Public Service Freedom to Negotiate Act of 2019

I 116TH CONGRESS 1ST SESSION H. R. 3463 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 JUNE 25, 2019 Mr. CARTWRIGHT (for himself, Ms. SCHAKOWSKY, Ms. NORTON, Ms. OMAR, Ms. DEAN, Mr. SCOTT of Virginia, Ms. WILSON of Florida, Mr. ESPAILLAT, Mr. HIGGINS of New York, Mr. DESAULNIER, Mr. PALLONE, Ms. BONAMICI, Mr. NORCROSS, Mr. COHEN, Mr. SIRES, Ms. KAPTUR, Mr. SABLAN, Mr. RASKIN, Ms. FUDGE, Ms. JAYAPAL, Mr. POCAN, Mr. SMITH of Washington, Ms. FINKENAUER, Mr. NADLER, Mrs. BEATTY, Mr. MCGOVERN, Mrs. HAYES, and Mrs. TRAHAN) introduced the fol- lowing bill; which was referred to the Committee on Education and Labor 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 SECTION 1. SHORT TITLE. 3 This Act may be cited as the ‘‘Public Service Free- 4 dom to Negotiate Act of 2019’’. 5 VerDate Sep 11 2014 04:52 Jun 29, 2019 Jkt 034408 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\H3463.IH H3463 pbinns on DSK79D2C42PROD with BILLS 2 •HR 3463 IH SEC. 2. DEFINITIONS. 1 (a) IN GENERAL.—In this Act: 2 (1) AUTHORITY.—The term ‘‘Authority’’ means 3 the Federal Labor Relations Authority. 4 (2) APPROPRIATE UNIT.—The term ‘‘appro- 5 priate unit’’ means a bargaining unit of public em- 6 ployees or supervisory employees that share a com- 7 munity of interest, have a bargaining history or his- 8 tory of prior organization, and represents the desires 9 of employees seeking representation. 10 (3) COLLECTIVE BARGAINING.—The term ‘‘col- 11 lective bargaining’’, used with respect to public em- 12 ployees, supervisory employees, and public employ- 13 ers, means the performance of the mutual obligation 14 of the representative of a public employer and the 15 exclusive representative of public and supervisory 16 employees in an appropriate unit of the employer to 17 meet at reasonable times and to consult and bargain 18 in a good-faith effort to reach agreement with re- 19 spect to wages, hours, and other terms and condi- 20 tions of employment affecting such employees and to 21 execute, if requested by either party, a written docu- 22 ment incorporating any collective bargaining agree- 23 ment reached, but the obligation referred to in this 24 paragraph does not compel either party to agree to 25 a proposal or to make a concession (as described in 26 VerDate Sep 11 2014 04:52 Jun 29, 2019 Jkt 034408 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H3463.IH H3463 pbinns on DSK79D2C42PROD with BILLS 3 •HR 3463 IH section 8(d) of the National Labor Relations Act (29 1 U.S.C. 158(d))). 2 (4) CONFIDENTIAL EMPLOYEE.—The term 3 ‘‘confidential employee’’ means an employee of a 4 public employer who acts in a confidential capacity 5 with respect to an individual who formulates or ef- 6 fectuates management policies in the field of labor- 7 management relations. 8 (5) EMERGENCY SERVICES EMPLOYEE.—The 9 term ‘‘emergency services employee’’ means— 10 (A) a public employee providing out-of-hos- 11 pital emergency medical care, including an 12 emergency medical technician, paramedic, or 13 first responder; or 14 (B) a public employee providing other serv- 15 ices in response to emergencies that have the 16 potential to cause death or serious bodily in- 17 jury, including an employee in fire protection 18 activities (as defined in section 3 of the Fair 19 Labor Standards Act of 1938 (29 U.S.C. 203)). 20 (6) EMPLOY.—The term ‘‘employ’’ has the 21 meaning given the term in section 3 of the Fair 22 Labor Standards Act of 1938 (29 U.S.C. 203). 23 (7) LABOR ORGANIZATION.—The term ‘‘labor 24 organization’’ means any organization of any kind 25 VerDate Sep 11 2014 04:52 Jun 29, 2019 Jkt 034408 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H3463.IH H3463 pbinns on DSK79D2C42PROD with BILLS 4 •HR 3463 IH that is not under the control directly or indirectly by 1 a public employer in which such employees partici- 2 pate and which exists for the purpose, in whole or 3 in part, of dealing with public employers concerning 4 grievances, labor disputes, wages, rates of pay, hours 5 of employment, or conditions of work. 6 (8) LAW.—The term ‘‘law’’, used with respect 7 to a State or a political subdivision thereof, includes 8 the application of the laws of such State or such po- 9 litical subdivision, including any regulations or ordi- 10 nances issued by such State or such political subdivi- 11 sion. 12 (9) LAW ENFORCEMENT OFFICER.—The term 13 ‘‘law enforcement officer’’ has the meaning given 14 such term in section 1204 of the Omnibus Crime 15 Control and Safe Streets Act of 1968 (34 U.S.C. 16 10284). 17 (10) MANAGEMENT EMPLOYEE.—The term 18 ‘‘management employee’’ means an individual em- 19 ployed by a public employer in a position the duties 20 and responsibilities of which require the individual to 21 formulate or determine the policies of the employer. 