[House Hearing, 110 Congress]
[From the U.S. Government Publishing Office]
ENSURING COLLECTIVE BARGAINING RIGHTS FOR FIRST RESPONDERS: H.R. 980,
THE PUBLIC SAFETY
EMPLOYER-EMPLOYEE COOPERATION ACT OF 2007
=======================================================================
HEARING
before the
SUBCOMMITTEE ON HEALTH,
EMPLOYMENT, LABOR AND PENSIONS
COMMITTEE ON
EDUCATION AND LABOR
U.S. House of Representatives
ONE HUNDRED TENTH CONGRESS
FIRST SESSION
__________
HEARING HELD IN WASHINGTON, DC, JUNE 5, 2007
__________
Serial No. 110-44
__________
Printed for the use of the Committee on Education and Labor
Available on the Internet:
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COMMITTEE ON EDUCATION AND LABOR
GEORGE MILLER, California, Chairman
Dale E. Kildee, Michigan, Vice Howard P. ``Buck'' McKeon,
Chairman California,
Donald M. Payne, New Jersey Senior Republican Member
Robert E. Andrews, New Jersey Thomas E. Petri, Wisconsin
Robert C. ``Bobby'' Scott, Virginia Peter Hoekstra, Michigan
Lynn C. Woolsey, California Michael N. Castle, Delaware
Ruben Hinojosa, Texas Mark E. Souder, Indiana
Carolyn McCarthy, New York Vernon J. Ehlers, Michigan
John F. Tierney, Massachusetts Judy Biggert, Illinois
Dennis J. Kucinich, Ohio Todd Russell Platts, Pennsylvania
David Wu, Oregon Ric Keller, Florida
Rush D. Holt, New Jersey Joe Wilson, South Carolina
Susan A. Davis, California John Kline, Minnesota
Danny K. Davis, Illinois Cathy McMorris Rodgers, Washington
Raul M. Grijalva, Arizona Kenny Marchant, Texas
Timothy H. Bishop, New York Tom Price, Georgia
Linda T. Sanchez, California Luis G. Fortuno, Puerto Rico
John P. Sarbanes, Maryland Charles W. Boustany, Jr.,
Joe Sestak, Pennsylvania Louisiana
David Loebsack, Iowa Virginia Foxx, North Carolina
Mazie Hirono, Hawaii John R. ``Randy'' Kuhl, Jr., New
Jason Altmire, Pennsylvania York
John A. Yarmuth, Kentucky Rob Bishop, Utah
Phil Hare, Illinois David Davis, Tennessee
Yvette D. Clarke, New York Timothy Walberg, Michigan
Joe Courtney, Connecticut Dean Heller, Nevada
Carol Shea-Porter, New Hampshire
Mark Zuckerman, Staff Director
Vic Klatt, Minority Staff Director
------
SUBCOMMITTEE ON HEALTH, EMPLOYMENT, LABOR AND PENSIONS
ROBERT E. ANDREWS, New Jersey, Chairman
George Miller, California John Kline, Minnesota,
Dale E. Kildee, Michigan Ranking Minority Member
Carolyn McCarthy, New York Howard P. ``Buck'' McKeon,
John F. Tierney, Massachusetts California
David Wu, Oregon Kenny Marchant, Texas
Rush D. Holt, New Jersey Charles W. Boustany, Jr.,
Linda T. Sanchez, California Louisiana
Joe Sestak, Pennsylvania David Davis, Tennessee
David Loebsack, Iowa Peter Hoekstra, Michigan
Phil Hare, Illinois Cathy McMorris Rodgers, Washington
Yvette D. Clarke, New York Tom Price, Georgia
Joe Courtney, Connecticut Virginia Foxx, North Carolina
Timothy Walberg, Michigan
C O N T E N T S
----------
Page
Hearing held on June 5, 2007..................................... 1
Statement of Members:
Andrews, Hon. Robert E., Chairman, Subcommittee on Health,
Employment, Labor and Pensions............................. 1
Prepared statement of.................................... 3
Table: State Recognition of Public Safety Officers'
Collective Bargaining Rights........................... 54
``Report Finds Labor Management Cooperation Critical to
State and Local Government Success,'' U.S. Department
of Labor News Release, dated May 28, 1996.............. 62
Kildee, Hon. Dale E., a Representative in Congress from the
State of Michigan.......................................... 5
Prepared statement of.................................... 6
Kline, Hon. John, Senior Republican Member, Subcommittee on
Health, Employment, Labor and Pensions..................... 3
Prepared statement of.................................... 4
Letter from the Fraternal Order of Police and the
International Association of Fire Fighters, dated April
18, 2007............................................... 64
Letter from the International Association of Chiefs of
Police, dated April 18, 2007........................... 64
Letter from the National Association of Counties, dated
June 5, 2007........................................... 65
Letter from the National Conference of State Legislatures 65
Two letters from the National League of Cities, dated
June 19, 2007.......................................... 65
Statement of Witnesses:
Banks, William, professor of law, Syracuse University........ 38
Prepared statement of.................................... 39
Clark, R. Theodore, Jr., partner, Seyfarth Shaw, LLP, on
behalf of the National Public Employer Labor Relations
Association (NPELRA)....................................... 29
Prepared statement of.................................... 30
Nunziato, Paul, vice president, Port Authority Police
Benevolent Association, member, National Association of
Police Organizations (NAPO)................................ 17
Prepared statement of.................................... 19
O'Connor, Kevin, assistant to the general president,
International Association of Fire Fighters (IAFF).......... 9
Prepared statement of.................................... 11
Reichenberg, Neil E., Esq., CAE, executive director,
International Public Management Association for Human
Resources (IPMA-HR)........................................ 21
Prepared statement of.................................... 23
Seybold, Hon. Wayne W., Mayor, Marion, Indiana............... 26
Prepared statement of.................................... 28
ENSURING COLLECTIVE BARGAINING RIGHTS FOR FIRST RESPONDERS: H.R. 980,
THE PUBLIC SAFETY EMPLOYER-EMPLOYEE COOPERATION ACT OF 2007
----------
Tuesday, June 5, 2007
U.S. House of Representatives
Subcommittee on Health, Employment, Labor and Pensions
Committee on Education and Labor
Washington, DC
----------
The subcommittee met, pursuant to call, at 3:03 p.m., in
room 2175, Rayburn House Office Building, Hon. Robert Andrews
[chairman of the subcommittee] presiding.
Present: Representatives Andrews, Kildee, Tierney, Sestak,
Hare, Clarke, Kline, and McKeon.
Staff present: Aaron Albright, Press Secretary; Tylease
Alli, Hearing Clerk; Jody Calemine, Labor Policy Deputy
Director; Carlos Fenwick, Policy Advisor for Subcommittee on
Health, Employment, Labor and Pensions; Michael Gaffin, Staff
Assistant, Labor; Brian Kennedy, General Counsel; Joe Novotny,
Chief Clerk; Megan O'Reilly, Labor Policy Advisor; Robert
Borden, General Counsel; Cameron Coursen, Assistant
Communications Director; Steve Forde, Communications Director;
Ed Gilroy, Director of Workforce Policy; Rob Gregg, Legislative
Assistant; Jim Paretti, Workforce Policy Counsel; and Loren
Sweatt, Professional Staff Member.
Chairman Andrews [presiding]. Ladies and gentlemen, good
afternoon. The subcommittee will come to order.
We are pleased to be joined today by our fellow committee
member and distinguished colleague Congressman Kildee. He will
be speaking in just a moment.
But I did want to welcome the audience to the hearing, the
witnesses to the hearing.
It is a cherished and assumed right of Americans that they
have the right to join or not join a union. They have the right
to engage in collective bargaining, should they choose to join
a union.
An employer has obligations to respect the integrity of the
collective bargaining process, as does the union; that when the
parties reach an agreement they have a reciprocal and equal
obligation to honor that agreement; that should they choose in
the agreement to establish a procedure to hear grievances about
the workplace, that that grievance procedure be uniformly and
fairly applied; that there be terms and conditions that
establish issues about which collective bargaining will be held
and issues that are outside the purview of collective
bargaining.
Whether you drive a truck or work in a retail store, teach
school, build houses, Americans assume that they have these
rights and can participate or not participate, as they see fit.
In my view, there is a glaring exception to this assumed
right that is ironic since the glaring exception affects people
who do so much for the rest of us. I have always thought that
there were two categories of Americans that deserve special
recognition.
One are those who serve in the armed forces, in this era
who voluntarily serve in the armed forces, as each person in
uniform does, and these are people who take a special and
exceptional risk so the rest of us can enjoy the liberties and
freedoms that we enjoy so much.
And a second category of special Americans, I believe, are
those who serve in the public safety professions: those who
respond to the call when we think we see a burglar in the
backyard; those who answer the call of the fire siren and
respond, whether it is the home of someone they know, respect,
like or dislike; those who serve in the ambulance who deal with
the golden hour when someone's life is either saved or lost,
depending on the promptness and reliability of the people doing
the work.
I find it ironic that the glaring exception that exists to
the assumed right to organize affects these individuals. The
evidence would show that there are a dozen states that do not
provide a collective bargaining mechanism for people in the
public safety professions. There are nearly two dozen states
for whom the mechanism, I believe, appears to be insufficient
to protect the rights that most of us assume that we have. I
believe this is a glaring omission that should be remedied.
The purpose of the hearing today is to debate the pros and
cons of that proposition. This is a proposition that has been
introduced by Congressman Kildee with his co-sponsor
Congressman Duncan that has very broad bipartisan support.
This is not an ideological position of any ideology. It is
not a partisan position of either party. The legislation Mr.
Kildee and Mr. Duncan have sponsored has enjoyed broad
bipartisan support, and I think it is for a good reason:
because that exception that I made reference to is one that
many members feel should not exist.
So, today, we are going to examine this question. We are
going to hear from two panels of witnesses, one that will
include Mr. Kildee, the principal author of the legislation,
and a second that will include people who have expertise in the
field of the legal consequences of this bill and people who
have expertise in the field of dealing with public safety
emergencies every day of their lives and their careers. I think
the panels will be informative, and we will learn much from
them.
I did, before I recognize Mr. Kline, want to point out that
Mr. Duncan, the other original co-sponsor of this bill, is not
present today because of medical reasons, and we wish him a
speedy recovery and return to Washington. He is a very
respected colleague on both sides of the aisle, and we thank
him for his work on this issue and hope he rejoins us quickly.
At this time, I would ask if my friend from Minnesota, Mr.
Kline, would like to make an opening statement.
[The prepared statement of Mr. Andrews follows:]
Prepared Statement of Hon. Robert E. Andrews, Chairman, Subcommittee on
Health, Employment, Labor and Pensions
Good afternoon and welcome to today's hearing entitled ``Ensuring
Collective Bargaining Rights for First Responders: H.R. 980, The Public
Safety Employer-Employee Cooperation Act of 2007.'' I believe it is
essential that every rank and file worker, whether public or private,
enjoy certain basic rights and protections in the workplace. One of
those basic worker rights, known as collective bargaining, is
surprisingly withheld from many of our public safety workers today. In
today's hearing, we will layout the factual predicate as to why it is
necessary for Congress to provide collective bargaining rights to those
public safety officers who currently do not possess them and to
consider the Public Safety Employer-Employee Cooperation Act of 2007
(H.R. 980) as a legislative vehicle to provide them.
Historically, states have possessed the authority to manage their
own employees. Whether their employees have or lack basic worker
protections, the decision to provide these protections has been in the
hands of the states. However, in our post-9/11 world, the increasing
demand and pressure placed on our public safety officers warrants the
need to ensure that these dedicated public servants have basic
collective bargaining rights to protect their families, and their
benefits during the times when their help is needed most.
The Public Safety Employer-Employee Cooperation Act of 2007 would
extend the basic right to discuss workplace issues with their employers
to our firefighters, law enforcement officers, emergency medical
services personal and correctional officers. These brave men and women,
who risk their lives each day and serve as our first line of defense
against natural disasters, terrorists, criminals, medical emergencies,
etc., deserve more than the status quo. The least Congress can do is
provide the right for every public safety officer to meet at the table
with their employer to discuss ways to improve the safety of their
community and the well-being of their families. I look forward to
hearing all of the witnesses' testimony today.
______
Mr. Kline. Thank you, Mr. Chairman. I will limit my opening
statement and ask that my prepared statement be included as
part of the record.
Chairman Andrews. Without objection.
Mr. Kline. Thank you.
And I would like to, of course, welcome our friend and
colleague, Mr. Kildee--I am looking forward to hearing from him
and then getting him back up on this side of the room--and our
panel of witnesses, quite a good panel of witnesses today, as
you say, with a broad range of expertise.
I want to emphasize that, as we look at this proposed
legislation, that it does have pretty strong bipartisan
support, because I think that most of us recognize that what we
are talking about here in this specific legislation, in this
specific bill, are indeed what the chairman has called special
Americans, those who are involved in attending to our safety
and wellbeing on a daily basis.
But we want to look at this in the context of the larger
picture. If it applies to these special Americans, this
intrusion of the federal government, the labor relations of the
states and local governments, would it apply to all? Certainly,
I do not think the chairman was meaning to suggest that it
would apply to members of the armed forces, for example.
So there are some avenues of this that we want to explore,
and I am very much looking forward to the testimony and then an
opportunity for questions and answers with our terrific panel.
With that, I yield back, Mr. Chairman.
[The opening statement of Mr. Kline follows:]
Prepared Statement of Hon. John Kline, Senior Republican Member,
Subcommittee on Health, Employment, Labor and Pensions
Good afternoon and thank you, Mr. Chairman. I would first like to
thank the Chairman for his flexibility in the scheduling of this
hearing; I appreciate his willingness to move it to this afternoon so
that I was able to attend, and appreciate his cooperation in that
regard.
Today the Subcommittee will examine legislation that would, for the
first time, interject the federal government into the labor relations
of state- and local-governments, and one segment of their public
employees, namely, firefighter, police, and public safety personnel.
I think it is important to remember as we begin this debate today
that the question is not whether firefighters, police, and other
specified public-sector employees should have the right to join unions,
or whether a unionized firefighter or police force is better than a
non-union one. Rather, the question simply is whether the federal
government should be making that decision for each of the fifty states
or whether these states and localities should maintain that right--as
they have for nearly 70 years--for themselves.
To that end, I do have concern--and I recognize that this is an
issue on which my colleagues on both sides of the aisle can and will,
in good conscience, disagree--that H.R. 980 represents a significant
and unprecedented expansion of the federal government's power into the
labor relations of states, cities, and towns with their public safety
workforces. H.R. 980 sets forth a list of ``minimum standards'' that
state labor laws must meet, and charges a federal agency in Washington
DC with determining in the first instance whether state laws ``pass
muster'' under these new federal standards. If they do not, a state has
one of two choices: Either change its law to meet the federal standard,
or submit to the burden of federal regulation. To my mind, that is a
variation on ``heads you lose, tails I win''--whether directly or
indirectly, the federal government will be the one setting the
standards for state and local labor relations in the public safety
arena.
I expect that we'll hear today from bill supporters that this bill
is only a modest proposal, and that many states already have laws that
they believe meet federal standards. I take that suggestion in good
faith, but respectfully suggest that on its face, none of us can be
sure that it is true. What we do know is that at a minimum, within 180
days of this bill becoming law, each and every of the fifty states must
submit their state labor laws for review by a federal agency, which
alone is charged with determining whether they meet the new federal
standard. Both from a practical standpoint and as a matter of
principle, this raises real concern to me. In essence, we are
substituting our judgment for maybe one, maybe twenty, or maybe fifty
state legislatures--in doing so, we are stepping on the right of states
and localities to tailor these laws, via the democratic process, to
meet their needs.
Moreover, as a practical matter, I have real questions as to how
this bill will work--if a state law is found to meet the federal
standard 100%, it appears that the state is free of federal regulation.
What if the state's law meets 95% of the test? As I read this bill, if
a state is unable or unwilling to make slight changes to their laws to
accommodate that 5% variance, the federal government steps in and
assumes regulation of the state's public safety workforce. That may be
many things, but it is certainly not a modest, limited proposal.
Finally, I expect we'll hear from witnesses on both sides as to
whether or not H.R.980 would be found to be constitutional, or whether
it unconstitutionally extends the powers of the federal government and
abrogates states' sovereign rights. I doubt that the issue will be
resolved today--nor do I argue that the absence of a definitive answer
should prevent us from looking closely at the substance of the
legislation--but I do think if we are to engage in the process of
legislating in a serious and meaningful way that we need to be made
aware of all the potential issues.
Mindful of the hour and the full slates of witnesses before us,
with that, Mr. Chairman, I yield back my time and look forward to our
witness's testimony.
______
Chairman Andrews. Thank you very much, my friend from
Minnesota.
Without objection, all members will have 14 days to submit
additional materials for the hearing record, including but not
limited to opening statements.
It is now my pleasure to introduce a cherished member of
this committee and a very good friend, Congressman Kildee.
Three things I admire most about Dale Kildee: The first is
his tenacity in pursuing his deeply held beliefs. He tells
stories about his father's involvement in organized labor back
in the days of the auto industry in his native Michigan, which
I find moving to this day. Second is he is a genial colleague
who respects and is treated with respect by members of both
sides of the aisle. And third, he is a very proud military
parent.
Now, is it two of your sons, Dale, that have served in the
armed forces of the country?
Mr. Kildee. Two.
Chairman Andrews. He mentions them frequently, and having
met one of them, I can see why he is so proud, and he is like a
lot of other Americans that his family has served in a very
special way.
So, Dale, we welcome you home to your committee and would
invite you to make your statement.
STATEMENT OF HON. DALE KILDEE, A REPRESENTATIVE IN CONGRESS
FROM THE STATE OF MICHIGAN
Mr. Kildee. Thank you very much, Mr. Chairman, and thank
you, Ranking Republican Member Kline.
I would like to commend you for holding this hearing today
on H.R. 980, the Public Safety Employer-Employee Cooperation
Act, which would enable public safety employees to discuss work
conditions with their employers.
This legislation would extend to firefighters, police
officers, EMTs and other public safety officers the basic right
to discuss workplace issues with their employers.
I sponsored this legislation with my friend from Tennessee,
Mr. Duncan, because I feel that public safety officers who risk
their lives to protect us deserve a say in decisions that
affect their lives and their livelihood.
I would also like to thank the groups that we have worked
with on this legislation, including the International
Association of Firefighters, the Fraternal Order of Police, the
American Federation of State, County and Municipal Employees
and the National Association of Police Organizations.
The absence of the right to collectively bargain denies
these public servants the opportunity to influence decisions
that affect their work and their families. Firefighters and
police officers take seriously their oath to protect the
public, and, as a result, they do not engage in work slowdowns
or stoppages.
Our firefighters and police officers risk their lives to
keep us safe, yet there are some states in this country that
deny them the basic right to discuss workplace issues with
their employers, a right which many Americans have.
We should not forget that firefighters and policemen and
women risk their lives every day to protect us and all of the
public. At the very least, they should be allowed to negotiate
for wages, hours and safe working conditions.
When I was in the state legislature in Michigan in my very
first term, back in 1965, I helped pass legislation that grants
all public employees, including police and firefighters and
EMTs people, the right to bargain collectively. In Michigan,
this has led to a working environment that effectively protects
the public that both employers and employees can be proud of.
Studies have actually found that cooperation between public
safety employers and employees reduces fatalities, improves
public safety services and saves the taxpayers money.
While I feel that Michigan is an excellent example of how
employer and employee cooperation can benefit everyone, I do
not want to impose the same structure on all states. I
recognize that states may have different approaches that would
be more effective for that particular state.
