrator is deficient because--

(1) it was procured by corruption, fraud, or other misconduct;

(2) of partiality of the arbitrator; or

(3) the arbitrator exceeded his or her powers or so imperfectly executed them that a final and definite award upon the subject matter was not made, such award shall be final and binding upon the parties and may be enforced by the appropriate district court of the United States or the appropriate court

of the affected State, territory, or possession of the United States.

SEC. 207. STRIKES.

(a) Except as otherwise expressly provided in subsections (b) and (c) of this section and in Section 209 and in subsection (c) of section 7, nothing in this Act or in any other law or enactment of the United States, or of any State, territory, or possession of the United States, or any political subdivision thereof, shall be construed to interfere with, impede, or diminish the right of an exclusive representative to engage or of an employee to participate in a strike arising out of or in connection with a labor dispute.

(b) A restraining order or temporary or permanent injunction may be granted in a case involving a strike by an exclusive representative arising out of or in connection with a labor dispute, only on the basis of findings of fact made by the appropriate district court of the United States after due notice and hearing prior to the issuance of such restraining order or injunction that--

(1) the commencement or continuance of such strike poses a clear and present danger to the public health or safety which in light of all relevant circumstances it is in the best public interest to prevent: Provided, That any restraining order or injunction issued by a court for this reason shall prohibit only such specific act or acts as shall be expressly determined in said findings of fact to pose such clear and present danger and shall remain in effect only for so long as such clear and present danger continues to exist; or

(2) the exclusive representative has failed to make a reasonable effort to utilize the procedures provided in section 7 of this Act for the resolution of impasse in collective bargaining: Provided, That any restraining order or injunction issued by a court for this reason shall indicate the specific act or acts which the representative has failed to perform and shall remain in effect only until said act or acts shall have been performed.

(c) Nothing contained in this Act shall prevent a court from granting a restraining order or temporary or permanent injunction in a case involving a strike in violation of any lawful provision of an agreement covering terms and conditions of employment and other matters of mutual concern relating thereto.

SEC. 208. IMPASSE PROCEDURES FOR FIREFIGHTERS AND PUBLIC SAFETY OFFICERS.

(a) ARBITRATION PANEL-

(1) If an employer or an exclusive representative declares that an impasse exists on any issue later than 60 days after the date on which collective bargaining proceedings begin, the issue of dispute shall be brought before an arbitration panel for a final and binding resolution. Such panel shall be comprised of 3 arbitrators--

(A) one appointed by the employer and one appointed by the exclusive representative within 15 days after the date of request by the party declaring impasse; and

(B) an impartial arbitrator (who shall serve as chair) selected by the arbitrators appointed under subparagraph (A) within 5 days after the date of their appointment.

(2) In the event that the arbitrators appointed under paragraph (1)(A) are unable to agree on the selection of the impartial arbitrator, such arbitrators shall immediately request a panel of arbitrators from the Federal Mediation and Conciliation Service. Each such arbitrator shall advise the Service of his or her order of preference within 5 days after receipt of the names on the panel and appointment of the third arbitrator shall then be made in accordance with the procedure outlined in section 1401.13(b)(2) of title 29, Code of Federal Regulations.

(3) The arbitration panel shall conduct a hearing, within 14 days after the date of appointment of its chair, at a place within the locality of the municipal government involved, where feasible. The chair shall notify the representatives of the employer and the exclusive representative as to date and place of such hearing not less than 7 days before the date on which the hearing is to be conducted.

(b) HEARING BEFORE ARBITRATION PANEL-

(1) The chair shall preside over the hearing and shall take testimony. Upon application and for good cause shown, a person, labor organization or governmental unit having substantial interest in the proceedings may be granted leave to intervene by the arbitration panel. The proceedings shall be informal. Any oral or documentary evidence and other data deemed relevant by the arbitration panel may be received into evidence.

(2) The arbitrators shall have the power to administer oaths and to require by subpoenas the attendance and testimony of witnesses, the production of books, records, and other evidence relative to or

pertinent to the issues presented to them for determination.

(3) If any person refuses to obey a subpoena, or refuses to be sworn or to testify, or if any witness, party or attorney is guilty of any contempt while in attendance at any hearing, the arbitration panel shall invoke the aid of the district court of the United States within the jurisdiction in which the hearing is being held. Such court shall issue an appropriate order.