22 (11) COVERED PERSON.—The term ‘‘covered 23 person’’ means an individual or a labor organization. 24 (12) PUBLIC EMPLOYEE.— 25 VerDate Sep 11 2014 04:52 Jun 29, 2019 Jkt 034408 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H3463.IH H3463 pbinns on DSK79D2C42PROD with BILLS 5 •HR 3463 IH (A) IN GENERAL.—The term ‘‘public em- 1 ployee’’— 2 (i) means an individual, employed by 3 a public employer, who in any workweek is 4 engaged in commerce or is employed in an 5 enterprise engaged in commerce; 6 (ii) includes an individual who is tem- 7 porarily transferred to a supervisory or 8 management position; and 9 (iii) does not include a supervisory 10 employee, management employee, or con- 11 fidential employee, or an elected official. 12 (B) COMMERCE; ENTERPRISE ENGAGED IN 13 COMMERCE.—For the purpose of this para- 14 graph, the terms ‘‘commerce’’ and ‘‘enterprise 15 engaged in commerce’’ have the meanings given 16 in section 3 of the Fair Labor Standards Act 17 of 1938 (29 U.S.C. 203). 18 (13) PUBLIC EMPLOYER.—The term ‘‘public 19 employer’’ means any of the following that employs 20 individuals: 21 (A) A State or the political subdivision of 22 a State, including a territory or political sub- 23 division of a territory. 24 VerDate Sep 11 2014 04:52 Jun 29, 2019 Jkt 034408 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H3463.IH H3463 pbinns on DSK79D2C42PROD with BILLS 6 •HR 3463 IH (B) Any authority, agency, school district, 1 board or other entity controlled and operated by 2 an entity described in subparagraph (A). 3 (14) STATE.—The term ‘‘State’’ means each of 4 the several States of the United States, the District 5 of Columbia, and any territory or possession of the 6 United States (as defined in section 3 of the Fair 7 Labor Standards Act of 1938 (29 U.S.C. 203)). 8 (15) SUBSTANTIALLY PROVIDES.—The term 9 ‘‘substantially provides’’, used with respect to the 10 rights and procedures described in section 3(b), 11 means providing rights and procedures that are 12 equivalent to or greater than each of the rights and 13 procedures described in such section. 14 (16) SUPERVISORY EMPLOYEE.— 15 (A) IN GENERAL.—Except as provided in 16 subparagraph (B), the term ‘‘supervisory em- 17 ployee’’ means an individual, employed by a 18 public employer, who in any workweek is en- 19 gaged in commerce or is employed in an enter- 20 prise engaged in commerce and who— 21 (i) has the authority in the interest of 22 the employer, if the exercise of such au- 23 thority is not merely routine or clerical in 24 VerDate Sep 11 2014 04:52 Jun 29, 2019 Jkt 034408 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H3463.IH H3463 pbinns on DSK79D2C42PROD with BILLS 7 •HR 3463 IH nature but requires the consistent exercise 1 of independent judgment, to— 2 (I) hire, promote, reward, trans- 3 fer, furlough, lay off, recall, suspend, 4 discipline, or remove public employees; 5 (II) adjust the grievances of pub- 6 lic employees; or 7 (III) effectively recommend any 8 action described in subclause (I) or 9 (II); and 10 (ii) devotes a majority of time at work 11 to exercising the authority under clause (i). 12 (B) COMMERCE; ENTERPRISE ENGAGED IN 13 COMMERCE.—For the purpose of this para- 14 graph, the terms ‘‘commerce’’ and ‘‘enterprise 15 engaged in commerce’’ have the meanings given 16 in section 3 of the Fair Labor Standards Act 17 of 1938 (29 U.S.C. 203). 18 (b) STATE LAW.—If any term defined in this section 19 has a substantially equivalent meaning to the term (or a 20 substantially equivalent term) under applicable State law 21 on the date of the enactment of this Act, such term (or 22 substantially equivalent term) and meaning under such 23 applicable State law shall apply with respect to the term 24 defined under this Act with respect to such State. 25 VerDate Sep 11 2014 04:52 Jun 29, 2019 Jkt 034408 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\H3463.IH H3463 pbinns on DSK79D2C42PROD with BILLS 8 •HR 3463 IH SEC. 3. FEDERAL MINIMUM STANDARDS. 1 (a) DETERMINATION.— 2 (1) IN GENERAL.—Not later than 180 days 3 after the date of enactment of this Act, the Author- 4 ity shall make a determination for each State as to 5 whether the laws of such State substantially provide 6 for each of the rights and procedures under sub- 7 section (b) and not later than 30 days after the en- 8 actment of this Act, the Authority shall establish 9 procedures for the implementation of this section. 10 (2) CONSIDERATION OF ADDITIONAL OPIN- 11 IONS.