H.R. 980 would merely create a minimum standard that states
have the flexibility to implement, regulate and enforce as they
see fit. Many states, such as Michigan, have laws in place that
go well beyond 980, and these states would not be affected by
this legislation. Additionally, this legislation does not allow
strikes or lockouts, and it preserves management rights.
Firefighters and police officers are very serious about
their commitment to public safety. They deserve the basic
right, Mr. Chairman and Ranking Member Kline, to sit down with
their employers and discuss their work conditions. The
reasonableness of this legislation is demonstrated by the wide
bipartisan support it has from its 235 co-sponsors, and I urge
my colleagues to join me in moving this legislation through the
House.
And at that, I would yield to the next panel or, if you
have questions, respond to any questions.
[The statement of Mr. Kildee follows:]
Prepared Statement of Hon. Dale E. Kildee, a Representative in Congress
From the State of Michigan
Mr. Chairman, I would like to commend you for holding this hearing
today on H.R. 980, the Public Safety Employer-Employee Cooperation Act,
which would enable public safety employees to discuss work conditions
with their employers. This legislation would extend to firefighters,
police officers, EMTs and other public safety officers the basic right
to discuss workplace issues with their employers.
I sponsored this legislation with my friend from Tennessee, Mr.
Duncan, because I feel that public safety officers, who risk their
lives to protect us, deserve a say in decisions that affect their lives
and their livelihood.
I would also like to thank the groups that we have worked with on
this legislation, including the International Association of Fire
Fighters, the Fraternal Order of Police, the American Federation of
State, County and Municipal Employees, and the National Association of
Police Organizations.
The absence of the right to collectively bargain denies these
public servants the opportunity to influence decisions that affect
their work and their families.
Firefighters and police officers take seriously their oath to
protect the public, and as a result they do not engage in work
slowdowns or stoppages.
Our firefighters and police officers risk their lives to keep us
safe. Yet there are some states in this country that deny them the
basic right to discuss workplace issues with their employers--a right
many Americans have. We should not forget that firefighters and police
men and women risk their lives everyday to protect the public. At the
very least, they should be allowed to negotiate for wages, hours, and
safe working conditions.
When I was in the state legislature in Michigan, I helped pass
legislation that grants all public employees the right to collectively
bargain. In Michigan, this has led to a working environment that
effectively protects the public and that both employers and employees
can be proud of. Studies have actually found that cooperation between
public safety employers and employees reduces fatalities, improves
public safety services, and saves the taxpayers money.
While I feel that Michigan is an excellent example of how employer
and employee cooperation can benefit everyone, I do not want to impose
the same structure on all states. I recognize that states may have
different approaches that would be more effective for that state.
H.R. 980 would merely create a minimum standard that states have
the flexibility to implement, regulate and enforce as they see fit.
Many states, such as Michigan, have laws in place that go well beyond
H.R. 980, and these states would not be affected by this legislation.
Additionally, this legislation does not allow strikes or lockouts
and it preserves management rights. Firefighters and police officers
are very serious about their commitment to public safety. They deserve
the basic right to sit down with their employers and discuss their work
conditions. The reasonableness of this legislation is demonstrated by
the wide bipartisan support it has from its 235 cosponsors. I urge my
colleagues to join me in moving this legislation through the House. I
yield back the balance of my time.
______
Chairman Andrews. Well, I thank our distinguished colleague
for his testimony. Frankly, we have had the chance to read
through the testimony. Your written testimony is on the record,
without exception, and because we will have the chance to talk
about it at length at other times, I would forego any
questioning.
Mr. Kline, do you have a desire to question Mr. Kildee?
Mr. Kline. No, I want to get him up here.
Chairman Andrews. Mr. Hare, do you have--okay.
Well, Dale, we thank you for your efforts. And please come
on up to this side of the table.
Mr. Kildee. Thank you for this opportunity.
Chairman Andrews. You are very welcome.
I would ask if our second panel could find their way to the
front table, and we will begin momentarily.
We welcome the panel to the subcommittee. We are very
appreciative of everyone giving us time.
I am going to introduce by biography the witnesses, and
then we will ask each of you to make your statement.
Without objection, your written statement in its entirety
will be entered in the record. We ask each of you to take 5
minutes and summarize your written statement so that we can get
to questions from the members.
I will introduce the witnesses at this time.
Kevin O'Connor currently serves as assistant to the general
president of the International Association of Firefighters, the
IAFF, representing over 260,000 members across the United
States and Canada. In this capacity, Mr. O'Connor supervises
the development of policy objectives for IAFF and engages in
lobbying efforts before the Congress and various regulatory
agencies.
Kevin served proudly for 15 years as a firefighter-EMT in
the Baltimore County Fire Department, where he saw duty both as
a line firefighter and as an aide to the chief of the
department. He received a commendation for bravery for a rescue
during a multiple-alarm apartment fire.
He majored in political economy at Washington and Lee
University and graduated from the Harvard Trade Union Program.
Kevin, welcome. It is good to have you with us.
Paul Nunziato is a police officer with the Port Authority
of New York and New Jersey Police Department. Paul is a member
of a bi-state police department, where he is certified as a
police officer in both New Jersey and New York.
During a more than 20-year career with the Port Authority
Police, Paul has worked at every command in both New York and
New Jersey. He has been a member of the Port Authority Police
Benevolent Association since 1987, holding various elected
offices, including treasurer and currently first vice
president.
Paul was involved in the evacuation effort of the World
Trade Center as well as the recovery effort at Ground Zero.
Paul, welcome. Glad to have you with us.
Neil Reichenberg--did I get your name correctly, Neil? Neil
is executive director of the International Public Management
Association for Human Resources located in Alexandria,
Virginia.
Mr. Reichenberg is the executive director of the
association which focuses on public-sector human resource
management, and its membership works at all levels of
government. Mr. Reichenberg is responsible for the overall
management of the association and has worked there for 27
years, serving as executive director since 1996.
Mr. Reichenberg is a graduate of the University of Maryland
and New York Law School and is a member of the bar in New York
and the District of Columbia.
Welcome. Nice to have you with us.
Mayor Wayne Seybold--is that the correct pronunciation?
Mayor Seybold was elected the 29th mayor for the city of Marion
in Indiana, correct, and took office on January 1, 2004.
During his administration, Mayor Seybold has worked
diligently with community leaders and elected officials to
recapture the quality of life, declaring, ``Make it Marion,''
by enhancing the quality of life and community pride, by
providing an aesthetically clean environment, a strong economic
foundation and a marketable future for the community.
I do not think we can say this about any witness we have
ever had here, Mayor, that prior to running for office, Mayor
Seybold began his career with his sister, Kim, as a figure
skating pair in the 1988 Calgary Olympics, a real achievement.
Most of us probably could not stand up in an ice skating
rink. I should not say that about my friend from Minnesota.
[Laughter.]
But it is good training for mayor, I guess, to be able to
dodge and weave around various things.
Our next witness is R. Theodore Clark, Jr., who is a
partner in the very fine firm of Seyfarth Shaw based in
Chicago. Mr. Clark is a partner and practices public-sector
labor relations law at that firm. He is also an adjunct
professor in public-sector labor relations law at Northwestern
University Law School.
Mr. Clark has served as a consultant to the Illinois
governor's advisory commission on labor management policy for
public employees, as a part-time faculty member for courses on
public employee labor relations for the Graduate School of
Public Administration at the University of Southern California,
and as a lecturer on labor law and legislation at DePaul
University.
Mr. Clark has also served as a member of the board of
directors of the Legal Assistance Foundation of Chicago and is
on the advisory committee of the Illinois Educational Labor
Relations Board.
Welcome, Mr. Clark. We are glad that you are with us.
And finally, Professor William C. Banks is recognized
internationally as an expert in constitutional law, national
security law and counterterrorism.
Since 1987 when the Federation of American Scientists asked
him to provide a legal perspective on first use of nuclear
weapons, Professor Banks has helped set the parameters for the
relatively new field of national security law.
He is a graduate of the University of Nebraska and the
University of Denver, where he earned his J.D. degree and a
master's in law and society.
Mr. Banks joined the faculty of the Syracuse University
College of Law in 1978. He became the founding director of the
Institute for National Security in Counterterrorism at Syracuse
in 2003. He also served as special counsel to the United States
Senate Judiciary Committee in 1994. Mr. Banks worked on the
committee on the confirmation hearings for Supreme Court
nominee Stephen G. Breyer.
Welcome very much.
This is a great panel. We look forward very much to hearing
your testimony.
One final word about the light box that is in front of you.
As I said, your statements have been entered into the record in
their entirety, the written statements, and we do ask you to
give us a synopsis of 5 minutes so the panel can hear you.
When the yellow light goes on, you have 1 minute remaining
in your 5 minutes, and we would ask you to wrap up when you see
the red light on, out of courtesy to your fellow panelists and
to the members of the committee.
We will begin with Mr. O'Connor.
I did want to mention, since we have the record here, that
a friend and colleague of ours, Tom Canzanella, president of
New Jersey IAFF, is critically ill, suffered a brain aneurysm,
as we understand, at the end of last week, but I know that the
prognosis is good the last I heard.
And I hope that you would pass along to Tom and his family
and his brotherhood in the IAFF that we wish him the best.
Mr. O'Connor. We will do that, Mr. Chairman. I want to
thank you for your phone call over the weekend. It meant a lot
to Tom's family and to our members in New Jersey. We very much
appreciated your offer to help.
Chairman Andrews. Well, you are welcome. And our insistence
is that when Tom recovers, he should be a witness before us at
one of these hearings.
Mr. O'Connor, you are recognized.
STATEMENT OF KEVIN O'CONNOR, ASSISTANT TO THE GENERAL
PRESIDENT, INTERNATIONAL ASSOCIATION OF FIREFIGHTERS
Mr. O'Connor. Thank you very much, Mr. Chairman, Ranking
Member Kline and members of the committee. I appreciate the
very generous introduction.
I would like to note that it is my honor today to represent
the now 283,000 members of the International Association of
Firefighters, who risk their lives every day serving America's
communities.
I would also like to note, in addition to being a career
firefighter in Baltimore County for 15 years, I also very
proudly served as a volunteer in that very same jurisdiction.
During my years as a local union officer and 9 years as
president of Local 1311, I had the opportunity to bargain 10
contracts that measurably improved the delivery of service and
improved safety for firefighters serving in Baltimore County.
H.R. 980 is about two things: fundamental fairness and
creating a structured process in which public safety officers
and their respective governmental employers can meet and
discuss workplace safety and security issues.
Let me begin by first addressing the issue that is most
pressing to our nation, and that is homeland security. Since 9/
11, a day of infamy that claimed the lives of 343 of my brother
firefighters, the public has developed a new respect for the
vital work of firefighters and our integral role in protecting
homeland security.
Mr. Chairman, after reading everyone's written testimony, I
think that everyone on this panel agrees on one thing: We
support collective bargaining rights in general. It is also not
disputed that this process, provided through 50 separate
individual state laws, will measurably improve emergency
services and public safety. Post-9/11, Americans have a right
to the homeland security dividend that collective bargaining
pays.
If, and only if, states choose not to provide this valuable
homeland security tool and to preserve their own individual
state's rights, it becomes a job of this Congress to set
minimum standards to make both firefighters and the general
public safer.
First responders are, indeed, the nation's first line of
defense against terrorist attacks and natural disasters. We are
the first on every emergency scene and the very last to leave.
To do our jobs effectively and safely, we need a seat at
the table. We need to able to discuss response issues, engage
in meaningful dialogue about the equipment, staffing and
processes required to protect the jurisdictions which we so
proudly serve. Simply put, collective bargaining is an
appropriate and necessary vehicle to facilitative those goals.
Years ago, many elected officials looked at public safety
issues as the exclusive purview of local governments and felt
that this issue should be left to the states. Since the
creation of FEMA in 1979, the federal government has assumed a
growing and increasingly supervisory role in local public
safety issues, and since 9/11, the connection between federal,
state and local government has become totally entwined.
The federal government has mandated basic levels of
training in response standards. It has instituted the National
Response Plan and created the National Instant Management
System. To ensure more effective response to manmade and
natural disasters, the federal government has greatly expanded
their support of the Urban Search and Rescue Program, a
fantastic example of cooperation between federal, state and
local response providers.
Therefore, it is a very logical progression for the federal
government to ensure a process by which local government and
first responders can meet and discuss those important safety
and homeland security issues, and that process is collective
bargaining.
Since the 1930s, all private-sector employees have enjoyed
the right to collectively bargain. The workers who build our
firetrucks and manufacture equipment can collectively bargain,
but tens of thousands of men and women who risk their lives
every day cannot. There is something wrong with that equation.
H.R. 980 provides us a seat at the table, nothing more. The
measure is designed to encourage each state to craft its own
statute to govern bargaining processes for their public safety
employees.
Provided that four simple conditions are met, the federal
government adopts a hands-off posture. Those conditions are:
one, a mechanism for employees to determine whether or not they
wish to be represented; two, a formalized process for
management and labor to meet and discuss terms and conditions
of employment; three, a non-binding dispute mechanism process;
and, four, the ability to enter into legal binding contracts
if--and I emphasize if--an agreement is reached.
Provided that states substantially comply with those four
caveats, the federal government has no further role in that
state. If, however, a state refuses to enact its own law, the
Federal Labor Relations Authority would issue regulations that
would, in fact, become that state's bargaining law for public
safety officers.
Recognizing that we are dealing with public funds and local
government's fiscal authority, jurisdictions are never
compelled to reach an agreement. At the end of the day, local
government controls the purse strings and can simply say no.
H.R. 980 mandates a process, not an outcome. This bill
presents a rare opportunity to create a process that will both
improve emergency service and provide a voice in the workplace
for our country's dedicated first responders.
On behalf of our nation's first responders, including those
in law enforcement represented by the FOP and other
organizations, I thank you very much for this opportunity to
testify, and we would be delighted to answer any questions for
the committee.
[The statement of Mr. O'Connor follows:]
Prepared Statement of Kevin O'Connor, Assistant to the General
President, International Association of Fire Fighters (IAFF)
Chairman Andrews, Ranking Member Kline, and distinguished members
of the Subcommittee. My name is Kevin O'Connor and I am the Assistant
to the General President of the International Association of Fire
Fighters (IAFF). I am pleased to have the opportunity to appear before
you today on behalf of General President Schaitberger and the 283,000
men and women who comprise the IAFF.
Before I begin, allow me to express my appreciation to you, Mr.
Chairman, for holding this hearing on this very important topic. You
have a long, distinguished history of championing the issues of concern
to America's fire fighters. Your leadership as Co-Chair of the
Congressional Fire Services Caucus is recognized and appreciated by
both the career and volunteer fire services. I am looking forward to
working with you and the committee in the coming weeks as this
legislation moves forward. And I would be remiss if I did not also
commend the extraordinary leadership of the author of this legislation,
Representative Dale Kildee. Representative Kildee first introduced this
bill a dozen years ago, and has remained its most steadfast champion.
The nation's fire fighters and law enforcement officers are indebted to
him.
Mr. Chairman, I appear before you today not only as a
representative of the IAFF, but also as someone who understands from
first hand experience the significance of this issue. I spent my entire
adult life in the fire service, starting as a volunteer fire fighter,
serving for 15 years as a professional fire fighter and E.M.T. in the
Baltimore County, Maryland Fire Department, and serving for 9 years as
President of my local union, the Baltimore County Fire Fighters
Association and 6 years as President of the 7,500 member Maryland State
and District of Columbia Fire Fighters Association. From this vantage
point, I not only know what it's like to work as a fire fighter, I also
know just how much can be achieved through the bargaining process.
I have many memories of those years sitting across the bargaining
table negotiating with five different Fire Chiefs and four County
Executives--three Democrats and one Republican. Obviously, we had areas
of disagreement and agreement. I had some successes and my share of
defeats. But the one thing I am absolutely certain of, and to which
those Chiefs and County Executives would no doubt agree, is that the
citizens of Baltimore County are safer today because of what we
achieved together. It was a structured, cooperative process that
benefited both the 700,000 taxpaying citizens of Baltimore County, and
the members of the Baltimore County Fire Department.
Fundamental Fairness
In essence, this hearing is about fundamental fairness for fire
fighters and police officers. Today, the vast majority of American
workers--private sector employees, non-profit association employees,
transportation workers, federal government employees, and even
congressional staff--have the right to bargain collectively. As I
listened to the debate earlier this year over the Employee Free Choice
Act, I was struck by how universally acknowledged the right to bargain
has become. While people can, and do, argue over many of the details of
labor law, few voices can be heard questioning the fundamental right of
employees to discuss how they do their jobs with their employers. I
find it noteworthy that the most recent group of employees to gain
collective bargaining rights owe this right to the conservative 104th
Congress led by House Speaker Newt Gingrich and Senate Majority Leader
Bob Dole. As a result of a key provision of the Contract with America,
the Capitol Police Force who are protecting us here today enjoy
collective bargaining rights.
I also note that the National Association of Counties, one of the
largest organizations representing the employers with whom we
negotiate, has expressly endorsed collective bargaining for all non-
supervisory employees as a means to promote ``positive labor-management
relationships'' and ``provide workers with safe and meaningful
employment.''
Despite this near-universal acceptance of the right to bargain,
tens of thousands of our nation's fire fighters and police officers on
the frontlines of homeland security are unfairly denied this basic
protection. In too many states, first responders are prevented from
having a conversation with their employer about how to improve
fundamental services and protect the public. Let me be clear: this is
not about the ability to strike, which H.R. 980 expressly outlaws. No
first responder that I know believes in strikes--it contradicts what
protecting the public safety means. Nor is it about union organizing,
since the IAFF already represents over 85% of fire fighters
nationally--including those in Right to Work states. In fact, we may be
the only national union that does not even have an organizing
department.
This is about fundamental fairness: the right to talk about how to
best protect the public safety should be provided to the first
responders who risk so much to keep our nation safe.
Collective Bargaining in the Public Safety Arena
Perhaps in no occupation is the need for collective bargaining
greater than in public safety. Fire fighting is the nation's most
dangerous profession. One-third of our members are injured in the line
of duty each year. In 2007, approximately 100 of my brothers and
sisters will pay the ultimate price. Thousands of times today, in every
corner of America, an alarm will ring in a firehouse and men and women
will bravely place themselves in harm's way.
Fire fighters take these risks for one reason: we are dedicated to
protecting the health and safety of our neighbors and our communities.
It is this same dedication and commitment to public safety that we
bring to the bargaining table. The issues that are of paramount
importance to us are often not things such as wages and benefits, the
traditional subjects of bargaining. Rather, we are focused on how we
can do our jobs better and more safely and improve the level of service
that we provide to our communities.
Frontline emergency responders often view public safety through a
different lens than public safety directors or city managers. We are
the ones who rush into the burning buildings, dive into frigid waters,
and perform countless rescues each year. We believe we have a valuable
perspective to share, and I am here today to ask you to grant us a seat
at the table.
Effective Local Emergency Response is a Cornerstone of Homeland
Security
September 11, 2001 demonstrated the courage and sacrifice of our
fire fighters and police officers. On that tragic day, I lost 343 of my
brother fire fighters, each of whom was a union member who enjoyed
collective bargaining. I should note that even though they were working
without a ratified contract, these dedicated fire fighters performed
beyond the call of duty and made the ultimate sacrifice. All first
responders place duty above all else. With or without collective
bargaining, we will always place serving the public as our first and
foremost priority.
But September 11 was not just a day of tragedy and heroism. It also
fundamentally changed the way our nation views emergency response.
Prior to 9/11, public safety was viewed almost exclusively as a local
government function. No more. Americans now universally understand that
homeland security is a vital federal government responsibility. And
effective local emergency response is a cornerstone of homeland
security. Homeland security starts with hometown security.
