II 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. WHITE- HOUSE, Mr. DURBIN, Mr. BOOKER, Mr. CARDIN, Ms. SMITH, Ms. HAS- SAN, Mr. MENENDEZ, Ms. STABENOW, Ms. CANTWELL, Ms. BALDWIN, Ms. HARRIS, Mr. CASEY, Mrs. SHAHEEN, Mr. VAN HOLLEN, Ms. COR- TEZ 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 Representa- 1 tives of the United States of America in Congress assembled, 2 VerDate Sep 11 2014 19:58 Jul 01, 2019 Jkt 034408 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S1970.IS S1970 pbinns on DSK79D2C42PROD with BILLS 2 •S 1970 IS SECTION 1. SHORT TITLE. 1 This Act may be cited as the ‘‘Public Service Free- 2 dom to Negotiate Act of 2019’’. 3 SEC. 2. DEFINITIONS. 4 (a) IN GENERAL.—In this Act: 5 (1) AUTHORITY.—The term ‘‘Authority’’ means 6 the Federal Labor Relations Authority. 7 (2) APPROPRIATE UNIT.—The term ‘‘appro- 8 priate unit’’ means a bargaining unit of public em- 9 ployees or supervisory employees that share a com- 10 munity of interest, have a bargaining history or his- 11 tory of prior organization, and represent the desires 12 of employees seeking representation. 13 (3) COLLECTIVE BARGAINING.—The term ‘‘col- 14 lective bargaining’’, used with respect to public em- 15 ployees, supervisory employees, and public employ- 16 ers, means the performance of the mutual obligation 17 of the representative of a public employer and the 18 exclusive representative of public employees and su- 19 pervisory employees in an appropriate unit of the 20 employer to meet at reasonable times and to consult 21 and bargain in a good-faith effort to reach agree- 22 ment with respect to wages, hours, and other terms 23 and conditions of employment affecting such employ- 24 ees and to execute, if requested by either party, a 25 written document incorporating any collective bar- 26 VerDate Sep 11 2014 19:58 Jul 01, 2019 Jkt 034408 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S1970.IS S1970 pbinns on DSK79D2C42PROD with BILLS 3 •S 1970 IS gaining agreement reached, but the obligation re- 1 ferred to in this paragraph does not compel either 2 party to agree to a proposal or to make a concession 3 (as described in section 8(d) of the National Labor 4 Relations Act (29 U.S.C. 158(d))). 5 (4) CONFIDENTIAL EMPLOYEE.—The term 6 ‘‘confidential employee’’ means an employee of a 7 public employer who acts in a confidential capacity 8 with respect to an individual who formulates or ef- 9 fectuates management policies in the field of labor- 10 management relations. 11 (5) COVERED PERSON.—The term ‘‘covered 12 person’’ means an individual or a labor organization. 13 (6) EMERGENCY SERVICES EMPLOYEE.—The 14 term ‘‘emergency services employee’’ means— 15 (A) a public employee providing out-of-hos- 16 pital emergency medical care, including an 17 emergency medical technician, paramedic, or 18 first responder; or 19 (B) a public employee providing other serv- 20 ices in response to emergencies that have the 21 potential to cause death or serious bodily in- 22 jury, including an employee in fire protection 23 activities (as defined in section 3 of the Fair 24 Labor Standards Act of 1938 (29 U.S.C. 203)). 25 VerDate Sep 11 2014 19:58 Jul 01, 2019 Jkt 034408 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S1970.IS S1970 pbinns on DSK79D2C42PROD with BILLS 4 •S 1970 IS (7) EMPLOY.—The term ‘‘employ’’ has the 1 meaning given the term in section 3 of the Fair 2 Labor Standards Act of 1938 (29 U.S.C. 203). 3 (8) LABOR ORGANIZATION.—The term ‘‘labor 4 organization’’ means any organization of any kind 5 that is not under the control directly or indirectly by 6 a public employer in which such employees partici- 7 pate and which exists for the purpose, in whole or 8 in part, of dealing with public employers concerning 9 grievances, labor disputes, wages, rates of pay, hours 10 of employment, or conditions of work. 11 (9) LAW.—The term ‘‘law’’, used with respect 12 to a State or a political subdivision thereof, includes 13 the application of the laws of such State or such po- 14 litical subdivision, including any regulations or ordi- 15 nances issued by such State or such political subdivi- 16 sion. 17 (10) LAW ENFORCEMENT OFFICER.—The term 18 ‘‘law enforcement officer’’ has the meaning given 19 such term in section 1204 of the Omnibus Crime 20 Control and Safe Streets Act of 1968 (34 U.S.C. 21 10284). 22 (11) MANAGEMENT EMPLOYEE.—The term 23 ‘‘management employee’’ means an individual em- 24 ployed by a public employer in a position the duties 25 VerDate Sep 11 2014 19:58 Jul 01, 2019 Jkt 034408 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S1970.IS S1970 pbinns on DSK79D2C42PROD with BILLS 5 •S 1970 IS and responsibilities of which require the individual to 1 formulate or determine the policies of the employer. 