II 109th CONGRESS 1st Session S. 513 IN THE SENATE OF THE UNITED STATES March 3, 2005 Mr. Gregg (for himself, Mr. Kennedy, Ms. Mikulski, Mr. Harkin, Mr. Bingaman, Mr. Reed, Mrs. Murray, Mrs. Lincoln, Mr. Kerry, and Mr. Durbin) introduced the following bill; which was read twice and referred to the Committee on Health, Education, Labor, and Pensions A BILL To provide collective bargaining rights for public safety officers employed by States or their political subdivisions.

1.

Short title

This Act may be cited as the Public Safety Employer-Employee Cooperation Act of 2005.

2.

Declaration of purpose and policy

The Congress declares that the following is the policy of the United States: (1)Labor-management relationships and partnerships are based on trust, mutual respect, open communication, bilateral consensual problem solving, and shared accountability. Labor-management cooperation fully utilizes the strengths of both parties to best serve the interests of the public, operating as a team, to carry out the public safety mission in a quality work environment. In many public safety agencies it is the union that provides the institutional stability as elected leaders and appointees come and go. (2)The Federal Government needs to encourage conciliation, mediation, and voluntary arbitration to aid and encourage employers and their employees to reach and maintain agreements concerning rates of pay, hours, and working conditions, and to make all reasonable efforts through negotiations to settle their differences by mutual agreement reached through collective bargaining or by such methods as may be provided for in any applicable agreement for the settlement of disputes. (3)The absence of adequate cooperation between public safety employers and employees has implications for the security of employees and can affect interstate and intrastate commerce. The lack of such labor-management cooperation can detrimentally impact the upgrading of police and fire services of local communities, the health and well-being of public safety officers, and the morale of the fire and police departments. Additionally, these factors could have significant commercial repercussions. Moreover, providing minimal standards for collective bargaining negotiations in the public safety sector can prevent industrial strife between labor and management that interferes with the normal flow of commerce.

3.

Definitions

In this Act: (1)

Authority

The term Authority means the Federal Labor Relations Authority. (2)

Emergency medical services personnel

The term emergency medical services personnel means an individual who provides out-of-hospital emergency medical care, including an emergency medical technician, paramedic, or first responder. (3)

Employer; public safety agency

The terms employer and public safety agency mean any State, political subdivision of a State, the District of Columbia, or any territory or possession of the United States that employs public safety officers. (4)

Firefighter

The term firefighter has the meaning given the term employee engaged in fire protection activities in section 3(y) of the Fair Labor Standards Act (29 U.S.C. 203(y)). (5)

Labor organization

The term labor organization means an organization composed in whole or in part of employees, in which employees participate, and which represents such employees before public safety agencies concerning grievances, conditions of employment and related matters. (6)

Law enforcement officer

The term law enforcement officer has the meaning given such term in section 1204(5) of the Omnibus Crime Control and Safe Streets Act of 1968 (42 U.S.C. 3796b(5)). (7)

Management employee

The term management employee has the meaning given such term under applicable State law in effect on the date of enactment of this Act. If no such State law is in effect, the term means an individual employed by a public safety employer in a position that requires or authorizes the individual to formulate, determine, or influence the policies of the employer. (8)

Public safety officer

The term public safety officer— (A)means an employee of a public safety agency who is a law enforcement officer, a firefighter, or an emergency medical services personnel; (B)includes an individual who is temporarily transferred to a supervisory or management position; and (C)does not include a permanent supervisory or management employee. (9)

Substantially provides

The term substantially provides means compliance with the essential requirements of this Act, specifically, the right to form and join a labor organization, the right to bargain over wages, hours, and conditions of employment, the right to sign an enforceable contract, and availability of some form of mechanism to break an impasse, such as arbitration, mediation, or fact finding. (10)

Supervisory employee

The term supervisory employee has the meaning given such term under applicable State law in effect on the date of enactment of this Act. If no such State law is in effect, the term means an individual, employed by a public safety employer, who— (A)has the authority in the interest of the employer to hire, direct, assign, promote, reward, transfer, furlough, lay off, recall, suspend, discipline, or remove public safety officers, to adjust their grievances, or to effectively recommend such action, if the exercise of the authority is not merely routine or clerical in nature but requires the consistent exercise of independent judgment; and (B)devotes a majority of time at work exercising such authority.

