[Congressional Bills 115th Congress]
[From the U.S. Government Publishing Office]
[H.R. 6238 Introduced in House (IH)]
<DOC>
115th CONGRESS
2d Session
H. R. 6238
To secure the rights of public employees to organize, act concertedly,
and bargain collectively, which safeguard the public interest and
promote the free and unobstructed flow of commerce, and for other
purposes.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
June 27, 2018
Mr. Cartwright (for himself, Mr. Gene Green of Texas, Mr. Pallone, Mr.
Scott of Virginia, Ms. Schakowsky, Ms. Norton, Ms. Bonamici, Mr. Rush,
Mr. DeFazio, Ms. Kaptur, Mr. Beyer, Mr. Cohen, Mr. Schrader, Ms. Wilson
of Florida, Mr. Espaillat, Mr. Pocan, Mr. Connolly, and Mr. Takano)
introduced the following bill; which was referred to the Committee on
Education and the Workforce
_______________________________________________________________________
A BILL
To secure the rights of public employees to organize, act concertedly,
and bargain collectively, which safeguard the public interest and
promote the free and unobstructed flow of commerce, and for other
purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Public Service Freedom to Negotiate
Act of 2018''.
SEC. 2. FINDINGS; PURPOSE.
(a) Findings.--Congress makes the following findings:
(1) The denial by some public employers of the right of
public employees to organize and the refusal by some public
employers to accept the procedure of collective bargaining lead
to strikes and other forms of strife or unrest. Such actions
have the intent or the necessary effect of burdening or
obstructing commerce by--
(A) impairing the efficiency, safety, or operation
of the instrumentalities of commerce, which depend on
stable government services and public infrastructure;
(B) materially affecting, restraining, or
controlling the flow of goods into the channels of
commerce, or the prices of such materials or goods in
commerce; or
(C) causing diminution of employment and wages in
such volume so as to substantially impair or disrupt
the market for goods flowing from or into the channels
of commerce.
(2) The inequality of bargaining power between public
employees, who do not possess full freedom of association or
actual liberty of contract, and public employers substantially
burdens and affects the flow of commerce, and tends to
aggravate recurrent business depressions, by depressing wage
rates and the purchasing power of wage earners and by
negatively affecting the stabilization of competitive wage
rates and decent working conditions.
(3) Experience in public employment indicates that the
statutory protection of the rights of public employees to
organize, act concertedly, and bargain collectively safeguards
the public interest and promotes the free and unobstructed flow
of commerce among the States by removing certain recognized
sources of strife and unrest. Such protection facilitates and
encourages the amicable settlement of disputes between public
employees and their public employers involving terms and
conditions of employment and other matters of mutual concern.
(4) To be most effective and stable, labor-management
relationships in the public sector must be based on trust,
mutual respect, open communication, bilateral consensual
problem solving, and shared accountability. In many public
agencies, it is the union that provides the institutional
stability as elected leaders and appointees come and go.
(5) State and local public employees play an essential role
in the efforts of the United States to detect, prevent, and
respond to terrorist attacks, and to respond to natural
disasters, hazardous materials, and other mass casualty
incidents. State and local public employees, as first
responders, are a component of our Nation's National Incident
Management System, developed by the Department of Homeland
Security to coordinate response to and recovery from terrorism,
major natural disasters, and other major emergencies. Effective
and stable public employer-employee relationships are essential
in meeting these needs and are, therefore, in both the National
interest as well as in furtherance of the United States
obligation to safeguard the country under article IV, section 4
of the Constitution of the United States.
(6) Teachers and other education professionals (including
paraprofessionals, custodians, administrative staff, cafeteria
workers, specialized instructional support personnel, and
others) work to provide quality education to every student.
Students deserve the opportunity to reach their full potential
in a well-resourced public school.
(7) Conflict between public employers and public employees
has implications for the security of public employees and the
public and affects interstate and intrastate commerce.
Ineffective and unstable labor-management relations can
detrimentally impact the upgrading of public services of local
communities, the health and well-being of public employees, and
the morale within public agencies. Additionally, these factors
have significant commercial repercussions. Moreover, providing
minimal standards for collective bargaining rights in the
public sector can prevent industrial strife between labor and
management that interferes with the normal flow of commerce. It
is settled law that Congress has authority under the Commerce
Clause of the United States Constitution to safeguard
protections for employees of State and local governments.
(8) Many States and localities already have laws that
provide public employees with collective bargaining rights
comparable to or greater than the rights and responsibilities
set forth in this Act, and such State and local laws should be
respected.
