Public Service Freedom to Negotiate Act of 2021
Bill: H.R.5727 | Sponsor: Rep. Cartwright, Matt (D-PA)
Policy area: Labor and Employment

Summary:
Public Service Freedom to Negotiate Act of 2021
This bill provides minimum collective bargaining rights and procedures for public employees and prohibits strikes by certain public safety workers.
The Federal Labor Relations Authority (FLRA) shall determine for each state whether the laws of such state substantially provide for each of the minimum standard collective bargaining rights and procedures specified by this bill, including the right of public employees and supervisory employees to self-organize, form or join a labor organization, or collectively bargain.
The FLRA must issue rules and take actions to establish and administer bargaining rights and procedures for those states that do not substantially provide for them.
No employers, emergency services employees, or law enforcement officers may engage in a lockout, strike, or any other organized job action that is likely to result in a measurable disruption of the delivery of emergency or public safety services. Furthermore, no labor organization may be the cause of a violation of such prohibition.

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 2021''.

SEC. 2. DEFINITIONS.

    (a) In General.--In this Act:
            (1) Appropriate unit.--The term ``appropriate unit'' means 
        a group of public employees or a group of supervisory employees 
        appropriate for collective bargaining that share a community of 
        interest, as demonstrated by factors including whether such 
        group--
                    (A) has a bargaining history or history of prior 
                organization; and
                    (B) reflects the desires of the employees who are 
                seeking or proposing representation by a labor 
                organization regarding the employees to be included in 
                such bargaining unit.
            (2) Authority.--The term ``Authority'' means the Federal 
        Labor Relations Authority.
            (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 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 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(y) of the Fair Labor Standards Act of 1938 
                (29 U.S.C. 203(y))).
            (7) 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.
            (8) 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.
            (9) 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).
            (10) 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.
            (11) Public employee.--The term ``public employee''--
                    (A) 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;
                    (B) includes an individual who is temporarily 
                transferred to a supervisory or management position; 
                and
                    (C) does not include--
                            (i) a supervisory employee;
                            (ii) a management employee;
                            (iii) a confidential employee;
                            (iv) an elected official; or
                            (v) a law enforcement officer employed by a 
                        public employer as defined in section 
                        2(a)(12)--
                                    (I) who has statutory authority to 
                                make arrests or apprehensions;
                                    (II) who is authorized by the 
                                agency of the employee to carry 
                                firearms; and
                                    (III) whose duties substantially 
                                include the engagement in or 
                                supervision of the prevention, 
                                detection, or investigation of any 
                                person for any violation of law: 
                                Provided, That a law enforcement 
                                officer whose duties substantially 
                                include the engagement in or 
                                supervision of corrections, probation, 
                                parole, or juvenile detention functions 
                                shall be a public employee under this 
                                Act.
            (12) Public employer.--The term ``public employer'' means 
        an entity that--
                    (A) employs not less than 1 individual;
                    (B) is engaged in commerce; and
                    (C) is either--
                            (i) a State or the political subdivision of 
                        a State; or
                            (ii) any authority, agency, school 
                        district, board or other entity controlled and 
                        operated by an entity described in clause (i).
            (13) Substantially provides.--The term ``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.
            (14) Supervisory employee.--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--
                    (A) 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 clause (i) or (ii);
                    (B) devotes a majority of time at work to 
                exercising the authority under subparagraph (A); and
                    (C) is not a law enforcement officer as described 
                in paragraph (11)(C)(v).
    (b) Fair Labor Standards Act of 1938 Terms.--The terms 
``commerce'', ``employ'', ``enterprise engaged in commerce'', and 
``State'' have the meanings given such terms in section 3 of the Fair 
Labor Standards Act of 1938 (29 U.S.C. 203).
    (c) 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 minimum standards 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 only consider the 
        criteria described in subsection (b).
            (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 a labor organization may 
                submit to the Authority a written request for a 
                subsequent determination with respect to whether a 
