Amendment #490 to H5562

Protect labor and abolish barriers to organizing rights

Ms. Decker of Cambridge moves to amend the bill by adding the following sections:

SECTION XX. Sections 3 through 9, inclusive, of chapter 150 of the General Laws are hereby repealed.

SECTION XX. Section 2 of chapter 150A of the General Laws, as appearing in the 2024 Official Edition, is hereby amended by striking out paragraph (2) and inserting in place thereof the following paragraph:-

(2) The word ''employer'' shall include any person having at least 1 employee in their service or otherwise acting as or in the interest of an employer, directly or indirectly, and shall include, but not be limited to, any health care facility, any nonprofit institution, or any vendor who contracts with or receives funds from the commonwealth or its political subdivisions, or both, to provide social, protective, legal, medical, custodial, rehabilitative, respite, nutritional, employment, educational, training, and other similar services to the commonwealth or its political subdivisions, but shall not include the commonwealth or political subdivision thereof, except in the case of a health care facility. No person shall by a special contract with an employee or by any other means exempt themselves from this section.

SECTION XX. Said section 2 of said chapter 150A, as so appearing, is hereby further amended by striking out paragraph (3) and inserting in place thereof the following paragraph:-

(3) Except as otherwise provided in section 3A, the word ''employee'' shall include any employee, and shall not be limited to the employees of a particular employer, unless this chapter 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, and shall include, but not be limited to, any employee of a health care facility or of any nonprofit institution, except members of religious orders, or any employees of vendors who contract with or receive funds from the commonwealth or its political subdivisions to provide social, protective, legal, medical, custodial, rehabilitative, respite, nutritional, employment, educational, training, and other similar services to the commonwealth or its political subdivisions, but shall not include any individual employed as an agricultural worker, except as provided in section 5 A, or in the domestic service of any family or person at their home, or any individual employed by their parent or spouse.

(a) Under this chapter, an individual performing any service shall be considered an employee, except as provided in the previous paragraph, and not an independent contractor, unless:—

(A) 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;

(B) the service is performed outside the usual course of the business of the employer; and

(C) 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.

SECTION XX. Said section 2 of said chapter 150A, as so appearing, is hereby further amended by striking out paragraph (8) and inserting in place thereof the following paragraph: -

(8) The term ''department'' shall mean the department of labor relations existing under section 9O of chapter 23. The term “board” shall mean the Commonwealth Employment Relations Board existing under section 9R of chapter 23.

SECTION XX. Section 3 of chapter 150A of the General Laws, as appearing in the 2024 Official Edition, is hereby amended by inserting after the word “of”, in line 7, the following word:- agency

SECTION XX. Said section 3 of said chapter 150A, as so appearing, is hereby further amended by inserting after the words “exclusive representative”, in lines 7 and 8, the following words:- in lieu of membership dues.

SECTION XX. Section 4 of said chapter 150A, as so appearing, is hereby amended by inserting after the word “therein” in line 20, the following words:- , or in lieu of membership, payment of an agency service fee constituting the full cost of representation on a pro rata basis.

SECTION XX. Said section 4 of said chapter 150A, as so appearing, is hereby further amended by inserting after the word “therein” in line 33, the following words:- , or in lieu of membership, payment of an agency service fee constituting the full cost of representation on a pro rata basis.

SECTION XX.  Paragraph (6) of said section 4 of said chapter 150A, as so appearing, is hereby amended by adding the following subclause:-

(3) Has refused, in lieu of membership, an agency service fee constituting the full cost of representation on a pro rata basis in the bargaining unit by the exclusive representative.

SECTION XX.  Said paragraph (6) of said section 4 of said chapter 150A, as so appearing, is hereby further amended by striking out clause (B) and inserting in place thereof the following clause:-

(B) Such employee shall have exhausted the remedies available to the employee under the labor organization’s constitution and bylaws and sections 6A and 6B.

SECTION XX. Section 4C of chapter 150A of the General Laws, as appearing in the 2024 Official Edition, is hereby amended by striking out, in line 4, the words “nurse or nonprofessional”.

SECTION XX. Said section 4C of said chapter 150A, as so appearing, is hereby further amended by striking out paragraph (2).

SECTION XX. Section 5 of said chapter 150A, as so appearing in the 2024 Official Edition, is hereby amended by striking out the word “commission”, in line 24, and inserting in place thereof the following word:- department;

SECTION XX. Said section 5 of said chapter 150A, as so appearing, and is hereby further amended by striking out the word “commission”, in lines 27, 30 and 33, and inserting in place thereof, in each instance, the following word:- board.

SECTION XX. Subsection (c) of said section 5 of said chapter 150A, as so appearing, is hereby further amended in lines 74 to 81, inclusive, by striking out the last sentence and inserting in place thereof the following words:-

Notwithstanding any other provision of this section or any other general or special law, in the event that the commonwealth is no longer preempted from regulating the labor-management relations of any private sector employer, bargaining unit, industry or trade operating in the commonwealth under federal law, this chapter shall apply upon the effective date of this legislation or the date NLRA preemption no longer applies, whichever is later. The department shall, upon application, promptly certify the exclusive bargaining representative of any bargaining unit who previously certified the unit with  the National Labor Relations Board and whose certification remained in effect until federal preemption was no longer effective.

