1.This Act may be cited as
the Public Safety Employer-Employee
Cooperation Act of 2010
.
2.Declaration of
purpose and policyThe
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.
3.In this Act:
(1)The
term Authority means the Federal Labor Relations Authority.
(2)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 personnelThe 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 agencyThe terms employer and
public safety agency mean any State, or political subdivision of a
State, that employs public safety officers.
(5)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)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)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)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)The
term person means an individual or a labor organization.
(10)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)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)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)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.
4.Determination of
rights and responsibilities
(a)
(1)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 opinionsIn 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)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)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 determinationsUpon 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)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
responsibilitiesIn 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
requirementsIf 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)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)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.
5.Role of Federal
Labor Relations Authority
(a)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 AuthorityThe 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)
(1)Authority to
petition courtThe 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)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.
6.Strikes and
lockouts prohibited
(a)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)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.
7.Existing
collective bargaining units and agreementsA 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.
8.Construction and
compliance
(a)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;
(7)to prohibit a
State from exempting from coverage under this Act individuals employed by the
office of the sheriff in States that do not provide the rights and
responsibilities described in section 4(b) for law enforcement officers prior
to the date of enactment of this Act; or
(8)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)
(1)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)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 powerIn 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 provisionNotwithstanding 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.
9.Authorization of
appropriationsThere are
authorized to be appropriated such sums as may be necessary to carry out the
provisions of this Act.
December 1, 2010
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