S. 2688 — Introduced in Senate

II 113th CONGRESS 2d Session S. 2688 IN THE SENATE OF THE UNITED STATES July 30, 2014 Mr. Thune (for himself, Mr. Alexander, Mr. Cornyn, and Mr. Isakson) introduced the following bill; which was read twice and referred to the Committee on Health, Education, Labor, and Pensions A BILL To ensure labor organization transparency and accountability. 1. Short title This Act may be cited as the Union Transparency and Accountability Act. 2. Disclosure requirements Section 208 of the Labor-Management Reporting and Disclosure Act of 1959 (29 U.S.C. 438) is amended— (1) by striking The Secretary and inserting (a) The Secretary; and (2) by adding at the end the following: (b) Notwithstanding subsection (a) and for each fiscal year, a labor organization that would be required to file form LM–2 under part 403 of title 29, Code of Federal Regulations, under section 201(a) (as such part was in effect on October 12, 2009) shall be required to annually file with the Secretary— (1) form LM–2, as published in the appendix to the final rule issued by the Secretary of Labor entitled Labor Organization Annual Financial Reports (74 Fed. Reg. 3678 (January 21, 2009)); or (2) a successor form that includes all of the information required in such form LM–2 (as such form was published on January 21, 2009). (c) Notwithstanding subsection (a) and for each fiscal year, a labor organization that would be required to file form T–1 under part 403 of title 29, Code of Federal Regulations (as such part was in effect on November 30, 2010) shall file with the Secretary, as the report concerning trusts in which a labor organization is interested— (1) form T–1, as published in the appendix to the final rule issued by the Secretary entitled Labor Organization Annual Financial Reports for Trusts in Which a Labor Organization Is Interested, Form T–1 (73 Fed. Reg. 57412 (October 2, 2008)); or (2) a successor form that includes all of the information required in such form T–1 (as such form was published on October 2, 2008). (d) Notwithstanding subsection (a) and for each fiscal year, an officer or employee of a labor organization who would be required to file form LM–30 under part 404 of title 29, Code of Federal Regulations (as such part was in effect on October 25, 2011) shall be required to file with the Secretary— (1) form LM–30, as published in the appendix to the final rule issued by the Secretary entitled Labor Organization Officer and Employee Report, Form LM–30 (72 Fed. Reg. 36106 (July 2, 2007)); or (2) a successor form that includes all of the information required in such form LM–30 (as such form was published on July 2, 2007). . 3. Civil fines relating to disclosure violations (a) Civil fines for failure To provide information to members Section 201 of the Labor-Management Reporting and Disclosure Act of 1959 (29 U.S.C. 431) is amended— (1) by redesignating subsection (c) as subsection (c)(1); and (2) by inserting after such subsection (c)(1) the following: (2) Any labor organization that fails to meet the requirements of paragraph (1) with respect to a member, by refusing to make available the information required to be contained in a report required to be submitted under this title, and any books, records, and accounts necessary to verify such report (unless such failure or refusal results from matters reasonably beyond the control of the labor organization), may in the court’s discretion, and in addition to any other relief provided by law and determined proper by the court, be liable to such member for an amount that is not more than $250 a day from the date of such failure or refusal (except that such amount shall be adjusted for inflation in the same manner as the Secretary adjusts the amount of a civil fine under section 211(c)). For purposes of this paragraph, each violation with respect to any single member shall be treated as a separate violation. . (b) Civil enforcement for failure To file a timely report Section 210 of the Labor-Management Reporting and Disclosure Act of 1959 (29 U.S.C. 440) is amended to read as follows: 210. Civil enforcement (a) In general Whenever it shall appear that any person has violated or is about to violate any of the provisions of this title, or section 301(a), the Secretary may bring a civil action for such relief, including an injunction or the enforcement of a civil fine imposed under section 211, as may be appropriate. Any such action may be brought in the district court of the United States where the violation occurred or in the United States District Court for the District of Columbia. (b) Judicial review for enforcement of civil fines (1) Standard of review Upon a complaint filed by the Secretary seeking the enforcement of a civil fine, the appropriate district court shall impose the civil fine that has been determined to be appropriate by the Secretary— (A) if the person, labor organization, or employer against whom the civil fine is sought has been provided written notice and an opportunity to be heard before the Secretary or a designee of such Secretary, in accordance with procedures established by the Secretary under section 211(g)(1); and (B) unless the Secretary’s determination is shown to be arbitrary and capricious. (2) Scope of review The appropriate court shall not consider any objection or argument that was not raised in the proceedings before the Secretary. (c) Appropriateness of injunctive relief Upon a complaint filed by the Secretary seeking relief under this section demonstrating that a person, labor organization, or employer has failed to file timely and complete reports required by this title or section 301(a), or has filed reports that are substantially incomplete or inaccurate, or that information required to be reported may be lost or destroyed absent such relief, the district court shall issue an order enjoining continued violation of this title or section 301(a). Injunctive relief may be awarded in addition to any other additional civil or criminal remedy and whether or not the Secretary seeks enforcement of a civil fine. . (c) Authority To impose civil fines Title II of the Labor-Management Reporting and Disclosure Act of 1959 (29 U.S.C. 431 et seq.) is amended— (1) by redesignating section 211 as section 212; and (2) by inserting after section 210 the following: 211. Civil fines (a) Notice; correction period Upon finding a violation of subsection (a) or (b) of section 201 or section 202, 203, 207, 212, or 