Amends the Labor-Management Reporting and Disclosure Act of 1959 to prescribe whistleblower protections that prohibit a labor organization from discriminating against any of its employees who has: (1) provided information to the labor organization, the Department of Labor, or any other state, local, or federal government authority or law enforcement agency regarding any violation of the Act or any Department or National Labor Relations Board (NLRB) order; (2) testified in any Department or NLRB administrative or enforcement proceeding; (3) filed or instituted any such proceeding; or (4) refused to perform an assigned task that the employee reasonably believed to be in violation of any law, order, or prohibition enforced by the Department or the NLRB.
Prescribes procedures for filing and processing complaints for violations of this Act.
Declares that nothing in this Act shall be construed to: (1) limit employees to remove elected or appointed union officials through a democratic election; or (2) preempt a state or local government from providing additional protections to such employees who allege a violation, provided such protections do not limit the ability of those employees to remove such officials through a democratic ballot.
[Congressional Bills 113th Congress]
[From the U.S. Government Publishing Office]
[H.R. 3637 Introduced in House (IH)]
113th CONGRESS
1st Session
H. R. 3637
To amend the Labor-Management Reporting and Disclosure Act of 1959 to
provide whistleblower protection for union employees.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
December 3, 2013
Mr. Salmon (for himself, Mr. DesJarlais, Mr. Bishop of Utah, Mr.
Huelskamp, Mr. Jordan, Mr. Bentivolio, Mr. Brooks of Alabama, Mr.
Fleming, Mr. Cramer, Mr. Schweikert, Mr. King of Iowa, Mr. Perry, Mrs.
Bachmann, Mr. Gohmert, Mr. LaMalfa, Mr. Price of Georgia, and Mr.
Gosar) introduced the following bill; which was referred to the
Committee on Education and the Workforce
_______________________________________________________________________
A BILL
To amend the Labor-Management Reporting and Disclosure Act of 1959 to
provide whistleblower protection for union employees.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. WHISTLEBLOWER PROTECTION FOR UNION EMPLOYEES.
The Labor-Management Reporting and Disclosure Act of 1959 (29
U.S.C. 401 et seq.) is amended--
(1) by redesignating section 611 (29 U.S.C. 531) as section
612; and
(2) by inserting after section 610 (29 U.S.C. 530), the
following new section:
``whistleblower protection for union employees
``Sec. 611. (a) In General.--No labor organization shall terminate
or in any other way discriminate against, or cause to be terminated or
discriminated against, any covered employee of the labor organization
by reason of the fact that such employee, whether at the initiative of
the employee or in the ordinary course of the duties of the employee
(or any person acting pursuant to a request of the employee), has--
``(1) provided, caused to be provided, or is about to
provide or cause to be provided, information to the labor
organization, the Department of Labor, or any other State,
local, or Federal government authority or law enforcement
agency relating to any violation of, or any act or omission
that the employee reasonably believes to be a violation of, any
provision of this Act or any other provision of law that is
subject to the jurisdiction of the Department of Labor, the
National Labor Relations Board, or any rule, order, standard,
or prohibition prescribed by the Department of Labor or the
National Labor Relations Board;
``(2) testified or will testify in any proceeding resulting
from the administration or enforcement of any provision of this
Act or any other provision of law that is subject to the
jurisdiction of the Department of Labor or National Labor
Relations Board, or any rule, order, standard, or prohibition
prescribed by the Department of Labor or the National Labor
Relations Board;
``(3) filed, instituted, or caused to be filed or
instituted any proceeding under this Act; or
``(4) objected to, or refused to participate in, any
activity, policy, practice, or assigned task that the employee
(or other such person) reasonably believed to be in violation
of any law, rule, order, standard, or prohibition, subject to
the jurisdiction of, or enforceable by, the Department of Labor
or the National Labor Relations Board.
``(b) Definition of Covered Employee.--For the purposes of this
section, the term `covered employee' means any employee of a labor
organization who receives financial compensation for his or her
services to the labor organization, including officers of the labor
organization.
``(c) Procedures and Timetables.--
``(1) Complaint.--
``(A) In general.--A person who believes that he or
she has been discharged or otherwise discriminated
against by any person in violation of subsection (a)
may file (or have any person file on his or her behalf)
a complaint with the Secretary of Labor alleging such
discharge or discrimination and identifying the person
responsible for such act. Such a complaint must be
filed not later than either--
``(i) 180 days after the date on which such
alleged violation occurs; or
``(ii) 180 days after the conclusion of any
internal appeals, review, or other judicial or
investigative process conducted by the labor
organization employing such person.
