Title: Public Employee Freedom to Negotiate Act of 2018
Policy area: Labor and Employment

Summary:
Public Service Freedom to Negotiate Act of 2018
This bill requires the Federal Labor Relations Authority (FLRA) to make a determination as to whether a state substantially provides for certain rights and responsibilities applicable to public employees, such as granting such employees the right to form or join a labor organization and to bargain collectively, and if the state does not substantially provide for such rights and responsibilities, then such state shall be subject to nationwide standards prescribed by the FLRA to protect public employee rights.
No employer, emergency services employee, or law enforcement officer may 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 violate or attempt to violate this prohibition.

[Congressional Bills 115th Congress]
[From the U.S. Government Publishing Office]
[H.R. 6445 Introduced in House (IH)]

<DOC>






115th CONGRESS
  2d Session
                                H. R. 6445

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

                             July 19, 2018

Mr. Fitzpatrick (for himself, Mr. Joyce of Ohio, Mr. Donovan, Mr. Smith 
 of New Jersey, and Mr. McKinley) 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 Employee Freedom to Negotiate 
Act of 2018''.

SEC. 2. 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.
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