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PRINTER'S NO. 621
THE GENERAL ASSEMBLY OF PENNSYLVANIA
HOUSE BILL
No.
658
Session of
2021
INTRODUCED BY D. WILLIAMS, DELLOSO, CIRESI, O'MARA, MALAGARI,
SANCHEZ, HILL-EVANS, KENYATTA, SNYDER, FREEMAN, N. NELSON,
STURLA, McNEILL, ZABEL, LEE, BENHAM, A. DAVIS, DeLUCA,
ISAACSON, HOHENSTEIN, SCHLOSSBERG, SCHWEYER, HOWARD, NEILSON,
WEBSTER, SIMS, WARREN, ROZZI, RABB, PISCIOTTANO, KINSEY,
KRAJEWSKI, KINKEAD, SHUSTERMAN, HARKINS, MADDEN AND GUENST,
FEBRUARY 26, 2021
REFERRED TO COMMITTEE ON LABOR AND INDUSTRY, FEBRUARY 26, 2021
AN ACT
Amending the act of June 1, 1937 (P.L.1168, No.294), entitled
"An act to protect the right of employes to organize and
bargain collectively; creating the Pennsylvania Labor
Relations Board; conferring powers and imposing duties upon
the Pennsylvania Labor Relations Board, officers of the State
government, and courts; providing for the right of employes
to organize and bargain collectively; declaring certain labor
practices by employers to be unfair; further providing that
representatives of a majority of the employes be the
exclusive representatives of all the employes; authorizing
the board to conduct hearings and elections, and certify as
to representatives of employes for purposes of collective
bargaining; empowering the board to prevent any person from
engaging in any unfair labor practice, and providing a
procedure for such cases, including the issuance of a
complaint, the conducting of a hearing, and the making of an
order; empowering the board to petition a court of common
pleas for the enforcement of its order, and providing a
procedure for such cases; providing for the review of an
order of the board by a court of common pleas on petition of
any person aggrieved by such order, and establishing a
procedure for such cases; providing for an appeal from the
common pleas court to the Supreme Court; providing the board
with investigatory powers, including the power to issue
subpoenas and the compelling of obedience to them through
application to the proper court; providing for service of
papers and process of the board; prescribing certain
penalties," further providing for definitions; providing for
notice and regulations; further providing for unfair labor
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practices and for representatives and elections; providing
for initial collective bargaining agreement; and further
providing for prevention of unfair labor practices and for
penalties.
The General Assembly of the Commonwealth of Pennsylvania
hereby enacts as follows:
Section 1. Section 3(d) of the act of June 1, 1937
(P.L.1168, No.294), known as the Pennsylvania Labor Relations
Act, is amended to read:
Section 3. Definitions. When used in this act--
* * *
(d) The term "employe" shall include any employe, and shall
not be limited to the employes of a particular employer, unless
the act explicitly states otherwise, and shall include any
individual whose work has ceased as a consequence of, or in
connection with, any current labor dispute, or because of any
unfair labor practice, and who has not obtained any other
regular and substantially equivalent employment, but shall not
include any individual employed as an agricultural laborer, or
in the domestic service of any person in the home of such
person, or any individual employed by his parent or spouse.
An individual performing any service shall be considered an
employe and not an independent contractor unless--
(1) the individual is free from control and direction in
connection with the performance of the service, both under the
contract for the performance of service and in fact;
(2) the service is performed outside the usual course of the
business of the employer; and
(3) the individual is customarily engaged in an independently
established trade, occupation, profession or business of the
same nature as that involved in the service performed.
* * *
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Section 2. The act is amended by adding a section to read:
Section 4.1. Notice and Regulations.--(a) The board shall
promulgate regulations requiring each employer to post and
maintain, in conspicuous places where notices to employes and
applicants for employment are customarily posted, both
physically and electronically, a notice providing the rights and
protections afforded employes under this act. The board shall
make available to the public the form and text of the notice.