2 (12) PUBLIC EMPLOYEE.— 3 (A) IN GENERAL.—The term ‘‘public em- 4 ployee’’— 5 (i) means, except as provided in clause 6 (iii), an individual, employed by a public 7 employer, who in any workweek is engaged 8 in commerce or is employed in an enter- 9 prise engaged in commerce; 10 (ii) includes an individual described in 11 clause (i) who is temporarily transferred to 12 a supervisory or management position; and 13 (iii) does not include a supervisory 14 employee, management employee, or con- 15 fidential employee, or an elected official. 16 (B) COMMERCE; ENTERPRISE ENGAGED IN 17 COMMERCE.—For the purpose of this para- 18 graph, the terms ‘‘commerce’’ and ‘‘enterprise 19 engaged in commerce’’ have the meanings given 20 such terms in section 3 of the Fair Labor 21 Standards Act of 1938 (29 U.S.C. 203). 22 (13) PUBLIC EMPLOYER.—The term ‘‘public 23 employer’’ means any of the following that employs 24 individuals: 25 VerDate Sep 11 2014 19:58 Jul 01, 2019 Jkt 034408 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S1970.IS S1970 pbinns on DSK79D2C42PROD with BILLS 6 •S 1970 IS (A) A State or the political subdivision of 1 a State, including a territory or political sub- 2 division of a territory. 3 (B) Any authority, agency, school district, 4 board or other entity controlled and operated by 5 an entity described in subparagraph (A). 6 (14) STATE.—The term ‘‘State’’ means each of 7 the several States of the United States, the District 8 of Columbia, and any territory or possession of the 9 United States (as defined in section 3 of the Fair 10 Labor Standards Act of 1938 (29 U.S.C. 203)). 11 (15) SUBSTANTIALLY PROVIDE OR SUBSTAN- 12 TIALLY PROVIDES.—The term ‘‘substantially pro- 13 vide’’ or ‘‘substantially provides’’, used with respect 14 to the rights and procedures described in section 15 3(b), means providing rights and procedures that 16 are equivalent to or greater than each of the rights 17 and procedures described in such section. 18 (16) SUPERVISORY EMPLOYEE.— 19 (A) IN GENERAL.—Except as provided in 20 subparagraph (B), the term ‘‘supervisory em- 21 ployee’’ means an individual, employed by a 22 public employer, who in any workweek is en- 23 gaged in commerce or is employed in an enter- 24 prise engaged in commerce and who— 25 VerDate Sep 11 2014 19:58 Jul 01, 2019 Jkt 034408 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S1970.IS S1970 pbinns on DSK79D2C42PROD with BILLS 7 •S 1970 IS (i) has the authority in the interest of 1 the employer, if the exercise of such au- 2 thority is not merely routine or clerical in 3 nature but requires the consistent exercise 4 of independent judgment, to— 5 (I) hire, promote, reward, trans- 6 fer, furlough, lay off, recall, suspend, 7 discipline, or remove public employees; 8 (II) adjust the grievances of pub- 9 lic employees; or 10 (III) effectively recommend any 11 action described in subclause (I) or 12 (II); and 13 (ii) devotes a majority of time at work 14 to exercising the authority under clause (i). 15 (B) COMMERCE; ENTERPRISE ENGAGED IN 16 COMMERCE.—For the purpose of this para- 17 graph, the terms ‘‘commerce’’ and ‘‘enterprise 18 engaged in commerce’’ have the meanings given 19 such terms in section 3 of the Fair Labor 20 Standards Act of 1938 (29 U.S.C. 203). 21 (b) STATE LAW.—If any term defined in this section 22 has a substantially equivalent meaning to the term (or a 23 substantially equivalent term) under applicable State law 24 on the date of the enactment of this Act, such term (or 25 VerDate Sep 11 2014 19:58 Jul 01, 2019 Jkt 034408 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S1970.IS S1970 pbinns on DSK79D2C42PROD with BILLS 8 •S 1970 IS substantially equivalent term) and meaning under such 1 applicable State law shall apply with respect to the term 2 defined under this Act with respect to such State. 3 SEC. 3. FEDERAL MINIMUM STANDARDS. 4 (a) DETERMINATION.— 5 (1) IN GENERAL.—Not later than 180 days 6 after the date of enactment of this Act, the Author- 7 ity shall make a determination for each State as to 8 whether the laws of such State substantially provide 9 for each of the rights and procedures under sub- 10 section (b) and not later than 30 days after the en- 11 actment of this Act, the Authority shall establish 12 procedures for the implementation of this section. 13 (2) CONSIDERATION OF ADDITIONAL OPIN- 14 IONS.