``(B) Actions of secretary of labor.--Upon receipt
of such a complaint, the Secretary of Labor shall
notify, in writing, the person named in the complaint
who is alleged to have committed the violation, of--
``(i) the filing of the complaint;
``(ii) the allegations contained in the
complaint;
``(iii) the substance of evidence
supporting the complaint; and
``(iv) opportunities that will be afforded
to such person under paragraph (2).
``(2) Investigation by secretary of labor.--
``(A) In general.--Not later than 60 days after the
date of receipt of a complaint filed under paragraph
(1), and after affording the complainant and the person
named in the complaint who is alleged to have committed
the violation that is the basis for the complaint an
opportunity to submit to the Secretary of Labor a
written response to the complaint and an opportunity to
meet with a representative of the Secretary of Labor to
present statements from witnesses, the Secretary of
Labor shall--
``(i) initiate an investigation and
determine whether there is reasonable cause to
believe that the complaint has merit; and
``(ii) notify the complainant and the
person alleged to have committed the violation
of subsection (a), in writing, of such
determination.
``(B) Notice of relief available.--If the Secretary
of Labor concludes that there is reasonable cause to
believe that a violation of subsection (a) has
occurred, the Secretary of Labor shall, together with
the notice under subparagraph (A)(ii), issue a
preliminary order providing the relief prescribed by
paragraph (4)(B).
``(C) Request for hearing.--Not later than 30 days
after the date of receipt of notification of a
determination of the Secretary of Labor under this
paragraph, either the person alleged to have committed
the violation or the complainant may file objections to
the findings or preliminary order, or both, and request
a hearing on the record. The filing of such objections
shall not operate to stay any reinstatement remedy
contained in the preliminary order. Any such hearing
shall be conducted expeditiously, and if a hearing is
not requested in such 30-day period, the preliminary
order shall be deemed a final order that is not subject
to judicial review.
``(3) Grounds for determination of complaints.--
``(A) In general.--The Secretary of Labor shall
dismiss a complaint filed under this subsection, and
shall not conduct an investigation otherwise required
under paragraph (2), unless the complainant makes a
prima facie showing that any behavior described in
paragraphs (1) through (4) of subsection (a) was a
contributing factor in the unfavorable personnel action
alleged in the complaint.
``(B) Rebuttal evidence.--Notwithstanding a finding
by the Secretary of Labor that the complainant has made
the showing required under subparagraph (A), no
investigation otherwise required under paragraph (2)
shall be conducted, if the labor organization
demonstrates, by clear and convincing evidence, that
the labor organization would have taken the same
unfavorable personnel action in the absence of that
behavior.
``(C) Evidentiary standards.--The Secretary of
Labor may determine that a violation of subsection (a)
has occurred only if the complainant demonstrates that
any behavior described in paragraphs (1) through (4) of
subsection (a) was a contributing factor in the
unfavorable personnel action alleged in the complaint.
Relief may not be ordered under subparagraph (A) if the
labor organization demonstrates by clear and convincing
evidence that the labor organization would have taken
the same unfavorable personnel action in the absence of
that behavior.
``(4) Issuance of final orders; review procedures.--
``(A) Timing.--Not later than 120 days after the
date of conclusion of any hearing under paragraph (2),
the Secretary of Labor shall issue a final order
providing the relief prescribed by this paragraph or
denying the complaint. At any time before issuance of a
final order, a proceeding under this subsection may be
terminated on the basis of a settlement agreement
entered into by the Secretary of Labor, the
complainant, and the person alleged to have committed
the violation.
``(B) Penalties.--
``(i) Order of secretary of labor.--If, in
response to a complaint filed under paragraph
(1), the Secretary of Labor determines that a
violation of subsection (a) has occurred, the
Secretary of Labor shall order the person who
committed such violation--
``(I) to take affirmative action to
abate the violation;
``(II) to reinstate the complainant
to his or her former position, together
with compensation (including back pay)
and restore the terms, conditions, and
privileges associated with his or her
employment; and
``(III) to provide compensatory
damages to the complainant.
``(ii) Penalty.--If an order is issued
under clause (i), the Secretary of Labor, at
the request of the complainant, shall assess
against the person against whom the order is
issued, a sum equal to the aggregate amount of
all costs and expenses (including attorney fees
and expert witness fees) reasonably incurred,
as determined by the Secretary of Labor, by the
complainant for, or in connection with, the
bringing of the complaint upon which the order
was issued.