(9) While the National Labor Relations Act (29 U.S.C. 151
et seq.) protects the rights of private-sector employees to
form or join unions, act concertedly for the purpose of
collective bargaining or other mutual aid or protection, and
bargain collectively with their employers, no Federal law
protects these fundamental labor rights for employees of the
States, including territories and possessions of the United
States, and the political subdivisions thereof. The Federal
Government needs to encourage conciliation, mediation, and
dispute resolution to aid and encourage public employers and
the representatives of their public employees to reach and
maintain agreements concerning rates of pay, hours, and working
conditions, and to make all reasonable efforts through
negotiations to settle their differences by mutual agreement
reached through collective bargaining or by such methods as may
be provided for in any applicable agreement for the settlement
of disputes.
(b) Purpose.--It is the purpose of this Act to--
(1) secure the rights of public employees to form or join
unions, act concertedly for the purpose of collective
bargaining or other mutual aid or protection, and bargain
collectively with their employers; and
(2) reaffirm the policy of the United States to encourage
the practice and procedure of collective bargaining, which
safeguards the public interest and promotes the free and
unobstructed flow of commerce.
SEC. 3. DEFINITIONS.
In this Act:
(1) Authority.--The term ``Authority'' means the Federal
Labor Relations Authority.
(2) Collective bargaining.--The term ``collective
bargaining'', with respect to public employees and public
employers, means the performance of the mutual obligation of
the representative of a public employer and the exclusive
representative of public employees in an appropriate unit of
the employer to meet at reasonable times and to consult and
bargain in a good-faith effort to reach agreement with respect
to wages, hours, and other terms and conditions of employment
affecting such employees and to execute, if requested by either
party, a written document incorporating any collective
bargaining agreement reached, but the obligation referred to in
this paragraph does not compel either party to agree to a
proposal or to make a concession.
(3) Confidential employee.--
(A) In general.--Except as provided in subparagraph
(B), the term ``confidential employee'' means a public
employee who acts in a confidential capacity with
respect to an individual who formulates or effectuates
management policies in the field of labor-management
relations.
(B) State law.--If the term ``confidential
employee'', or a substantially equivalent term, has a
substantially equivalent meaning under applicable State
law to the meaning under subparagraph (A) on the date
of the enactment of this Act, such term, or
substantially equivalent term, and meaning under such
applicable State law shall apply with respect to the
term ``confidential employee'' under this Act for
public employees and public employers in such State.
(4) Emergency services employee.--The term ``emergency
services employee'' means--
(A) a public employee providing out-of-hospital
emergency medical care, including an emergency medical
technician, paramedic, or first responder; or
(B) a public employee providing other services in
response to emergencies that have the potential to
cause death or serious bodily injury, including an
employee in fire protection activities (as defined in
section 3 of the Fair Labor Standards Act of 1938 (29
U.S.C. 203)).
(5) Employ.--The term ``employ'' includes to suffer or
permit to work.
(6) Labor organization.--The term ``labor organization'',
with respect to public employers and public employees, means
any organization of any kind in which public employees
participate and which exists for the purpose, in whole or in
part, of dealing with public employers concerning grievances,
labor disputes, wages, rates of pay, hours of employment, or
conditions of work.
(7) Law enforcement officer.--The term ``law enforcement
officer'' has the meaning given such term in section 1204 of
the Omnibus Crime Control and Safe Streets Act of 1968 (34
U.S.C. 10284).
(8) Management employee.--
(A) In general.--Except as provided in subparagraph
(B), the term ``management employee'' means an
individual employed by a public employer in a position
the duties and responsibilities of which require or
authorize the individual to formulate, determine, or
influence the policies of the employer.
(B) State law.--If the term ``management
employee'', or a substantially equivalent term, has a
substantially equivalent meaning under applicable State
law to the meaning under subparagraph (A) on the date
of the enactment of this Act, such term, or
substantially equivalent term, and meaning under such
applicable State law shall apply with respect to the
term ``management employee'' under this Act for public
employees and public employers in such State.
(9) Person.--The term ``person'' means an individual or a
labor organization.
(10) Public employee.--The term ``public employee''--
(A) means a person, employed by a public employer,
who in any workweek is engaged in commerce or in the
production of goods for commerce, or is employed in an
enterprise engaged in commerce or in the production of
goods for commerce (as the terms ``commerce'',
``goods'', and ``enterprise engaged in commerce or in
the production of goods for commerce'' are defined in
section 3 of the Fair Labor Standards Act of 1938);
(B) includes an individual who is temporarily
transferred to a supervisory or management position;
and
(C) does not include a permanent supervisory
employee, permanent management employee, or permanent
confidential employee, or an elected official.
