[Congressional Bills 116th Congress]
[From the U.S. Government Publishing Office]
[S. 1970 Introduced in Senate (IS)]
<DOC>
116th CONGRESS
1st Session
S. 1970
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 SENATE OF THE UNITED STATES
June 25, 2019
Ms. Hirono (for herself, Mr. Schumer, Mrs. Murray, Mr. Brown, Mr.
Schatz, Mr. Blumenthal, Mrs. Gillibrand, Mr. Reed, Mr. Whitehouse, Mr.
Durbin, Mr. Booker, Mr. Cardin, Ms. Smith, Ms. Hassan, Mr. Menendez,
Ms. Stabenow, Ms. Cantwell, Ms. Baldwin, Ms. Harris, Mr. Casey, Mrs.
Shaheen, Mr. Van Hollen, Ms. Cortez Masto, Mr. Coons, Mr. Carper, Mr.
Sanders, Ms. Klobuchar, Mr. Wyden, Mr. Peters, Ms. Warren, Mr. Merkley,
Mr. Markey, Ms. Rosen, Mr. Udall, Ms. Duckworth, and Mr. Leahy)
introduced the following bill; which was read twice and referred to the
Committee on Health, Education, Labor, and Pensions
_______________________________________________________________________
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 2019''.
SEC. 2. DEFINITIONS.
(a) In General.--In this Act:
(1) Authority.--The term ``Authority'' means the Federal
Labor Relations Authority.
(2) Appropriate unit.--The term ``appropriate unit'' means
a bargaining unit of public employees or supervisory employees
that share a community of interest, have a bargaining history
or history of prior organization, and represent the desires of
employees seeking representation.
(3) Collective bargaining.--The term ``collective
bargaining'', used with respect to public employees,
supervisory 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 and supervisory 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 (as described in section 8(d)
of the National Labor Relations Act (29 U.S.C. 158(d))).
(4) Confidential employee.--The term ``confidential
employee'' means an employee of a public employer who acts in a
confidential capacity with respect to an individual who
formulates or effectuates management policies in the field of
labor-management relations.
(5) Covered person.--The term ``covered person'' means an
individual or a labor organization.
(6) 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)).
(7) Employ.--The term ``employ'' has the meaning given the
term in section 3 of the Fair Labor Standards Act of 1938 (29
U.S.C. 203).
(8) Labor organization.--The term ``labor organization''
means any organization of any kind that is not under the
control directly or indirectly by a public employer in which
such 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.
(9) Law.--The term ``law'', used with respect to a State or
a political subdivision thereof, includes the application of
the laws of such State or such political subdivision, including
any regulations or ordinances issued by such State or such
political subdivision.
(10) 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).
(11) Management employee.--The term ``management employee''
means an individual employed by a public employer in a position
the duties and responsibilities of which require the individual
to formulate or determine the policies of the employer.
(12) Public employee.--
(A) In general.--The term ``public employee''--
(i) means, except as provided in clause
(iii), an individual, employed by a public
employer, who in any workweek is engaged in
commerce or is employed in an enterprise
engaged in commerce;
(ii) includes an individual described in
clause (i) who is temporarily transferred to a
supervisory or management position; and
(iii) does not include a supervisory
employee, management employee, or confidential
employee, or an elected official.
(B) Commerce; enterprise engaged in commerce.--For
the purpose of this paragraph, the terms ``commerce''
and ``enterprise engaged in commerce'' have the
meanings given such terms in section 3 of the Fair
Labor Standards Act of 1938 (29 U.S.C. 203).
(13) Public employer.--The term ``public employer'' means
any of the following that employs individuals:
(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).
(14) 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 (as defined in
section 3 of the Fair Labor Standards Act of 1938 (29 U.S.C.
203)).
(15) Substantially provide or substantially provides.--The
term ``substantially provide'' or ``substantially provides'',
used with respect to the rights and procedures described in
section 3(b), means providing rights and procedures that are
equivalent to or greater than each of the rights and procedures
described in such section.
(16) Supervisory employee.--
(A) In general.--Except as provided in subparagraph
(B), the term ``supervisory employee'' means an
individual, employed by a public employer, who in any
workweek is engaged in commerce or is employed in an
enterprise engaged in commerce and who--
(i) has the authority in the interest of
the employer, if the exercise of such 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) Commerce; enterprise engaged in commerce.--For
the purpose of this paragraph, the terms ``commerce''
and ``enterprise engaged in commerce'' have the
meanings given such terms in section 3 of the Fair
Labor Standards Act of 1938 (29 U.S.C. 203).
