[Congressional Bills 111th Congress]
[From the U.S. Government Publishing Office]
[H.R. 413 Introduced in House (IH)]

111th CONGRESS
  1st Session
                                H. R. 413

  To provide collective bargaining rights for public safety officers 
          employed by States or their political subdivisions.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                            January 9, 2009

Mr. Kildee (for himself and Mr. Duncan) introduced the following bill; 
       which was referred to the Committee on Education and Labor

_______________________________________________________________________

                                 A BILL


 
  To provide collective bargaining rights for public safety officers 
          employed by States or their political subdivisions.

    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 Safety Employer-Employee 
Cooperation Act of 2009''.

SEC. 2. FINDINGS AND DECLARATION OF PURPOSE.

    Congress finds the following:
            (1) Labor-management relationships and partnerships are 
        based on trust, mutual respect, open communication, bilateral 
        consensual problem solving, and shared accountability. In many 
        public safety agencies it is the union that provides the 
        institutional stability as elected leaders and appointees come 
        and go.
            (2) State and local public safety officers play an 
        essential role in the efforts of the United States to detect, 
        prevent, and respond to terrorist attacks, and to respond to 
        natural disasters, hazardous materials, and other mass casualty 
        incidents. As the first to arrive on scene, State and local 
        public safety officers must be prepared to protect life and 
        property and to preserve scarce and vital Federal resources, 
        avoid substantial and debilitating interference with interstate 
        and foreign commerce, and to protect the national security of 
        the United States. Public safety employer-employee cooperation 
        is essential in meeting these needs and is, therefore, in the 
        National interest.
            (3) The health and safety of the Nation and the best 
        interests of public safety employers and employees may be 
        furthered by the settlement of issues through the processes of 
        collective bargaining.
            (4) The Federal Government is in the position to encourage 
        conciliation, mediation, and voluntary arbitration to aid and 
        encourage employers and the representatives of 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.
            (5) The potential absence of adequate cooperation between 
        public safety employers and employees has implications for the 
        security of employees, impacts 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, and can affect interstate and intrastate commerce.
            (6) Many States and localities already provide public 
        safety officers with collective bargaining rights comparable to 
        or greater than the rights and responsibilities set forth in 
        this Act, and such State laws should be respected.

SEC. 3. DEFINITIONS.

    In this Act:
            (1) The term ``Authority'' means the Federal Labor 
        Relations Authority.
            (2) The term ``public safety officer''--
                    (A) means an employee of a public safety agency who 
                is a law enforcement officer, a firefighter, or 
                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.
            (3) The term ``firefighter'' has the same meaning given the 
        term ``employee in fire protection activities'' defined in 
        section 3 of the Fair Labor Standards Act (29 U.S.C. 203(y)).
            (4) 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.
            (5) The term ``law enforcement officer'' has the same 
        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)).
            (6) The term ``supervisory employee'' has the meaning given 
        such term, or a substantially equivalent term, under applicable 
        State law on the date of enactment of this Act. In the absence 
        of such State law on the date of enactment of this Act, 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 preponderance of employment time 
                exercising such authority.
            (7) The term ``management employee'' has the meaning given 
        such term, or a substantially equivalent 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) 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.
            (9) The term ``labor organization'' means an organization 
        composed in whole or in part of employees, in which employees 
        participate, and the purpose of which is to represent such 
        employees before public safety agencies concerning grievances, 
        conditions of employment and related matters.
            (10) The term ``substantially provides'' means substantial 
        compliance with the rights and responsibilities described in 
        section 4(b).

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). In making such 
        determinations, the Authority shall consider the opinion of 
        affected employers and labor organizations. Where the Authority 
        is notified by an employer and an affected 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 its determination under this 
        subsection.
            (2) Subsequent determinations.--(A) 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) An employer or a labor organization may submit a 
        written request for a subsequent determination, on the basis of 
        a material change in State law or its interpretation. If the 
        Authority determines 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.
            (3) Judicial review.--Any 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 District of Columbia circuit, for judicial 
        review. In any judicial review of a determination by the 
        Authority, the procedures contained in section 7123(c) of title 
        5, United States Code, shall be followed.
    (b) Rights and Responsibilities.--In making a determination 
described in subsection (a), the Authority shall consider a State's law 
to provide adequate rights and responsibilities unless such law fails 
to substantially provide rights and responsibilities comparable to or 
greater than each of 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) Providing for bargaining over hours, wages, and terms 
        and conditions of employment.
            (4) Making available 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 
                subsection; 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 apply in each 
        State on the later of--
                    (A) 2 years after the date of enactment of this 
                Act; or
                    (B) the date of the end of the first regular 
                session of the legislature of that State that begins 
                after the date of the enactment of this Act.

