S. 852 — Richard L. Trumka Protecting the Right to Organize Act of 2025

This section amends definitions in §2 of the National Labor Relations Act (NLRA), which establishes the scope of the law's protections for private-sector employees' rights to organize and engage in collective bargaining. (1) Employer.—Revises the definition of employer to specify that two or more persons are joint employers of an employee if they codetermine or share control over the employee's essential terms and conditions of employment (e.g., wages, hours, discipline), considering direct control, indirect control, reserved authority, or control exercised in fact. (Thus, indirect or reserved control alone may suffice to establish joint employer status under specific facts and circumstances, potentially expanding liability for entities such as franchisors or staffing agencies.) (2) Employee.—Establishes an ABC test under which an individual performing services is an employee (and thus covered by the NLRA) unless (A) free from the employer's control in contract and in fact, (B) performing services outside the employer's usual course of business, and (C) customarily engaged in an independent trade, occupation, profession, or business of the same nature. (3) Supervisor.—Revises the definition of supervisor to require that qualifying authority (e.g., to hire, transfer, suspend, lay off, recall, promote, discharge, reward, discipline, or effectively recommend such actions using independent judgment) be exercised in the employer's interest and for a majority of the individual's worktime, and strikes authority to assign employees or responsibly direct them. (Thus, fewer workers qualify as supervisors excluded from NLRA protections.)

This section reinstates annual reporting requirements for the National Labor Relations Board (NLRB) to Congress and the President by exempting them from termination under section 3003 of the Federal Reports Elimination and Sunset Act of 1995 effective January 1, 2027. It further requires each such report to (1) include no less detail than reports issued prior to their termination under that act; (2) list each case in which the Designated Agency Ethics Official provided advice on whether a member should be recused from participating in a case or rulemaking; and (3) list each case in which the ethics official determined that a member should be recused. (As background, the NLRB enforces private-sector labor law by investigating unfair labor practices and supervising union representation elections; these reports summarize such activities.)

This section amends Section 8 of the National Labor Relations Act (NLRA), which defines unfair labor practices (ULPs) by employers in subsection (a) and unions in subsection (b), as follows: (1) In subsection (a), adds ULP (6) prohibiting employers from promising, threatening, or taking action to permanently replace strikers (as defined in 29 U.S.C. 142(2)), discriminate against employees who return to work post-strike, or lock out employees to influence pre-strike bargaining; and adds ULP (7) prohibiting employers from communicating or misrepresenting to employees that they are excluded from the NLRA's "employee" definition; (2) In subsection (b), strikes paragraphs (4) (prohibiting secondary boycotts and coercion of neutral parties) and (7) (prohibiting certain recognition and organizational picketing), and redesignates paragraphs (5) and (6) as (4) and (5); (3) In subsection (c), which addresses employer expression of views, adds that requiring or coercing employees to attend employer campaign activities unrelated to job duties (including those reportable under 29 U.S.C. 433(b)) is a ULP under subsection (a)(1); (4) In subsection (d), which imposes a duty to bargain in good faith, restructures it into numbered paragraphs, inserts a duty to maintain current wages, hours, and terms pending agreement, requires the duty to continue absent labor organization decertification via NLRB election under NLRA §9, and adds paragraph (3) for first-contract bargaining after certification or recognition that mandates (A) commencement within 10 days of request (or as agreed), with reasonable efforts to conclude an agreement; (B) mediation by Federal Mediation and Conciliation Service if no agreement after 90 days (or as agreed), upon either party's request; and (C) binding arbitration by a tripartite panel (one member each selected by union, employer, and neutral mutually agreed, or designated by the Service if not selected within 14 days) if no agreement after 30 days of mediation (or as agreed), with the decision effective for two years (unless mutually amended) and based on specified factors including employer finances, operations, employee cost of living and sustainment ability, and comparable wages/benefits; and (5) Amends subsection (e) to make it a ULP under subsection (a)(1), notwithstanding the Federal Arbitration Act, for an employer to enter into or attempt to enforce any agreement, express or implied.

