[Congressional Bills 118th Congress]
[From the U.S. Government Publishing Office]
[S. 4363 Introduced in Senate (IS)]
<DOC>
118th CONGRESS
2d Session
S. 4363
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
May 16, 2024
Ms. Hirono (for herself, Ms. Baldwin, Mr. Blumenthal, Mr. Booker, Mr.
Brown, Ms. Butler, Ms. Cantwell, Mr. Cardin, Mr. Casey, Ms. Duckworth,
Mr. Fetterman, Mrs. Gillibrand, Mr. Heinrich, Ms. Klobuchar, Mr. Lujan,
Mr. Markey, Mr. Merkley, Mrs. Murray, Mr. Padilla, Ms. Rosen, Mr. Reed,
Mr. Sanders, Mr. Schatz, Mr. Schumer, Ms. Smith, Ms. Stabenow, Mr. Van
Hollen, Ms. Warren, Mr. Welch, Mr. Whitehouse, and Mr. Wyden)
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 2024''.
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 an
appropriate unit of public and supervisory employees 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 public 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; or
(iv) an elected official.
(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); and
(B) devotes a majority of time at work to
exercising the authority under subparagraph (A).
(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 a 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 (except as provided in paragraph (4)(C)),
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 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 described under paragraph (1)
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.
(6) Rule of construction.--In making the determination
described in paragraph (1), the Authority shall, as relevant,
consider any requirement imposed by a consent decree entered
into by the Department of Justice before, on, or after the date
of enactment of this Act as substantially providing for the
rights and procedures under subsection (b).
(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 chosen 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 subsection.
(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)(1) 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)(1) 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 described 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 determines under
subsection (a)(1) 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)(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 minimum standards described in section 3(b) for States
described in section 3(d).
(b) Role of the Federal Labor Relations Authority.--
(1) In general.--In carrying out subsection (a), the
Authority shall--
(A) provide for the rights and procedures described
in paragraphs (1) through (5) of section 3(b);
(B) supervise or conduct elections to determine
whether a labor organization has been chosen as an
exclusive representative by a majority of the public
employees and supervisory employees voting in such
election in an appropriate unit;
(C) determine the appropriateness of units for
labor organization representation;
(D) conduct hearings and resolve complaints
concerning violations of this Act or any rule or order
issued by the Authority pursuant to this Act;
(E) resolve exceptions to the awards of arbitrators
that violate or exceed the scope of public policy of
this Act; and
(F) 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.
(2) Rule of construction.--In providing for the rights and
procedures under paragraph (1)(A), nothing in this Act shall be
construed as superseding, or creating or imposing any
requirement in conflict with, any consent decree entered into
by the Department of Justice before, on, or after the date of
enactment of this Act.
(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) shall 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)(1) 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.
(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; 87 Stat.
774).
(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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