Fairness in Filing Act

— 601 — Department of Labor and Related Agencies The NLRB has issued extreme interpretations of these activities, such as deter- mining that a business’s requiring its employees to be courteous to customers and one another is an unlawful infringement on the free speech rights implicit in the protected concerted activity protections in the NLRA. l Reverse unreasonable interpretations of “protected concerted activity.” The NLRB should return to the 2019 Alstate Maintenance interpretation of what does and does not constitute protected concerted activity, including listing eight instances of lawful actions by employers. Injunctive Relief and Worker Organizing Activities. Within the confines of the more reasonable definition of protected concerted activity described above, the NLRB should increase its pursuit of reinstatement injunctions. Firing work- ers engaged in concerted activity has an immediate chilling effect on organizing, but remedies under the NLRA typically come only much later and amount only to backpay. In NLRA section 10(j), Congress empowered the NLRB to obtain temporary injunctions that immediately reinstate workers to their jobs in these circumstances. This provides a more meaningful remedy to the worker and creates a significant deterrent to unfair labor practices, because prompt reinstatement will tend to reinforce the legitimacy of the organizing effort. The NLRB overwhelmingly prevails when pursuing an injunction, succeeding 100 percent of the time in 2020 and 91 percent of the time in 2021. l Increase the use of 10(j) injunctive relief. The NLRB should increase its use of 10(j) and should articulate guidelines for situations in which it intends to seek injunctive relief; the board should delegate authority to pursue such injunctions to the general counsel and the general counsel should establish a policy of considering them expeditiously in all retaliation cases identified by regional offices. Dues-Funded Worker Centers. Under current law, both labor unions and unionized employers must file financial disclosures with DOL on an annual basis to ward off potential fraud and corruption of the sort that has been seen recently within the United Automobile, Aerospace and Agricultural Implement Workers of America (UAW). However, worker centers, which have grown in number and influ- ence enormously over the past decade, are not required to file these disclosures. l Investigate worker centers and require financial disclosures. DOL should investigate worker centers that look and act like unions and bring enforcement actions to require them to file the same financial disclosures. — 602 — Mandate for Leadership: The Conservative Promise Office of Labor-Management Standards Initiative. Currently, the Office of Labor-Management Standards (OLMS) may investigate potential employer mal- feasance with regard to union funds in the absence of any complaint by a worker or union but may not do the same with regard to potential union malfeasance. If OLMS has evidence that a union may be violating the law based on information available to the agency (such as annual financial disclosure reports, information developed during an audit of a union’s books and records, or information obtained from other government agencies) it should be permitted to open an investigation. It should have the same enforcement tools available for both employers and unions. l Revise investigation standards. The Office of Labor-Management Standards should revise its investigation standards to authorize investigations without receiving a formal complaint. Persuader Rule. During the Obama Administration, DOL created significant regulatory burdens for employers with respect to the advice that employers receive about union activity. As a general matter, employers who hire lawyers or other con- sultants to advise employees about union issues must file disclosure forms with the department, as must the lawyers and consultants themselves. Prior to the Obama Administration, advice provided solely to the employer required no disclosure. The Obama Administration attempted to eliminate this “advice exemption” with a directive known as the “persuader rule,” which was successfully challenged in court. In 2018, the Trump Administration formally rescinded the persuader rule. l DOL should rescind the persuader rule once again should the Biden Administration revive it. Unionizing the Workplace: Card Check vs. Secret Ballot. Under the NLRA, instead of having a secret ballot election about the decision to unionize a workplace, a union may instead collect signed pro-union cards from a majority of the employees it wishes to represent and then ask the employer and National Labor Relations Board for voluntary union recognition. That request gives the employer the option to hold a secret-ballot election or to recognize the union with- out any such election. This “card check” procedure is likely to induce employees to provide their signed cards in ways that do not accurately reflect their true pref- erences—ranging from a desire not to offend the signature requestor to a wish to avoid intimidation and coercion to signing based on false information provided by union organizers. In short, the card check procedure sidesteps many aspects of democratic decision-making that free and fair elections conducted by secret ballot are supposed to accomplish. Notably, the general counsel of the National Labor Relations Board has recently proposed an esoteric legal theory that card-check