(11) Public employer.--The term ``employer'' means any of
the following that employs public employees:
(A) A State or the political subdivision of a
State, including a territory or political subdivision
of a territory.
(B) Any authority, agency, school district, board
or other entity controlled and operated by an entity
described in subparagraph (A).
(12) State.--The term ``State'' means each of the several
States of the United States, the District of Columbia, and any
territory or possession of the United States.
(13) Substantially provides.--The term ``substantially
provide'' or ``substantially provides'', with respect to the
rights and responsibilities described in section 4(b), means
providing rights and responsibilities that are comparable to or
greater than each of the rights and responsibilities described
in such section.
(14) Supervisory employee.--
(A) In general.--Except as provided in subparagraph
(B), the term ``supervisory employee'' means an
individual, employed by a public employer, who--
(i) has the authority in the interest of
the employer, if the exercise of the authority
is not merely routine or clerical in nature but
requires the consistent exercise of independent
judgment, to--
(I) hire, promote, reward,
transfer, furlough, lay off, recall,
suspend, discipline, or remove public
employees;
(II) adjust the grievances of
public employees; or
(III) effectively recommend any
action described in subclause (I) or
(II); and
(ii) devotes a majority of time at work to
exercising the authority under clause (i).
(B) State law.--If the term ``supervisory
employee'', or a substantially equivalent term, has a
substantially equivalent meaning under applicable State
law to the meaning under subparagraph (A) on the date
of the enactment of this Act, such term, or
substantially equivalent term, and meaning under such
applicable State law shall apply with respect to the
term ``supervisory employee'' under this Act for public
employees and public employers in such State.
SEC. 4. DETERMINATION OF RIGHTS AND RESPONSIBILITIES.
(a) Determination.--
(1) In general.--Not later than 180 days after the date of
enactment of this Act, the Authority shall make a determination
as to whether a State substantially provides for the rights and
responsibilities described in subsection (b).
(2) Consideration of additional opinions.--In making the
determination described in paragraph (1), the Authority shall
consider the opinions of affected public employees, labor
organizations, and public employers. In the case where the
Authority is notified by an affected public employer and labor
organization that both parties agree that the law applicable to
such employer and labor organization substantially provides for
the rights and responsibilities described in subsection (b),
the Authority shall give such agreement weight to the maximum
extent practicable in making the Authority's determination
described in paragraph (1).
(3) Limited criteria.--In making the determination
described in paragraph (1), the Authority shall be limited to
the application of the criteria described in subsection (b) and
shall not require any additional criteria.
(4) Subsequent determinations.--
(A) In general.--A determination made pursuant to
paragraph (1) shall remain in effect unless and until
the Authority issues a subsequent determination, in
accordance with the procedures set forth in
subparagraph (B).
(B) Procedures for subsequent determinations.--Upon
establishing that a material change in State law or its
interpretation has occurred, a public employee, public
employer, or a labor organization may submit a written
request for a subsequent determination. If satisfied
that a material change in State law or its
interpretation has occurred, the Authority shall issue
a subsequent determination not later than 30 days after
receipt of such request.
(5) Judicial review.--Any person or public employer
aggrieved by a determination of the Authority under this
section may, during the 60-day period beginning on the date on
which the determination was made, petition any United States
Court of Appeals in the circuit in which the person or public
employer resides or transacts business or in the Court of
Appeals for the District of Columbia Circuit, for judicial
review. In any judicial review of a determination made by the
Authority described in paragraph (1), the procedures contained
in subsections (c) and (d) of section 7123 of title 5, United
States Code, shall be followed.
(b) Rights and Responsibilities.--The rights and responsibilities
described in this section are each of the following:
(1) Granting public employees the right to self-
organization, to form, join, or assist a labor organization, to
bargain collectively through representatives of their own
choosing, and to engage in other concerted activities for the
purpose of collective bargaining or other mutual aid or
protection.
(2) Requiring public employers to--
(A) recognize the labor organization of its public
employees (freely chosen in an election by a majority
of such employees voting in the appropriate unit),
without requiring an election to recertify a labor
organization that is already recognized as the
representative of such employees unless not less than
30 percent of such employees in the appropriate unit
freely sign a petition to decertify such labor
organization;
(B) collectively bargain with such recognized labor
organization; and
(C) commit any agreements with such recognized
labor organization to writing in a contract or
memorandum of understanding.
