Protecting Massachusetts Labor Unions & Workers from Federal Threats
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by inserting after section 128 the following 20 sections:- “SECTION 128A. Section 2 of chapter 150A of the General Laws, as so appearing, is hereby amended by striking out subsections (2) and (3) and inserting in place thereof the following 2 subsections:- (2) The word ''employer'' shall include a 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, a health care facility, a nonprofit institution or a 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; provided, however, that “employer” shall not include the commonwealth or a political subdivision thereof, except in the case of a health care facility; and provided further, that no person shall by a special contract with an employee or by any other means exempt themselves from this chapter. (3) Except as otherwise provided in section 3A, the word ''employee'' shall include any employee and 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; provided, however, that “employee” shall include, but not be limited to, an employee of a health care facility or nonprofit institution, except members of religious orders, or an employee 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; provided further, that “employee” shall not include an individual employed as an agricultural worker, except as provided in section 5A, in the domestic service of a family or person at their home or by their parent or spouse. SECTION _128B. Said section 2 of said chapter 150A, as so appearing, is hereby further amended by striking out subsection (8) and inserting in place thereof the following 2 subsections:- (8) The term ''department'' shall mean the department of labor relations established in section 9O of chapter 23. (8 1/2) The term “board” shall mean the commonwealth employment relations board established in section 9R of said chapter 23.
Section 3 of said chapter 150A, as so appearing, is hereby amended by inserting after the word “of”, in line 7, the second time it appears, the following word:- agency
Said section 3 of said chapter 150A, as so appearing, is hereby further amended by inserting after the word “representative”, in line 8, the following words:- in lieu of membership dues.
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.
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.
Clause (A) of paragraph (6) of said section 4 of said chapter 150A, as so appearing, is hereby amended by inserting after subclause (2) 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.
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 4C of said chapter 150A, as so appearing, is hereby amended by striking out, in line 4, the words “nurse or nonprofessional”.
Said section 4C of said chapter 150A, as so appearing, is hereby further amended by striking out paragraph (2).
Section 5 of said chapter 150A, as so appearing, is hereby amended by striking out, in line 24, the word “commission” and inserting in place thereof the following word:- department;
Said section 5 of said chapter 150A, as so appearing, is hereby further amended by striking out, in lines 27, 30 and 33, the word “commission”, and inserting in place thereof, in each instance, the following word:- board.
Subsection (c) of said section 5 of said chapter 150A, as so appearing, is hereby further amended by striking out the last sentence.
Said section 5 of said chapter 150A, as so appearing, is hereby further amended by inserting after subsection (c) the following subsection:– (c1/2) Notwithstanding any other provision of this section or any other general or special law to the contrary, if the National Labor Relations Act is repealed or amended so that it no longer applies to an employer, employee, bargaining unit, industry or trade in the commonwealth, this section shall apply to such employer, employee, bargaining unit, industry or trade. If a court of competent jurisdiction, by an order or judgment in effect and not stayed, enjoins the enforcement of the National Labor Relations Act, holds said act or any provision thereof invalid or unenforceable or holds that said act does not preempt regulation by the commonwealth of the labor-management relations of an employer, employee, bargaining unit, industry or trade in the commonwealth, this section shall apply to such employer, employee, bargaining unit, industry or trade. If an act of Congress expressly authorizes the commonwealth to regulate the labor-management relations of an employer, employee, bargaining unit, industry or trade in the commonwealth, this chapter shall apply to such employer, employee, bargaining unit, industry or trade. Application of this chapter pursuant to this section shall commence on the date on which the applicable repeal, amendment, order, judgment or act of Congress takes effect and shall extend only to the extent that such application is not preempted by federal law. A collective bargaining agreement in effect immediately before such date shall remain in effect according to its terms and be enforceable under this chapter.. Notwithstanding any other provision of this section or any other general or special law to the contrary, in the event that the National Labor Relations Board, in its discretion under 29 U.S.C. § 164(c)(1), declines to assert jurisdiction over any labor dispute involving a class or category of employers, the department shall, pursuant to 29 U.S.C. § 164(c)(2), assert jurisdiction over the same. In the event that the National Labor Relations Board seeks to cede jurisdiction to the commonwealth to prevent any person from engaging in any unfair labor practice, pursuant to 29 U.S.C. § 160(a), the department shall agree to accept such jurisdiction. In the event that the National Labor Relations Board or a court of law