(c) RECORD AND TRANSCRIPTS; DECISION-

(1) A record of the proceedings shall be kept, and the chair shall arrange for the necessary recording service. Transcripts may be ordered at the expense of the party ordering them, but the transcripts shall not be necessary for an award by the panel. The hearing may be continued at the discretion of the panel, but shall be concluded within 30 days after the time of commencement. At the conclusion of the hearing, each party shall submit a written statement containing its final position with respect to each of the issues in dispute to the panel, which shall take such statements under advisement.

(2) Within 10 days after conclusion of the hearing, a majority of the panel shall issue a statement

of its findings and conclusions and shall give written notice of the panel’s decision of the issue or issues at impasse. The decision of the panel shall be final and binding upon the parties and upon the appropriate legislative body.

(d) AWARDS; ENFORCEMENT- Any award of the arbitration panel may be retroactive to the expiration date of the last contract. If an employer or an exclusive representative willfully disobeys a lawful decision of the arbitration panel or willfully encourages or offers resistance to such order, the other party may seek enforcement of the order in the district court of the United States within the jurisdiction in which the hearing is held.

(e) ARBITRATION COSTS- The costs of arbitration shall be shared equally by the parties, including any intervenor.

SEC. 209. STRIKES AND FIREFIGHTERS AND PUBLIC SAFETY OFFICERS.

No firefighter or public safety officer or exclusive representative thereof shall engage in a strike or induce, encourage or condone any strike, work stoppage, slowdown, or withholding of service by fire fighters or public safety officers.

SEC. 210. UNLAWFUL ACTS.

(a) It shall be unlawful for an employer to--

(1) impose or threaten to impose reprisals on any employee, discriminate, or threaten to discriminate against any employee or otherwise interfere with, restrain, or coerce any employee because of his or her exercise of rights guaranteed by this Act;

(2) dominate, interfere with, or assist in the formation or administration of any employee organization;

(3) encourage or discourage membership in any employee organization by discrimination in regard to hire, tenure of employment, or any term or condition of employment: Provided, That nothing contained in this subsection shall prevent an employer from requiring, as a condition of continued employment, payment to or membership in an exclusive representative pursuant to section 5(c) and section 5(d) of this Act, respectively: Provided further, That no employer shall justify any discrimination against any employee for non-membership in any employee organization if he or she has reasonable grounds for believing such membership was--

(A) not available to the employee on the same terms and conditions generally applicable to other members; or

(B) denied or terminated for reasons other than the failure of the employee to tender the dues, fees, and assessments uniformly required as a condition of acquiring or retaining membership;

(4) deny to any employee organization the rights guaranteed to it by this Act;

(5) refuse to bargain in good faith with an exclusive representative if requested to do so; or

(6) fail to comply with any provision of this Act.

(b) It shall be unlawful for--

(1) an employee organization to restrain or coerce any employee in the exercise of the rights guaranteed to him or her by this Act: Provided, That this subsection shall not impair the right of an employee organization to prescribe its own rules with respect to the acquisition or retention of membership therein;

(2) an employee organization to restrain or coerce an employer in the selection of its representative for the purpose of collective bargaining or the adjustment of grievances; or

(3) an exclusive representative to refuse or fail to bargain in good faith with an employer if requested to do so.

SEC. 211. PREVENTION OF UNLAWFUL ACTS.

(a) The Commission is empowered, as hereinafter provided, to prevent any person from engaging in any unlawful act as defined in section 10 of this Act. This power shall not be affected by any other means of adjustment or prevention that has been or may be established by agreement, law, or otherwise.

(b) Whenever it is charged that any person has engaged in or is engaging in any such unlawful act, the Commission or any agent or agency designated by the Commission for such purpose, shall have the power to issue and cause to be served upon such person a complaint stating the charges in that respect, and containing a notice of hearing before the Commission or a member thereof, or before a designated agent or agency, at a place therein fixed, not less than five days after the serving of said complaint: Provided, That no complaint shall issue based upon any unlawful act occurring more than 6 months prior to the filing of the charge with the Commission and the service of a copy thereof upon the person against whom such charge is made, unless the person aggrieved thereby was prevented from filing such a charge by reason of service in the Armed Forces, in which event the 6-month period shall be computed from the date of his or her discharge. Any such complaint may be amended by the member, agent, or agency conducting the hearing or the Commission in its discretion at any time prior to the issuance of an order based thereon: Provided further, That the person complained of is not unfairly prejudiced by such amendment. The person so complained of shall have the right to file an answer to the original or amended complaint and to appear in person or otherwise and give testimony at the time and place fixed in the complaint. In the discretion of the member, agent, or agency conducting the hearing or the Commission, any other person may be allowed to intervene in the said proceeding and to present testimony. Any such proceeding shall, so far as practicable, be conducted in accordance with the provisions of subchapter II of chapter 5 of title 5, United States Code: Provided further, That the rules of evidence, whether statutory, common law, or adopted by rules of court, shall not be controlling.