``(C) Penalty for frivolous claims.--If the
Secretary of Labor finds that a complaint under
paragraph (1) is frivolous or has been brought in bad
faith, the Secretary of Labor may award to the
prevailing labor organization a reasonable attorney
fee, not exceeding $1,000, to be paid by the
complainant.
``(D) De novo review.--
``(i) Failure of the secretary to act.--If
the Secretary of Labor has not issued a final
order within 210 days after the date of filing
of a complaint under this subsection, or within
90 days after the date of receipt of a written
determination, the complainant may bring an
action at law or equity for de novo review in
the appropriate district court of the United
States having jurisdiction, which shall have
jurisdiction over such an action without regard
to the amount in controversy, and which action
shall, at the request of either party to such
action, be tried by the court with a jury.
``(ii) Procedures.--A proceeding under
clause (i) shall be governed by the same legal
burdens of proof specified in paragraph (3).
The court shall have jurisdiction to grant all
relief necessary to make the employee whole,
including injunctive relief and compensatory
damages, including--
``(I) reinstatement with the same
seniority status that the employee
would have had, but for the discharge
or discrimination;
``(II) the amount of back pay, with
interest; and
``(III) compensation for any
special damages sustained as a result
of the discharge or discrimination,
including litigation costs, expert
witness fees, and reasonable attorney
fees.
``(E) Other appeals.--Unless the complainant brings
an action under subparagraph (D), any person adversely
affected or aggrieved by a final order issued under
subparagraph (A) may file a petition for review of the
order in the United States Court of Appeals for the
circuit in which the violation with respect to which
the order was issued, allegedly occurred or the circuit
in which the complainant resided on the date of such
violation, not later than 60 days after the date of the
issuance of the final order of the Secretary of Labor
under subparagraph (A). Review shall conform to chapter
7 of title 5, United States Code. The commencement of
proceedings under this subparagraph shall not, unless
ordered by the court, operate as a stay of the order.
An order of the Secretary of Labor with respect to
which review could have been obtained under this
subparagraph shall not be subject to judicial review in
any criminal or other civil proceeding.
``(5) Failure to comply with order.--
``(A) Actions by the secretary.--If any person has
failed to comply with a final order issued under
paragraph (4), the Secretary of Labor may file a civil
action in the United States district court for the
district in which the violation was found to have
occurred, or in the United States district court for
the District of Columbia, to enforce such order. In
actions brought under this paragraph, the district
courts shall have jurisdiction to grant all appropriate
relief including injunctive relief and compensatory
damages.
``(B) Civil actions to compel compliance.--A person
on whose behalf an order was issued under paragraph (4)
may commence a civil action against the person to whom
such order was issued to require compliance with such
order. The appropriate United States district court
shall have jurisdiction, without regard to the amount
in controversy or the citizenship of the parties, to
enforce such order.
``(C) Award of costs authorized.--The court, in
issuing any final order under this paragraph, may award
costs of litigation (including reasonable attorney and
expert witness fees) to any party, whenever the court
determines such award is appropriate.
``(D) Mandamus proceedings.--Any nondiscretionary
duty imposed by this section shall be enforceable in a
mandamus proceeding brought under section 1361 of title
28, United States Code.
``(d) Limitation of Preemption.--Nothing in this Act shall be
construed--
``(1) to limit the ability of members of a labor
organization to remove their elected or appointed officials
through a democratic election conducted among such members; or
``(2) to preempt a State or local government from providing
additional protections to employees of labor organizations who
allege violations of subsection (a), provided that such
protections do not limit the ability of members of a labor
organization to remove their elected or appointed officials
through a democratic ballot.
``(e) Unenforceability of Certain Agreements.--
``(1) No waiver of rights and remedies.--Notwithstanding
any other provision of law, the rights and remedies provided
for in this section may not be waived by any agreement, policy,
form, or condition of employment, including by any predispute
arbitration agreement.
``(2) No predispute arbitration agreements.--
Notwithstanding any other provision of law, no predispute
arbitration agreement shall be valid or enforceable to the
extent that it requires arbitration of a dispute arising under
this section.''.
<all>
Introduced in House
Introduced in House
Referred to the House Committee on Education and the Workforce.
Referred to the Subcommittee on Workforce Protections.
Referred to the Subcommittee on Health, Employment, Labor, and Pensions.
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