determines that a class or category of employers is not subject to the National Labor Relations Act, the department shall assert jurisdiction over such class or category of employers. For purposes of this section, the transition date applicable to a bargaining unit shall be the date on which this chapter first applies to the employer of such unit pursuant to the preceding paragraphs. The department shall, upon application filed not later than 12 months after the transition date and without an election, certify as the exclusive bargaining representative of such unit any labor organization that, immediately before the transition date, was certified by the National Labor Relations Board as the exclusive representative of such unit, or was recognized in writing by the employer as such representative, where such certification or recognition remained in effect immediately before the transition date. 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 National Labor Relations Board, which shall include the procedure for petitioning the department and 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 National Labor Relations Board-certified exclusive bargaining representative and an employer shall remain in full force and effect through the department’s verification process. Notwithstanding any other provision of this section, when no other labor organization has been and currently is lawfully recognized as the exclusive representative of the employees in an appropriate bargaining unit, the commission shall certify to the parties, in writing, and the employer shall recognize as the exclusive representative for the purposes of collective bargaining of all employees in the bargaining unit, a labor organization which has received a written majority authorization. Whenever a labor organization proffers evidence that it has received a written majority authorization for a bargaining unit within a class or category of employers which, as a result of the events described in this section was, but is no longer, subject to jurisdiction under the National Labor Relations Act either:– (i) the labor organization and the employer shall agree upon a neutral to conduct a confidential inspection of the evidence of a written majority authorization; provided, however, that if within 10 days the labor organization and the employer do not agree upon a neutral, the commission shall act as the neutral. The neutral shall verify the labor organization’s majority support within the bargaining unit and report the results of its inspection in writing to the parties and, if the verification was conducted by an agreed neutral, to the commission, which shall in turn certify the results to the parties in writing; or (ii) within 7 days after receiving a copy of the labor organization’s petition for written majority authorization, an employer may file a petition with the department requesting an election by secret ballot to determine whether the labor organization shall be the exclusive bargaining representative for all employees in the bargaining unit.
Said chapter 150A is hereby further amended by striking out section 6A, as so appearing, and inserting in place thereof the following section:-
An 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 that: (i) although eligible for membership, the employee has 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 (ii) the labor organization has requested, or is about to request, their employer to discipline against the employee because of the employee’s failure to maintain membership in good standing in such organization; provided, that such charge shall be filed not more than 15 days after notice of such request has been given to the employee by the labor organization. Upon filing of such charge, the department may 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 reviewing all the evidence, the department determines that the employee was unfairly denied admission to membership in such organization, or that such discipline: (i) was imposed by the labor organization in violation of its constitution and by-laws; (ii) was imposed without a fair trial, including an adequate hearing and opportunity to defend; (iii) was not warranted by the offense, if any, committed by the employee against the labor organization; (iv) is not consistent with the established public policy of the commonwealth; or (v) 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 issue and cause to be served on the labor organization an order requiring it to either to admit or restore the employee to membership in good standing together with full voting rights or refrain from seeking to bring about any discipline against the employee in their employment because the employee is not a member in good standing and 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; provided, however, that if the department does 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 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 8 of said chapter 150A, as so appearing, is hereby amended by striking out, in line 2, the word “commission” and inserting in place thereof the following word:- department;.
Said section 8 of said chapter 150A, as so appearing, is hereby further amended by striking out, in line 3, the words “or agencies”.
Said chapter 150A of the General Laws is hereby further amended by striking out section 9A, as so appearing, and inserting in place thereof the following section:-
A labor organization shall, before engaging in any strike, picketing or other concerted refusal to work at any health care institution, 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 10 of said chapter 150A, as so appearing, is hereby amended by striking out, in line 11, the word “commission” and inserting in place thereof the following word:- department.