(c) The testimony taken by such member, agent, or agency of the Commission shall be reduced to writing and filed with the Commission. Thereafter, in its discretion, the Commission, upon notice, may take further testimony or hear argument. If upon the preponderance of the testimony taken, the Commission shall be of the opinion that

any person named in the complaint has engaged in or is engaging in any such unlawful act, then the Commission shall state its findings of fact and shall issue and cause to be served upon such person, an order requiring such person to cease and desist from such unlawful act, and to take such affirmative action as will effectuate the purpose and policy of this Act, including the payment of damages and/or the reinstatement of employees: Provided, That where an order directs reinstatement of an employee, back pay may be required of the employer and/or the employee organization, as the case may be, responsible for the discrimination suffered by him or her. Such order may further require such person to make reports from time to time showing the extent to which it has complied with the order. If upon the preponderance of the testimony taken the Commission shall not be of the opinion that the person named in the complaint has engaged in or is engaging in any such unlawful act, then the Commission shall state its findings of fact and shall issue an order dismissing the said complaint. No order of the Commission shall require the reinstatement of any individual as an employee who has been suspended or discharged, or the payment to him or her of any back pay, if such individual was suspended or discharged for cause. In case the evidence is presented before a member of the Commission, or before an agent or agency thereof, as the case may be, shall issue and cause to be served upon the parties to the proceeding a proposed report, together with a recommended order, which shall be filed with the Commission and if no exceptions are filed within twenty days after service thereof upon such parties, or with such further period as the Commission may authorize, such recommended order shall become the order of the Commission and become effective as therein prescribed.

(d) If exceptions are filed to the proposed report and recommended order, the Commission shall determine whether such exceptions raise substantial issues of fact or law. If it determines that the exceptions do raise such issues, it shall grant a review. If the Commission determines that the exceptions do not raise such issues, it shall refuse to grant a review, and such recommended order shall become the order of the Commission, and become effective as therein provided.

(e) Until the record in a case shall have been filed in a court, as hereinafter provided, the Commission may at any time, upon reasonable notice and in such manner as it shall deem proper, modify, or set aside, in whole or in part, any finding or order made or issued by it.

(f) The Commission or the charging party shall have power to petition any court of appeals of the United States in the circuit, wherein the unlawful act in question occurred or wherein the person named in the complaint resides or transacts business, for the enforcement of such order and for appropriate temporary relief or restraining order, and shall file in the court the record in the proceedings, as provided in section 2112 of title 28, United States Code. Upon the filing of such petition, the court shall cause notice thereof to be served upon such person, and thereupon shall have jurisdiction of the proceeding and of the question determined therein, and shall have power to grant such temporary relief or restraining order as it deems just and proper, and to make and enter a decree enforcing, modifying, and enforcing as so modified, or setting aside in whole or in part the order of the Commission. No objection that has not been urged before the Commission, or its member, agent, or agency, shall be considered by the court, unless the failure of neglect to urge such objection shall be excused because of extraordinary circumstances. The findings of the Commission with respect to questions of fact, if supported by substantial evidence on the record considered as a whole shall be conclusive. If any person 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 Commission, or its member, agent, or agency, the court may order such additional evidence to be taken before the Commission, or its member, agent, or agency, and to be made a part of the record. The Commission 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 Supreme Court of the United States upon writ of certiorari or certification as provided in section 1254 of title 28, United States Code.