— 613 — Department of Labor and Related Agencies l Congress must amend the law so that employers can again have the freedom to make hiring Americans a priority. Despite the significant advantages that preferring citizens over (work-authorized) aliens in hiring would provide to American workers, businesses, and the country at large, such a practice has been illegal since 1986.25 This makes no sense. Alternative View Some conservatives believe that the government has a duty to limit its spending in order to limit how much it takes from American families. This means that when the government spends money, it must find the most econom- ical and effective way to do so. Excessive government spending will be borne by American workers and families through reduced incomes and purchasing power. There may be good reasons to require a certain percentage of American workers on federal contracts, but those decisions should be based on economy and efficiency as opposed to arbitrary quotas. Visa Fraud. American businesses that commit visa fraud and hire illegal immi- grants should not be the beneficiaries of federal spending. But a 2020 report by the Department of Labor’s Office of Inspector General (OIG) examined the depart- ment’s process for excluding employers who commit visa fraud and abuse from federal contracts and found much to be desired. l To protect the American workforce from unscrupulous immigration lawyers, employers, and labor brokers, the department must follow the recommendations of the OIG and institute more robust investigations for suspected visa fraud and speedier debarments for those found guilty. INTERNATIONAL LABOR POLICY Leveling the International Playing Field for Workers. As recent decades of intense import competition and offshoring have made clear, American workers suffer when the U.S. opens its markets to foreign nations’ minimal labor standards and exploitative conditions. While federal law already prohibits the importation of goods produced with forced labor, the prohibitions are toothless without effective means of enforcement and cover only the most basic of workers’ rights. The Trump Administration and its United States Trade Representative (USTR) took unprece- dented steps to redress the issue for workers. The U.S.–Mexico–Canada Agreement (USMCA) contained the strongest and most far-reaching labor provisions of any free trade agreement (FTA), with protections and commitments to reduce labor abuses and raise wages. It also established new modes of enforcement. For future FTAs, the USTR should replicate the labor provisions of USMCA, especially the provisions to: — 614 — Mandate for Leadership: The Conservative Promise l Eliminate all forms of forced or compulsory labor. l Protect workers’ rights to organize and participate voluntarily in a union without employer interference or discrimination. l Create a rapid-response mechanism to provide for an independent panel investigation of denial of labor rights at covered facilities. l Shift the burden of proof by presuming that an alleged violation affects trade and investment, unless otherwise demonstrated. For future authorizations of Trade Promotion Authority (TPA), the President should urge Congress to: l Create mechanisms for supply-chain transparency. l Institute a general prohibition on forced labor conditions. Investigate Foreign Labor Violations That Undermine American Work- ers. The United States’ embrace of globalization has exposed American workers to unfair competition from nations with cheap, abundant, and often exploited labor. American workers have, as a consequence, seen their earning power erode. While negotiating stronger trade agreements with robust labor provisions should be the primary tool with which to regulate international labor competition, the federal government can also take steps to identify the worst labor abuses and rule breakers. DOL’s Bureau of International Labor Affairs (ILAB) plays a critical role in monitor- ing and enforcing the labor provisions of U.S. trade agreements and trade preference programs as well as investigating child labor and human trafficking violations. l The next Administration should focus ILAB investigations on foreign labor violations that do the most to damage American workers’ earning power, specifically regimes that engage in child and forced labor, fail to protect workers’ organizing rights, and permit hazardous or otherwise exploitative working conditions. Alternative/Additional View. Conservatives share a belief in protecting and pro- moting American workers and their families and orienting international policies with Americans’ interests first. Some conservatives believe that the best way to put Amer- ica first is by making America more attractive. In addition to restrictions imposed on other countries, removing existing barriers to American manufacturing, employ- ment, and commerce can help American workers, entrepreneurs, and families.