This section revises National Labor Relations Board (NLRB) procedures for representation petitions and elections under Section 9(c) of the National Labor Relations Act (NLRA), which authorizes the NLRB to investigate petitions, conduct hearings, direct elections, and certify bargaining representatives for private-sector employees. (1) In paragraph (1), it establishes a new standard for bargaining units—deeming a labor organization's proposed unit appropriate if employees within it share a community of interest and those outside do not share an overwhelming community of interest; authorizes elections by certified mail, electronically, at the work location, or elsewhere at the union's request; and bars employers from participating as parties or intervening. (2) In paragraph (3), it expands eligibility to vote in certain elections to all strikers (from economic strikers not entitled to reinstatement). (3) It adds new paragraphs (4) and (5), requiring certification and a bargaining order if a majority vote for the union; if not, certifying results but issuing a bargaining order without a new election if the employer violated the NLRA or interfered with the election (and the violation likely affected the outcome) and a majority of unit employees signed authorization cards within the prior year; otherwise, directing a new election with safeguards. (4) It adds new paragraph (8), establishing expedited timelines: pre-election hearings to begin within 8 days of notice and continue daily; election notices transmitted immediately and electronically or by overnight mail; employers to post and distribute notice of petition within 2 days; elections by the 20th business day after direction; and post-election hearings within 14 days of objections (except in extraordinary circumstances).

This section revises remedies under Section 10(c) of the National Labor Relations Act (NLRA) (29 U.S.C. 160(c)) for employer violations of NLRA Section 8(a)(3) or (4) (i.e., discrimination to discourage union membership or for filing charges/testifying) or other Section 8(a) unfair labor practices resulting in employee discharge or serious economic harm. For such violations, the National Labor Relations Board (NLRB) must order back pay without reduction for interim earnings (previously offset by such earnings), front pay when appropriate, consequential damages, and liquidated damages equal to two times the damages awarded. (Thus, this expands and mandates fuller employee compensation beyond prior discretionary "make-whole" relief.) The section further prohibits denial of such relief based on the employee's status as an unauthorized alien under immigration law.

This section revises judicial enforcement and review of National Labor Relations Board (NLRB) orders under section 10 of the National Labor Relations Act (NLRA, 29 U.S.C. 160)—which address unfair labor practices affecting private-sector employees' rights to organize and bargain collectively—as follows: (1) strikes subsection (e), redesignates subsection (d) as (e), and inserts new subsection (d) requiring orders to take effect upon issuance (unless otherwise directed by the Board) and remain in effect unless modified by the Board or superseded by a court, imposing civil penalties of up to $10,000 per violation for noncompliance (recoverable by the Board in district court after 30 days, with each day of continuing violation of a final order a separate offense), and directing courts to enforce orders via injunction after notice and hearing; (2) amends subsection (f) to require petitions to set aside orders within 30 days of issuance, limit court consideration of new objections absent extraordinary circumstances, deem Board factual findings conclusive if supported by substantial evidence, allow courts to remand for limited additional evidence, and make district court judgments final subject to review by courts of appeals and the Supreme Court under 28 U.S.C. 1254; and (3) makes conforming cross-reference changes in subsections (f) and (g) and in section 18 of the NLRA (29 U.S.C. 168).

This section amends subsection (j) of section 10 of the National Labor Relations Act (29 U.S.C. 160)—which authorizes the National Labor Relations Board (NLRB) to petition federal district courts for temporary injunctive relief pending final Board disposition of unfair labor practice charges—by designating the existing text as paragraph (1) and adding paragraph (2) to require priority preliminary investigation (ahead of all other cases except those of like character) for charges alleging employer unfair labor practices under section 8(a)(1) (interference with section 7 rights), (3) (discharge or discrimination), or (4) (refusal to bargain) that significantly interfere with, restrain, or coerce employees' section 7 rights or involve discharge or other serious economic harm to an employee; if reasonable cause exists to believe the charge is true and a complaint should issue, the responsible officer or regional attorney must petition for relief under paragraph (1), which the district court must grant unless there is no reasonable likelihood the Board will succeed on the merits. The section also repeals subsection (k), which required NLRB hearings and petitions for injunctive relief against alleged employer refusals to bargain or lockouts intended to evade section 8(a)(3), and subsection (l), which authorized temporary injunctions against alleged secondary boycotts under section 8(b)(4).