(b) State Law.--If any term defined in this section has a
substantially equivalent meaning to the term (or a substantially
equivalent term) under applicable State law 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 defined under this Act with respect to such State.
SEC. 3. FEDERAL MINIMUM STANDARDS.
(a) Determination.--
(1) In general.--Not later than 180 days after the date of
enactment of this Act, the Authority shall make a determination
for each State as to whether the laws of such State
substantially provide for each of the rights and procedures
under subsection (b) and not later than 30 days after the
enactment of this Act, the Authority shall establish procedures
for the implementation of this section.
(2) Consideration of additional opinions.--In making the
determination under paragraph (1), the Authority shall consider
the opinions of affected public employees, supervisory
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 procedures described
in subsection (b), the Authority shall give such agreement
weight to the maximum extent practicable in making the
Authority's determination under paragraph (1).
(3) Limited criteria.--In making the determination
described in paragraph (1), the Authority may consider the
criteria described in subsection (b) and not any other
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) Request.--A public employee, supervisory
employee, public employer, or labor organization may
submit to the Authority a written request for a
subsequent determination under paragraph (1) with
respect to a State if a material change of law in the
State has occurred.
(C) Issuance.--Not later than 30 days after receipt
of a request under subparagraph (B), the Authority
shall issue a subsequent determination under paragraph
(1) if satisfied that a material change of law in the
State has occurred.
(5) Judicial review.--Any covered person or public employer
aggrieved by a determination of the Authority under paragraph
(1) 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 covered 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 under paragraph (1), the procedures contained in
subsections (c) and (d) of section 7123 of title 5, United
States Code, shall be followed.
(b) Federal Minimum Standard.--The collective bargaining rights and
procedures under this subsection are as follows:
(1) A right of public employees and supervisory employees--
(A) to self-organization;
(B) to form, join, or assist a labor organization
or to refrain from any such activity;
(C) to bargain collectively through representatives
of their own choosing; and
(D) to engage in other concerted activities for the
purpose of collective bargaining or other mutual aid
(including the filing of joint class or collective
legal claims) or protection.
(2) A requirement for 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 or
chosen by voluntary recognition if that method is
permitted under State law), 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--
(i) not earlier than the date that is 1
year after the date of the election (or after a
voluntary recognition if permitted under State
law) of the representative;
(ii) if a valid collective bargaining
agreement covering such employees and labor
organization expires, not earlier than the date
that is 1 year after the expiration of such
agreement; and
(iii) not during the term of a valid
collective bargaining agreement covering such
employees and labor organization, except for
the 30-day period beginning on the date that is
90 days before the expiration of such
agreement;
(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) An interest impasse resolution mechanism that includes
a procedure for the settlement of grievances (including fact-
finding, mediation, and arbitration) and culminates in binding
arbitration.
(4) Payroll deduction of labor organization fees for any
duly selected representative of public employees and
supervisory employees pursuant to the terms of an authorization
executed by such public employees.
(5) The enforcement of all relevant rights and protections
provided by the law in the applicable State 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 Rights and Procedures.--If the Authority
determines under subsection (a) that the laws of a State substantially
provide each of the rights and procedures described in subsection (b),
then subsection (d) shall not apply.
(d) Failure To Substantially Provide.--
(1) In general.--If the Authority determines under
subsection (a) that the laws of a State do not substantially
provide for each of the rights and procedures described in
subsection (b), then such State shall be subject to the rules
and activities of the Authority under section 4 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
each of the rights and procedures described in subsection (b)
because the State fails to substantially provide for all of
such rights and procedures with respect to all public employees
or supervisory employees, the Authority shall identify--
(A) the categories of public employees or
supervisory employees of such State that shall be
subject to the rules and activities of the Authority
under section 4, pursuant to section 7(b)(4), beginning
on the applicable date under paragraph (1);
(B) the categories of public employees and
supervisory employees of such State that shall not be
subject to the rules and activities of the Authority
under section 4;
(C) the categories of rights and procedures
described in subsection (b) for which the State does
not substantially provide for certain public employees
and supervisory employees; and
(D) the categories of rights and procedures
described in such subsection for which the State
substantially provides for all employees.
SEC. 4. 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 rules and take such actions that
the Authority determines appropriate to establish and administer
collective bargaining rights and procedures that substantially provide
for the rights and procedures described in section 3(b) for States
described in section 3(d).