(3) Making available an interest impasse resolution
mechanism, such as fact-finding, mediation, arbitration, or
comparable procedures and providing for the payroll deduction
of labor organization fees to any duly-selected representative
of public employees pursuant to the terms of an authorization
executed by such public employees.
(4) Requiring enforcement of all rights, responsibilities,
and protections provided by State law and enumerated in this
section, and of any written contract or memorandum of
understanding between a labor organization and a public
employer, through--
(A) a State administrative agency, if the State so
chooses;
(B) at the election of an aggrieved party, the
State courts; or
(C) in the case of an alleged violation,
misinterpretation, or misapplication of the contract or
memorandum of understanding, a grievance resolution
procedure negotiated in such contract or memorandum.
(c) Compliance With Requirements.--If the Authority determines,
acting pursuant to its authority under subsection (a), that a State
substantially provides for the rights and responsibilities described in
subsection (b), then subsection (d) shall not apply.
(d) Failure To Meet Requirements.--
(1) In general.--If the Authority determines, acting
pursuant to its authority under subsection (a), that a State
does not substantially provide for the rights and
responsibilities described in subsection (b), then such State
shall be subject to the regulations and procedures described in
section 5 beginning on the later of--
(A) the date that is 2 years after the date of
enactment of this Act;
(B) the date that is the last day of the first
regular session of the legislature of the State that
begins after the date of the enactment of this Act; or
(C) in the case of a State receiving a subsequent
determination under subsection (a)(4), the date that is
the last day of the first regular session of the
legislature of the State that begins after the date the
Authority made the determination.
(2) Partial failure.--If the Authority makes a
determination that a State does not substantially provide for
the rights and responsibilities described in subsection (b)
solely because the State law substantially provides for such
rights and responsibilities for certain categories of public
employees but not others, the Authority shall identify--
(A) those categories of public employees that shall
be subject to the regulations and procedures described
in section 5, pursuant to section 8(b)(3), beginning on
the applicable date under paragraph (1); and
(B) those categories of public employees that shall
not be subject to the regulations and procedures
described in section 5.
SEC. 5. MINIMUM STANDARDS ADMINISTERED BY THE FEDERAL LABOR RELATIONS
AUTHORITY.
(a) In General.--Not later than 1 year after the date of enactment
of this Act, the Authority shall issue regulations in accordance with
the rights and responsibilities described in section 4(b) establishing
collective bargaining procedures for public employers, labor
organizations, and public employees in States which the Authority has
determined, acting pursuant to section 4(a), do not substantially
provide for such rights and responsibilities.
(b) Role of the Federal Labor Relations Authority.--The Authority,
to the extent provided in this Act and in accordance with regulations
prescribed by the Authority, shall--
(1) protect the right of public employees to form, join, or
assist any labor organization, or to refrain from any such
activity, freely and without fear of penalty or reprisal,
protect the right of public employees to bargain collectively
through representatives of their own choosing, and protect the
right of public employees to engage in other concerted
activities for the purpose of collective bargaining or other
mutual aid or protection;
(2) supervise or conduct elections to determine whether a
labor organization has been selected as an exclusive
representative by a majority of the public employees voting in
such election in an appropriate unit, and provide for the
payroll deduction of labor organization fees to any such duly-
elected exclusive representative pursuant to the terms of an
authorization executed by a public employee;
(3) determine the appropriateness of units for labor
organization representation;
(4) require public employers to--
(A) recognize the labor organization of its public
employees (freely chosen by a majority of such
employees voting in the appropriate unit) as the
exclusive representative of such employees;
(B) bargain in good faith with such labor
organization concerning public employees' terms and
conditions of employment, which shall include a
procedure for the settlement of grievances culminating
in binding arbitration in any agreement and a procedure
for resolving any impasses in collective bargaining;
and
(C) commit any agreements to writing in a contract
or memorandum of understanding;
(5) prohibit practices which interfere with, coerce, or
intimidate public employees in the exercise of rights
guaranteed in paragraph (1) or regulations issued thereunder;
(6) conduct hearings and resolve complaints concerning
violations of any regulation or order issued by the Authority
pursuant to this Act;
(7) resolve exceptions to the awards of arbitrators; and
(8) take such other actions as are necessary and
appropriate to effectively administer this Act, including
issuing subpoenas requiring the attendance and testimony of
witnesses and the production of documentary or other evidence
from any place in the United States, administering oaths,
taking or ordering the taking of depositions, ordering
responses to written interrogatories, and receiving and
examining witnesses.
