[Congressional Bills 111th Congress]
[From the U.S. Government Publishing Office]
[S. 3194 Placed on Calendar Senate (PCS)]

                                                       Calendar No. 343
111th CONGRESS
  2d Session
                                S. 3194

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


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                             April 12, 2010

 Mr. Reid introduced the following bill; which was read the first time

                             April 13, 2010

            Read the second time and placed on the calendar

_______________________________________________________________________

                                 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. 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) 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. State and local public safety officers, as first 
        responders, are a component of our Nation's National Incident 
        Management System, developed by the Department of Homeland 
        Security to coordinate response to and recovery from terrorism, 
        major natural disasters, and other major emergencies. Public 
        safety employer-employee cooperation is essential in meeting 
        these needs and is, therefore, in the National interest.
            (3) The Federal Government needs 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.
            (4) 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.
            (5) 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 and local laws should be respected.

SEC. 3. DEFINITIONS.

    In this Act:
            (1) Authority.--The term ``Authority'' means the Federal 
        Labor Relations Authority.
            (2) Confidential employee.--The term ``confidential 
        employee'' has the meaning given such term under applicable 
        State law 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) is designated as confidential; and
                    (B) is an individual who routinely assists, in a 
                confidential capacity, supervisory employees and 
                management employees.
            (3) 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.
            (4) Employer; public safety agency.--The terms ``employer'' 
        and ``public safety officer'' mean any State, or political 
        subdivision of a State, that employs public safety officers.
            (5) 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 of 
        1938 (29 U.S.C. 203(y)).
            (6) 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.
            (7) 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 (42 
        U.S.C. 3796b).
            (8) 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.
            (9) Person.--The term ``person'' means an individual or a 
        labor organization.
            (10) 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, 
                management, or confidential employee.
            (11) State.--The term ``State'' means each of the several 
        States of the United States, the District of Columbia, and any 
        territory or possession of the United States.
            (12) Substantially provides.--The term ``substantially 
        provides'', when used with respect to the rights and 
        responsibilities described in section 4(b), means compliance 
        with each right and responsibility described in such section.
            (13) 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 to 
                exercising such authority.

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).
            (2) Consideration of additional opinions.--In making the 
        determination described in paragraph (1), the Authority shall 
        consider the opinions of affected employers and labor 
        organizations. In the case where the Authority is notified by 
        an affected employer and 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 the Authority's determination under this 
        subsection.
            (3) Limited criteria.--In making the determination 
        described in paragraph (1), the Authority shall be limited to 
        the application of the criteria described in subsection (b) and 
        shall not require any additional criteria.
            (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) 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 Authority shall issue a subsequent determination 
                not later than 30 days after receipt of such request.
            (5) Judicial review.--Any person or employer 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 or employer 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.
    (b) Rights and Responsibilities.--In making a determination 
described in subsection (a), the Authority shall consider a State's law 
to substantially provide the required rights and responsibilities 
unless such law fails to provide 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 
        employees, supervisory employees, and confidential 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 the right to bargain 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 of all rights, responsibilities, 
        and protections provided by State law and enumerated in this 
        section, and of any written contract or memorandum of 
        understanding between a labor organization and a public safety 
        employer, through--
                    (A) a State administrative agency, if the State so 
                chooses; and
                    (B) at the election of an aggrieved party, the 
                State courts.
    (c) Compliance With Requirements.--If the Authority determines, 
acting pursuant to its authority under subsection (a), that a State 
substantially provides rights and responsibilities described in 
subsection (b), then this Act shall not preempt State law.
    (d) 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), then such State 
        shall be subject to the regulations and procedures described in 
        section 5 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 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 makes a 
        determination that a State does not substantially provide for 
        the rights and responsibilities described in subsection (b) 
        solely because the State law substantially provides for such 
        rights and responsibilities for certain categories of public 
        safety officers covered by the Act but not others, the 
        Authority shall identify those categories of public safety 
        officers that shall be subject to the regulations and 
        procedures described in section 5, pursuant to section 8(b)(3) 
        and beginning on the appropriate date described in paragraph 
        (1), and those categories of public safety officers that shall 
        remain subject to State law.

SEC. 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 employers and public safety 
officers in States which the Authority has determined, acting pursuant 
to 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 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; 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.
            (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 any appropriate 
        district court of the United States 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.

SEC. 6. STRIKES AND LOCKOUTS PROHIBITED.

    (a) In General.--Subject to subsection (b), an employer, public 
safety officer, or labor organization may not engage in a lockout, 
sickout, work slowdown, strike, or any other organized job action that 
will measurably disrupt the delivery of emergency services and is 
designed to compel an employer, public safety officer, or labor 
organization to agree to the terms of a proposed contract.
    (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 public safety officers.

SEC. 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) and is in effect on the day before the date of 
enactment of this Act shall not be invalidated by the enactment of this 
Act.

SEC. 8. CONSTRUCTION AND COMPLIANCE.

    (a) Construction.--Nothing in 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 that provides greater or comparable rights and 
        responsibilities than the rights and responsibilities described 
        in section 4(b);
            (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 preempt or limit any State law in effect on the date 
        of enactment of this Act that provides for the rights and 
        responsibilities described in section 4(b) solely because such 
        State law permits an employee to appear on the employee's own 
        behalf with respect to the employee's employment relations with 
        the public safety agency involved;
            (4) to preempt or limit any State law in effect on the date 
        of enactment of this Act that provides for the rights and 
        responsibilities described in section 4(b) solely because such 
        State law excludes from its coverage employees of a State 
        militia or national guard;
            (5) 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;
            (6) 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; or
            (7) to preempt or limit the laws or ordinances of any State 
        or political subdivision of a State that provide for the rights 
        and responsibilities described in section 4(b) solely because 
        such law or ordinance does not require bargaining with respect 
        to pension, retirement, or health benefits.
For purposes of paragraph (6), 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.--
            (1) Actions of states.--Nothing in this Act or the 
        regulations promulgated under this Act shall be construed to 
        require a State to rescind or preempt the laws or ordinances of 
        any of the State's political subdivisions if such laws provide 
        rights and responsibilities for public safety officers that are 
        comparable to or greater than the rights and responsibilities 
        described in section 4(b).
            (2) Actions of the authority.--Nothing in this Act or the 
        regulations promulgated under this Act shall be construed to 
        preempt--
                    (A) the laws or ordinances of any State or 
                political subdivision of a State, if such laws provide 
                collective bargaining rights for public safety officers 
                that are comparable to or greater than the rights 
                enumerated in section 4(b);
                    (B) the laws or ordinances of any State or 
                political subdivision of a State that provide for the 
                rights and responsibilities described in section 4(b) 
                with respect to certain categories of public safety 
                officers covered by this Act solely because such rights 
                and responsibilities have not been extended to other 
                categories of public safety officers covered by this 
                Act; or
                    (C) the laws or ordinances of any State or 
                political subdivision of a State that provide for the 
                rights and responsibilities described in section 4(b), 
                solely because 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.
            (3) Limited enforcement power.--In the case of a law 
        described in paragraph (2)(B), the Authority shall only 
        exercise the powers provided in section 5 with respect to those 
        categories of public safety officers who have not been afforded 
        the rights and responsibilities described in section 4(b).
            (4) Exclusive enforcement provision.--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 employees of 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.
                                                       Calendar No. 343

111th CONGRESS

  2d Session

                                S. 3194

_______________________________________________________________________

                                 A BILL

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

_______________________________________________________________________

                             April 13, 2010

            Read the second time and placed on the calendar