The board shall promulgate regulations requiring employers to
notify each new employe of the information contained in the
notice described under this subsection.
(b) Not later than nine months after the effective date of
this paragraph, the board shall promulgate regulations requiring
an employer of employes in the bargaining unit to, no later than
two business days after the board directs an election or
approves an election agreement under section seven, provide a
voter list to a labor organization that has petitioned to
represent the employes. The voter list shall include the names
of all employes in the bargaining unit and such employes' home
addresses, work locations, shifts, job classifications, and, if
available to the employer, personal landline and mobile
telephone numbers, and work and personal email addresses.
Section 3. Section 6(1) is amended by adding clauses to
read:
Section 6. Unfair Labor Practices.--(1) It shall be an
unfair labor practice for an employer--
* * *
(g) To require or coerce an employe to attend or participate
in the employer's campaign activities unrelated to the employe's
job duties.
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(h) To enter into or attempt to enforce an agreement,
express or implied, whereby prior to a dispute to which the
agreement applies, an employe undertakes or promises not to
pursue, bring, join, litigate or support any kind of joint,
class or collective claim arising from or relating to the
employment of the employe in any forum that, but for the
agreement, is of competent jurisdiction.
(i) To coerce an employe into undertaking or promising not
to pursue, bring, join, litigate or support any kind of joint,
class or collective claim arising from or relating to the
employment of the employe.
(j) To retaliate or threaten to retaliate against an employe
for refusing to undertake or promise not to pursue, bring, join,
litigate or support any kind of joint, class or collective claim
arising from or relating to the employment of the employe:
Provided, That any agreement that violates this subsection or
results from a violation of this subsection shall be to that
extent unenforceable and void. This subsection shall not apply
to an agreement embodied in or expressly permitted by a contract
between an employer and a labor organization.
* * *
Section 4. Section 7 is amended by adding subsections to
read:
Section 7. Representatives and Elections.--* * *
(e) Whenever a petition has been filed, in accordance with
regulations promulgated by the board, by an employe or group of
employes or an individual or labor organization acting on the
employe's behalf alleging that a substantial number of employes
wish to be represented for collective bargaining and that the
employer declines to recognize their representative as the
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representative or assert that the individual or labor
organization, which has been certified or is being recognized by
the employer as the bargaining representative, is no longer a
representative, the board shall investigate the 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. The hearing shall be
conducted by an employee of the department appointed by the
Secretary of Labor and Industry, who shall not make any
recommendations with respect to the petition. If the board finds
upon the record of the hearing that a question of representation
exists, the board shall direct an election by secret ballot and
shall certify the results of the election. No employer shall
have standing as a party or to intervene in any representation
proceeding under this subsection.
(f) If the board finds that, in an election under this
section, a majority of the valid votes cast in a unit
appropriate for purposes of collective bargaining have been cast
in favor of representation by the labor organization, the board
shall certify the labor organization as the representative of
the employes in the unit and shall issue an order requiring the
employer of the employes to collectively bargain with the labor
organization.
(g) (1) If the board finds that, in an election under this
section, a majority of the valid votes cast in a unit
appropriate for purposes of collective bargaining have not been
cast in favor of representation by the labor organization, the
board shall dismiss the petition.
(2) In any case in which a majority of the valid votes cast
in a unit appropriate for purposes of collective bargaining have
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not been cast in favor of representation by the labor
organization and the board determines that the election should
be set aside because the employer has committed a violation of
this act or otherwise interfered with a fair election, and the
employer has not demonstrated that the violation or other
interference is unlikely to have affected the outcome of the
election, the board shall, without ordering a new election,
certify the labor organization as the representative of the
employes in the unit and issue an order requiring the employer
to bargain with the labor organization if, at any time during
the period beginning one year preceding the date of the
commencement of the election and ending on the date upon which
the board makes the determination of a violation or other
interference, a majority of the employes in the bargaining unit
have signed authorizations designating the labor organization as
their collective bargaining representative.