— 598 — Mandate for Leadership: The Conservative Promise unemployment programs were defrauded of hundreds of billions of dollars, includ- ing by state-sponsored hacking groups. Not all state agencies are yet through their backlogs of appeals and fraud cases; the recovery of lost funds has been minimal; and fraud has now spilled into the traditional UI programs. The CARES Act era drastically altered the entire UI ecosystem: The federal–state partnership shifted toward federal programs and funding, and the social insurance purpose of the program was disconnected as benefits were extended, expanded to more typically uncovered populations, and made exponentially larger. l Congress should enact bipartisan commonsense UI program reforms, including statutory authority for the Labor Office of Inspector General (OIG) to access all state UI records for the purposes of investigation and requiring state agencies to crossmatch applicants with the National Directory of New Hires. l Congress should also develop a framework (through commission of a congressional report to serve as a blueprint) of technical standards on broader tech topics like usability, state agency cybersecurity postures, data taxonomy standardization, and/or identity verification standards. l Congress should provide DOL with more reasonable enforcement tools for the UI system. Currently, DOL can either send a strongly worded letter or revoke the entire Federal Unemployment Tax Act (FUTA)16 tax credit, which would place an immediate 6 percent to 7 percent tax on all covered employers. l DOL should review all actual or planned procurements against the $2 billion (under the American Rescue Plan Act)17 for UI fraud detection, accessibility, and equity investments. These funds do not have appropriations timelines and have very minimal statutory descriptions of the intended purpose. DOL should also review and propose changes to improve state monitoring programs including developing evidence-based frameworks for evaluating the technical readiness and security postures of the state agencies; strengthen its relationship with the OIG and Government Accountability Office (GAO), and support continued development of fraud prosecution with DOJ, the Department of Homeland Security (DHS), and the financial services community; ensure administrative and IT funding is outcome-based; and gather and publish best practices from state officials, industry partners, and other vendors who deliver UI services. — 599 — Department of Labor and Related Agencies WORKER VOICE AND COLLECTIVE BARGAINING Non-Union Worker Voice and Representation. American workers lack a meaningful voice in today’s workplace. Between 50 percent and 60 percent of workers have less influence than they want on critical workplaces issues beyond pay and benefits. Even managers are twice as likely to say their employees have too little influence rather than too much. But America’s one-size-fits-all approach undermines worker representation. Federal labor law offers no alternatives to labor unions whose politicking and adversarial approach appeals to few, whereas most workers report that they prefer a more cooperative model run jointly with management that focuses solely on workplace issues. The next Administration should make new options available to workers and push Congress to pass labor reforms that create non-union “employee involvement organizations” as well as a mechanism for worker representation on corporate boards. l Congress should reintroduce and pass the Teamwork for Employees and Managers (TEAM) Act of 2022.18 The TEAM Act: 1. Reforms the National Labor Relations Act’s (NLRA) Section 8(a)(2) prohibition on formal worker–management cooperative organizations like works councils. 2. Creates an “Employee Involvement Organization” (EIO) to facilitate voluntary cooperation on critical issues like working conditions, benefits, and productivity. 3. Amends labor law to allow EIOs at large, publicly traded corporations to elect a non-voting, supervisory member of their company’s board of directors. Alternative View. While some conservatives lament that workers lack sufficient voice in today’s workplace, others interpret the rise in independent and flexible work opportunities, significant expansion in family-friendly policies like paid family leave, and the decline in private sector unionization as indicators of workers’ increasing competency and control. Another way to help expand workers’ freedom and voices in traditional workplaces is by allowing them to choose who represents them in negotiations with their employer. The Worker’s Choice Act19 would accom- plish this by ending exclusive representation so that unions in right-to-work states are no longer forced to represent workers who do not want to join them. Union Transparency. Private-sector unions must file detailed financial infor- mation with DOL—on matters including union spending, income, loans, assets, membership information, and employee salary—but unions composed entirely