Thus, the federal government embarked on the creation of a new
security paradigm that embraces active federal government involvement
in local emergency response preparedness. The importance of this new
paradigm was further highlighted when a devastating hurricane in the
Gulf Coast took hundreds of lives and stretched emergency response
capabilities to the breaking point.
Following the issuance of Homeland Security Presidential Directive-
8 (HSPD-8), which declared it a federal responsibility to ``strengthen
preparedness capabilities of Federal, State, and local entities,''
Congress and the Executive Branch worked together to create a network
of programs that permanently linked federal and local response
activities. These initiatives are manifested in the National Response
Plan, the National Preparedness Goal, the National Incident Management
System, in the coordination of several training and exercise programs
including TOPOFF (a series of exercises designed to help states and
localities gain an objective assessment of their capacity to prevent or
respond to and recover from a disaster), and in related guidance to
states in aligning state homeland security strategies with the National
Preparedness Goal. Through these executive and statutory precedents,
and combined with $18 billion in grants to state and local governments
since 9/11, the federal government has articulated that an effective
emergency response at the local level is a fundamental building block
of homeland security, critical to ``strengthen preparedness
capabilities.''
It is therefore surprising and somewhat disappointing to hear some
argue that it is inappropriate for the federal government to ensure
that emergency responders have a voice in the workplace. Some of those
who today oppose any federal involvement in ensuring that fire fighters
have the opportunity to raise safety issues with their employer are the
same people who gave speeches on the floor of the U.S. House of
Representatives lauding their heroism following the 9/11 attacks.
Ensuring the ability of emergency responders to work cooperatively
with the local officials who manage emergency response is every bit as
much a legitimate federal government responsibility as any homeland
security initiative Congress has undertaken in the past five years.
Public Safety Collective Bargaining Works
Studies have consistently shown that collective bargaining in the
public sector improves the delivery of emergency services. The
Secretary of Labor's Task Force on Excellence in State and Local
Government, a national bi-partisan study group evaluating means to
improve delivery of state and local government services, found in 1996
that ``collective bargaining relationships, applied in cooperative,
service-oriented ways, provide the most consistently valuable structure
for beginning and sustaining workplace partnership with effective
service results.''
Real world examples abound to verify these findings. Almost every
day in almost every corner of America, representatives of frontline
fire fighters are sitting down with their fire chief or public safety
director to discuss how to do their job more effectively and more
safely.
The Phoenix, Arizona Fire Department is recognized as one of the
preeminent fire departments in the world, a status achieved largely
through labor-management cooperation. According to Chief Dennis
Compton, who also served as the President of the International
Association of Fire Chiefs: ``A positive labor/management process can
form the foundation for planning and problem-solving in a fire
department. When labor and management leaders work together to build
mutual trust, mutual respect, and a strong commitment to service, it
helps focus the fire department on what is truly most important * * *
providing excellent service to the customers and strong support to the
members who serve them. I know this is possible because for 32 years, I
had the honor of serving in two fire departments in Phoenix and Mesa,
Arizona who transformed this concept into reality. The labor/management
process established in the Phoenix Fire Department in the early 1980's
is the principal reason that the organization has earned an
international reputation as arguably the most effective public safety
organization in the world.''
In Kansas City, Missouri, the Labor-Management Committee works
together to address almost all the significant operational issues
facing the Fire Department. In recent years, the Committee created a
joint plan that identified areas of greatest need, and--just as
significantly--identified possible funding sources to help meet those
needs. The result has been an increase in both staffing and apparatus,
with minimal drain on local treasury. Kansas City Chief Richard
``Smokey'' Dyer, also a past president of the International Association
of Fire Chiefs, echoes Compton's views: ``I've been a Chief in
departments with collective bargaining and without. The bargaining
process is, by far, preferable because it establishes structured
processes in which we can jointly address safety, service delivery and
other issues impacting public safety.''
In New York City, a five-year collective bargaining agreement was
ratified last year that included a long-term solution to FDNY's
staffing shortage. The density and large number of high rise buildings
in New York pose unique problems for the city's emergency response
agencies. The agreement will enable the Fire Department to more
effectively respond to the extraordinarily labor-intensive tasks
required to perform rescue operations in that challenging urban
environment.
In Hennepin County, Minnesota, the local fire fighters union
conducted extensive research into ambulance and stretcher designs after
city paramedics began complaining of back and neck problems. The union
made recommendations to purchase new ambulance suspensions and
ergonomic stretchers, but the Fire Department balked because it didn't
have sufficient budgetary authority. So the union worked with
management through the collective bargaining process to examine the
purchases in the overall context of workers compensation, disability
benefits, and sick leave. The result was an agreement that allowed the
city to purchase the newer technology, resulting in healthier
paramedics and a savings to taxpayers.
In Omaha, Nebraska, collective bargaining has produced measurable
staffing and health and safety improvements throughout the Fire
Department resulting in safer fire fighters and a safer community.
Before collective bargaining, the Omaha Fire Department lost one fire
fighter in the line of duty every five years. Since fire fighters were
provided with a means to provide input about health and safety aspects
of their jobs, they haven't lost a fire fighter in the last twelve
years. This was achieved by increasing staffing to meet national
consensus standards for safe fireground operations, and by securing
enclosed cabs on fire trucks. The bargaining process in Omaha also has
also addressed the dangerous health hazards posed by asbestos at fire
stations and provided hearing protection for fire fighters.
In Miami, Florida, the local fire fighter union was able to offer
data that persuaded city leaders to establish one of the nation's
foremost fire department-based EMS delivery models. The EMS system,
which has now been working effectively for several years, reduced
response times and reduced costs to taxpayers. Based on the Miami
experience, the model has been adopted by several other fire
departments. In almost every instance, the new system was a joint
labor-management initiative. According to Miami Fire Chief William
Bryson ``The bottom line is collective bargaining worked to improve
services in our city.''
From my own experiences in Baltimore County, through our bargaining
process we established a labor/management, a quality of work life, and
safety and health committees. Collectively, these committees assisted
the department in evaluating our response profiles and levels of
service, selecting the appropriate breathing apparatus, turnout
clothing and other safety equipment, abating diesel exhaust emissions
in our 26 stations, developing a wellness and fitness initiative and
cooperatively taking over a 55 member private-industrial fire
department and integrating their personnel and emergency operations
into the Baltimore County Fire Department.
And in your District, Ranking Member Kline, in Chaska, Minnesota,
the city's fire department stepped up to provide certified ambulance
service when a previous emergency service provider failed to meet the
city's public safety standards. Aided by a collective bargaining
process, the Fire Department earned the necessary certification and
assumed the responsibility of providing effective paramedic services to
the citizens of Chaska.
Such examples are just a few of the literally thousands of
beneficial public safety initiatives that have been achieved through
labor-management cooperation.
Moreover, just as there are countless examples of the benefits of
collective bargaining, there is also ample evidence that the absence of
a bargaining relationship is the source of significant problems. At its
most fundamental level, collective bargaining is simply a process for
resolving disputes. Without such a process in place, disputes often
find other outlets that sometimes prove dangerous and costly. An
absence of collective bargaining for fire fighters and police officers
is, at a minimum, a missed opportunity to improve the delivery of
emergency services.
Consider the case of Dean Bitner, President of the Springdale,
Arkansas Professional Fire Fighters. Without the ability to bring
issues to the bargaining table, Bitner took his concerns about
understaffing and inadequate fire protection to the city council. The
fire department retaliated by passing over Bitner for promotion to
Captain, despite his having the highest scores on the civil service
exam. When Bitner filed suit alleging violation of his first amendment
rights, he was demoted and removed from a pension committee. And when
he asked the Fire Chief why he was not allowed serve on the pension
committee, he was promptly fired for insubordination.
In the face of these unwarranted assaults on his rights, a federal
court ordered the city to reinstate Bitner and promote him to Captain.
But that was only the beginning. The court also awarded Bitner hundreds
of thousands of dollars in damages including back wages and
compensatory damages, and ordered the city to pay Bitner's attorneys'
fees.
A similar story took place in LeMay Township, Missouri. Fire
fighter David Foote was fired for telling a meeting of the local
Republican Party (of which he was an active member) about the fire
department's refusal to replace unsafe personal protective gear. Like
Bitner, Foote had to file suit to obtain justice. He was ordered to be
rehired and awarded in excess of $400,000 in damages.
Dean Bitner and David Foote are not alone. IAFF attorneys have
handled over a dozen first amendment cases in non-bargaining states in
recent years, every single one of which resulted in taxpayers being
forced to pay large settlements to fire fighters who were wrongfully
fired or disciplined for expressing their views.
But the lesson of these cases is not just that cities have wasted
time and millions of taxpayer dollars. The more significant lesson is
that lawsuits and politics are a poor substitute for collective
bargaining. Had Bitner and Foote had the opportunity to raise their
concerns in a collective bargaining environment, and had the
jurisdictions of Springdale and LeMay Township had an established
process for resolving grievances and appealing disciplinary actions,
none of this would have occurred. Both the localities and their fire
fighters could have spent their time, energy, and money where it
belongs--on protecting the public safety.
Not surprisingly, the problems associated with the absence of a
bargaining relationship take their toll on employees. The inability to
bring important workplace issues to the attention of management harms
morale, and can undermine the espirit de corps essential in public
safety occupations. This is especially true in communities where fire
fighters without bargaining rights engage in mutual aid responses
alongside fire fighters who are protected by bargaining laws. The
disparate treatment is painfully obviously to those denied a voice in
the workplace, and we have witness high rates of turnover in many of
these fire departments. Ultimately, these morale problems jeopardize
public safety.
The Public Safety Employer-Employee Cooperation Act (HR 980)
In order to ensure that collective bargaining is universally
available to those public safety officers who want it, Representative
Kildee worked with the IAFF, FOP, and other organizations representing
law enforcement officers to craft the Public Safety Employee-Employer
Cooperation Act. Let me say first that we don't call it the Cooperation
Act for nothing. The heart of the bill is promoting cooperation between
public safety employers and employees whose relationship is critical to
the effective delivery of emergency services. The purpose of this bill
is to have fifty state laws that give fire fighters and police officers
access to a bargaining process that fosters cooperation between public
safety officers and the agencies that employ them, a process that is
working well in 30 states and creating an atmosphere in which all
parties are stakeholders in improving safety and making communities
more secure. Rather than imposing a single federal labor relations law
on states, the goal of this legislation is to have fifty state laws
that are written by states and administered by state agencies.
To accomplish this, the legislation establishes four minimum
standards: the right to form and join a union; the right to bargain
over working conditions; the right to sign legally enforceable
contracts; and the right to utilize an impasse resolution procedure.
The impasse mechanism does not need to be binding on the parties. For
example, many states use mediators or fact-finders to help resolve
disputes.
Just as important as what the bill requires, is what it does not
require. It does not require binding arbitration to resolve disputes;
does not allow public safety officers to strike; does not take away
authority of states and local jurisdictions to have ultimate say over
all public safety and financial issues; does not require any specific
method to certify unions; does not interfere with state ``right-to-
work'' laws; and does not infringe on the rights of volunteer fire
fighters.
The bill tasks the Federal Labor Relations Authority (FLRA), an
entity with unparalleled expertise in public sector labor relations, to
review state collective bargaining laws to see if they meet the minimum
standards previously described. In states that already have a
bargaining process that works to keep the public safe, as a majority of
states do, there would be no further role for the federal government.
The minority of states that do not meet these minimum standards
would have two years to enact their own public safety collective
bargaining law that could be tailored to meet the emergency service
needs of each state. The bill gives the utmost flexibility to states in
crafting their own collective bargaining law so they can best use this
tool to augment emergency response capability across their states. Once
state legislation is enacted, FLRA would review it to determine whether
it comports with the minimum standards.
Those states that decline the opportunity to author and administer
their own collective bargaining law would be subject to regulations
promulgated by the FLRA. The regulations would function as labor law in
the state, and the agency would serve as the labor board for public
safety employers and employees. Once a state subsequently adopts a
bargaining law for public safety that complies with H.R. 980's minimum
standards, the FLRA's authority immediately dissolves.
It is our hope and our belief that every state that has not already
done so will take this opportunity to enact their own unique state
bargaining law for fire fighters and law enforcement officers. Because
the legislation leaves almost all the most significant labor issues to
the states to resolve, we are confident that states will find ample
incentive to enact and administer their own public safety collective
bargaining law rather than come under federal authority.
Evolution of the Cooperation Act
The legislation before you today embodied in HR 980 is the result
of many years of study, refinement and compromise. Since the IAFF first
identified this legislation as our top priority, we have worked with
both supporters and opponents of the legislation to attempt to address
all concerns.
Earlier versions of the legislation contained a much longer list of
standards that states must meet. It was Senator Judd Gregg, the long-
time sponsor of the Senate version of the legislation, who encouraged
us to pare down the criteria to the most minimal level.
We also added language expressly addressing concerns raised by
supporters of ``right to work'' laws and volunteer fire fighters to
make sure the Cooperation Act in no way conflicted with their goals.
Some Members of Congress who represent smaller jurisdictions raised
concerns about the impact on small town America, which prompted us to
agree to language allowing states to exempt small communities.
We extended the timeline for states to act, in recognition of the
fact that many state legislatures meet only certain months of the year,
and must plan for the consideration of major legislation well in
advance.
And we worked closely with attorneys to assure that the bill
comports with United States Supreme Court decisions. In light of the
new, expansive federal role in Homeland Security, we do not believe any
constitutional challenge would succeed. But we wanted to be sure our
bill would withstand constitutional scrutiny based on precedent that
did not consider recent homeland security enactments. I have attached
to my statement a memo from an attorney explaining how the legislation
was crafted consistent with Supreme Court precedents.
In sum, we are confident that the bill before you today addresses
all legitimate, pragmatic concerns. It is through these efforts that
the bill has come to the point where it enjoys such broad, bipartisan
support. The legislation has already been cosponsored by a majority of
the House of Representatives, as well as a majority of this committee.
And the list of sponsors spans a wide cross-section of ideology and
geography. We are proud that HR 980's supporters range from some of the
most conservative Republicans to the most liberal Democrats. It is a
common sense proposal that engenders support across all spectrums.
Impact on States and Localities
Despite the far reaching significance of this legislation, HR 980
would impose at most a minimal burden on the overwhelming majority of
states. As noted above, most states would be completely unaffected
because they already fully comply with the minimum requirements of the
legislation. But even in many of the states that do not currently
comply, coming into full compliance would be relatively simple and
inexpensive.
Many states without a statewide law provide bargaining for public
safety officers through local ordinances. HR 980 specifically protects
these local laws by limiting the authority of the FLRA to enforce its
regulations in cities and counties that meet the minimum requirements
of the bill. States that have strong local laws would therefore retain
their ability to pass the decisions about bargaining procedures to
their localities.
Some states already have strong statewide laws that apply
exclusively to fire fighters, and these states would have the option of
either extending their existing law to other public safety employees or
retraining their fire fighter-only law, while allowing FLRA to manage
labor relations in other sectors.
And some states have a bargaining process but bar their courts from
enforcing agreements. Simply requiring local agencies to live up to
agreements they freely reach should not impose an undue burden.
Local Government Maintains Ultimate Control
At the end of the day, HR 980 does not require public agencies to
reach any agreement or spend any money it does not believe is in the
best public interest. There is nothing in the bill that infringes on
the ability of government agencies to manage public safety operations
however they see fit.
The bill does, however, require public safety employers to meet
with the representatives of emergency responders to consider their
views. In light of the fact that these domestic defenders are on the
front lines in our nation's homeland security, Congress is fully
justified in insisting that state and local officials sit down and
talk.
But ultimately, government agencies retain the unfettered ability
to simply say ``NO'' to any union proposals.
Conclusion
Since the days of the sweatshop environments that dominated our
nation's factories at the beginning of the last century, collective
bargaining is largely responsibility for virtually all the reforms that
have transformed the way Americans view work. In terms of public
safety, collective bargaining has already transformed the emergency
services of the majority of states in the nation, making safer our
public safety officers, our communities, and our nation.
Collective bargaining is overwhelmingly used as a mechanism to
enable labor and management to work together for their mutual benefit.
The bill promotes conversation between public safety employer and
employees. More than anything else, HR 980 establishes a process but
does not mandate an outcome. Nowhere is this relationship more
important than in the delivery of emergency services when lives are at
stake. The right to be heard at work--collective bargaining--is a
fundamental right, just as the public's right to depend upon emergency
services is a fundamental right.
The Cooperation Act is about fairness and security--nothing more.
Allow us a voice. Allow us a seat at the table. The enactment of HR 980
will protect both our first responders and the communities we serve,
and make our nation safer and more secure.
I appreciate the opportunity to appear before this subcommittee and
would be happy to answer any questions you may have.
______
Chairman Andrews. We thank you very much, Mr. O'Connor.
And we welcome Mr. Nunziato. Welcome to the committee.
STATEMENT OF PAUL NUNZIATO, POLICE OFFICER, NEW YORK/NEW JERSEY
PORT AUTHORITY
Mr. Nunziato. Thank you. Good afternoon, Chairman Andrews,
Ranking Member Kline and members of the subcommittee. My name
is Paul Nunziato, and I am a police officer with the Port
Authority of New York and New Jersey Police Department.
I also serve as vice president of the Port Authority Police
Benevolent Association, which is a member organization of the
National Association of Police Organizations, NAPO. NAPO
represents approximately 238,000 sworn law enforcement officers
throughout the United States.
State and local public safety officers play a crucial role
in our nation's counterterrorism and homeland security efforts.
They are the first to respond to terrorist attacks, natural
disasters and other mass casualty events as evidenced by the
tragic events of September 11.
Congress has long recognized the benefits of a cooperative
working relationship between labor and management. Over the
years, Congress has extended collective bargaining rights to
public employees, including letter carriers, postal clerks,
public transit employees, and even congressional employees.
However, under current federal and state laws, some public
safety employees, including law enforcement, corrections, and
fire, are denied the basic rights of collective bargaining. Law
enforcement officers put their lives on the line every day to
preserve our security and peace that our nation enjoys. It is
wrong that many of these same officers are denied the basic
American rights of collective bargaining for wages, hours and
safe working conditions.
I believe that collective bargaining rights are crucial to
the protection and health and welfare of the public safety
officers and their families. I base that upon my own experience
as a police officer working for an agency directly impacted by
the worst terrorist attack in this nation's history.
On September 11, 2001, the World Trade Center, the
headquarters of the Port Authority of New York and New Jersey
and worldwide symbol of New York and America, was attacked.
Only 10 Port Authority police officers were working at the
World Trade Center police command at the time of the terrorist
attacks on September 11.
Within minutes of the attacks, police officers from
throughout our job mobilized from all 13 police commands to
respond to the attacks. I myself responded from home and was
mobilized from my command, PATH, a subway system running
between New York and New Jersey.
Of the 23 members of my roll call at the PATH police
command that day, 10 came home. The Port Authority Police
Department suffered the worst single day loss of life of any
law enforcement agency in the history of the United States.
Despite the tremendous risks, I can definitively state that
no Port Authority police officer refused an order to respond to
the World Trade Center or enter the towers on September 11.
Unfortunately, I have direct knowledge that our collective
bargaining agreement provides security to our members and their
families. My partner, Donald McIntyre, was one of the 37
members of my police department who lost their lives in the
World Trade Center evacuation effort. Donnie was married with
two young children. His wife, Jeannine, was pregnant with a
third child. Nothing could make up for the loss of Donnie to
his family and that void will never be filled.
But as a vice president of my union, it pleases me to see
that Jeannine does not have to worry about paying bills or
providing health care for her children due in large part to the
benefits my union has negotiated for our membership.