SEC. 5. ROLE OF THE AUTHORITY.

    (a) In General.--Not later than 1 year after the date of the 
enactment of this Act, the Authority shall issue regulations 
establishing procedures which provide the rights and responsibilities 
described in section 4(b) 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 and conduct elections to determine whether a 
        labor organization has been selected as an exclusive 
        representative by a voting 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;
            (7) if the Authority finds that any State is not in 
        compliance with the regulations prescribed under subsection 
        (a), direct compliance by such State by order; 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, and administering oaths, 
        taking or ordering the taking of depositions, ordering 
        responses to written interrogatories, and receiving and 
        examining witnesses.
    (c) Enforcement.--
            (1) Petition by authority.--If a State fails to comply with 
        a final order issued by the Authority, the Authority shall 
        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 section 7123(c) and (d) of title 
        5, United States Code, except that any final order of the 
        Authority with respect to questions of fact shall be found to 
        be conclusive unless the court determines that the Authority's 
        decision was arbitrary and capricious.
            (2) Right of action.--Unless the Authority has filed a 
        petition for enforcement as provided in paragraph (1), any 
        interested party shall have the right to file suit against any 
        political subdivision of a State, or, if the State has waived 
        its sovereign immunity, against the State itself, in any 
        district court of the United States of competent jurisdiction 
        to enforce compliance with the regulations issued by the 
        Authority pursuant to subsection (b), to enforce compliance 
        with any order issued by the Authority pursuant to this 
        section, or to enforce section 6 of this Act. The right 
        provided by this paragraph 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 under paragraph (1).

SEC. 6. STRIKES AND LOCKOUTS PROHIBITED.

    Notwithstanding any rights or responsibilities provided under State 
law or under regulations issued by the Authority under section 5--
            (1) a public safety employer may not engage in a lockout of 
        public safety officers;
            (2) public safety officers may not engage in a strike 
        against such public safety employer; and
            (3) a labor organization may not call for a strike by 
        public safety officers against their public safety employer.

SEC. 7. EXISTING COLLECTIVE BARGAINING UNITS AND AGREEMENTS.

    This Act and the regulations issued under this Act shall not be 
construed to invalidate a certification, recognition, 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, or the results of any election held before the 
date of enactment of this Act.

SEC. 8. CONSTRUCTION, COMPLIANCE, AND ENFORCEMENT.

    (a) Construction.--Nothing in this Act or the regulations issued 
under this Act shall be construed--
            (1) to preempt or limit the remedies, rights, and 
        procedures of any law of any State or political subdivision of 
        any State or jurisdiction that substantially provides greater 
        or comparable rights and responsibilities described in section 
        4(b);
            (2) to prevent a State from enforcing a State law which 
        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 preempt 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--
                    (A) such State law permits an employee to appear in 
                his or her own behalf with respect to his or her 
                employment relations with the public safety agency 
                involved;
                    (B) such State law excludes from its coverage 
                employees of a state militia or national guard;
                    (C) such rights and responsibilities have not been 
                extended to other categories of employees covered by 
                this Act, in which case the Authority shall only 
                exercise the powers provided in section 5 of this Act 
                with respect to those categories of employees who have 
                not been afforded the rights and responsibilities 
                described in section 4(b); or
                    (D) such laws or ordinances provide that a contract 
                or memorandum of understanding between a public safety 
                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;
            (4) to permit parties in States subject to the regulations 
        and procedures described in section 5 to negotiate provisions 
        that would prohibit an employee from engaging in part-time 
        employment or volunteer activities during off-duty hours;
            (5) to require a State to rescind or preempt laws or 
        ordinances of any of its political subdivisions if such laws 
        substantially provide rights and responsibilities for public 
        safety officers that are comparable to or greater than the 
        rights and responsibilities enumerated in section 4(b) of this 
        Act; or
            (6) preempt any State law that substantially provides for 
        the rights and responsibilities described in section 4(b) 
        solely because such law does not require bargaining with 
        respect to pension and retirement benefits.
    (b) Partial Exemption.--A State may exempt from its State law, or 
from the requirements established under this Act, a political 
subdivision of the State that has a population of less than 5,000 or 
that employs fewer than 25 full time employees. For purposes of this 
subsection, the term ``employees'' includes each individual employed by 
the political subdivision except any individual elected by popular vote 
or appointed to serve on a board or commission.
    (c) Enforcement.--Notwithstanding any other provision of the Act, 
and in the absence of a waiver of a State's sovereign immunity, the 
Authority shall have the exclusive power to enforce the provisions of 
this Act with respect to public safety officers employed by a State.

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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