(h) In any case where the board determines that an election
under this section should be set aside, the board shall direct a
new election with appropriate additional safeguards necessary to
ensure a fair election process, except in cases where the board
issues a bargaining order.
Section 5. The act is amended by adding a section to read:
Section 7.1. Initial Collective Bargaining Agreement.--
Whenever collective bargaining is for the purpose of
establishing an initial collective bargaining agreement
following certification or recognition of a labor organization,
the following shall apply--(a) No later than ten 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, or within a period as the
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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 the expiration of the ninety-day period
beginning on the date on which bargaining is commenced, or an
additional period as the parties may agree upon, the parties
have failed to reach an agreement, either party may notify the
board of the existence of a dispute and request mediation.
Whenever a request is received, it shall be the duty of the
board promptly to put itself in communication with the parties
and to use its best efforts, by mediation and conciliation, to
bring them to agreement.
(c) If, after the expiration of the thirty-day period
beginning on the date on which the request for mediation is
made, or an additional period as the parties may agree upon, the
board is not able to bring the parties to agreement by
conciliation, the board shall refer the dispute to a tripartite
arbitration panel comprised of one member selected by the labor
organization, one member selected by the employer and one
neutral member mutually agreed to by the parties. A majority of
the tripartite arbitration panel shall render a decision
settling the dispute and a decision shall be binding upon the
parties for a period of two years, unless amended during that
period by written consent of the parties. A decision shall be
based on the following--
(1) The employer's financial status and prospects.
(2) The size and type of the employer's operations and
business.
(3) The employes' cost of living.
(4) The employes' ability to sustain themselves, their
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families and their dependents on the wages and benefits they
earn from the employer.
(5) The wages and benefits other employers in the same
business provide their employes.
Section 6. Section 8 of the act is amended by adding
subsections to read:
Section 8. Prevention of Unfair Labor Practices.--* * *
(g) If the board finds that an employer has discriminated
against an employe in violation of this act or has committed a
violation of this act which results in the discharge of an
employe or other serious economic harm to an employe, the board
shall award the employe back pay without any reduction,
including any reduction based on the employe's interim earnings
or failure to earn interim earnings, front pay, consequential
damages and an additional amount as liquidated damages equal to
two times the amount of damages awarded. No relief under this
subsection shall be denied on the basis that the employe is, or
was during the time of relevant employment or during the back
pay period, an unauthorized alien as defined in section 274A(h)
(3) of the Immigration and Nationality Act (66 Stat. 163, 8
U.S.C. § 1324a(h)(3)) or any other provision of Federal law
relating to the unlawful employment of aliens.
(h) (1) Each order of the board shall take effect upon
issuance of the order, unless otherwise directed by the board,
and shall remain in effect unless modified by the board or
unless a court of competent jurisdiction issues a superseding
order.
(2) Any person who fails or neglects to obey an order of the
board shall forfeit and pay to the board a civil penalty of not
more than ten thousand dollars ($10,000) for each violation,
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which shall accrue to the board and may be recovered in a civil
action brought by the board. No action by the board under this
subsection may be made until thirty days following the issuance
of an order. Each separate violation of the order shall be a
separate offense, except that, in the case of a violation in
which a person fails to obey or neglects to obey a final order
of the board, each day such failure or neglect continues shall
be deemed a separate offense.
(3) If, after having provided a person or entity with notice
and an opportunity to be heard regarding a civil action under
paragraph (2) for the enforcement of an order, the court
determines that the order was regularly made and duly served,
and that the person or entity is in disobedience of the same,
the court shall enforce the order by an injunction or other
proper process, mandatory or otherwise, to--(i) restrain the
person or entity or the officers, agent or representatives of
the person or entity, from further violation of the order; or
(ii) enjoin the person or entity, officers, agents or
representatives to obey the order.