I also want to take this opportunity to address members of
this committee and the Congress who believe that granting
collective negotiation rights to police officers represents a
danger to national security.
The vast majority of the then 1,000 police officers in my
agency worked steady 8-hour tours on a 4-day-on-2-day-off
schedule. We had up to 6 weeks of vacation and additional
personal leave time. By the end of the day on September 11, the
Port Authority Police Department switched every member in my
department to 12-hour tours, 7 days a week. Vacation and
personal leave time were cancelled.
My union did not file any grievances regarding these
changes. Everyone recognized this was a crisis and emergency
measures needed to be resorted to. Our schedule did not return
to normal for nearly 3 years.
The bottom line is that, even in states with long and
strong histories of collective negotiation rights for public
safety personnel, management retains discretion to respond to
emergencies and potential security risks without negotiation
with employees.
As the health risks associated with exposure to the World
Trade Center site following 9/11 become more manifest, I am
protected by my union's efforts to ensure that workers in the
rescue and recovery effort are properly monitored and treated
for exposure-related diseases that do occur.
Employers cannot be permitted to act unchecked because they
do not place workers' interests first. For example, the city of
New York has repeatedly denied that any of its police officers,
firefighters, EMS personnel or other city workers were sickened
by exposure to the World Trade Center site.
My own agency has resisted classifying legitimate exposure
diseases as injuries in the line of duty. I was exposed that
day and continued to be exposed for more than 1,000 hours in
the months afterwards as part of the Ground Zero recovery
effort.
It is time for the Congress to step up to the plate and act
in a comprehensive fashion to mandate collective bargaining in
states which do not have it. This legislation would allow law
enforcement officers to negotiate on working conditions, to
seek better salaries, benefits and training, to protect their
families and the public. Most importantly, it would allow
public safety officers to negotiate the necessary protections
that will permit them to walk unselfishly into the line of fire
to save the lives of our fellow citizens.
Thank you for this opportunity to speak to you on behalf of
America's rank-and-file law enforcement officers.
[The statement of Mr. Nunziato follows:]
Prepared Statement of Paul Nunziato, Vice President, Port Authority
Police Benevolent Association, Member, National Association of Police
Organizations (NAPO)
Good Afternoon Chairman Andrews, Ranking Member Kline, and members
of the Subcommittee. My name is Paul Nunziato and I am a Police Officer
with the Port Authority of New York and New Jersey Police Department. I
also serve as the Vice-President of the Port Authority Police
Benevolent Association (PBA), which is a member organization of the
National Association of Police Organizations (NAPO). NAPO represents
approximately 238,000 sworn law enforcement officers throughout the
United States.
State and local public safety officers play a crucial role in our
nation's counterterrorism and homeland security efforts. They are the
first to respond to terrorist attacks, natural disasters and other mass
casualty events as evidenced by the tragic events of September 11th.
Congress has long recognized the benefits of a cooperative working
relationship between labor and management. Over the years, Congress has
extended collective bargaining rights to public employees including
letter carriers, postal clerks, public transit employees, and even
Congressional employees. However, under current federal and state laws,
some public safety employees, including law enforcement, corrections,
and fire, are denied the basic rights of collective bargaining. Law
enforcement officers put their lives on the line every day to preserve
the security and peace that our nation enjoys. It is wrong that many of
these same officers are denied the basic American rights of collective
bargaining for wages, hours, and safe working conditions.
I believe that collective bargaining rights are crucial to the
protection of the health and welfare of public safety officers and
their families. I base that upon my own experience as a police officer
working for an agency directly impacted by the worst terrorist attack
in this nation's history. On September 11, 2001 the World Trade Center,
the headquarters of the Port Authority of New York and New Jersey and
worldwide symbol of New York and America was attacked.
Only 10 Port Authority police officers were working at the World
Trade Center police command at the time of the terrorist attacks on
September 11th. Within minutes of the attacks, police officers from
throughout our job mobilized from all thirteen police commands to
respond to the attacks. I myself responded from home and was mobilized
from my command, PATH, a subway system running between New York and New
Jersey. Of the 23 members of my roll call at the PATH police command
that day, 10 came home. The Port Authority Police Department suffered
the worst single day loss of life of any law enforcement agency in the
history of the United States. Despite the tremendous risks, I can
definitively state that no Port Authority police officer refused an
order to respond to the World Trade Center or to enter the towers on
September 11th.
Unfortunately, I have direct knowledge that our collective
bargaining agreement provides security to our members and their
families. My partner, Donald McIntyre, was one of 37 members of my
police department who lost their lives in the World Trade Center
evacuation effort. Donnie was married with two young children; His
wife, Jeannine, was pregnant with a third child. Nothing could make up
for the loss of Donnie to his family and that void will never be
filled. But as a Vice-President of my union, it pleases me to see that
Jeannine does not have to worry about paying bills or providing
healthcare for her children due in large part to the benefits my union
has negotiated for our membership.
I also want to take this opportunity to address members of this
Committee and the Congress who believe that granting collective
negotiation rights to police officers represents a danger to national
security. The vast majority of the then 1,000 police officers in my
agency worked steady 8 hour tours on a 4 day on 2 day off schedule. We
had up to 6 weeks of vacation and additional personal leave time. By
the end of the day on September 11th, the Port Authority Police
Department switched everyone in the Department to 12 hour tours, 7 days
a week. Vacations and personal leave time were cancelled. My union did
not file any grievances regarding these changes. Everyone recognized
that this was a crisis and that emergency measures needed to be
resorted to. Our schedule did not return to normal for nearly 3 years.
The bottom line is that, even in states with long and strong histories
of collective negotiation rights for public safety personnel,
management retains discretion to respond to emergencies and potential
security risks without negotiation with employees.
As the health risks associated with exposure to the World Trade
Center site following 9-11 become more manifest, I am protected by my
union's efforts to ensure that workers in the rescue and recovery
effort are properly monitored and treated for exposure related diseases
that do occur. Employers cannot be permitted to act unchecked because
they do not place workers' interests first. For example, the City of
New York repeatedly has denied that any of its police officers,
firefighters, EMS personnel or other city workers were sickened by
exposure to the World Trade Center site. My own agency has resisted
classifying legitimate exposure diseases as injuries in the line of
duty. I was exposed that day and continued to be exposed for more than
a thousand hours in the months afterward as part of the Ground Zero
recovery effort.
It is time for the Congress to step up to the plate and act in a
comprehensive fashion to mandate collective bargaining in states which
do not have it. This legislation would allow law enforcement officers
to negotiate on working conditions and to seek better salaries,
benefits, and training, to protect their families and the public. Most
importantly, it will allow public safety officers to negotiate the
necessary protections that will permit them to walk unselfishly into
the line of fire to save the lives of our fellow citizens.
Thank you for this opportunity to speak to you on behalf of
America's rank and file law enforcement officers. I ask that my printed
testimony be made part of the record, and I would be happy to answer
any questions you may have.
______
Chairman Andrews. Thank you. Thank you very much. And I
think we speak for the entire subcommittee when we say we have
profound respect for the men and women of your department and
the profound loss that you suffered on that day. Being from New
Jersey, I know some of the families myself that were affected,
and it is a loss that we will feel forever. We appreciate your
testimony very much.
Mr. Nunziato. Thank you, sir.
Chairman Andrews. Mr. Reichenberg, we are happy to have you
with the committee, and you are recognized.
STATEMENT OF NEIL REICHENBERG, EXECUTIVE DIRECTOR,
INTERNATIONAL PUBLIC MANAGEMENT ASSOCIATION FOR HUMAN RESOURCES
Mr. Reichenberg. Thank you, Mr. Chairman, Congressman Kline
and members of the subcommittee.
I am here today on behalf of the International Public
Management Association for Human Resources and the
International Municipal Lawyers Association to express our
concerns with H.R. 980. Issues such as collective bargaining
are of great importance to our members because they are at the
forefront of implementing such laws as H.R. 980.
Our associations recognize the important role that public
safety employees have in providing vital services to citizens
on a routine basis as well as their role as first responders in
the event of a terrorist attack for natural disaster. We are
not opposed to collective bargaining at the state and local
government, but firmly believe that state and local governments
are in the best position to determine the nature and extent of
collective bargaining rights.
We do not believe that a federal one-size-fits-all solution
will improve the working conditions or the services provided by
firefighters, police and emergency medical personnel, all of
which are conducted in accordance with unique local conditions,
governmental structures and revenue assistance.
We also believe that the proposed legislation raises
serious constitutional issues.
I would like to highlights three points that are made in
our written statement.
First, I would like to point out that federalizing
collective bargaining is no guarantee of labor-management
cooperation. The introduction to H.R. 980 states that
collective bargaining is necessary to foster trust, mutual
respect, open communications, bilateral, consensual problem
solving, and shared accountability. While noble goals, it is
unlikely that federalizing collective bargaining will
necessarily achieve them.
For many years, IPMAHR worked with employer associations
and public-sector unions as part of the Public-Sector Labor-
Management Committee. The committee was established to promote
public-sector labor-management cooperation. As a member of the
group's steering committee, IPMAHR encouraged labor-management
cooperation in the public sector, and while there are many
examples of successes, compared to the large number of
jurisdictions, it was anything but a common practice.
Contentious labor-management relations are a fact of life
in many public-sector organizations. While there is shared
responsibility for this, we question the assumption underlying
this legislation that federalizing these basic state and local
governmental functions is the only way to achieve labor-
management cooperation and harmonious relations.
Second, we believe the law is unnecessary because states
and localities already have bargaining rights in most
instances. The underlying assumption of H.R. 980 is that a
federally mandated collective bargaining bill is necessary to
protect the rights of police, fire and emergency medical
services personnel, but the facts show that state and local
governments are in the best position to determine collective
bargaining rights. Where collective bargaining is not formal,
public safety personnel often negotiate through associations.
In addition, public safety employees, unlike their private-
sector counterparts, are protected by due process rights
contained in the Constitution and are covered under existing
civil service laws.
Third, federal preemption of state and local laws will be
confusing and will take away state and local governments'
ability to allocate resources. H.R. 980 as written would give
substantial authority to the FLRA over public-sector collective
bargaining. The FLRA would be tasked with deciding whether or
not state laws meet federal requirements and to create
regulations to govern the process if the FLRA determines the
state law is inadequate.
H.R. 980 is ambiguous because it is not entirely clear what
criteria the FLRA would use to determine whether or not a
state's laws are substantially adequate. We are concerned that
in making the determination as to the adequacy of state laws,
the legislation would require the FLRA to ``consider and give
weight to the maximum extent practicable'' to the opinion of
the unions. This does not seem to reflect the neutral oversight
which this legislation presumes to reflect.
We also question whether the FLRA has the knowledge and
capacity to manage collective bargaining for multiple state and
local governments. The FLRA is a beleaguered agency as
evidenced by the 2007 Best Places to Work rankings of federal
agencies that was produced by the Partnership of Public Service
and the American University Institute for the Study of Public
Policy Implementation and ranked the FLRA a distant last among
the small federal agencies based on employee engagement and
satisfaction. The FLRA also was last in the 2005 rankings.
Mandating all collective bargaining here in Washington may
not be the best answer. What firefighters, police and emergency
medical services personnel need in Louisiana is likely to
differ greatly from New York as will the state's available
resources to pay for and fund their public safety departments.
Federalizing collective bargaining by establishing uniform
national standards could have the impact of being less
efficient and effective than state laws.
If the legislation is enacted into law, how will the
Congress respond when the unions representing teachers and
other public-sector organizations say, ``Me too,'' and request
similar legislation?
I will stop there and be pleased to respond to any
questions. Thank you.
[The statement of Mr. Reichenberg follows:]
Prepared Statement of Neil E. Reichenberg, Esq., CAE, Executive
Director, International Public Management Association for Human
Resources (IPMA-HR)
Mr. Chairman and members of the Committee, I am here today on
behalf of the International Public Management Association for Human
Resources (IPMA-HR) and the International Municipal Lawyers Association
(IMLA) to express our concern with H.R. 980. Together IPMA-HR and IMLA
represent millions of government employees. IPMA-HR is a professional
association comprised of human resources practitioners in federal,
state and local government. IMLA represents lawyers working in local
government and local government organizations. Issues such as
collective bargaining are of great importance to our members because
they are at the forefront of implementing such laws as H.R. 980.
IPMA-HR is familiar with the Public Sector Employer-Employee
Cooperation Act and we participated with several local government
groups in presenting testimony in 1999 discussing an earlier draft.
IPMA-HR and IMLA have a long history of working with public sector
unions on issues of mutual concern and in promoting labor-management
cooperation.
IPMA-HR and IMLA recognize the important role that public safety
employees have in providing vital services to citizens on a routine
basis as well as their role as first responders in the event of a
terrorist attack or natural disaster. We are not opposed to collective
bargaining at the state and local government level but firmly believe
that state and local governments are in the best position to determine
the nature and extent of collective bargaining rights. We do not
believe a federal ``one size fits all'' solution will improve the
working conditions or the services provided by firefighters, police and
emergency medical personnel, all of which are conducted in accordance
with unique local conditions, governmental structures and revenue
systems. We also believe that the proposed legislation raises serious
constitutional issues.
Federalizing Collective Bargaining Is No Guarantee of ``Cooperation''
The introduction to H.R. 980 includes a list of findings and a
declaration of purpose. The first finding states that, ``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.''
While fostering labor management relationships is a noble goal, it
is unlikely that federalizing collective bargaining will achieve it.
Oftentimes even where collective bargaining rights are well
established, the relationship is not characterized by trust and open
communication and it is unclear how giving the Federal Labor Relations
Authority (FLRA) authority over states and local government collective
bargaining is designed to achieve this goal.
For many years IPMA-HR worked with employer associations and public
sector unions as part of the Public Sector Labor-Management Committee.
The Committee was established to promote public sector labor-management
cooperation. As a member of the group's steering committee, IPMA-HR
encouraged labor-management cooperation in the public sector and while
there are many examples of successes, compared to the large number of
jurisdictions--87,000 units of local government and 50 states--it was
anything but a common practice.
And, anecdotal research reveals that successful partnerships are
often based on personalities and not on the presence of collective
bargaining. Contentious labor-management relations are a fact of life
in many public sector organizations. While there is shared
responsibility for this, we question the assumption underlying this
legislation that federalizing these basic local government functions is
the only way to achieve labor-management cooperation and harmonious
relations.
A recent situation in St. Paul, Minnesota is instructive.
Collective bargaining has been in place for many years but the
situation between the fire chief and the firefighters union is
described as ``acrimonious.'' In March 2007, the results of an audit
were released that detailed the situation in the St. Paul Department of
Fire and Safety Services (SPDFSS) which includes both fire and EMS
personnel. The audit is available online at: http://www.stpaul.gov/
fireaudit/.
The audit states:
Organizationally, the SPDFSS is in a state of internal crisis. The
problems have not yet affected delivery of service to the public but
could easily do so if not addressed. Most of the internal tension is
between the fire chief and the firefighters union (Local 21). A 2005
survey conducted by the union determined that a majority of its members
were critical of the Department's direction. The absence of trust
between firefighters and the fire administration is a key factor
affecting poor relations between labor and management. [See page 7 of
the audit].
The 305-page document describes just how bad the situation is:
``The fire chief antagonizes the union by issuing orders that are an
attempt perceived as to show his power. In response, the union
encourages members to file grievances, contacts politicians about minor
issues, and initiates legal actions that cost the city valuable staff
time and money.'' There is nothing in the proposed legislation or in
the mandating of federally supervised collective bargaining which would
alleviate this situation.
The law is Unnecessary Because States and Localities Already Have
Bargaining Rights in Most Instances
State and local governments are in the best position to determine
collective bargaining rights. The underlying assumption of H.R. 980 is
that a federally-mandated collective bargaining law is necessary to
ensure the rights of police officers, firefighters and emergency
medical services personnel. But, the facts show that state and local
governments are capable of establishing collective bargaining rights
and in fact have done so in the majority of states. Where collective
bargaining is not formal, public safety personnel often negotiate
through associations. In addition, public safety employees, unlike
their private sector counterparts, are protected by due process rights
in the Constitution and are covered under existing civil service laws.
According to the Bureau of Labor Statistics report of January 25,
2007, union membership in the public sector was substantially higher
than in the private sector, with 41.9 percent of local government
workers belonging to a union. ``This group includes several heavily
unionized occupations, such as teachers, police officers, and
firefighters.''
According to the Government Accountability Office report on
Collective Bargaining Rights: Information on the Number of Workers with
and without Bargaining Rights, September 2002, 26 states and the
District of Columbia have laws that provide collective bargaining
rights to essentially all public employees. Another 12 states have laws
that provide bargaining rights to specific groups of workers. Texas
prohibits collective bargaining for most public employees but allows
police and fire bargaining in jurisdictions with approval from a
majority of voters.
Even in the 11 states that do not have collective bargaining laws,
most if not all have associations. Many localities within those states
may also have their own associations or collective bargaining
arrangements. A quick Internet search revealed firefighter associations
in all 12 states and many localities within those states. In Little
Rock, Arkansas, where there is no state collective bargaining law, the
city has bargaining agreements with more than three-fourths of their
employees; this has been the case for the past 20 years.
The facts show that states and localities are capable of creating
collective bargaining rights consistent with their own laws and
government structures, including state constitutions, and that public
safety officers are capable of forming unions and associations in the
absence of federal legislation.
Federal Preemption of State and Local Laws Will be Confusing and Will
Take Away State and Local Government's Ability to Best Allocate
Resources
H.R. 980, as written, would give substantial authority to the FLRA
over public sector collective bargaining. The FLRA would be tasked with
deciding whether or not state laws meet federal requirements and to
create regulations to govern the process if the FLRA determines that
the state law is inadequate.
H.R. 980 is ambiguous because it is not entirely clear what
criteria the FLRA would use to determine whether or not a state's laws
are ``substantially'' adequate. We are concerned that in making the
determination as to the adequacy of state laws, the legislation would
require the FLRA to ``consider and give weight, to the maximum extent
practicable,'' to the opinion of the unions. This does not seem to
reflect the neutral oversight which this legislation presumes to
reflect.
We also question whether the FLRA has the knowledge and capacity to
manage collective bargaining for multiple state and local governments.
The FLRA is a beleaguered agency as evidenced by the 2007 Best Places
to Work rankings of federal agencies that was produced by the
Partnership for Public Service and the American University Institute
for the Study of Public Policy Implementation and ranked the FLRA last
among the small federal agencies based on employee engagement and
satisfaction.
Although supporters of H.R. 980 have said that the bill would have
a minimal impact on state and local government collective bargaining,
it is not at all clear from the way the bill is written. For instance,
the bill requires states to provide for bargaining over hours, wages
and terms and conditions of employment. Hours and wages are regulated
now by a variety of federal, state, and local laws and require
coordination, at the very least, with revenue authority. ``Terms and
conditions of employment'' is even less clear. Does it include the type
of safety gear, minimum staffing standards, or something else?
In Oregon, the state legislature just finished a contentious debate
over whether or not minimum staffing levels and overtime could be
included in collective bargaining. The result is that beginning in
2008, those issues will be included in collective bargaining if they
have an impact on on-the-job safety (or a significant impact in the
case of minimum staffing levels). This was one of the most hotly
debated issues in the legislature this year and individuals,
associations, and firefighters weighed in. The fact that the Oregon
legislature reached a compromise is significant for two reasons.
First, it argues against the need for H.R. 980 at all. Firefighters
in Oregon did not need any federal legislation to resolve an issue and
the state was able to reach a successful compromise. Second, to the
extent the compromise took into consideration the allocation of scarce
local resources and allowed Oregon to consider the successes and
failures in other states it would seem best to leave such important
decision making to the states and localities that will have to live
with and fund the consequences.