Said chapter 150A is hereby further amended by inserting after section 10 the following section:-
The board, or by its designation, the department, may establish rules or regulations as it deems appropriate to effectuate the policies of this chapter."
by inserting after section 128 the following 20 sections:- “SECTION 128A. Section 2 of chapter 150A of the General Laws, as so appearing, is hereby amended by striking out subsections (2) and (3) and inserting in place thereof the following 2 subsections:- (2) The word ''employer'' shall include a 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, a health care facility, a nonprofit institution or a 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; provided, however, that “employer” shall not include the commonwealth or a political subdivision thereof, except in the case of a health care facility; and provided further, that no person shall by a special contract with an employee or by any other means exempt themselves from this chapter. (3) Except as otherwise provided in section 3A, the word ''employee'' shall include any employee and 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; provided, however, that “employee” shall include, but not be limited to, an employee of a health care facility or nonprofit institution, except members of religious orders, or an employee 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; provided further, that “employee” shall not include an individual employed as an agricultural worker, except as provided in section 5A, in the domestic service of a family or person at their home or by their parent or spouse. SECTION _128B. Said section 2 of said chapter 150A, as so appearing, is hereby further amended by striking out subsection (8) and inserting in place thereof the following 2 subsections:- (8) The term ''department'' shall mean the department of labor relations established in section 9O of chapter 23. (8 1/2) The term “board” shall mean the commonwealth employment relations board established in section 9R of said chapter 23. SECTION 128C. Section 3 of said chapter 150A, as so appearing, is hereby amended by inserting after the word “of”, in line 7, the second time it appears, the following word:- agency SECTION 128D. Said section 3 of said chapter 150A, as so appearing, is hereby further amended by inserting after the word “representative”, in line 8, the following words:- in lieu of membership dues. SECTION 128E. 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 128F. 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 128G. Clause (A) of paragraph (6) of said section 4 of said chapter 150A, as so appearing, is hereby amended by inserting after subclause (2) 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 128H. 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 128I. Section 4C of said chapter 150A, as so appearing, is hereby amended by striking out, in line 4, the words “nurse or nonprofessional”. SECTION 128J. Said section 4C of said chapter 150A, as so appearing, is hereby further amended by striking out paragraph (2). SECTION 128K. Section 5 of said chapter 150A, as so appearing, is hereby amended by striking out, in line 24, the word “commission” and inserting in place thereof the following word:- department; SECTION 128L. Said section 5 of said chapter 150A, as so appearing, is hereby further amended by striking out, in lines 27, 30 and 33, the word “commission”, and inserting in place thereof, in each instance, the following word:- board. SECTION 128M. Subsection (c) of said section 5 of said chapter 150A, as so appearing, is hereby further amended by striking out the last sentence. SECTION 128N. Said section 5 of said chapter 150A, as so appearing, is hereby further amended by inserting after subsection (c) the following subsection:– (c1/2) Notwithstanding any other provision of this section or any other general or special law to the contrary, if the National Labor Relations Act is repealed or amended so that it no longer applies to an employer, employee, bargaining unit, industry or trade in the commonwealth, this section shall apply to such employer, employee, bargaining unit, industry or trade. If a court of competent jurisdiction, by an order or judgment in effect and not stayed, enjoins the enforcement of the National Labor Relations Act, holds said act or any provision thereof invalid or unenforceable or holds that said act does not preempt regulation by the commonwealth of the labor-management relations of an employer, employee, bargaining unit, industry or trade in the commonwealth, this section shall apply to such employer, employee, bargaining unit, industry or trade. If an act of Congress expressly authorizes the commonwealth to regulate the labor-management relations of an employer, employee, bargaining unit, industry or trade in the commonwealth, this chapter shall apply to such employer, employee, bargaining unit, industry or trade. Application of this chapter pursuant to this section shall commence on the date on which the applicable repeal, amendment, order, judgment or act of Congress takes effect and shall extend only to the extent that such application is not preempted by federal law. A collective bargaining agreement in effect immediately before such date shall remain in effect according to its terms and be enforceable under this chapter.. Notwithstanding any other provision of this section or any other general or special law to the contrary, in the event that the National Labor Relations Board, in its discretion under 29 U.S.C. § 164(c)(1), declines to assert jurisdiction over any labor dispute involving a class or category of employers, the department shall, pursuant to 29 U.S.C. § 164(c)(2), assert jurisdiction over the same. In the event that the National Labor Relations Board seeks to cede jurisdiction to the commonwealth to prevent any person from engaging in any unfair labor practice, pursuant to 29 U.S.C. § 160(a), the department shall agree to accept such jurisdiction. In the event that the National Labor Relations Board or a court of law determines that a class or category of employers is not subject to the National Labor Relations Act, the department shall assert jurisdiction over such class or category of employers. For purposes of this section, the transition date applicable to a bargaining unit shall be the date on which this chapter first applies to the employer of such unit pursuant to the preceding paragraphs. The department shall, upon application filed not later than 12 months after the transition date and without an election, certify as the exclusive bargaining representative of such unit any labor organization that, immediately before the transition date, was certified by the National Labor Relations Board as the exclusive representative of such unit, or was recognized in writing by the employer as such representative, where such certification or recognition remained in effect immediately before the transition date. 