(g) Any person aggrieved by a final order of the Commission granting or denying, in whole or in part, the relief sought may obtain a review of such order in any circuit court of appeals of the United States in the circuit wherein the unlawful act in question was alleged to have occurred or wherein such person resides or transacts business, or in the United States Court of Appeals for the District of Columbia, by filing in such court within 60 days, a written petition praying that the order of the Commission be modified or set aside. A copy of such petition shall be forthwith transmitted by the clerk of the court to the Commission, and thereupon the aggrieved person shall file in the court the record of the proceeding, certified by the Commission, as provided in section 2112 of title 28, United States Code. Upon the filing of such petition, the court shall proceed in the same manner as in the case of an application by the Commission under subsection (e) of this section, and shall have the same jurisdiction to grant to the Commission such temporary relief or restraining order as it deems just and proper, and in like manner to make and enter a decree enforcing, modifying, and enforcing as so modified, or setting aside, in whole or in part, the order of the Commission. The findings of the Commission with respect to questions of fact, if supported by substantial evidence on the record considered as a whole, shall in like manner be conclusive.

(h) In any proceeding for enforcement or review of a Commission order held pursuant to this section, evidence adduced during a representation proceeding held pursuant to section 6 of the Act shall not be included in the record required to be filed under section 11(f) and (g) of the Act, nor shall the court consider the record of such proceeding.

(i) The commencement of proceedings under subsection (e) or (f) of this section shall not, unless specifically ordered by the court, operate as a stay of the Commission’s order.

(j) When granting temporary relief or restraining order, or making and entering a decree enforcing, modifying, and enforcing as so modified, or setting aside in whole or in part, an order of the Commission, as provided in this section, the jurisdiction of courts sitting in equity shall not be limited by the provisions of section 20 of the Act entitled ‘An Act to supplement existing laws against unlawful restraints and monopolies and for other purposes’, approved October 15, 1914, as amended (29 U.S.C. 52), or the provisions of the Act entitled ‘An Act to amend the Judicial Code and to define and limit the jurisdiction of courts sitting in equity, and for other purposes’, approved March 23, 1932 (29 U.S.C. 101-115).

(k) Petitions filed under this Act shall be heard expeditiously, and if possible within 10 days after they have been docketed.

(l) The Commission shall have power, upon issuance of a complaint as provided in subsection (b) of this section charging that any person has engaged in or is engaging

in an unlawful act as defined in section 10 of this Act, to petition any district court of the United States (including the District Court of the United States for the District of Columbia), within any district wherein the unlawful act in question is alleged to have occurred or wherein such person resides or transacts business, for appropriate temporary relief or restraining order. Upon the filing of any such petition the court shall cause notice thereof to be served upon such person, and thereupon shall have jurisdiction to grant to the Commission such temporary relief or restraining order as it deems just and proper.

(m)(1) For the purpose of all hearings and investigations which the Commission determines are necessary and proper for the exercise of its powers under this Act, the Commission or its duly authorized agent or agency shall at all reasonable times have access to, for the purpose of examination, and the right to copy any evidence of any person being investigated or proceeded against that relates to any matter under investigation or in question. The Commission, or any member thereof, shall upon application of any party to such proceeding, forthwith issue to such party subpoenas requiring the attendance and testimony of witnesses or the production of any evidence in such proceeding or investigation requested in such application. Within 5 days after the service of a subpoena upon any person requiring the production of any evidence in his or her possession or under his or her control, such person may petition the Commission to revoke, and the Commission shall revoke, such subpoena if in its opinion the evidence whose production is required does not relate to any matter under investigation, or any matter in question in such proceeding, or if in its opinion such subpoena does not describe with sufficient particularity the evidence whose production is required. Any member of the Commission, or any agent or agency designated by the Commission for such purposes, may administer oaths and affirmations, examine witnesses, and receive evidence. Such attendance of witnesses and the production of such evidence may be required from any place in any State, territory, or possession of the United States, at any designated place of hearing.

(2) In case of contumacy or refusal to obey a subpoena issued to any person, any district court of the United States, including the District Court of the United States for the District of Columbia, or the United States courts of any territory or possession, within the jurisdiction of which the inquiry is carried on or within the jurisdiction of which said person guilty of contumacy or refusal to obey is found or resides or transacts business, upon application by the Commission shall have jurisdiction to issue to such person an order requiring such person to appear before the Commission, its member, agent, or agency, there to produce evidence if so ordered, or there to give testimony touching the matter under investigation or in question; and any failure to obey such order of the court may be punished by said court as a contempt thereof.

(3) Nor person shall be excused from attending and testifying or from producing books, records, correspondence, documents, or other evidence in obedience to subpoena of the Commission, on the ground that the testimony or evidence required of him or her may tend to incriminate him or her or subject him or her to a penalty of forfeiture; but no individual shall be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter, or thing concerning which he or she is compelled, after having claimed his or her privilege against self-incrimination, to testify or produce evidence, except that such individual so testifying shall not be exempt from prosecution and punishment for perjury committed in so testifying.