Mandating all collective bargaining here in Washington, D.C. may
not be the best answer. What firefighters, police and emergency medical
services personnel need in Louisiana is likely to differ greatly from
New York, as will the states' available resources to pay for and fund
their public safety departments. And, federalizing collective
bargaining by establishing uniform, national standards could have the
impact of being less efficient and effective than state and local laws.
For instance, Montgomery County, Maryland has longstanding
collective bargaining relationships and has fostered a spirit of
partnership with labor unions representing its public safety employees
according to Joe Adler, director of the Office of Human Resources,
Montgomery County. In the county, unfair labor practice issues and
negotiability issues are resolved by the county's permanent umpire/
labor relations administrator sometimes within days and generally
within a few weeks. Mr. Adler notes that in the federal sector it has
taken the FLRA sometimes years to issue decisions in certain unfair
labor practice cases. Should H.R. 980 change the impasse resolution
mechanism in Maryland and in other jurisdictions like it, it may not be
an improvement.
Although bill supporters have argued that the cost will be minimal,
that is not certain. State and local governments, at a minimum, will
have to hire additional personnel to ensure that their laws meet
federal standards, and the costs could be enormous if state and local
governments can no longer make the decisions of how to best allocate
scarce resources. If the result of collective bargaining requires
hiring more staff or purchasing more equipment, this will require a
great deal of money and to that extent is an unfunded mandate.
Furthermore, H.R. 980 is unclear on the issue of volunteer fire
departments. Will they be covered? If so, this will be an additional
cost and unfunded mandate on state and local governments.
If this legislation is enacted into law, how will the Congress
respond when the unions representing teachers and other public sector
occupations request similar legislation? Does the Congress intend to
have the federal government mandate collective bargaining and establish
federal standards that would apply throughout state and local
government?
H.R. 980 Raises Serious Constitutional Issues
Finally, H.R. 980 raises serious Constitutional concerns. These
issues were raised during the 2000 hearing on the same bill and we
believe they deserve your consideration today. The Supreme Court has
issued several opinions during the last decade that call into question
the power of Congress to subject state and local governments to federal
regulation.
The Supreme Court has in recent years limited the authority of
Congress to pass laws abrogating states' immunity from lawsuits. In the
case Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996), the
Court ruled that the Commerce Clause does not give Congress the
authority to abrogate a state's Eleventh Amendment immunity to suit.
Subsequent Supreme Court decisions have found states immune from suit
under employment-related laws such as the Fair Labor Standards Act
(FLSA), in Alden v. Maine, 527 U.S. 706 (1999), and the Americans with
Disabilities Act (ADA) in Board of Trustees of the University of
Alabama et al. v. Garrett et al., 531 U.S. 356, 369 (2001).
Other Supreme Court opinions call into question the authority of
Congress to pass laws affecting state and local activity. In U.S. v.
Lopez, 514 U.S. 549 (1995), the Court found Congress exceeded its
authority under the Commerce Clause in passing the Gun-Free School
Zones Act of 1990, and in the case Flores v. City of Boerne, 521 U.S.
507 (1997), the Court found that Congress exceeded its power under
Section 5 of the Fourteenth Amendment in passing the Religious Freedom
Restoration Act (RFRA). Congress's authority to enact H.R. 980 is
highly questionable.
For the reasons contained in this testimony, we would urge the
Subcommittee not to mandate collective bargaining for public safety
employees. IPMA-HR and IMLA appreciate the opportunity to present our
concerns with H.R. 980.
______
Chairman Andrews. Thank you very much for your testimony.
I did also want to mention that another group of people who
have a very, very difficult and crucial public safety job--we
have some representatives--are corrections officers who are
represented by AFSCME who are here today, and we thank them for
their very difficult service. And, frankly, I believe they
deserve the protections of this proposal as well and would
receive it.
Mayor Seybold, I will tell you there was some heated debate
about whether to invite you today because, although we were
impressed by the sports deal, we did note for the record that
you defeated when you ran for office a Democratic incumbent by
a 62-to-38 margin.
So we are glad that you are here, but putting partisanship
aside, I would say to you that I think that your presence here
today as a devout Republican shows that this is not an
ideological issue but a practical one.
We welcome you to the committee.
STATEMENT OF HON. WAYNE W. SEYBOLD, MAYOR, MARION, INDIANA
Mr. Seybold. Thank you. Thank you very much, Mr. Chairman
Andrews and Ranking Member Mr. Kline and members of the
subcommittee. I am happy to be here, too, on a bipartisan
effort.
With me today, I have our fire chief, Steve Gorrell; our
assistant union chief, Jamie Littick; and Tom Hanify, who heads
the firefighters union for the state of Indiana.
Marion, Indiana, is a community of approximately 32,000 and
has faced numerous economic challenges. With the closing of one
of our largest manufacturing plants, everyone in our community
was touched by it in one way or another. At a critical moment,
the private sector, the nonprofit sector and our labor unions
stepped up to the plate to turn the community around.
The city of Marion's collective bargaining units were part
of that team and were willing to make sacrifices for the
betterment of the community. My first negotiations with the
units started by my indication that pay raises would not be
happening at that time. One would think that the negotiations
would have ended at that point. However, our units expressed an
understanding and agreed to be our partners.
Since our first negotiation, the city and our collective
bargaining units have maintained an incredibly positive
relationship. In order for employer-management relationships to
be productive, there must be a trust and mutual respect. Both
must be willing to keep lines of communication open. Most
specifically, public safety employer-employee cooperation is
essential. They are the front lines of defense for our
community, and they deserve the right to discuss workplace
issues with their employer.
An example of a success story is best depicted by our
relationship with our Marion Fire Department. After being hit
with years of political backlash, this group was anything but
trusting in the beginning. They came to the table asking for a
lot more than we could provide, but instead of getting
frustrated, they asked if they could come back with a potential
win-win solution for everyone.
Understanding that our way is not the only way and that we
do make mistakes, we encouraged them to do their homework. They
came back with their presentation, which was very creative and
impressive to say the least. Instead of raises, they opted to
have the city pay more of their share toward their pension. An
agreement was reached, approved by the union, and ratified by
the council.
While many not always agree, one thing that we know is that
there is a sense of trust and respect that has evolved. This
type of relationship gives the employees a sense of ownership
and importance. By promoting such cooperation, our community
enjoys a more effective and efficient delivery of emergency
systems. Because of our relationship with our collective
bargaining units, we have built the city's cash reserves from
nearly nothing to over $7 million, and this year, we are happy
to announce that we are going to reduce our tax rate by almost
2\1/2\ cents.
Everyone benefits when there is a good relationship between
employer and labor-management. We are proud to stand alongside
and support our local firefighters and our state firefighters,
ensuring that they have the opportunity to bargain for
workplace issues and resolve issues regarding the duty of
bargaining in good faith.
The Marion Fire Department has assisted in numerous
fundraising activities with Fill the Boot programs. These
programs have provided monetary assistance to numerous
nonprofit organizations. And because of these types of things
that our fire departments do, they have helped us reduce our
taxes and helped us not have to spend tax dollars in order to
do things like build a new humane society.
The Marion Fire Department is constantly looking for new
ways and innovative ways to relieve the burden of taxpayers. By
applying for grants for equipment, they have helped us reduce
our budget in that way.
Marion firefighters are a group of very dedicated
professionals who are committed to the citizens of Marion and
Grant County. Any assistance that you could provide them and
public safety officers around the United States would be
greatly appreciated.
Thank you for your time and support in this important
matter, and I would be happy to address any questions later.
Thank you.
[The statement of Mayor Seybold follows:]
Prepared Statement of Hon. Wayne W. Seybold, Mayor, Marion, Indiana
Good afternoon, my name is Wayne W. Seybold and I am the Mayor of
Marion, Indiana. I would like to thank the Chairman and members of the
Subcommittee for inviting me to testify today.
Marion, Indiana, a community of approximately 32,000 citizens, has
faced numerous economic challenges within my first term of office. With
the closing of one of our largest manufacturing plants, everyone within
our community was touched by it in one way or another. At that critical
moment, the private/public sector, not-for-profit and labor unions
stepped up to the plate to turn our community around.
The City of Marion's collective bargaining units were a part of
that team that were willing to make sacrifices for the betterment of
the community. My first negotiations with the units started by my
indication that pay raises were not an option at that time. One would
think that the negotiations would have ended at that point. However,
our units expressed their understanding and agreed to partner with us.
Since our first negotiation, the City and our Collective Bargaining
Units have maintained an incredibly positive relationship. In order for
employer management relationships to be productive, there must be trust
and mutual respect. Both must be willing to keep lines of communication
open. More specifically, public safety, employer/employee cooperation
is essential. They are the front line defense for our communities, and
deserve the right to discuss workplace issues with their employer.
An example of a success story is best depicted by our relationship
with the Marion Fire Department. After being hit with years of
political backlash, this group was anything but trusting in the
beginning. They came to the table asking for a lot more than we could
agree to, but instead of getting frustrated they asked if they could
come back with a potential win-win solution for everyone. Understanding
that our way is not the only way, nor always the best way, we
encouraged them to do their homework. They came back with their
presentation, which was very creative and impressive to say the least.
Instead of raises, they opted to have the City pay more of their share
toward their pension. An agreement was reached, approved by the Union,
and submitted to the council.
While we may not always agree, one thing we now know is that there
is a sense of trust and respect that has evolved. This type of
relationship gives the employees a sense of ownership and importance.
By promoting such cooperation, our community enjoys a more effective
and efficient delivery of emergency services. Because of our
relationship with our collective bargaining units, we have built the
city's cash reserves up from nearly nothing to almost seven million
dollars. Everyone benefits when there is a good relationship between
employer and labor management team. We are proud to stand along side
and support our local and state firefighters in ensuring that they have
the opportunity to bargain for workplace issues and resolve issues
regarding the duty of bargaining in good faith.
The Marion Fire Department has assisted in numerous fundraising
activities with their ``Fill the Boot'' program. This program has
provided monetary assistance to numerous not-for-profit organizations.
This assistance allows these entities to continue to provide services
to those who need it in the community. The Grant County Cancer Society
benefits from this program in a great way. The money raised allows for
important research and development strategies. The program has also
assisted the local humane society raise money to properly care for the
vast number of abandoned animals. The local humane society is in dire
need of a new facility, and the Marion Firefighters have agreed to
donate their time to help build it. The willingness to give up their
personal time to help build the new humane society will be of great
benefit to taxpayer's money.
The Marion Fire Department is constantly searching for new and
innovative ways to help relieve the burden of the taxpayers. An example
of this is the way the firefighters showed initiative to apply for
grants to purchase equipment. In this effort, over the last three
years, the department was awarded over $200,000.00 in grant money.
Marion Firefighters are a group of very dedicated professionals who
are committed to the citizens of Marion and Grant County. Any
assistance that you could provide would be greatly appreciated.
Thank you for your time and attention to this very important
matter. I would be more than happy to address any questions the
subcommittee may have for me.
______
Chairman Andrews. Mayor, thank you very much for your
service and for your testimony.
I always say that local mayors and council people, I think,
have one of the hardest jobs in government, that we get stopped
in the supermarket and somebody asks us about a foreign policy
question or the estate tax or something. I know you get stopped
and asked about leaf pickup and snow removal, and you have to
deal with their problems right away.
So I have profound respect for mayors of all political
backgrounds. We are glad that you are here today.
Mr. Seybold. Well, thank you very much.
Chairman Andrews. Mr. Clark, welcome to the subcommittee.
You are recognized for 5 minutes.
STATEMENT OF R. THEODORE CLARK, JR., PARTNER, SEYFARTH SHAW,
LLP
Mr. Clark. Thank you.
Mr. Chairman and members of the committee, today I am
testifying on behalf of the National Public Employer Labor
Relations Association, an association of over 3,000 labor-
management professionals employed by federal, state and local
governments who negotiate public safety contracts in 45 states.
At the outset, let me emphatically state that I support
collective bargaining for public safety employees. I have
negotiated hundreds of contracts covering police and fire
bargaining units, and I urged the Illinois legislature to enact
a public-sector collective bargaining law, something that
finally occurred in 1983.
Thus, my opposition to H.R. 980 is not because I oppose
collective bargaining for public safety employees, but because
I believe that H.R. 980 will preempt numerous state laws and
will result in a wholly unwarranted intrusion by the federal
government into matters that should best be left to the states.
Under H.R. 980, if the FLRA determines that a state law
does not substantially provide for the rights and
responsibilities set forth in the act, then that state is
subjected to a mandatory labor relations scheme administered by
the FLRA. As a result of the act's very broad definition of
what must be negotiated, the exclusions from the scope of
bargaining set forth in most state laws will likely result in
those laws not meeting the ``substantially provides'' test.
Some examples: New York prohibits negotiations over
pensions. The Michigan constitution specifically excludes
promotions from the scope of bargaining for state police. The
Wisconsin statute covering state employees prohibits bargaining
over the policies, practices and procedures of the civil
service merit system relating to such things as promotions and
the state's job evaluation system.
If a state statute flunks the ``substantially provides''
test, then the affected state will either have to amend its law
or, in the case of Michigan, amend its constitution to delete
such exclusions or involuntarily be subjected to the FLRA's
labor relations provisions, and that this will create
substantial friction between the federal government and several
states should be clear to all.
To make matters worse, the act requires that the FLRA, in
making ``substantially provides'' determinations, must consider
and give weight to the maximum extent practicable to the
opinion of affected employee organizations. Since it is state
laws that might well be invalidated, one can only wonder why
the views of the states are being subordinated to the views of
organized labor.
And to add insult to injury, the FLRA's final order with
respect to questions of fact and law is conclusive, unless the
court determines that the decision was arbitrary and
capricious. That the deck is being stacked against the states
seems obvious.
Lest anyone think that the states have not done anything in
this area, let's look at a few facts. Thirty-eight states have
labor laws covering both firefighters and/or police officers.
Virtually all of those laws go far beyond the law covering
firefighters and police officers employed by the federal
government.
In most states without laws, collective bargaining is
legal, and many public employers, presumably including Marion,
in those states have entered into contracts with police and
fire unions. Over 68 percent of all firefighters and over 58
percent of all police officers are union members. I believe
that these facts strongly suggest that there is no compelling
need for H.R. 980.
Since the asserted need for H.R. 980 is predicated in major
part on the essential role that public safety officers play in
the efforts of the United States to detect, prevent and respond
to terrorist attacks, one must wonder why Congress and every
president since Jimmy Carter has decided to exempt from
collective bargaining untold thousands of federal employees who
would be considered public safety officers under H.R. 980.
For example, employees at the FBI, CIA, NSA, DEA and
countless other federal agencies have been excluded from
coverage under the labor relations provisions of the Civil
Service Reform Act, and those that are covered, Congress has
said they have no right to negotiate over wages, pensions and
health benefits. Rather, Congress has decided that those are
among the topics that should be set by Congress and not be
subject to collective bargaining since the states should have
the same discretion to make similar policy determinations.
Thank you very much.
[The statement of Mr. Clark follows:]
Prepared Statement of R. Theodore Clark, Jr., Partner, Seyfarth Shaw,
LLP, on Behalf of the National Public Employer Labor Relations
Association (NPELRA)
Today, I am speaking on behalf of the National Public Employer
Labor Relations Association (NPELRA). The National Public Employer
Labor Relations Association (NPELRA), established in 1970, is the
professional association for practitioners of labor and employee
relations employed by federal, state and local governments, school and
special districts.
H.R. 980, the so-called Public Safety Employer-Employee Cooperation
Act of 2007, is predicated on the apparent assumption that federally
mandated solutions in the labor relations area are better than those
arrived at by state and local governments. The needs of state and local
government in the area of employer-employee relations, however, can
best be determined on a state and local basis rather than by resort to
federal legislation.
Lest there be any mistake about my position, let me emphatically
state that I wholeheartedly support collective bargaining in the public
sector where a majority of the employees in an appropriate bargaining
unit have opted to be represented for the purposes of collective
bargaining. I have participated in the negotiation of literally
hundreds of public sector collective bargaining agreements covering
police officers and firefighters over the years. At last count, I have
represented public employers with respect to collective bargaining and
employment law issues in over 30 states, from the State of Minnesota to
the State of Louisiana and from the State of Washington to the State of
Florida. Moreover, I worked for many years in support of the enactment
of public sector collective bargaining legislation in Illinois,\1\
something that finally occurred in 1983, when the Illinois General
Assembly enacted the two basic public sector labor laws that cover
public employees in Illinois. As a result, my opposition to federal
collective bargaining legislation such as H.R. 980 is not because I
oppose public sector collective bargaining, but rather because of my
firm belief that the enactment of a federal collective bargaining law
would severely limit the demonstrated innovative and creative abilities
of the states and local jurisdictions to deal in a responsible manner
with the many complex issues that public sector collective bargaining
poses.
H.R. 980 would displace State and local options in determinining how
employment relations should be structured for police officers
and firefighters employed by States and units of local
government
The apparent premise upon which H.R. 980 has been drafted is that
there should be one monolithic model for how employment relations for
police officers and firefighters should be handled at the state and
local level. Thus, if the Federal Labor Relations Agency (``FLRA'')
determines that a state law does not ``substantially provide for the
rights and responsibilities described in Section 4(b) of the Act,''
then that state is subjected to the labor relations scheme established
pursuant to rules issued and administered by the FLRA.\2\
At the outset, it is important to note that the standard by which
state legislation is to be judged by the FLRA is quite similar to a
provision in the National Labor Relations Act (``NLRA'') that gives the
NLRB the authority to cede jurisdiction to state agencies as long as
the State's legislation is not ``inconsistent'' with the provisions of
the NLRA.\3\ Although several states, including New York, Wisconsin and
Michigan, have private sector legislation that closely parallel the
NLRA, the NLRB has repeatedly refused to cede jurisdiction to the state
boards in those states. Given the unwillingness of the NLRB to find
state statutes to be consistent with the NLRA, it is clearly open to
substantial doubt as to whether the FLRA would be willing to find that
a state public sector collective bargaining statute ``substantially
provides'' for the rights and responsibilities set forth in H.R. 980.
Nor do you have to just take my opinion on this very important issue.
When Congress held hearings in 1972 on proposed federal public sector
collective bargaining legislation that would be applicable at the state
and local level, Arvid Anderson, a former member of the Wisconsin
Employment Relations Commission and the then Chairman of the Office of
Collective Bargaining in New York City, testified as follows:
``[T]he experience of the administration of the Labor Management
Relations Act by the National Labor Relations Board throughout its
entire history demonstrates conclusively that a Federal administrative
agency will, if left to its own discretion, refuse to cede to any
competent state authority administration over any phase of its
statute.'' \4\
Given Arvid Anderson's observations, it is probable that most, if
not all, state enactments covering police officers and firefighters
would not meet the ``substantially provides'' test. Several examples
illustrate the problem.
Perhaps the best examples of the impact of H.R. 980 on existing
state laws is the likely interpretation of the term ``hours, wages, and
terms and conditions of employment,'' i.e., the scope of mandatory
bargaining specified in Section 4(b)(3). Take the issue of pensions.
Normally, the pensions are considered a form of compensation and thus
fall within the mandatory scope of bargaining.\5\ Because of the
enormous costs that have ensued as a result of negotiations over public
sector pensions, a number of states have specifically excluded pensions
from the scope of bargaining. For example, the New York Taylor Law
specifically provides that the scope of negotiations ``shall not
include any benefits provided by or to be provided by a public
retirement system, or payments to a fund or insurer to provide an
income for retirees, or payment to retirees or their beneficiaries''
and that ``[n]o such retirement benefits shall be negotiated pursuant
to this Article, and any benefits so negotiated shall be void.'' \6\ It
was the near bankruptcy of New York City and several other New York
cities in the late 1970's, brought on in part by overly generous
negotiated increases in pension benefits, that prompted the New York
legislature to adopt this ban on negotiations over pensions. Under H.R.