—In making the determination under para- 15 graph (1), the Authority shall consider the opinions 16 of affected public employees, supervisory employees, 17 labor organizations, and public employers. In the 18 case where the Authority is notified by an affected 19 public employer and labor organization that both 20 parties agree that the law applicable to such em- 21 ployer and labor organization substantially provides 22 for the rights and procedures described in subsection 23 (b), the Authority shall give such agreement weight 24 VerDate Sep 11 2014 19:58 Jul 01, 2019 Jkt 034408 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S1970.IS S1970 pbinns on DSK79D2C42PROD with BILLS 9 •S 1970 IS to the maximum extent practicable in making the 1 Authority’s determination under paragraph (1). 2 (3) LIMITED CRITERIA.—In making the deter- 3 mination described in paragraph (1), the Authority 4 may consider the criteria described in subsection (b) 5 and not any other criteria. 6 (4) SUBSEQUENT DETERMINATIONS.— 7 (A) IN GENERAL.—A determination made 8 pursuant to paragraph (1) shall remain in ef- 9 fect unless and until the Authority issues a sub- 10 sequent determination, in accordance with the 11 procedures set forth in subparagraph (B). 12 (B) REQUEST.—A public employee, super- 13 visory employee, public employer, or labor orga- 14 nization may submit to the Authority a written 15 request for a subsequent determination under 16 paragraph (1) with respect to a State if a mate- 17 rial change of law in the State has occurred. 18 (C) ISSUANCE.—Not later than 30 days 19 after receipt of a request under subparagraph 20 (B), the Authority shall issue a subsequent de- 21 termination under paragraph (1) if satisfied 22 that a material change of law in the State has 23 occurred. 24 VerDate Sep 11 2014 19:58 Jul 01, 2019 Jkt 034408 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S1970.IS S1970 pbinns on DSK79D2C42PROD with BILLS 10 •S 1970 IS (5) JUDICIAL REVIEW.—Any covered person or 1 public employer aggrieved by a determination of the 2 Authority under paragraph (1) may, during the 60- 3 day period beginning on the date on which the deter- 4 mination was made, petition any United States 5 Court of Appeals, in the circuit in which the covered 6 person or public employer resides or transacts busi- 7 ness or in the Court of Appeals for the District of 8 Columbia Circuit, for judicial review. In any judicial 9 review of a determination made by the Authority 10 under paragraph (1), the procedures contained in 11 subsections (c) and (d) of section 7123 of title 5, 12 United States Code, shall be followed. 13 (b) FEDERAL MINIMUM STANDARD.—The collective 14 bargaining rights and procedures under this subsection 15 are as follows: 16 (1) A right of public employees and supervisory 17 employees— 18 (A) to self-organization; 19 (B) to form, join, or assist a labor organi- 20 zation or to refrain from any such activity; 21 (C) to bargain collectively through rep- 22 resentatives of their own choosing; and 23 (D) to engage in other concerted activities 24 for the purpose of collective bargaining or other 25 VerDate Sep 11 2014 19:58 Jul 01, 2019 Jkt 034408 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S1970.IS S1970 pbinns on DSK79D2C42PROD with BILLS 11 •S 1970 IS mutual aid (including the filing of joint class or 1 collective legal claims) or protection. 2 (2) A requirement for public employers to— 3 (A) recognize the labor organization of its 4 public employees (freely chosen in an election 5 by a majority of such employees voting in the 6 appropriate unit or chosen by voluntary rec- 7 ognition if that method is permitted under 8 State law), without requiring an election to re- 9 certify a labor organization that is already rec- 10 ognized as the representative of such employees, 11 unless not less than 30 percent of such employ- 12 ees in the appropriate unit freely sign a petition 13 to decertify such labor organization— 14 (i) not earlier than the date that is 1 15 year after the date of the election (or after 16 a voluntary recognition if permitted under 17 State law) of the representative; 18 (ii) if a valid collective bargaining 19 agreement covering such employees and 20 labor organization expires, not earlier than 21 the date that is 1 year after the expiration 22 of such agreement; and 23 (iii) not during the term of a valid col- 24 lective bargaining agreement covering such 25 VerDate Sep 11 2014 19:58 Jul 01, 2019 Jkt 034408 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S1970.IS S1970 pbinns on DSK79D2C42PROD with BILLS 12 •S 1970 IS employees and labor organization, except 1 for the 30-day period beginning on the 2 date that is 90 days before the expiration 3 of such agreement; 4 (B) collect [Text truncated for display. 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