This section revises section 12 of the National Labor Relations Act (NLRA) to impose new civil penalties on employers, including (1) up to $500 per violation for failing to comply with section 8(h) posting requirements and voter list regulations; (2) up to $50,000 ($100,000 if doubled for a repeat violation within the prior five years of section 8(a)(3) or (4) or causing employee discharge or serious economic harm) per unfair labor practice (ULP) under section 8(a)—considering the violation's gravity, impact on affected parties and the public interest, and employer gross income—with possible assessment against directors or officers who directed, authorized, or failed to prevent the violation; and (3) a private right of civil action for persons aggrieved by section 8(a)(1), (3), or (4) violations, available after 60 days from charge filing (or Board notice of no complaint) and within 90 days thereafter if the Board has not sought injunctive relief under section 10(j), providing back pay without reduction for interim earnings, front pay, consequential damages, liquidated damages (twice the cumulative amount of specified damages), punitive damages (considering gravity, impact, and employer gross income), other equitable relief, and reasonable attorney's fees and costs (without regard to the plaintiff's status as an unauthorized alien). It also amends section 10(b) of the NLRA to extend the ULP charge-filing period to 180 days (from six months).

This section amends Section 13 of the National Labor Relations Act (29 U.S.C. 163) to provide that the duration, scope, frequency, or intermittence of any strike or strikes shall not render such strikes unprotected or prohibited. (Thus, the existing protection for the right to strike applies regardless of those strike characteristics, except as otherwise specifically provided.)

This section amends section 14(b) of the National Labor Relations Act (NLRA)—which preserves state and territorial right-to-work laws prohibiting union membership or fees as a condition of employment—to authorize collective bargaining agreements requiring all employees in a bargaining unit to contribute fees to a labor organization for the cost of representation, collective bargaining, contract enforcement, and related expenditures, notwithstanding any such state or territorial law. (Thus, these "fair share" agreements are valid and enforceable even in right-to-work jurisdictions.)

This section amends the Labor Management Relations Act, 1947: (1) in section 213(a) (29 U.S.C. 183(a)), by updating cross-references to National Labor Relations Act (NLRA) section 8(d) notice requirements from clause designations to subsection designations (i.e., from "clause (A) of the last sentence of section 8(d) (which is required by clause (3) of such section 8(d))" and "clause (B)" to "section 8(d)(2)(A) of [the NLRA] (which is required by section 8(d)(1)(C) of such Act)" and "section 8(d)(2)(B) of such Act"); and (2) by repealing section 303 (29 U.S.C. 187).

This section limits the "advice" exemption from employer reporting requirements for payments and arrangements with labor relations consultants under the Labor-Management Reporting and Disclosure Act of 1959 (LMRDA) (29 U.S.C. 433(c)). It requires reporting for any such arrangement, or part thereof, in which a party agrees, for a persuader object (i.e., to persuade employees on union organizing and bargaining), to (1) plan or conduct employee meetings; (2) train supervisors or employer representatives to conduct meetings; (3) coordinate or direct activities of supervisors or employer representatives; (4) establish or facilitate employee committees; (5) identify employees for disciplinary action, reward, or other targeting; or (6) draft or revise employer personnel policies, speeches, presentations, or other written, recorded, or electronic communications to be delivered or disseminated to employees.

This section provides a severability clause, under which the invalidation of any provision of this Act, or its application to any person or circumstance, does not affect the remainder of the Act or the application of that provision to other persons or circumstances.