980, however, the federal law would presumably preempt inconsistent
state law.
Like New York, virtually every state collective bargaining statute
provides for some limitation on the scope of bargaining. The following
are but a few of the numerous examples that could be provided:
The Illinois statute covering police and firefighters
specifically excludes from the mandatory scope of negotiations
residency requirements in the City of Chicago, ``the type of equipment,
other than uniforms [and turnout gear for firefighters] issued or
used,'' ``the total number of employees employed by the department,''
and ``the criterion pursuant to which force, including deadly force,
can be used.'' In addition, for police the subject of manning is
removed from the mandatory scope of negotiations.\7\
The Maine statute covering state employees provides that
negotiations over the state's compensation system for such things as
the ``number of and spread between pay steps within pay grades'' and
the ``number of and spread between pay grades with the system'' ``may
not be compelled by either the public employer or the bargaining agents
sooner than 10 years after the parties' last agreement to revise the
compensation system pursuant to a demand to bargain.'' \8\
The Michigan Constitution specifically excludes the
subject of promotions from the scope of bargaining for state police
troopers and sergeants and provides instead that promotions ``will be
determined by competitive examination and performance on the basis of
merit, efficiency and fitness.'' \9\
The Nevada statute excludes numerous subjects from the
mandatory scope of bargaining and provides instead that they ``are
reserved to the local government employer without negotiation,''
including the right to ``assign or transfer an employee'' for non-
disciplinary reasons, ``[t]he right to reduce in force or lay off any
employees because of lack of work or lack of money,'' ``[a]ppropriate
staffing levels,'' and the ``means and methods of offering'' services
to the public.''\10\
The Wisconsin statute covering state employees prohibits
bargaining over many topics, including ``the policies, practices, and
procedures of the civil service merit system relating to'' such things
as ``promotions'' and the state's ``job evaluation system,'' as well as
``compliance with the health benefit plan requirements'' that are
specified elsewhere in state law. In addition, this Wisconsin statute
excludes from the mandatory scope of negotiations most of the
statutorily specified management rights, as well as ``matters related
to employee occupancy of houses or other lodging provided by the
state.'' Finally, the director of the state's office of collective
bargaining is directed to try to negotiate contracts that ``do not
contain any provision for the payment to any employee of a cumulative
or noncumulative amount of compensation in recognition of or based on
the period of time an employee has been employed by the state,'' i.e.,
longevity pay.
With H.R. 980's very broad definition of what must be negotiated,
efforts by these states--all of which should be viewed as ``labor
friendly'' states--and many others to carefully exclude certain
subjects from the mandatory scope of bargaining would, in all
likelihood, be preempted. The potential consequences of such a
limitation on the right of states and local units of government to deal
with their own unique circumstances would be devastating. Moreover, it
heightens the probability that there will be frequent clashes between
federal government on the one hand and state and local government on
the other over policy judgments that should, in reality, be made at the
state and local level. Such likely clashes would undermine federal-
state relationships in an entirely unnecessary way. Since the terms and
conditions of employment for police officers and firefighters are so
uniquely local in nature, the scope of negotiations over them should
not be mandated by federal law.
Another very real problem with respect to H.R. 980 is the conflict
between its defined scope of bargaining and the existence of civil
service systems in most states and in a substantial number of units of
local government as well. One of the primary principles of civil
service is the merit principle for the employment and advancement of
public employees. If H.R. 980 were enacted, however, there is no
specific exclusion from the otherwise broad scope of bargaining to
protect the merit principle. As a result, union proposals to make
promotions based entirely or substantially on seniority would probably
fall within the mandatory subject of bargaining, even though such
proposals are outside the scope of mandatory bargaining under many
state and local collective bargaining laws, some of which were
discussed above, as well as under the Civil Service Reform Act of 1978.
Interestingly, when then Secretary of Labor Arthur Goldberg recommended
to President Kennedy that federal employees be given the right to
organize and bargain collectively, he made the following cautionary
comment:
The principle of entrance into the career service on the basis of
open competition, selection on merit and fitness, and advancement on
the same basis, together with a full range of principles and practices
that make up the Civil Service System govern the essential character of
each individual's employment. Collective dealing cannot vary these
principles. It must operate within the framework.\11\
Simply stated, H.R. 980 would, in all likelihood, result in the
invalidation of existing state laws that protect the merit principle
from encroachment through the collective bargaining process.
One could take virtually any of the 38 state statutory provisions
providing collective bargaining rights for police officers and/or
firefighters and come to the conclusion that there is something in each
law that likewise does not meet the ``substantially provides''
test.\12\ This fact illustrates the fundamental problem with H.R. 980,
i.e., it is based on a federally prescribed, ``one-size-fits-all''
formula for establishing what rights and responsibilities firefighters
and police officers should have at the state and local level. It
totally ignores the political and practical policy judgments made by
numerous state legislatures concerning what is best for police officers
and firefighters in their states.
Under our system of federalism, the fact that there are many
different solutions and approaches to these issues is not only expected
but it is also encouraged. While the IAFF, FOP, and other unions that
represent firefighters and police officers would undoubtedly like one
uniform national law because it would make their job easier, that is
hardly a valid reason for federal legislation. The diversity of state
and local legislation with respect to police officers and firefighters
is not something to be overridden by federal law but rather is
something that should be encouraged and promoted. As the Advisory
Commission on Intergovernmental Relations observed many years ago, ``*
* * experimentation and flexibility are needed, not the standardized,
Federal, preemptive approach.'' \13\
The chilling effect that Federal legislation along the lines of
H.R. 980 would have on such experimentation seems clear. When Congress
was last considering such legislation in the early 1970s, Dr. Jacob
Seidenberg, the then Chairman of the Federal Services Impasse Panel,
observed that the enactment of Federal legislation would curtail
necessary experimentation since ``there is an aspect of permanency and
inflexibility in Federal legislation.'' \14\ If H.R. 980 were enacted,
it would, in the words of Justice Oliver Wendell Holmes, ``prevent the
making of social experiments * * * in the isolated chambers afforded by
the several states * * *'' \15\
States and local units of government should have the right to make
policy decisions with respect to whether police officers and
firefighters should be granted the right to engage in collective
bargaining and, if so, under what terms and conditions as opposed to
having all such matters mandated by federal law. Relevant in this
regard are the following comments in an article on federalism that
appeared the ABA Journal several years ago:
Given real choices, citizens who are not satisfied with state
government ``can vote with their feet as well as at the ballot box,''
and go pursue their happiness in another state, he points out. People
``get to choose among different sovereigns, regulatory regimes, and
packages of government services,'' he says. This freedom disciplines
the states.\16\
Since the vast majority of States have collective bargaining laws
covering police officers and/or firefighters and the vast
majority of all police officers and firefighters are union
members, there is no substantial need for Federal legislation
By my count, 34 states have enacted public sector collective
bargaining laws covering both police officers and firefighters.\17\ An
additional four states have enacted laws covering firefighters
only.\18\ And while some states such as Arizona have opted not to enact
collective bargaining laws covering police officers and firefighters,
local ordinances have been adopted in such cities as Phoenix that grant
such employees the right to engage in collective bargaining. Moreover,
in many of the states that have not enacted laws collective bargaining
is legally permissible and, as a result, there are many examples of
jurisdictions that have voluntarily agreed to recognize fire and police
unions and have negotiated collective bargaining agreements.\19\
In addition to the large number of states with public sector
collective bargaining laws covering police officers and/or
firefighters, the vast majority of police officers and firefighters are
already union members. While less than 8 percent of all nonagricultural
private sector workers belong to unions, nearly 40 percent of all
public employees are union members. The statistics are even more
compelling with respect to police officers and firefighters.\20\ For
firefighting occupations, the union density rate is 68.8 percent; for
police and sheriff's patrol offers, the union density rate is 58.7
percent.\21\ These statistics strongly suggest that there is absolutely
no compelling need to enact federal legislation for police officers and
firefighters at the state and local level.
Since the vast majority of states have collective bargaining laws
and since the vast majority of all police officers and firefighters are
union members, there is no need for federal legislation that would
require states to either adopt one monolithic model for collective
bargaining prescribed by Congress or be subjected to the jurisdiction
of the Federal Labor Relations Authority and the collective bargaining
rules prescribed by FLSA. With respect to the few remaining states that
do not have public sector collective bargaining laws covering police
officers and/or firefighters, the political judgment has presumably
been made that such laws are not necessary. Police officers and
firefighters, like all other public employees, have their First
Amendment rights to petition their public employers. Indeed, unlike
employees in the private sector, they have the right to participate in
the election of their employers and to influence the decisions of those
elected officials. From my travels around the country, it is my
unequivocal observation that police officers, firefighters, and their
unions have considerable political clout in virtually every state
legislature. Even though they may not have been successful in getting a
given state legislature to adopt a collective bargaining law, there are
numerous instances in which they have had a significant impact on
changes in pension legislation and other legislation concerning their
terms and conditions of employment.
Since police and fire unions have demonstrated their political
prowess at the state and local level, it would be my suggestion that
they should redirect their efforts to the state and local level, rather
than push for federal legislation with all of the attendant problems.
In fact, such activity is presently taking place in at least one of
states that does not have a public sector collective bargaining law
covering public safety officers-North Carolina. Thus, a ``Public Safety
Employer-Employee Cooperation Act,'' with provisions remarkably similar
to H.R. 980, has been introduced in the current session of the North
Carolina Senate.\22\ This is where the debate over whether such
legislation is needed should take place, i.e., at the state level and
not at the federal level.
The stated rationale for H.R. 980 is directly at odds with what
Congress and every President since Jimmy Carter has determined
to be appropriate for large numbers of public safety employees
employed by the Federal Government
The primary rationale for H.R. 980, as set forth in the Act's
Findings and Declaration of Purpose, is that ``the settlement of issues
through the processes of collective bargaining'' is in ``the National
interest'' since ``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,'' as well as ``other mass casualty
incidents.'' \23\ If that is the case, then one must wonder why
Congress and every President since Jimmy Carter have decided to exempt
untold numbers of federal employees who would be deemed to public
safety officers under H.R. 980. Consider for example, the following:
The Federal Bureau of Investigation (``FBI''), the Central
Intelligence Agency (``CIA''), the National Security Agency (``NSA''),
and the United States Secret Service, and the United States Secret
Service Uniformed Division are totally exempt from coverage under the
collective bargaining provisions of the Civil Service Reform Act of
1978 (``CRA'') and, as a result, tens of thousands of employees
employed by these agencies have no enforceable right to engage in
collective bargaining.\24\
The CRA also permits the President to issue an order
suspending any provision of the CRA with respect to any federal agency
or activity if ``the President determines that the agency or
subdivision has a primary function intelligence, counter-intelligence,
investigative, or national security work'' and that the provisions of
the CRA ``cannot be applied to that agency or subdivisions in a manner
consistent with national security requirements and considerations.'' 5
U.S.C. Sec. 7103(b). In Executive Order 12171, President Carter
excluded literally hundreds of federal agencies or subdivisions from
being covered by the CRA.\25\ Significantly, Executive Order 12171 has
been amended and extended by every subsequent President, including
President Clinton, to exclude additional federal employees from
coverage under the Federal Labor-Management program.\26\ For example,
in Executive Order 12632, ``* * * all domestic field offices and
intelligence units of the Drug Enforcement Administration'' were
excluded.\27\
Separate and apart from the two diametrically opposed standards for
determining whether collective bargaining is appropriate for public
safety employees, it also must be emphasized that the law enforcement
officers and firefighters employed by the Federal government who are
covered by the Civil Service Reform Act of 1978 have no right to
negotiate over wages, pensions, and many other significant terms and
conditions of employment. Rather, Congress has decided, and rightfully
so, that certain issues ought to be decided by Congress itself and not
be subject to collective bargaining. Thus, the CRA provides for
negotiations over ``conditions of employment,'' but it specifically
excludes any matters like wages and pensions that ``are specifically
provided for by Federal statute.'' \28\ That being the case, one would
think that the state legislatures should be given the same discretion
to make similar policy determinations.\29\
It is more than ironic that the federal government's own collective
bargaining statute would not even come close to meeting the standards
specified in H.R. 980 that state collective bargaining statutes must
meet in order to remain in effect and not be preempted by the
substantive provisions of H.R. 980.
H.R. 980 is rather clearly unconstitutional as applied to States and in
all likelihood it would be held unconstitutional as applied to
units of local government
Finally, there is a substantial question concerning whether H.R.
980 passes constitutional muster. In my judgment, it does not. H.R. 980
defines the terms ``employer'' and ``public safety employer'' to ``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.'' \30\ From the text of H.R. 980, it is clear that the
purported constitutional basis for enacting H.R. 980 is the Commerce
Clause. However, the Supreme Court in a series of decisions starting
with the Seminole Tribe of Florida v. Florida\31\ has unequivocally
held that Congress does not have the authority to abrogate the Eleventh
Amendment immunity of states under the Commerce Clause. There is
absolutely no doubt in my mind that the Supreme Court today would hold
that Congress does not have the constitutional authority under the
Commerce Clause to enact H.R. 980 vis-a-vis states and thereby abrogate
their Eleventh Amendment immunity.\32\
Moreover, even if H.R. 980 were amended to specifically provide
that Congress was unequivocally abrogating the Eleventh Amendment
immunity of states pursuant to the Enforcement Clause of the Fourteenth
Amendment, it is nevertheless quite clear that the Supreme Court would
hold that Congress would not be acting pursuant to a valid grant of
constitutional authority. In Florida Prepaid Post-Secondary Education
Expense Board v. College Savings Bank,\33\ the Court held that the
authority of Congress under the Fourteenth Amendment is `` `to enforce,
not the power to determine what constitutes a constitutional
violation.' '' \34\ Thus, under the test articulated by the Supreme
Court, Congress would only have the authority under the Fourteenth
Amendment to enact public sector collective bargaining legislation such
as H.R. 980 if its objective is the ``carefully delimited remediation
or prevention of constitutional violations.'' \35\
The right of public employees to be represented for the purpose of
bargaining collectively with their public employers, however, has never
been recognized as a constitutional right. To the contrary, the courts
have uniformly held that it is not a violation of the constitutional
rights of public employees for public employers to refuse to engage in
collective bargaining.\36\ Indeed, the Supreme Court in its unanimous
1979 per curium decision in Smith v. Arkansas State Highway Employees,
Local 1315 \37\ rejected a claim that the Arkansas State Highway
Commission violated the constitutional rights of highway department
employees when it refused ``to consider or act upon grievances when
filed by the Union rather than by the employee directly.'' \38\ In
rejecting the employees' constitutional claims, the Court noted that
while a ``public employee surely can associate and speak freely and
petition openly, and he is protected by the First Amendment from
retaliation for doing so, * * * the First Amendment does not impose any
affirmative obligation on the government to listen, to respond or, in
this context, to recognize the association and bargain with it.'' \39\
Since there is no constitutionally recognized right to engage in
collective bargaining or to require public employers to grant
recognition for the purposes of collective bargaining, it is clear that
Congress does not have the authority under Section 5 of the Fourteenth
Amendment to enact legislation such as H.R. 980. To paraphrase from the
Supreme Court's decision in Kimel v. Florida Board of Regents, ``* * *
the substantive requirements * * * [that H.R. 980] imposes on state and
local governments are disproportionate to any constitutional conduct
that conceivably could be targeted by the Act.'' \40\
While the unconstitutionality of H.R. 980's coverage of units of
local government is not as unequivocal as it is with respect to states,
the coverage of units of local government would raise serious
constitutional issues. Given the expressed views of the majority in all
of the Supreme Court cases cited above, it is entirely probable that
this five-member majority will some day return to the principles
articulated in National League of Cities v. Usery\41\ in which the
Supreme Court held that Congress did not have the authority to extend
the provisions of the Fair Labor Standards Act to states and units of
local government under the Commerce Clause. In his plurality decision
for the Court, then Justice Rehnquist emphasized ``the essential role
of the States in our Federal system of government,'' \42\ and noted:
One undoubted attribute of state sovereignty is the States' power
to determine the wages which shall be paid to those whom they employee
in order to carry out their governmental functions, what hours those
employees will work, and what compensation will be provided when these
employees may be called upon to work overtime. * * * \43\
Justice Rehnquist also noted that the FLSA's ``congressionally
imposed displacement of State decisions may substantially restructure
traditional ways in which the local governments have arranged their
affairs.'' \44\ There is absolutely no doubt in my mind that the effect
and impact that the Court found to be beyond the power of Congress
under the Commerce Clause in National League of Cities would be
magnified many times over if H.R. 980 were enacted.
While National League of Cities was overruled in 1985 in Garcia v.
San Antonio Metropolitan Transit Authority,\45\ the strongly worded
dissenting opinions of both Justice Rehnquist and Justice O'Connor
suggest that the Supreme Court may well return to the constitutional
principles articulated in National League of Cities. Since the
constitutional rationale espoused by the Supreme Court majority in
cases such as Seminole, Lopez, and Kimel is very close to Justice
Rehnquist's rationale in National League of Cities, it is surely not
unreasonable to suggest that the Supreme Court may well find H.R. 980's
extension of coverage to units of local government to be beyond the
power of Congress under the Commerce Clause.\46\ Indeed, with H.R.
980's massive displacement of the legislative policy decisions made by
state and local governments, only some of which have been discussed
above, it would be difficult to find a better vehicle for the Supreme
Court to reinstate the rationale of National League of Cities as Chief
Justice Rehnquist and Justice O'Connor prophesized the Supreme Court
would do someday.\47\
While the Supreme Court has the unquestioned power to determine the
limits of the authority of Congress to enact legislation under the
Commerce Clause in order to maintain the appropriate balance between
federal and state authority, it is important to emphasize that all
three branches of government have the responsibility to try to insure
that the principles of federalism embodied in the Constitution are
maintained and upheld. As Justice Kennedy noted in his concurring
opinion in United States v. Lopez, ``* * * it would be mistaken and
mischievous for the political branches to forget that the sworn
obligation to preserve and protect the Constitution in maintaining the
federal balance is their own in the first and primary instance'' and
that ``[t]he political branches of the Government must fulfill this
grave Constitutional obligation if the democratic liberty and the
federalism that secures it are to endure.'' \48\ In upholding the
Constitution and the principles of federalism upon which it is based,
it is incumbent on Congress to consider the tremendous adverse impact a
bill such as H.R. 980 would have on Federal-State relationships.
Conclusion
Given the substantial constitutional and practical issues posed by
H.R. 980, coupled with the overwhelming lack of evidence of any
compelling need for Congress to mandate collective bargaining for
police officers and firefighters at the state and local level, Congress
should not enact legislation in this sensitive area. The existence of
38 state collective bargaining laws at the state and local level
covering police officers and/or firefighters, virtually all of which go
substantially beyond what Congress has deemed appropriate for police
officers and firefighters employed by the federal government,
demonstrates that there is absolutely no need for the proposed
legislation.
endnotes
\1\ See Shaw & Clark, ``The Need for Public Employee Labor
Legislation in Illinois,'' 59 Ill. B.J. 628 (1971).
\2\ Inexplicably, the standards upon which such rules are to be
based do not include any Landrum-Griffin-like provisions concerning the
regulation of internal union affairs. This omission is especially
puzzling given the widely reported financial mismanagement of several
major unions that represent public sector unions.
