Regular Session 2023-2024 House Bill 0861 P.N. 0837

PRINTER'S NO. 837

THE GENERAL ASSEMBLY OF PENNSYLVANIA

HOUSE BILL

No.

861

Session of

2023

INTRODUCED BY D. WILLIAMS, DELLOSO, CIRESI, O'MARA, MALAGARI,

SANCHEZ, HILL-EVANS, HOHENSTEIN, HANBIDGE, ISAACSON, KINSEY,

PIELLI, RABB, MARKOSEK, SIEGEL, GUENST, MERSKI, MADDEN,

WARREN, McNEILL, PARKER, HARKINS, SCHLOSSBERG, KINKEAD,

SHUSTERMAN, CONKLIN, PASHINSKI, HOWARD, DEASY, KRAJEWSKI,

WAXMAN, STURLA, N. NELSON, NEILSON, KHAN, GREEN, KRUEGER,

BOROWSKI, KAZEEM, SMITH-WADE-EL, GIRAL, SCHWEYER, DONAHUE,

SAMUELSON, PISCIOTTANO, McANDREW, ABNEY, CEPEDA-FREYTIZ,

GALLAGHER, PROBST, TAKAC AND HADDOCK, APRIL 10, 2023

REFERRED TO COMMITTEE ON LABOR AND INDUSTRY, APRIL 10, 2023

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

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

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performed.

* * *

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 subsection, 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

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in the employer's campaign activities unrelated to the employe's

job duties.

(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 clause or

results from a violation of this clause shall be to that extent

unenforceable and void. This clause 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

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wish to be represented for collective bargaining and that the

employer declines to recognize their representative as the

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 employe 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.

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(2) If 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 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 if 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) If 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

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individual or labor organization that has been newly recognized

or certified as a representative, or within a period as the

parties agree upon, the parties shall meet and commence to

bargain collectively and shall make every reasonable effort to

conclude and sign a collective bargaining agreement.

(b) If after 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.

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.

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(3) The employes' cost of living.

(4) The employes' ability to sustain themselves, their

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. Relief under this

subsection may not 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 8 U.S.C. §

1324a(h)(3) (relating to unlawful employment of aliens) 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

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board shall forfeit and pay to the board a civil penalty of not

more than ten thousand dollars ($10,000) for each violation,

which shall accrue to the board and may be recovered in a civil

action brought by the board. Action by the board under this

subsection may not 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,

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determines that an employer has violated section 4.1 or

regulations issued thereunder, the board shall--

(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.

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

(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

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described under this subsection may be assessed against a

director or officer of the employer who directed or committed

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. Relief under this subsection may not 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 8 U.S.C. § 1324a(h)(3)

(relating to unlawful employment of aliens) 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

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(4); and (vi) any other relief authorized under 42 U.S.C. §

2000e-5(g) (relating to enforcement provisions) 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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