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 National Labor Relations Board, which shall include the procedure for petitioning the department and 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 National Labor Relations Board-certified exclusive bargaining representative and an employer shall remain in full force and effect through the department’s verification process. Notwithstanding any other provision of this section, when no other labor organization has been and currently is lawfully recognized as the exclusive representative of the employees in an appropriate bargaining unit, the commission shall certify to the parties, in writing, and the employer shall recognize as the exclusive representative for the purposes of collective bargaining of all employees in the bargaining unit, a labor organization which has received a written majority authorization. Whenever a labor organization proffers evidence that it has received a written majority authorization for a bargaining unit within a class or category of employers which, as a result of the events described in this section was, but is no longer, subject to jurisdiction under the National Labor Relations Act either:– (i) the labor organization and the employer shall agree upon a neutral to conduct a confidential inspection of the evidence of a written majority authorization; provided, however, that if within 10 days the labor organization and the employer do not agree upon a neutral, the commission shall act as the neutral. The neutral shall verify the labor organization’s majority support within the bargaining unit and report the results of its inspection in writing to the parties and, if the verification was conducted by an agreed neutral, to the commission, which shall in turn certify the results to the parties in writing; or (ii) within 7 days after receiving a copy of the labor organization’s petition for written majority authorization, an employer may file a petition with the department requesting an election by secret ballot to determine whether the labor organization shall be the exclusive bargaining representative for all employees in the bargaining unit. SECTION 128O. Said chapter 150A is hereby further amended by striking out section 6A, as so appearing, and inserting in place thereof the following section:- Section 6A. An 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 that: (i) although eligible for membership, the employee has 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 (ii) the labor organization has requested, or is about to request, their employer to discipline against the employee because of the employee’s failure to maintain membership in good standing in such organization; provided, that such charge shall be filed not more than 15 days after notice of such request has been given to the employee by the labor organization. Upon filing of such charge, the department may 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 reviewing all the evidence, the department determines that the employee was unfairly denied admission to membership in such organization, or that such discipline: (i) was imposed by the labor organization in violation of its constitution and by-laws; (ii) was imposed without a fair trial, including an adequate hearing and opportunity to defend; (iii) was not warranted by the offense, if any, committed by the employee against the labor organization; (iv) is not consistent with the established public policy of the commonwealth; or (v) 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 issue and cause to be served on the labor organization an order requiring it to either to admit or restore the employee to membership in good standing together with full voting rights or refrain from seeking to bring about any discipline against the employee in their employment because the employee is not a member in good standing and 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; provided, however, that if the department does 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 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 128P. Section 8 of said chapter 150A, as so appearing, is hereby amended by striking out, in line 2, the word “commission” and inserting in place thereof the following word:- department;. SECTION 128Q. 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 128R. Said chapter 150A of the General Laws is hereby further amended by striking out section 9A, as so appearing, and inserting in place thereof the following section:- Section 9A. A labor organization shall, before engaging in any strike, picketing or other concerted refusal to work at any health care institution, 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 128S. Section 10 of said chapter 150A, as so appearing, is hereby amended by striking out, in line 11, the word “commission” and inserting in place thereof the following word:- department. SECTION 128T. Said chapter 150A is hereby further amended by inserting after section 10 the following section:- Section 10A. The board, or by its designation, the department, may establish rules or regulations as it deems appropriate to effectuate the policies of this chapter."