(4) Complaints, orders, and other process and papers of the Commission, its member, agent, or agency, may be served either personally, by registered mail, by telegraph, or by leaving a copy thereof at a the principal office or place of business of the person required to be served. The verified return by the individual so serving the same setting forth the manner of such service shall be proof of the same, and the return post office receipt or telegraph receipt therefor when registered and mailed or telegraphed as aforesaid shall be proof of service of the same. Witnesses summoned before the Commission, its members, agent, or agency shall be paid the same fees and mileage that are paid witnesses in the courts of the United States, and witnesses whose depositions are taken and the persons taking the same shall be entitled to the same fees as are paid for like services in the courts of the United States.

(5) All process of any court to which application may be made under this Act may be served in the judicial district wherein the defendant or other person required to be served resides or may be found.

(6) Any person who shall willfully resist, prevent, impede, or interfere with any member of the Commission of a member, agent, or agency thereof in the performance of duties pursuant to this Act shall be punished by a fine of not more than $5,000 or by imprisonment for not more than one year, or both.

SEC. 212. APPLICABILITY OF THIS ACT.

Nothing in this law shall preclude or limit any State from adopting rules by law or regulation that give employees additional rights than those required by this Act.

SEC. 213. MISCELLANEOUS.

(a) Except as otherwise expressly provided herein, nothing in this Act shall be construed to annul, modify, or preclude the renewal or continuation of any lawful agreement entered into prior to the effective date of this Act between an employer and an employee organization covering terms and conditions of employment and other matters of mutual concern relating thereto.

(b) All laws or parts of laws of the United States inconsistent with the provisions of this Act are modified or repealed as necessary to remove such inconsistency, and this Act shall take precedence over all ordinances, rules, regulations, or other enactments of any State, territory, or possession of the United States or any political subdivision thereof. Except as otherwise expressly provided herein, nothing contained in this Act shall be construed to deny or otherwise abridge any rights, privileges, or benefits granted by law to employees.

(c) If any provision of this Act shall be held invalid, other provisions of this Act shall not be affected thereby.

SEC. 214. EFFECTIVE DATE.

The Act shall take effect 120 days following its enactment.

TITLE III--GENERAL PROVISIONS REGARDING PENSION PLANS

SEC. 301. REQUIREMENTS RELATING TO TRUSTEESHIP OF SINGLE-EMPLOYER PLANS.

(a) IN GENERAL- Section 403(a) of the Employee Retirement Income Security Act of 1974 (29 U.S.C. 1103(a)) is amended--

(1) by redesignating paragraphs (1) and (2) as subparagraphs (A) and (B), respectively;

(2) by inserting ‘(1)’ after ‘(a)’; and

(3) by adding at the end the following new paragraph:

‘(2)(A) The assets of a single-employer plan shall be held in trust by a joint board of trustees, which shall consist of 2 or more trustees representing on an equal basis the interests of the employer or employers maintaining the plan and the interests of the participants and their beneficiaries.

‘(B)(i) Except as provided in clause (ii), in any case in which the plan is maintained pursuant to one or more collective bargaining agreements between one or more employee organizations and one or more employers, the trustees representing the interests of the participants and their beneficiaries shall be designated by such employee organizations.

‘(ii) Clause (i) shall not apply with respect to a plan described in such clause if the employee organization (or all employee organizations, if more than one) referred to in such clause file with the Secretary, in such form and manner as shall be prescribed in regulations of the Secretary, a written waiver of their rights under clause (i).

‘(iii) In any case in which clause (i) does not apply with respect to a single-employer plan because the plan is not described in clause (i) or because of a waiver filed pursuant to clause (ii), the trustee or trustees representing the interests of the participants and their beneficiaries shall consist of 1 or more participants under the plan elected to serve as such in accordance with this clause. The Secretary shall provide by regulation for a secret ballot of the participants under the plan for the purposes of such election, and for certification of the results thereof to the participants (and any employee organization referred to in clause (ii)) and to the employer.’.

SEC. 302. EFFECTIVE DATE.

The amendments made by section 1 shall apply with respect to plan years beginning after 180 days after the date of the enactment of this Act. The Secretary of Labor shall prescribe the initial regulations necessary to carry out the provisions of such amendments not later than 90 days after the date of the enactment of this Act.

Loading...