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). In making such determinations, the Authority shall consider and give weight, to the maximum extent practicable, to the opinion of affected parties. (2)

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, an 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 Director shall issue a subsequent determination not later than 30 days after receipt of such request. (3)

Judicial review

Any State, political subdivision of a State, or person 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 resides or transacts business or in the District of Columbia circuit, for judicial review. In any judicial review of a determination by the Authority, the procedures contained in subsections (c) and (d) of section 7123 of title 5, United States Code, shall be followed, except that any final determination of the Authority with respect to questions of fact or law shall be found to be conclusive unless the court determines that the Authority’s decision was arbitrary and capricious. (b)

Rights and responsibilities

In making a determination described in subsection (a), the Authority shall consider whether State law provides rights and responsibilities comparable to or greater than the following: (1)Granting public safety officers the right to form and join a labor organization, which may exclude management and supervisory employees, that is, or seeks to be, recognized as the exclusive bargaining representative of such employees. (2)Requiring public safety employers to recognize the employees’ labor organization (freely chosen by a majority of the employees), to agree to bargain with the labor organization, and to commit any agreements to writing in a contract or memorandum of understanding. (3)Permitting bargaining over hours, wages, and terms and conditions of employment. (4)Requiring an interest impasse resolution mechanism, such as fact-finding, mediation, arbitration or comparable procedures. (5)Requiring enforcement through State courts of— (A)all rights, responsibilities, and protections provided by State law and enumerated in this section; and (B)any written contract or memorandum of understanding. (c)

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), such State shall be subject to the regulations and procedures described in section 5. (2)

Effective date

Paragraph (1) shall take effect on the date that is 2 years after the date of enactment of this Act.

5.

Role of 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 safety employers and officers in States which the Authority has determined, acting pursuant to its authority under 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)determine the appropriateness of units for labor organization representation; (2)supervise or conduct elections to determine whether a labor organization has been selected as an exclusive representative by a majority of the employees in an appropriate unit; (3)resolve issues relating to the duty to bargain in good faith; (4)conduct hearings and resolve complaints of unfair labor practices; (5)resolve exceptions to the awards of arbitrators; (6)protect the right of each employee to form, join, or assist any labor organization, or to refrain from any such activity, freely and without fear of penalty or reprisal, and protect each employee in the exercise of such right; and (7)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, and administering oaths, taking or ordering the taking of depositions, ordering responses to written interrogatories, and receiving and examining witnesses. (c)

Enforcement

(1)

Authority to petition court

The Authority 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 final orders 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, except that any final order of the Authority with respect to questions of fact or law shall be found to be conclusive unless the court determines that the Authority’s decision was arbitrary and capricious. (2)

Private right of action

Unless the Authority has filed a petition for enforcement as provided in paragraph (1), any party has the right to file suit in a State court of competent jurisdiction to enforce compliance with the regulations issued by the Authority pursuant to subsection (b), and to enforce compliance with any order issued by the Authority pursuant to this section. The right provided by this subsection to bring a suit to enforce compliance with any order issued by the Authority pursuant to this section shall terminate upon the filing of a petition seeking the same relief by the Authority.

6.

Strikes and lockouts prohibited

A public safety employer, officer, or labor organization may not engage in a lockout, sickout, work slowdown, or strike or engage in any other action that is designed to compel an employer, officer, or labor organization to agree to the terms of a proposed contract and that will measurably disrupt the delivery of emergency services, except that it shall not be a violation of this section for an employer, officer, or labor organization to refuse to provide services not required by the terms and conditions of an existing contract.

7.

Existing collective bargaining units and agreements

A certification, recognition, election-held, collective bargaining agreement or memorandum of understanding which has been issued, approved, or ratified by any public employee relations board or commission or by any State or political subdivision or its agents (management officials) in effect on the day before the date of enactment of this Act shall not be invalidated by the enactment of this Act.

8.

Construction and compliance

(a)

Construction

Nothing in this Act shall be construed— (1)to invalidate or limit the remedies, rights, and procedures of any law of any State or political subdivision of any State or jurisdiction that provides collective bargaining rights for public safety officers that are equal to or greater than the rights provided under this Act; (2)to prevent a State from enforcing a right-to-work law that prohibits employers and labor organizations from negotiating provisions in a labor agreement that require union membership or payment of union fees as a condition of employment; (3)to invalidate any State law in effect on the date of enactment of this Act that substantially provides for the rights and responsibilities described in section 4(b) solely because such State law permits an employee to appear on his or her own behalf with respect to his or her employment relations with the public safety agency involved; (4)to permit parties subject to the National Labor Relations Act (29 U.S.C. 151 et seq.) and the regulations under such Act to negotiate provisions that would prohibit an employee from engaging in part-time employment or volunteer activities during off-duty hours; or (5)to prohibit a State from exempting from coverage under this Act a political subdivision of the State that has a population of less than 5,000 or that employs less than 25 full time employees. For purposes of paragraph (5), the term employee includes each and every individual employed by the political subdivision except any individual elected by popular vote or appointed to serve on a board or commission.(b)

Compliance

No State shall preempt laws or ordinances of any of its political subdivisions if such laws provide collective bargaining rights for public safety officers that are equal to or greater than the rights provided under this Act.

9.

Authorization of appropriations

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