(c) Enforcement.--The Authority may issue an order directing
compliance by any person or public employer found to be in violation of
this section, and may petition any United States Court of Appeals with
jurisdiction over the parties, or the United States Court of Appeals
for the District of Columbia Circuit, to enforce any such final orders
issued pursuant to this section or pursuant to regulations issued under
this section, and for appropriate temporary relief or a restraining
order. Any petition under this section shall be conducted in accordance
with subsections (c) and (d) of section 7123 of title 5, United States
Code.
SEC. 6. LOCKOUTS AND EMPLOYEE STRIKES PROHIBITED WHEN EMERGENCY OR
PUBLIC SAFETY SERVICES IMPERILED.
(a) In General.--Subject to subsection (b), any employer, emergency
services employee, or law enforcement officer to which section 5
applies may not engage in a lockout, strike, or any other organized job
action of which a reasonably probable result is a measurable disruption
of the delivery of emergency or public safety services. No labor
organization may cause or attempt to cause a violation of this
subsection.
(b) No Preemption.--Nothing in this section shall be construed to
preempt any law of any State or political subdivision of any State with
respect to strikes by emergency services employees or law enforcement
officers.
SEC. 7. EXISTING COLLECTIVE BARGAINING UNITS AND AGREEMENTS.
The enactment of this Act shall not invalidate any certification,
recognition, result of an election, collective bargaining agreement, or
memorandum of understanding that--
(1) has been issued, approved, or ratified by any public
employee relations board or commission, or by any State or
political subdivision or an agent or management official of
such State or political subdivision; and
(2) is in effect on the day before the date of enactment of
this Act.
SEC. 8. EXCEPTIONS.
(a) In General.--Section 4(d), and the regulations and procedures
under section 5, shall not apply--
(1) solely because a State law permits a public employee to
appear on the employee's own behalf with respect to the
employee's employment relations with the public employer
involved;
(2) solely because a State law excludes from its coverage
public employees of a State militia or national guard; or
(3) to a political subdivision of a State if--
(A) such political subdivision has a population of
fewer than 5,000 people or employs fewer than 25 public
employees; and
(B) the State in which such political subdivision
is located notifies the Authority of the State's
request that such political subdivision be exempt from
such sections.
(b) Compliance.--
(1) Actions of states.--Nothing in this Act or the
regulations promulgated under this Act shall be construed to
require a State to rescind or preempt the laws or ordinances of
any political subdivision of the State if such laws or
ordinances provide rights and responsibilities for public
employees that are comparable to or greater than the rights and
responsibilities described in section 4(b).
(2) Actions of the district of columbia.--Nothing in this
Act or the regulations promulgated under this Act shall be
construed--
(A) to require the District of Columbia to
rescind--
(i) section 501 of the District of Columbia
Government Comprehensive Merit Personnel Act
(1-605.01, D.C. Official Code), establishing
the Public Employee Relations Board of the
District of Columbia; or
(ii) section 502 of such Act (1-605.02,
D.C. Official Code), establishing the power of
the Board;
(B) to preempt the laws described in subparagraph
(A); or
(C) to limit or alter the powers of the government
of the District of Columbia pursuant to the District of
Columbia Home Rule Act.
(3) Actions of the authority.--Nothing in this Act or the
regulations promulgated under this Act shall be construed to
preempt--
(A) the laws or ordinances of any State or
political subdivision of a State, if such laws or
ordinances provide collective bargaining rights for
public employees that are comparable to or greater than
the rights enumerated in section 4(b);
(B) the laws or ordinances of any State or
political subdivision of a State that substantially
provide for the rights and responsibilities described
in section 4(b) with respect to certain categories of
public employees solely because such rights and
responsibilities have not been extended to other
categories of public employees covered by this Act;
(C) the laws or ordinances of any State or
political subdivision of a State that substantially
provide for the rights and responsibilities described
in section 4(b), solely because such laws or ordinances
provide that a contract or memorandum of understanding
between a public employer and a labor organization must
be presented to a legislative body as part of the
process for approving such contract or memorandum of
understanding; or
(D) the laws or ordinances of any State or
political subdivision of a State that permit or require
a public employer to recognize a labor organization on
the basis of signed authorizations executed by
employees designating the labor organization as their
representative.
(4) Limited enforcement power.--In the case of a law
described in subsection (d)(2), the Authority shall only
exercise the powers provided in section 5 with respect to those
categories of public employees for whom the State does not
substantially provide the rights and responsibilities described
in section 4(b).
SEC. 9. AUTHORIZATION OF APPROPRIATIONS.
There are authorized to be appropriated such sums as may be
necessary to carry out the provisions of this Act.
<all>