\3\ 29 U.S.C. Sec. 160(a).
\4\ Statement of Arvid Anderson, Hearings on H.R. 12532, H.R. 7684,
& H.R. 9324 before the Special Subcomm. on Labor of the House Comm. on
Education and Labor, 92d Cong., 2d Sess., 404 (1972).
\5\ For example, under the NLRA it is firmly established that
pension and retirement provisions are mandatory subjects of bargaining.
See, e.g., Inland Steel Co. v. NLRB, 77 N.L.R.B. 1, enf'd 170 F.2d 247
(7th Cir. 1948), cert. denied, 336 U.S. 960, 69 S. Ct. 887, 93 L. Ed.
1112 (1949). Similar rulings have been made under public sector
collective bargaining laws. See, e.g., Detroit Police Officers Ass'n v.
City of Detroit, 319 Mich. 44, 214 N.W.2d 803 (1974).
\6\ N.Y. Civil Service Law, ch. VII, Art. XIV, Sec. 201(4). Either
explicitly or implicitly most states have removed pensions from the
scopy of negotiations.
\7\ Illinois Public Labor Relations Act, 5 ILCS 315/14(i)
\8\ Maine State Employees Labor Relations Act, Title 26, Ch. 9-B,
Section 1.E (4)(c).
\9\ Michigan Constitution, Article XI, Section 5.
\10\ Nevada Revised Statutes, Ch. 288.150(3)(a)-(c).
\11\ 1961 Task Force Report on Employee-Management Cooperation in
the Federal Service, in Labor-Management Relations in the Public
Service, Part I, at 14 (H. Robert ed. 1968).
\12\ In making this determination, H.R. 980 provides that ``the
authority shall consider and give weight, to the maximum extent
practicable, to the opinion of affected employee organizations.'' H.R.
980, Section 4(a)(1). Since it is state laws that may well be
invalidated, one can only wonder why are the views of states are being
subordinated to the views of organized labor. And, to make matters
worse, H.R. 980 provides 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.'' H.R. 980, Section 5(c)(1). To suggest that the deck
is being stacked again states and local units of government under H.R.
980 is to only state the obvious.
\13\ Advisory Commission on Intergovernmental Relations, Labor
Management Policies for State and Local Government 113 (1969).
\14\ Remarks of Dr. Jacob Seidenberg at the symposium on ``Equity
and the Public Employer,'' Washington, D.C., May 10, 1974, p. 24.
\15\ Truax v. Corrigan, 257 U.S. 312, 344 (1921) (dissenting
opinion).
\16\ France, ``Laying the Groundwork,'' ABA Journal, May 2000, at
40, 42. The person quoted in the excerpt is Michael S. Greve, the
author of the excellent book, Real Federalism: Why it Happens, How it
Could Happen (AEI Press, 1999).
\17\ Alaska, California, Connecticut, Delaware, Florida, Hawaii,
Illinois, Indiana, Iowa, Kansas, Kentucky, Maine, Maryland,
Massachusetts, Michigan, Minnesota, Missouri, Montana, Nebraska,
Nevada, New Hampshire, New Jersey, New York, North Dakota, Ohio,
Oklahoma, Oregon, Pennsylvania, Rhode Island, South Dakota, Texas,
Vermont, Washington, and Wisconsin. While most of these state laws
cover both police officers and firefighters who are employed at both
the state and local level, several are more limited in their coverage.
The Nevada law, for example, only covers police officers and
firefighters employed by units of local government and does not cover
such employees who are employed by the State.
\18\ Alabama, Georgia, Idaho, and Wyoming.
\19\ Among the states without collective bargaining laws covering
either police officers or firefighters but which authorize public
employers to grant recognition for purposes of collective bargaining
and where such bargaining takes place are Arkansas, Colorado,
Louisiana, New Mexico, and West Virginia.
\20\ Hirsch & MacPherson, Union Membership and Coverage Database
from the CPS, Membership, Coverage, Density and Employment by
Occupation, 2006, at http://www.trinity.edu/bhirsch/unionstats
\21\ Id.
\22\ General Assembly of North Carolina, Session 2007, Senate Bill
970 entitled ``Public Safety Employer-Employee Cooperation Act.''
\23\ H.R. 980, Section 2.
\24\ 5 U.S.C. Sec. 7103(a)(3) (B), (C), (D), and (H).
\25\ Executive Order 12171, 44 F.R. 66565 (Nov. 19, 1979).
\26\ Executive Order 13039, 62 F.R. 12529 (Mar. 11, 1997).
\27\ Executive Order 12632, 53 F.R. 9852 (Mar. 23, 1988).
\28\ 5 U.S.C. Sec. 7103 (14)(c).
\29\ For federal employees covered by the Civil Service Reform Act
of 1978 and postal employees covered by the National Labor Relations
Act, unions are prohibited from negotiating union shop or fair share
clauses, but under H.R. 980 the negotiation of such union security
clauses would presumably be a mandatory subject of bargaining in states
that do not have applicable right-to-work laws
\30\ H.R. 980, Sec. 3(9).
\31\ 517 U.S. 44, 116 S.Ct. 1114 (1996). See also Kimel v. Florida
Board of Regents, 145 L.Ed.2d 522, 120 S.Ct. 631 (2000).
\32\ Although Section 5(c) of H.R. 980 provides for enforcement
``through appropriate State courts,'' that does not make any difference
in terms of a state Eleventh Amendment immunity from suits. In Alden v.
Maine, 119 S.Ct. 2240 (1999), the Supreme Court held that Congress did
not have the authority under the Commerce Clause to subject
nonconsenting states to private suits in state courts, noting that
``the States' immunity from suit is a fundamental aspect of the
sovereignty which the States enjoyed before the ratification of the
Constitution, and which they retain today * * *.'' Id. at 2246-2247.
\33\ 119 S.Ct. 2199 (1999).
\34\ 119 S.Ct. at 2206.
\35\ College Savings Bank v. Florida Prepaid Post-Secondary
Education Expense Board, 119 S.Ct. 2219, 2224 (1999).
\36\ See, e.g., Alaniz v. City of San Antonio, 80 L.R.R.M. 2983
(W.D. Tex. 1971).
\37\ 99 S.Ct. 1826 (1979).
\38\ Id. at 1828.
\39\ Id. at 1827-1828.
\40\ 120 S.Ct. at 645.
\41\ 426 U.S. 833, 96 S.Ct. 2465, 49 L.Ed. 2d 245 (1976).
\42\ 96 S.Ct. at 2474.
\43\ Id. at 2471.
\44\ Id. at 2473.
\45\ 469 U.S. 528, 105 S.Ct. 1005 (1985).
\46\ In 1942, the same year in which the Supreme Court issued what
many consider to be its most far reaching decision on the authority of
Congress under the Commercial Clause, Wickard v. Filburn, 317 U.S. 111,
63 S. Ct. 82, 87 L. Ed. 122 (1942), the National War Labor Board
(NWLB), in the course of deciding that it had no jurisdiction over
municipal employees, made the following observation in an opinion
authored by Wayne Morse:
It has never been suggested that the Federal Government has the
power to regulate with respect to the wages, working hours, or
conditions of employment of those who are engaged in performing
services for the states or their political subdivisions * * * . Any
directive order of the National War Labor Board which purported to
regulate the wages, the working hours, or the conditions of employment
of state or municipal employees would constitute a clear invasion of
the sovereign rights of the political subdivisions of local state
government.
Among the prestigious members of the NWLB who concurred in this
unanimous decision were George Meany, the future President of the AFL-
CIO, and George Taylor, the future author of the New York Taylor Law.
\47\ In his dissent in Garcia Chief Justice Rehnquist stated that
he did ``not think it incumbent on those of us in dissent to spell out
further the fine points of a principle that will, I am confident, in
time again command the support of a majority of this Court.'' 105 S.
Ct. at 1033. Similarly, Justice O'Connor in her dissent in Garcia said
that she shared ``Justice rehnquist's belief that this Court will in
time again assume its constitutional responsibility.'' 105 S. Ct. 1037.
\48\ United States v. Lopez, supra, 115 S.Ct. at 1639. In this same
concurring opinion, Justice Kennedy further noted that ``the federal
balance is too essential a part of our Constitutional structure and
plays too vital a role in securing freedom for [the Court] to admit
inability to intervene when one or the other level of government has
tipped the scales too far.'' Id.
______
Chairman Andrews. Thank you very, very much.
Professor Banks, you are recognized for 5 minutes.
STATEMENT OF WILLIAM BANKS, PROFESSOR OF LAW, SYRACUSE
UNIVERSITY
Mr. Banks. Good afternoon, Mr. Chairman, Ranking Member
Kline, members of the subcommittee. I appreciate the invitation
to speak to the subcommittee today, and I will focus on the
constitutionality of H.R. 980.
Ordinarily, the constitution reserves to the states the
authority to manage labor relations within their borders.
Indeed, the virtue of our federal system is on display in the
rich variety of approaches to managing labor relations in the
50 states.
For public-sector workers, however, the federal system has
denied their full protection and, in some 21 states, their
rights to collectively bargain are not fully recognized.
Although a principal value of our federal system is to
encourage states to find new and creative solutions to policy
problems in their state legislative laboratories, all of us
know that, at times, that discretion for states to shape their
own approaches to policy problems has stood in the way of the
protection of important individual rights.
In such situations, the federalism value of state
creativity can and should be subordinated to the more
compelling federalism value of protecting individual liberties.
In my opinion, Congress has the constitutional authority to
enact H.R. 980 under the Commerce Clause, and its enactment
would not violate the 10th Amendment. It has been clear since
1937 that Congress may regulate labor-management relations in
employment in or affecting interstate commerce.
When Congress extends its commerce-based regulations to
public employees and employers, the 10th Amendment has
presented an obstacle only when Congress attempts to
``commandeer'' state or local regulatory processes by requiring
states and/or cities to adopt and implement a federal
regulatory program.
The Supreme Court's 1985 decision in Garcia allowed
Congress to extend wage and hour protections to state and local
workers over the 10th Amendment objections of the city for two
reasons that have significance in your consideration of H.R.
980.
First, the court noted that federalism values are
especially well protected by the structural guarantees of our
government. State and local interests are well represented in
our Congress, particularly in the House of Representatives. In
other words, if Congress determined that wage and hour
protections should be extended to public-sector workers in the
states and cities, the representatives from those districts
followed their constituents' policy preferences that public-
sector workers should enjoy the minimum-wage maximum-hour
protections afforded those in the private sector.
Second, the court recognized that one of the most important
purposes of our federal system--ensuring individual liberty--
would be advanced by permitting Congress to extend the wage and
hour protections.
The court's decisions since Garcia do not call into
question Congress's authority to apply generally applicable
federal protections, such as wage and hour or collective
bargaining rights, to state and local governments. The
commandeering problem that caused the court to strike down
radioactive waste legislation and the Brady Act extending
handgun controls does not taint, in my view, H.R. 980.
This bill does not require state or local governments to
enact or implement a federal regulatory program. Instead, H.R.
980 places the onus on federal implementation through the FLRA.
If a state chooses not to enact a program that meets federal
requirements, the FLRA steps in. In the radioactive waste and
Brady Act settings, the legislation did not afford states any
such choice. Instead, they were obligated to regulate through
state and local mechanisms to achieve the federal policy goals.
I will note briefly one other constitutional objection that
has been raised to H.R. 980, the state sovereign immunity
protected by the 11th Amendment. Recent decisions of the
Supreme Court protect states from suits brought in federal
court by citizens of their state or of other states. H.R. 980
creates no right of action for individuals directly and, thus,
the bill does not confront those limitations.
In addition, under H.R. 980, in states where the FLRA
regulates to ensure collective bargaining, any eventual
enforcement of state recalcitrance would be initiated by the
agency, not by any individual. Federal agencies are not
affected in their litigation against states or cities by the
11th Amendment.
I will conclude my remarks now and would eagerly await any
questions you might have. Thank you.
[The statement of Mr. Banks follows:]
Prepared Statement of William Banks, Professor of Law, Syracuse
University
My name is William Banks. I am a professor of law and professor of
public administration at Syracuse University, and I direct its
Institute for National Security and Counterterrorism (INSCT). I have
expertise in the areas of national and homeland security and
counterterrorism, and constitutional law, developed during my thirty
years of teaching, writing, and speaking in these fields. I appreciate
the invitation to speak to the Subcommittee today, and I will focus on
the constitutionality of H.R. 980, the Public Safety Employer-Employee
Cooperation Act of 2007.
Narrowly, the Constitution reserves to the states the authority to
manage labor relations within their borders. Indeed, the virtue of our
federal system is on display in the rich variety of approaches to
managing labor relations in the fifty states. For public sector state
and local workers, however, the federal system has denied their full
protection and in some twenty-one states their rights to collectively
bargain are not fully recognized. Although a principal value of our
federal system is to encourage states to find new and creative
solutions to policy problems in their state legislative laboratories,
all of us know that, at times, that discretion for states to shape
their own approaches to policy problems has stood in the way of the
protection of important individual rights. In such situations, the
federalism value of state creativity can and should be subordinated to
the more compelling federalism value of protecting individual
liberties.
In my opinion, Congress has the constitutional authority to enact
HR 980 under the Commerce Clause, and its enactment would not violate
the Tenth Amendment. It has been clear since 1937 that Congress may
regulate labor/management relations in employment in or affecting
interstate commerce.\1\ Beginning in the same Supreme Court era, the
Court acknowledged that Congress has considerable discretion to
determine what activities affect interstate commerce, to the extent
that it permitted a purely intrastate economic problem, such as local
working conditions, to be subject to Commerce Clause regulation, on the
theory that the aggregate number of such local incidents might affect
interstate commerce.\2\
---------------------------------------------------------------------------
\1\ NLRB v. Jones and Laughlin Steel Corp., 301 U.S. 1 (1937)
(upholding the National Labor Relations Act).
\2\ U.S. v. Darby, 312 U.S. 100 (1941) (upholding the Fair Labor
Standards Act as applied to a local employer); Wickard v. Filburn, 317
U.S. 111 (1942)(upholding federal limits on farm production as applied
to a local farmer who grew wheat for family consumption).
---------------------------------------------------------------------------
When Congress extends its commerce-based regulations to public
employees and employers, the Tenth Amendment has presented an obstacle
only when Congress attempts to ``commandeer'' state or local regulatory
processes, by requiring states and/or cities to adopt and implement a
federal regulatory program. The Supreme Court's 1985 decision in Garcia
v. San Antonio Metropolitan Transit Authority\3\ allowed Congress to
extend wage and hour protections to state and local workers, over the
Tenth Amendment objections of the city, for two reasons that have
significance in your consideration of HR 980. First, the Court noted
that federalism values are especially well protected by the structural
guarantees of our government--state and local interests are well
represented in our Congress, particularly in the House of
Representatives. In other words, if Congress determined that wage and
hour protections should be extended to public sector workers in the
states and cities, the Representatives from those districts followed
their constituents' policy preferences--that public-sector workers
should enjoy the minimum wage/maximum hour protections afforded those
in the private sector workforce. Second, the Court recognized that one
of the most important purposes of our federal system--ensuring
individual liberty--would be advanced by permitting Congress to extend
the wage and hour protections.
---------------------------------------------------------------------------
\3\ 469 U.S. 528 (1985).
---------------------------------------------------------------------------
The Court's decisions since Garcia do not call into question
Congress's authority to apply generally applicable federal protections,
such as wage and hour or collective bargaining rights, to state and
local governments. The ``commandeering'' problem that caused the Court
to strike down radioactive waste legislation and the Brady Act
extending handgun controls does not taint HR 980. This bill does not
require state or local governments to enact or implement a federal
regulatory program. Instead HR 980 places the onus on federal
implementation through the Federal Labor Relations Authority (FLRA). If
a state chooses not to enact a program that meets federal requirements,
the FLRA steps in. In the radioactive waste and Brady Act settings, the
legislation did not afford the states with any such choice. Instead
they were obligated to regulate through state and local mechanisms to
achieve the federal policy goals.
Summing up the Commerce Clause and Tenth Amendment concerns
expressed by some, there is no reason to expect that the enactment of
HR 980 would be stricken down on either of these grounds. It is true
that Congress's Commerce Clause limits and state and local protections
enshrined in the Tenth Amendment are two sides of the same coin. As the
Court has recognized, the doctrines in both areas are designed to
assure that the values of our federal system are honored. HR 980 is
emblematic of federal legislation that furthers the values of
federalism by protecting the individual rights of public sector
workers. At the same time, the bill does not commandeer state or local
government processes. It affords those governments that do not yet
provide full collective bargaining rights for public sector workers a
reasonable choice--provide the protections in your own way, or step
aside and allow the FLRA to do so.
I will note briefly one other constitutional objection that has
been raised to HR 980--the states' sovereign immunity protected by the
Eleventh Amendment. Recent decisions of the Supreme Court protect
states from suits brought in federal court by citizens of their state
or of other states. HR 980 creates no right of action for individuals
and thus the bill does not confront those limitations. In addition,
under HR 980, in states where the FLRA regulates to ensure collective
bargaining, any eventual enforcement of state recalcitrance would be
initiated by the FLRA, not by any individual. Federal agencies are not
affected in their litigation against states or cities by the Eleventh
Amendment.
Allow me to conclude by reminding the Subcommittee of the lessons
learned from Hurricane Katrina. The 2006 congressional Failure of
Initiative report found widespread lack of unity, poor coordination and
cooperation, and delayed and duplicative efforts by responders
immediately prior to and after landfall of that brutal storm. Command
and control was impaired at all levels of government, and state and
local emergency response personnel lacked the cohesion across
jurisdictions to organize their response activities effectively. The
collective bargaining envisioned by HR 980 would help level the playing
field for these public sector workers. Although this new benefit would
not be a panacea for emergency preparedness and response, it would
enhance the cohesion among agencies and across jurisdictions that may
well improve the delivery of their critical services.
When National Guard personnel from many different states were
deployed to assist in the aftermath of Hurricane Katrina,
administration of their work became a major headache for state
Governors. Because their forces were activated on state active duty and
subject to the rules and entitlements authorized by their home states
(including pay and health care benefits, for example), coordination and
cooperation among Guard units from different states was soon
compromised by the complexities of administration and by the animosity
and distrust among some that developed because of their variable
economic and health-care situations. In this instance, there was a
federal fix: The governors requested that the Secretary of Defense
invoke so-called ``Title 32 status'' for National Guard personnel
deployed for Katrina relief, effectively permitting uniform pay and
benefits out of the U.S. Treasury, while assuring continuing
operational command and control by the governors. In this instance
Title 32 is a sort of administrative compromise--deployed personnel are
made more uniform in pay and benefits, yet the operation is not
federalized in the sense of bringing command under the President as
Commander in Chief. HR 980 is, in part, a way to do for first
responders what Title 32 does for the National Guard.
Thank you. I will be happy to answer any questions that you may
have.
______
Chairman Andrews. Well, thank you very much.
And I want to thank each of the panelists for very
thorough, well-prepared testimony, and I think you have served
our debate very, very well.
I will begin, if I would, with Mr. Clark in discussing the
concerns you raise about the 11th Amendment and sovereign
immunity.
Let's say that we enacted this bill, it became law, and a
state that does not have the system that measures up under the
criteria in the statute is ordered to bargain in good faith
with a union in a city. The defendant in this case is the city
government. Plaintiff is a labor organization that feels like
it is not being bargained with in good faith.
So, under the provisions of the bill, let's say the
authority has not yet petitioned for enforcement of the order.
So, under page 11, the right of action provision about an
interested party filing suit in a state court of competent
jurisdiction--so that the facts are labor organization files
suit in the state courts of the defendant's state against a
city. The defendant is a city of that state.