—In making the determination under para- 12 graph (1), the Authority shall consider the opinions 13 of affected public employees, supervisory employees, 14 labor organizations, and public employers. In the 15 case where the Authority is notified by an affected 16 public employer and labor organization that both 17 parties agree that the law applicable to such em- 18 ployer and labor organization substantially provides 19 for the rights and responsibilities described in sub- 20 section (b), the Authority shall give such agreement 21 weight to the maximum extent practicable in making 22 the Authority’s determination under paragraph (1). 23 (3) LIMITED CRITERIA.—In making the deter- 24 mination described in paragraph (1), the Authority 25 VerDate Sep 11 2014 04:52 Jun 29, 2019 Jkt 034408 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\H3463.IH H3463 pbinns on DSK79D2C42PROD with BILLS 9 •HR 3463 IH may only consider the criteria described in sub- 1 section (b). 2 (4) SUBSEQUENT DETERMINATIONS.— 3 (A) IN GENERAL.—A determination made 4 pursuant to paragraph (1) shall remain in ef- 5 fect unless and until the Authority issues a sub- 6 sequent determination, in accordance with the 7 procedures set forth in subparagraph (B). 8 (B) REQUEST.—A public employee, super- 9 visory employee, public employer, or a labor or- 10 ganization may submit to the Authority a writ- 11 ten request for a subsequent determination with 12 respect to whether a material change of State 13 law has occurred. 14 (C) ISSUANCE.—If satisfied that a mate- 15 rial change in State law has occurred, the Au- 16 thority shall issue a subsequent determination 17 not later than 30 days after receipt of such re- 18 quest. 19 (5) JUDICIAL REVIEW.—Any covered person or 20 public employer aggrieved by a determination of the 21 Authority under this paragraph (1) may, during the 22 60-day period beginning on the date on which the 23 determination was made, petition any United States 24 Court of Appeals in the circuit in which the covered 25 VerDate Sep 11 2014 04:52 Jun 29, 2019 Jkt 034408 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\H3463.IH H3463 pbinns on DSK79D2C42PROD with BILLS 10 •HR 3463 IH person or public employer resides or transacts busi- 1 ness or in the Court of Appeals for the District of 2 Columbia Circuit, for judicial review. In any judicial 3 review of a determination made by the Authority de- 4 scribed in paragraph (1), the procedures contained 5 in subsections (c) and (d) of section 7123 of title 5, 6 United States Code, shall be followed. 7 (b) FEDERAL MINIMUM STANDARD.—The collective 8 bargaining rights and procedures under this subsection 9 are as follows: 10 (1) A right of public employees and supervisory 11 employees— 12 (A) to self-organization; 13 (B) to form, join, or assist a labor organi- 14 zation or to refrain from any such activity; 15 (C) to bargain collectively through rep- 16 resentatives of their own choosing; and 17 (D) to engage in other concerted activities 18 for the purpose of collective bargaining or other 19 mutual aid (including the filing of joint, class, 20 or collective legal claims) or protection. 21 (2) A requirement for public employers to— 22 (A) recognize the labor organization of its 23 public employees and supervisory employees 24 (freely chosen in an election by a majority of 25 VerDate Sep 11 2014 04:52 Jun 29, 2019 Jkt 034408 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\H3463.IH H3463 pbinns on DSK79D2C42PROD with BILLS 11 •HR 3463 IH such employees voting in the appropriate unit 1 or chosen by voluntary recognition if that meth- 2 od is permitted under State law) without re- 3 quiring an election to recertify a labor organiza- 4 tion that is already recognized as the represent- 5 ative of such employees unless not less than 30 6 percent of such employees in the appropriate 7 unit freely sign a petition to decertify such 8 labor organization— 9 (i) not earlier than the date that is 1 10 year after the date of the election (or after 11 a voluntary recognition if permitted under 12 State law) of the representative; 13 (ii) not earlier than 1 year after the 14 expiration of a valid collective bargaining 15 agreement; 16 (iii) not during the term of a valid col- 17 lective bargaining agreement (except as 18 permissible under clause (iv)); or 19 (iv) during the 30-day period begin- 20 ning on the date that is 90 days before the 21 end of a valid existing contract; 22 (B) collectively bargain with such recog- 23 nized labor organization; and 24 VerDate Sep 11 2014 04:52 Jun 29, 2019 Jkt 034408 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\H3463.IH H3463 pbinns on DSK79D2C42PROD with BILLS 12 •HR 3463 IH (C) commit any agreements with such rec- 1 ognized labor organization to writing in a con- 2 tract or memorandum of understanding. 3 (3) An interest impasse resolution mechanism 4 that includes a procedure for the settlement of griev- 5 ances (including fact-finding, mediation, arbitration) 6 which culminates in binding a [Text truncated for display. 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