Section 7. Section 11 of the act is amended to read:
Section 11. Penalties.--(a) Any person who shall wilfully
resist, prevent, impede or interfere with any member of the
board, or any of its agents, in the performance of duties
pursuant to this act, shall be guilty of a misdemeanor, and,
upon conviction thereof, shall be punished by a fine of not more
than five thousand dollars ($5,000), or by imprisonment for not
more than one year, or both.
(b) If the board, or any agent designated by the board,
determines that an employer has violated section 4.1 or
regulations issued thereunder, the board shall--
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(1) State the findings of fact supporting the determination.
(2) Issue and cause to be served on the employer an order
requiring that the employer comply with section 4.1 or
regulations issued thereunder.
(3) Impose a civil penalty in an amount determined
appropriate by the board, except that in no case shall the
amount of the penalty exceed five hundred dollars ($500) for
each violation.
(c) (1) An employer who commits an unfair labor practice
under section 6 that results in the discharge of an employe or
other serious economic harm to an employe, shall, in addition to
any remedy ordered by the board, be subject to a civil penalty
in an amount not to exceed fifty thousand dollars ($50,000) for
each violation, except that the board shall double the amount of
the penalty, to an amount not to exceed one hundred thousand
dollars ($100,000), in any case where the employer has within
the preceding five years committed another violation of section
6.
(2) In determining the amount of a civil penalty under this
subsection, the board shall consider the following--
(i) The gravity of the unfair labor practice.
(ii) The impact of the unfair labor practice on the charging
party, on other persons seeking to exercise rights guaranteed by
this act and on the public interest.
(iii) The gross income of the employer.
(3) If the board determines, based on the particular facts
and circumstances presented, that a director's or officer's
personal liability is warranted, a civil penalty for a violation
described under this subsection may be assessed against a
director or officer of the employer who directed or committed
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the violation, had established a policy that led to the
violation or had actual or constructive knowledge of and the
authority to prevent the violation and failed to prevent the
violation.
(d) The following shall apply to the right to civil action--
(1) Any person who is injured by reason of a violation of
section six may, after sixty days following the filing of a
charge with the board alleging an unfair labor practice, bring a
civil action in the appropriate court against the employer
within ninety days after the expiration of the sixty-day period
or the date the board notifies the person that no complaint
shall issue, whichever occurs earlier, provided that the board
has not filed a petition under this act prior to the expiration
of the sixty-day period. No relief under this subsection shall
be denied on the basis that the employe is, or was during the
time of relevant employment or during the back pay period, an
unauthorized alien as defined in section 274A(h)(3) of the
Immigration and Nationality Act (66 Stat. 163, 8 U.S.C. §
1324a(h)(3)) or any other provision of Federal law relating to
the unlawful employment of aliens.
(2) Relief granted in an action under paragraph (1) may
include--(i) back pay without any reduction, including any
reduction based on the employe's interim earnings or failure to
earn interim earnings; (ii) front pay, when appropriate; (iii)
consequential damages; (iv) an additional amount as liquidated
damages equal to two times the cumulative amount of damages
awarded under subparagraphs (i), (ii) and (iii); (v) in
appropriate cases, punitive damages in accordance with paragraph
(4); and (vi) any other relief authorized by section 706(g) of
the Civil Rights Act of 1964 (Public Law 88-352, 78 Stat. 241)
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or under 42 U.S.C. § 1981a(b) (relating to damages in cases of
intentional discrimination in employment).
(3) In any civil action under this subsection, the court may
allow the prevailing party reasonable attorney fees, including
expert fees, and other reasonable costs associated with
maintaining the action.
(4) In awarding punitive damages under paragraph (2)(v), the
court shall consider the following--(i) the gravity of the
unfair labor practice; (ii) the impact of the unfair labor
practice on the charging party, on other persons seeking to
exercise rights guaranteed by this act and on the public
interest; and (iii) the gross income of the employer.
Section 8. This act shall take effect in 60 days.
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