301(a), the Secretary shall, in accordance with standards and procedures established by the Secretary under subsection (g), provide the person, labor organization, or employer responsible for such violation— (1) written notice of the violation; and (2) a period of time to correct the violation that is not more than 30 days after the date that the Secretary provides such written notice. (b) Fines assessed Subject to the other provisions of this section, if the Secretary determines that a person, labor organization, or employer has violated subsection (a) or (b) of section 201 or section 202, 203, 207, 212, or 301(a) and has not corrected the violation within the period described in subsection (a)(2), the Secretary may assess a civil fine against the person, labor organization, or employer responsible for such violation. (c) Amount of civil fine (1) Maximum amount A civil fine under this section shall be for an amount that is not more than $250 a day from the date of the violation, and not more than $45,000 in the aggregate, except that such amounts shall be adjusted in accordance with the inflation adjustment procedures prescribed in the Federal Civil Penalties Inflation Adjustment Act of 1990 (28 U.S.C. 2461 note; Public Law 101–410). (2) Factors in determining amount In determining the amount of a civil fine under this section, the Secretary may consider— (A) the gravity of the offense; (B) any history of prior offenses (including offenses occurring before the date of enactment of this section) of the person, labor organization, or employer responsible for such violation; (C) the ability of such person, labor organization, or employer to pay the civil fine without material impairment of the ability to carry out representational functions or honor other financial obligations; (D) any injury to uninvolved members of the labor organization or to the public; (E) any benefits to such person, labor organization, or employer resulting from such violation; (F) the ability of the civil fine to deter future such violations; and (G) any other factors that the Secretary may determine to be appropriate to further the purposes of this Act. (d) Limitation A person, labor organization, or employer shall not be required to pay a civil fine under this section for a violation of subsection (a) or (b) of section 201 or section 202, 203, 207, 212, or 301(a) for which a material cause was reasonably beyond the control of such person, labor organization, or employer. (e) Incomplete reports A report rejected by the Secretary as incomplete shall be considered not filed for purposes of determining the existence of a violation of subsection (a) or (b) of section 201 or section 202, 203, 207, 212, or 301(a), and a civil fine may be assessed for such violation. (f) Effect on criminal sanctions The imposition of a civil fine under this section shall not affect the availability of criminal sanctions against any person, labor organization, or employer who knowingly or willfully violates a provision of this Act. (g) Standards and procedures (1) In general The Secretary shall establish, pursuant to sections 208 and 606, standards and procedures governing the imposition of a civil fine under this section that include providing the person, labor organization, or employer responsible for an alleged violation of subsection (a) or (b) of section 201 or section 202, 203, 207, 212, or 301(a) with— (A) written notice of such violation; and (B) an opportunity for a hearing before the Secretary or a designee of such Secretary. (2) Judicial review (A) In general After exhausting all administrative remedies established by the Secretary under paragraph (1), a person, labor organization, or employer against whom the Secretary has imposed a civil fine under this section may obtain a review of such fine in the United States District Court where the violation occurred or in the United States District Court for the District of Columbia, by filing in such court, within 30 days of the entry of a final order imposing the civil fine, a written petition that the Secretary’s order or determination be modified or be set aside in whole or in part. (B) Standard of review Upon petition for review of a civil fine under this section, the appropriate district court shall impose the civil fine determined to be appropriate by the Secretary— (i) if the person, labor organization, or employer against whom the civil fine is sought has been provided written notice and an opportunity to be heard, in accordance with the procedures established by the Secretary under paragraph (1); and (ii) unless the Secretary’s determination is shown to be arbitrary and capricious. (C) Scope of review In reviewing a civil fine under this section, the appropriate district court shall not consider any objection or argument that was not raised in the proceedings before the Secretary. (h) Settlement by secretary The Secretary may compromise, modify, or remit any civil fine that may be, or has been, imposed under this section. . (d) Technical and conforming amendments The Labor-Management Reporting and Disclosure Act of 1959 (29 U.S.C. 401 et seq.) is further amended— (1) in section 205 (29 U.S.C. 435), by striking 211 each place it appears and inserting 212; (2) in section 207(b) (29 U.S.C. 437(b)), by striking 211 each place it appears and inserting 212; and (3) in section 301(b) (29 U.S.C. 461(b)), by striking and 210 and inserting 210, and 211. 4. Whistleblower protections for labor organization employees Title II of the Labor-Management Reporting and Disclosure Act of 1959 (29 U.S.C. 431 et seq.) is amended by inserting after section 211 the following: 211A. Whistleblower protection for labor organization employees (a) Whistleblower protection It shall be unlawful for any labor organization to discharge or in any other manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this Act, or has testified or is about to testify in any such proceeding. (b) Enforcement and remedies Any person whose rights secured by the provisions of this title have been infringed by any violation of this title may bring a civil action in the appropriate district court of the United States for such relief as may be appropriate, including an injunction. A civil action under this subsection against a labor organization shall be brought in the district court of the United States for the district where the alleged violation occurred or where the principal office of such labor organization is located. .