                material change of State law has occurred.
                    (C) Issuance.--If satisfied that a material change 
                in State law has occurred, the Authority shall issue a 
                subsequent determination not later than 30 days after 
                receipt of such request.
            (5) Judicial review.--Any covered person or public employer 
        aggrieved by a determination of the Authority under this 
        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 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) 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 and supervisory 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 or decertify a labor 
                organization that is already recognized as the 
                representative of such employees unless not less than 
                30 percent of such employees in the bargaining 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) not earlier than 1 year after the 
                        expiration of a valid collective bargaining 
                        agreement;
                            (iii) not during the term of a valid 
                        collective bargaining agreement (except as 
                        permissible under clause (iv)); or
                            (iv) during the 30-day period beginning on 
                        the date that is 90 days before the end of a 
                        valid existing contract;
                    (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, such as fact-
        finding, mediation, arbitration, or comparable procedures that 
        culminate in binding resolution.
            (4) Payroll deduction of labor organization fees for any 
        duly selected representative of a public employee or 
        supervisory employee pursuant to the terms of an agreement 
        between the labor organization and such public or supervisory 
        employee, which shall remain in effect until revoked by such 
        employee in accordance with its terms.
            (5) The prohibition of practices that interfere with, 
        restrain, or coerce public or supervisory employees in the 
        exercise of rights guaranteed in paragraph (1) or regulations 
        issued thereunder.
            (6) The enforcement of all relevant rights and procedures 
        provided by State law and enumerated in this section.
            (7) The enforcement of all rights and procedures provided 
        by any written contract or memorandum of understanding between 
        a labor organization and a public employer, through--
                    (A) a State agency, if the State so chooses;
                    (B) at the election of an aggrieved party, the 
                State courts, if so permitted under State law; or
                    (C) a grievance resolution procedure culminating in 
                binding arbitration 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 and this Act shall not preempt the 
laws of such State.
    (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 any public or 
        supervisory employees, the Authority shall identify--
                    (A) the categories of public 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)(3), 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 minimum standards 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) provide for the rights and procedures described in 
        paragraphs (1) through (5) of section 3(b);
            (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) determine the appropriateness of units for labor 
        organization representation;
            (4) conduct hearings and resolve complaints concerning 
        violations of this Act or any rule or order issued by the 
        Authority pursuant to this Act;
            (5) resolve exceptions to the awards of arbitrators that 
        violate or exceed the scope of public policy of this Act; and
            (6) 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 of 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) must be brought not later than the 
                earlier of--
                            (i) the date that is 180 days after the 
                        expiration of the 180-day period 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.--The party shall serve notice of the 
                Federal lawsuit to the Authority.
                    (D) Jurisdiction and attorneys' fees.--A district 
                court shall have jurisdiction over the civil action 
                filed under subparagraph (A) 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 
State laws--
            (1) permit a public or supervisory employee to appear on 
        the employee's own behalf with respect to the relationship of 
        the public employee with the public employer involved;
            (2) do not cover public or supervisory employees of the 
        State militia or national guard;
            (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; or
            (4) do not require bargaining with respect to pension or 
        retirement income benefits; or
            (5) prohibit employers and labor organizations from 
        negotiating provisions in a labor agreement that require 
        membership in the labor organization or the payment of fees to 
        the union as a condition of employment.
    (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.
            (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 or supervisory employees for whom State law does not 
        substantially provide the rights and procedures described in 
        section 3(b).

SEC. 8. SEVERABILITY.

    If any provision of this Act or the application thereof to any 
person or circumstance is held invalid, the remainder of this Act, or 
the application of that provision to persons or circumstances other 
than those as to which it is held invalid, is not affected thereby.

SEC. 9. AUTHORIZATION OF APPROPRIATIONS.

    There are authorized to be appropriated such sums as may be 
necessary to carry out this Act.
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