(b) Role of the Federal Labor Relations Authority.--In carrying out
subsection (a), the Authority shall--
(1) protect the right of public employees--
(A) to self-organization;
(B) to form, join, or assist any labor organization
or to refrain from any such activity;
(C) to bargain collectively through representatives
of their own choosing; and
(D) to engage in other concerted activities for the
purpose of collective bargaining or other mutual aid
(including the filing of joint class or collective
legal claims) 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 and
supervisory employees voting in such election in an appropriate
unit;
(3) 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
or supervisory employee;
(4) determine the appropriateness of units for labor
organization representation;
(5) require public employers to--
(A) recognize the labor organization of its public
employees or supervisory 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' or
supervisory 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;
(6) prohibit practices which interfere with, coerce, or
intimidate public employees or supervisory employees in the
exercise of rights guaranteed in paragraph (1) or regulations
issued thereunder;
(7) conduct hearings and resolve complaints concerning
violations of any rule or order issued by the Authority
pursuant to this Act;
(8) resolve exceptions to the awards of arbitrators that
violate or exceed the scope of public policy; and
(9) 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.--
(1) In general.--The Authority may issue an order directing
compliance by any covered 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 rules issued under this section,
and for appropriate temporary relief or a restraining order.
Any covered person or public employer aggrieved by an order
issued by the Authority under this section may, during the 60-
day period beginning on the date on which the order was issued,
petition any United States Court of Appeals, in the circuit
which the covered person or public employer resides or
transacts business or in the Court of Appeals for the District
of Columbia Circuit, for judicial review. Any petition or
appeal under this section shall be conducted in accordance with
subsections (c) and (d) of section 7123 of title 5, United
States Code.
(2) Private right of action.--
(A) Filing a civil action.--Unless the Authority
has filed an order of enforcement as provided in
paragraph (1), any party may, after the 180-day period
following the filing of a charge with the Authority
pursuant to the rules issued by the Authority under
this section, file a civil action against any named
State administrator in an appropriate district court of
the United States to enjoin such administrator to
enforce compliance--
(i) with this Act or the rules issued by
the Authority under this section; or
(ii) to enforce compliance with any order
issued by the Authority.
(B) Timing.--Any civil action brought under
subparagraph (A) shall be brought not later than the
earlier of--
(i) the date that is 180 days after the
expiration of the 180-day period described in
subparagraph (A); or
(ii) the date that is 180 days after the
date that the Authority dismisses a charge
described in subparagraph (A).
(C) Notice.--A party filing a civil action under
subparagraph (A) shall provide notice of such action to
the Authority not later than the date of the filing of
such action.
(D) Jurisdiction and attorneys' fees.--An
appropriate district court of the United States in
which a civil action under subparagraph (A) is filed
shall have jurisdiction over such action without regard
to the amount in controversy or the citizenship of the
parties and may award reasonable attorneys' fees.
SEC. 5. 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 subject to the rules and
activities of the Authority under section 4 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. 6. 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. 7. EXCEPTIONS.
(a) In General.--The Authority shall not make a determination under
section 3(a) that the laws of a State do not substantially provide for
the rights and procedures under section 3(b) on the basis that relevant
laws in the State--
(1) permit a public employee or supervisory employee to
appear on the employee's own behalf with respect to the
relationship of the public employee or supervisory employee
with the public employer involved;
(2) do not cover public employees or supervisory employees
of the State militia or national guard; or
(3) do not apply 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 that such subdivision
is exempt from such laws before the date on which the
Authority makes the determination.
(b) Compliance.--
(1) Actions of states.--Nothing in this Act shall be
construed to require a State to rescind or preempt the laws of
any political subdivision of the State if such laws
substantially provide for the rights and procedures described
in section 3(b).
(2) Actions of the district of columbia.--Nothing in this
Act or in the rules issued 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 of
1978 (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 (Public Law 93-198; 1-201.01 et
seq., D.C. Official Code).
(3) Actions of the authority.--Nothing in this Act shall be
construed to preempt--
(A) the laws of any State or political subdivision
of a State that substantially provide for the rights
and procedures described in section 3(b);
(B) the laws of any State or political subdivision
of a State that substantially provide for the rights
and procedures described in section 3(b), solely
because such laws 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
(C) the laws 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 section 3(d)(2), the Authority shall only exercise
the authority under section 4 with respect to the categories of
public employees or supervisory employees for whom State law
does not substantially provide the rights and procedures
described in section 3(b).
SEC. 8. AUTHORIZATION OF APPROPRIATIONS.
There are authorized to be appropriated such sums as may be
necessary to carry out this Act.
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