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[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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