Notwithstanding any other provision of this section or any other general or special law, in the event that the National Labor Relations Board determines that any employer, employees, trade or industry, as defined in section 1 falls outside the scope of the National Labor Relations Act’s coverage, or should the Board decline jurisdiction over the same, this chapter shall hereby apply upon the effective date of this legislation or the date NLRB determines the absence of its authority, whichever is later. The department shall, upon application, promptly certify the exclusive bargaining representative of any bargaining unit previously certified by the National Labor Relations Board and whose certification remained in effect until federal preemption was no longer effective.

The board, or by designation, the department, shall establish rules and procedures for the prompt verification of evidence of a certification formerly granted by the NLRB, which rules shall include the procedure for petitioning the department, and which shall further provide that, absent exceptional cause, the verification procedure shall last not longer than 30 days after the petition is filed with the department.  All existing terms and conditions of employment between a formerly NLRB-certified exclusive bargaining representative and an employer shall remain in full force and effect through the department’s verification process.

SECTION XX. Chapter 150A of the General Laws is hereby amended by striking out section 6A and inserting in place thereof the following section:-

Section 6A. Any employee who is required as a condition of employment to be a member in good standing of a labor organization may file with the department a charge alleging (1) that, although eligible for membership, they have been unfairly denied admission to, or unfairly suspended or expelled from membership in, such organization for reasons other than malfeasance in office or non-payment of regular initiation fees, dues, or assessments and (2) that such labor organization has requested, or is about to request, their employer to discharge or otherwise discriminate against the employee because of the employee’s failure to maintain membership in good standing in such organization or; provided, that such charge shall be filed not more than 15 days after notice of such request has been given the employee by the labor organization. Upon filing of such charge, the department shall have power to issue and cause to be served upon the labor organization a complaint stating the charge in that respect and containing a notice of hearing. The notice shall be given and the subsequent proceedings shall be conducted in the manner provided in section 6. If upon all the evidence the department shall determine that the employee was unfairly denied admission to membership in such organization, or that such discipline:

(1) Was imposed by the labor organization in violation of its constitution and by-laws; or

(2) Was imposed without a fair trial, including an adequate hearing and opportunity to defend; or

(3) Was not warranted by the offense, if any, committed by the employee against the labor organization; or

(4) Is not consistent with the established public policy of the commonwealth; or

(5) Or that discrimination or discharge was requested or about to be requested by the labor organization, notwithstanding the employee’s payment in full of all applicable agency service fees in lieu of membership.

Then the department shall state its determinations and shall issue and cause to be served on the labor organization an order requiring it, in its discretion, either to admit or restore the employee to membership in good standing together with full voting rights, or else to refrain from seeking to bring about any discrimination against the employee in the employee’s employment because the employee is not a member in good standing, and to return to the employee such union dues and assessments as may have been collected from the employee during the period of the employee’s suspension or expulsion from the union. If the department shall not make such a determination after hearing, it shall enter an order dismissing the charge filed by the employee.

Nothing contained in this section or in section 4 shall be deemed to require a labor organization as a condition of making or enforcing a contract requiring membership therein as a condition of employment, to accord to non-participants in an insurance plan the right to vote on questions pertaining thereto or to grant local organizations voting rights in a convention proportionate to their membership.

SECTION XX. Chapter 150A of the Massachusetts General Laws is hereby further amended by inserting, after section 7, the following section:-

Section 7A.

(a) As used in this section, the following words shall have the following meanings unless the context clearly requires otherwise:

“Critical period”, the time after a petition for an election or card check authorization is filed with the department.

“In-person captive audience meeting”, an in-person meeting in which attendance of a bargaining unit member is required by an employer or supervisor, actually or constructively, as a condition of employment or to receive a benefit or avoid retaliation.

“Virtual captive audience meeting”, live or asynchronous audio or video, which a bargaining unit member is required, actually or constructively, to watch as a condition of employment, to receive a benefit or avoid retaliation, or where the employer surveils or is reasonably perceived to be surveilling viewership.

(b) During the critical period, an employer is prohibited from requiring any member of a petitioned for bargaining unit from taking part in in-person or virtual captive audience meetings; provided, further, that an employer is prohibited from engaging in virtual or in-person electioneering activities without providing bona fide, good faith opportunities for bargaining unit members to opt out of receiving electioneering content and activities without penalty. To the extent an employer engages in electioneering during the critical period, a petitioning labor organization must be given, upon request, equal opportunities to communicate with employees in in-person and virtual formats.

SECTION XX. Section 8 of chapter 150A of the General Laws, as appearing in the 2024 Official Edition, is hereby amended by striking out, in line 2, the word “commission” and inserting in place thereof the following word:- department;.

SECTION XX. Said section 8 of said chapter 150A, as so appearing, is hereby further amended by striking out, in line 3, the words “or agencies”.

SECTION XX. Said chapter 150A of the General Laws is hereby further amended by striking out section 9A and inserting in place thereof the following section:-

Section 9A. A labor organization before engaging in any strike, picketing, or other concerted refusal to work at any health care institution shall, not less than 10 days prior to such action, notify the institution in writing and the director of the department of that intention. The notice shall state the date and time that such action will commence. The notice, once given, may be extended by the written agreement of both parties.

SECTION XX. Section 10 of said chapter 150A, as appearing in the 2024 Official Edition, is hereby amended by striking out the word “commission”, in line 11, and inserting in place thereof the following word:- department.

Additional co-sponsor(s) added to Amendment #490 to H5562

Protect labor and abolish barriers to organizing rights