Is it your view that the 11th Amendment sovereign immunity
would bar that suit?
Mr. Clark. That issue has already been addressed by the
Supreme Court in Alden v. Maine, a 1999 decision. The Supreme
Court held that Congress did not have the authority under the
Commerce Clause to subject non-consenting states to private
suits in state courts.
Chairman Andrews. Who was the defendant in the Alden case?
It is the state of Maine, wasn't it?
Mr. Clark. It was the state of Maine.
Chairman Andrews. It wasn't a subdivision of the state of
Maine, was it? It wasn't a city?
Mr. Clark. It was the state of Maine. It was an 11th
Amendment----
Chairman Andrews. It was the state. Do you think there is a
constitutional distinction between a city or subdivision of the
state itself?
Mr. Clark. There is. The 11th Amendment immunity only
applies at the state level or to arms of state government.
Chairman Andrews. So the Alden case would not be
controlling under the facts that I just laid out, would it?
Mr. Clark. Not for 11th Amendment purposes, but----
Chairman Andrews. Okay. Well, that is what I asked you
about. I asked you about the 11th Amendment. So is it your
position that in the case that I laid out, the 11th Amendment
would not bar the claim against the city?
Mr. Clark. The 11th Amendment has traditionally never been
held applicable to cities and municipalities. It is a state
immunity, not a local government immunity.
Chairman Andrews. Okay. So there is no 11th Amendment
problem with the facts that I laid out?
Mr. Clark. No.
Chairman Andrews. Okay. Let's talk about the 10th
Amendment. Your position, if I read it correctly, is that this
bill would be an unconstitutional intrusion upon the sovereign
judgments of a state, the area protected by the 10th Amendment.
So, basically, I think you say that the Commerce Clause does
not extend as far as this bill would have us extend it. Is that
right?
Mr. Clark. Well, it would be my position that because of
the invasive provisions of the act and the massive
displacements of policy decisions that the decision of the
National League of Cities, I think, would be revisited, and I
think there are at least five members of the Supreme Court that
would probably view it in that light.
Chairman Andrews. But the National League of Cities case
found that Congress did have the power, didn't it? Didn't it--
--
Mr. Clark. The National League----
Chairman Andrews. Didn't it overrule the----
Mr. Clark. Justice Rehnquist, wrote for the plurality. He
said one undoubted attribute of state sovereignty is the
state's powers to determine the wages which shall be paid to
those who are employed, et cetera, et cetera.
Chairman Andrews. With all respect, that is not the
majority opinion. Wasn't the decision in the National League of
Cities case that the federal regulation did apply against the
states in question?
Mr. Clark. No.
Chairman Andrews. Wasn't that the----
Mr. Clark. No, it held----
Chairman Andrews. The Garcia case. Excuse me. I am
confusing----
Mr. Clark. The Garcia case----
Chairman Andrews. You are correct. I am confusing this case
with Garcia.
Mr. Clark. Subsequently, the National League of Cities was
overruled.
Chairman Andrews. Under the Garcia case, the 40-hour work
week did apply against the local transportation authority,
didn't it?
Mr. Clark. Yes, 5-4.
Chairman Andrews. Okay. As President Bush can tell you, 5-4
gets it done in the Supreme Court.
Mr. Clark. In that case, that carried the day. Yes, sir.
Chairman Andrews. So the point is that when the issue was
whether or not imposing the 40-hour work week on a local
government unit was okay under the Constitution 10th Amendment,
the holding was that it was okay, right?
Mr. Clark. In Garcia, it was. Yes.
Chairman Andrews. So how is imposing standards under
collective bargaining different than imposing standards under
the 40-hour work week? How is it constitutionally different?
Mr. Clark. I think the number of policy issues that will be
implicated by H.R. 980 are far more intrusive and far more
invasive than setting a minimum wage and setting a policy in
terms of overtime pay.
Chairman Andrews. But minimum wage has a direct----
Mr. Clark. I mean, we are talking about making decisions--
--
Chairman Andrews. Well, but a minimum wage has a direct
financial implication upon a public treasury. It tells you how
much you must pay your employees at a minimum. That is pretty
intrusive, isn't it?
Mr. Clark. It is intrusive, but not as intrusive as saying
that you have to negotiate and come to an impasse and maybe go
to an interested arbitrator before you can lay off employees or
negotiating over manning, which tells you how many----
Chairman Andrews. Yes, that----
Mr. Clark [continuing]. Firefighters you have to have on a
rig or a piece of equipment.
Chairman Andrews. If you read the briefs from Garcia, that
sounds an awful lot like the arguments that lost under the
Garcia case.
My time has expired. I would yield to my friend from
Minnesota for 5 minutes.
Mr. Kline. Thank you, Mr. Chairman.
Again, thanks to the panel for being here.
I am always fascinated when lawyers talk to lawyers, and it
reminds me of why I am not one. [Laughter.]
I was lost after the introduction there. I am trying to
understand here, recognizing that I am not a lawyer, proudly,
proudly so.
Chairman Andrews. You might be one some day. You keep
working at it. [Laughter.]
Mr. Kline. No. No chance. No chance.
I am trying to understand if in states where you already
have collective bargaining arrangements--and I am going to
start with you, Mr. Clark, but this is sort of for everybody.
Under this act, the FLRA would come in and decide if it was
good enough. Is that the case, sort of basic English for this
thing?
Mr. Clark. Well, I mean, that is one way of putting it, but
I think that is putting it very politely because it says
``substantially provides'' and then says ``shall give to the
maximum extent practicable to the views of affected labor
organizations,'' and there are other provisions in the act that
say, for example, ``It shall not be deemed inconsistent with
H.R. 980,'' for the sole reason that the state's militia are
excluded. That suggests to me that if there are some somewhat
minor differences, those minor differences may well result in a
state's law being determined to be not as substantially
provided in H.R. 980.
Mr. Kline. Okay. Well, I mean, you raised the question--and
perhaps we will give Mr. O'Connor a chance to get at it here in
just a minute--about why it is that the union should be given
the sort of maximum weight over the elected officials.
Let me just go back. I have an example here that I want to
try to sort to the bottom. The state of New York is well-
represented. We are very happy to have Officer Nunziato and the
chairman sort of.
You can sort of represent New York, at least the river.
[Laughter.]
As I understand it, the agreement in New York specifically
excludes issues relating to pensions from the scope of
mandatory bargaining.
Mr. Clark. Correct.
Mr. Kline. So, as a practical matter, what would happen
with New York if we were to pass H.R. 980? Do they now have to
change their rules, or do they get a checkmark and move on?
Mr. Clark. The contention probably would be made that the
scope of bargaining in New York is narrower than the very broad
definition contained in H.R. 980. That would then leave New
York with the option of either amending its statute so as to
expand the scope of bargaining or be subject to the provisions
of the labor relations scheme that will be promulgated by FLRA.
Mr. Kline. Okay. Thank you.
Well, then I am a little bit confused because now I have to
go back to Professor Banks who says that this does not require
states to adopt or implement a federal regulatory program. It
sounds to me like it does.
New York would have to change, and there we already have
the Port Authority of New York and New Jersey, but they would
have to change it in order to comply with this regulatory
program. Isn't that correct?
Mr. Banks. I do not think so, Representative Kline, on two
grounds here. I think initially the determination about whether
New York would be substantially providing the rights and
responsibilities would likely not come out short for the state
of New York. I think this list of criteria in the bill is
broad, a number of different factors would be considered, and a
piece relating to pension bargaining would not necessarily
exclude New York from being found in full compliance here.
The second point is that the FLRA, once this bill becomes
law, will have an opportunity to make regulations to more fully
flesh out the criteria that would be utilized to make a
determination about whether a state----
Mr. Kline. Well, I guess then we do not know. The answer to
my question is we do not know.
Mr. Banks. We have no----
Mr. Kline. We have a distinguished panel here, and there is
some disagreement over what this legislation would require, and
that is one of the things that we need to be a little bit
careful of on this side of the room when we put something into
law, that we sort of know what it is going to do, and I am not
sure----
Mr. Banks. I think that is certainly true, but to answer
your point about the state having a choice or being subject to
a federal commandeering here, I think it is clear that if there
was any change to be made, it would be directed and be subject
to FLRA actions, not necessary to the state of New York.
New York could choose, in other words, to have their own
program, and if it was found not to be in compliance with this
bill, it would be up to the FLRA to step in. It would not be
expending state resources, state personnel, the mechanisms of
New York State government to get this done necessarily.
Mr. Kline. I knew there was a reason why I was not a
lawyer. [Laughter.]
I yield back.
Chairman Andrews. Thank you, Mr. Kline.
The chair recognizes the author of the bill, the gentleman
from Michigan, Mr. Kildee, for 5 minutes.
Mr. Kildee. Thank you very much.
Nor am I a lawyer. I am a teacher, but I am a member of the
NEA and the American Federation of Teachers, AFL-CIO. I still
carry my card.
Let me ask you, Mr. Clark. In your testimony, you say,
``Let me emphatically state that I wholeheartedly support
collective bargaining in the public sector where a majority of
the employees have opted to be represented for the purposes of
collective bargaining.''
But you have states like Virginia--my home is in Michigan;
I have a house in Virginia--and North Carolina where collective
bargaining is expressly forbidden.
I can recall my first term down there. Fairfax County,
which is kind of an advanced, progressive county, like
Michigan, they had collective bargaining for a number of
people, including teachers, and then in Richmond, the Virginia
Supreme Court said that Fairfax County lacked the authority to
have collective bargaining. So they do not have collective
bargaining in Fairfax County.
You would have thought, though--this is just my own value
judgment--that maybe Fairfax County would have said, ``Well,
what you have gained through your collective bargaining, you
can keep anyway.'' No, they took it back, even your wages and
your working conditions. They took it back, and Fairfax County
reverted to the rest of Virginia.
So you say that you do support that. Can you tell me what
your organization is currently doing to promote collective
bargaining rights in those states and jurisdictions which do
not provide collective bargaining rights for their employees?
Mr. Clark. I can speak on behalf of myself. I authored an
article in the mid-1970s entitled, ``The Need for Public Sector
Collective Bargaining Legislation in Illinois,'' and lobbied
for the enactment of that legislation. That is obviously a
decision that needs to be made in each state by those employers
in those states as to whether they wish to go in that
direction.
You mentioned North Carolina. While doing a little Google
search on the cooperation act that we are having a hearing here
today on, I came across an act being proposed in North
Carolina, Public Employer-Employee Cooperation Act of 2007,
that looks almost exactly like H.R. 980.
My position would be that that is where the debate should
take place, at the state level, so they can decide what the
needs of the state are and how they should be accommodated in
terms of collective bargaining, if it is to be provided.
Mr. Kildee. Let me ask you. Send some of the Virginians
down to North Carolina. You state that you have written an
article, but what has your organization done to promote
collective bargaining in the state level?
Mr. Clark. The organization has a number of state
affiliates. In almost all of the states where there are
affiliates, there are collective bargaining laws, and the
organization has worked to try to improve those bargaining laws
to make them work for both employers, employees and the unions
that represent employees.
Mr. Kildee. Kevin, you mentioned--Mr. Clark mentioned also
that--H.R. 980 would supersede state authority. You believe
there is a minor inconsistency with the FLRA. Could you address
that?
Mr. O'Connor. Thank you, Congressman Kildee.
We strenuously disagree with that analysis. Let me respond
on a couple of angles.
Number one, I do not think that the analogy with the NLRA
is particularly helpful. I mean, that was passed 6 decades ago.
It was a top-down piece of federal legislation. While it had
some exemptions for states, it was clearly a federal law that
took effect immediately.
Second, I think the language in the bill itself provides
that protection. I think ``substantially comply'' will be very
broadly construed.
You know, right now, the FLRA has had decades worth of
experience administering a public-sector labor law on the
federal level, and on the federal level, quite a few things--
pensions, merit system, et cetera--are governed by statute, and
FLRA works under a system where anything governed by statute is
not subject to bargaining.
So I think it is rather fanciful to suggest that after
operating under decades under that premise that they would come
in to individual states and actually look at a law, for example
the Taylor law in New York, and say, ``Pensions are not
governed under this. Therefore, the entire statute, you know,
will be thrown out,'' and they will fiat a federal regulation
in there. I do not think that is appropriate.
I think when you also look at the legislation, it says,
``terms and conditions of employment.'' It does not say, ``all
terms and conditions of employment.'' So I think there is a
great deal of latitude there for the FLRA to come in and say,
``Where we have public-sector laws working, we are essentially
going to grandfather those laws.''
And to respond to the question that Mr. Kline had indicated
he wanted to ask about giving weight to the view of public-
sector unions with respect to this, I can say almost
universally for our partners--we have worked on this issue, as
you well know, Mr. Kildee. The current iteration of this bill
is well over 12 years old--it is not our desire or anybody's
desire to federalize this process. We want local law, so,
consequently, from our standpoint, we think that the affected
public employees will say, ``We like our local law, and we are
going to keep it.''
Chairman Andrews. The gentleman's time has expired.
Mr. Kildee. Thank you very much.
Thank you.
Chairman Andrews. Thank you, Mr. Kildee.
The chair recognizes the gentleman from Illinois, Mr. Hare,
for 5 minutes.
Mr. Hare. Thank you, Mr. Chairman.
Let me thank my colleague, Congressman Kildee, for a
wonderful piece of legislation. I am honored to be a co-sponsor
of it, Dale, and we are going to do very well, I predict, when
this comes to the floor.
I want to just say this. I wonder where all of us would be
if it were not for the fire, police, emergency personnel,
correctional officers and the number of people that we have
each and every day that we count on to keep us safe.
And I believe you said, Mr. O'Connor, that this bill is
really a question of fairness. We have thousands of people that
do not have the opportunity to have a collective bargaining
agreement or to enter into a collective bargaining agreement,
and coming from a labor union myself, I can tell you I know
what the benefits can be when you have one and when you are
striving to get one.
I wonder, Mr. O'Connor, if you could just answer just a
couple of questions. What would this bill do regarding to the
New York law that we were talking about, whether the New York
law would remain as is, or would this bill change that law or
hurt that law or what would it do?
Mr. O'Connor. I should also note that I am not an attorney,
I am a firefighter, so I am opining from that perspective.
[Laughter.]
I think that, you know, based upon the answers that I gave
to Mr. Kildee, I think the protections have been in there to
really empower the states, that the various examples I gave
concerning giving weight to affected employees, substantially
comply, not enumerating all terms and conditions of
employment--there is an awful lot of wiggle room there, and
given the fact how FLRA has administered the federal labor law
with the caveats that I pointed out, I think that it would go
into a state like New York, say, ``Look, pensions are not on
the table.''
In other states, it could be the promotional system, as Mr.
Clark enumerated, in the Michigan constitution, but I do not
think they would take such a narrow view that they would say
one aspect of bargaining is not permissible under a state
constitution or an existing law, and that would invalidate. I
just do not see FLRA wanting a power grab to give themselves
that kind of authority. I think it is very clear the intent of
this is we want 50 separate state laws, and if that does not
occur, the hook is the FLRA has an authority to promulgate a
regulation.
Mr. Hare. Thank you.
And, Mr. Nunziato, you know, coming from a state that does
have the collective bargaining rights for its public safety
officers, could you tell us why you believe it is essential to
have a collective bargaining agreement in place, and from your
perspective, do you believe that having one strengthens our
national security and security in your state in particular?
Mr. Nunziato. Well, I am sorry. Could you just repeat that
again? I am sorry.
Mr. Hare. And I read it so well. [Laughter.]
Mr. Nunziato. Yes, you did.
Mr. Hare. Coming from a state that provides collective
bargaining rights for the public employees that you have,
public safety officers, can you tell the committee why you
believe it is essential to have a collective bargaining
agreement, why it is essential to have a collective bargaining
agreement in place, and given that, do you believe that having
one strengthens not only security there, but national security
in general?
Mr. Nunziato. Well, with the collective bargaining
agreement, any lack in security, anything--lack of manpower,
leaving a vulnerable target open--if you have a union behind
you, you are more likely to come to the union or make your
position aware to your employer.
If you have no rights protecting you, chances are you will
not want the backlash from your employer and you will remain
silent, and you are talking about nuclear power plants, subway
systems. I mean, that is a tremendous risk to take.
Mr. Hare. And lastly, Mr. O'Connor, I am sorry for picking
on you here, but both Mr. Reichenberg and Mr. Clark think that
H.R. 980 was a federal one-size-fits-all solution, and I was
wondering if you would agree with that, and if so, why not?
Mr. O'Connor. I do not think anything could be further from
the truth. I think that we have crafted this bill over 12 years
to give maximum flexibility to the states. The fact that the
parameters are drawn so broadly--states have the right to
determine the processes for elections--if they want secret
ballot elections, which, obviously, is a very hot topic in this
committee, they can do so. If they want to have just a
mediation process, they can do that.
I think that it is so broadly crafted that it does provide
maximum flexibility and states are free to observe that and to
enact laws that they think best fit their particular
localities.
Mr. Hare. Thank you.
In conclusion, Mr. Chairman, I want to thank both these
gentlemen. As I said, I do not know where we would be without
you and the other people that we are discussing today, and from
my perspective, again, this is about fairness. It is about
providing the opportunity if people want to engage in
collective bargaining agreements.
You know, we can talk about the legalities of it, but, you
know, I am not an attorney either. I am a trade unionist
myself. It seems to me that we should be able to sit down and
give people the opportunity, if they want, to negotiate a
contract to help themselves.
As you said, Mr. Nunziato, for that person that died, for
that spouse and for those kids, I think that is incredibly
important.
Thank you, Mr. Chairman.
Chairman Andrews. Thank you very much.
You know, the committee has jurisdiction over Title VII
employment discrimination, and I think there is a lot of
discrimination against attorneys going on at this hearing
today. [Laughter.]
So I am thinking about our next hearing----
Mr. Kline. No more than is deserved.
Chairman Andrews [continuing]. Maybe adding attorneys as a
protected classification under that. Can I have some help with
that? Can I have an amen to that, Mr. Clark?
Okay.
The gentleman from Pennsylvania, Mr. Sestak, is recognized
for 5 minutes.
Mr. Sestak. Thank you, Mr. Chairman.
I was struck by, Mr. Banks, your comment on the
constitutionality, the issue of how federalist values protect
individual rights, equal individual rights.
I come at this issue from a background of, you know, having
served in the military for 31 years, protecting individual
rights, but I also was a fire marshal for my first 3\1/2\ years
in the Navy, so I kind of consider myself a public safety--in
the larger term, we, the military and firefighter first
responders, are.
It always bemused me to be stationed in Florida, and then
be stationed in California and then to be stationed, in between
the time I was overseas--in Virginia, to watch the disparity in
what my fellow public safety officials had the right to do.
So having the protected on the military side these
individual rights and having been one of these public safety
officials, even a fire marshal, I come at this as, gosh, I do
not understand not having these individual rights, having
fought for them overseas and elsewhere for so long, and that is
kind of just a comment.
But my question, sir, to you, Mr. Reichenberg, is, as you
step aside and take this constitutional issue and place it
here, maybe it will go to the Supreme Court or not, although I
feel comfortably where I sit on the issue--as I look at your
titles of each of your sections and as you spoke and you
underlined them in your testimony, it seems like the three or
four other prevailing ones you have is: We do not know if this
legislation will bring out better cooperative relationships.
That does not seem to move me as though why not to do it.
The second one is the state knows best. Again, whether it
was the civil rights or the women's right to vote, I mean, it
has not always moved me as that is so significant, when you
talk about individual rights.
And your third one was the FLRA is a bad agency. I think we
could fix that. You know, if something does not work, we can
always fix it, is how I went about things in the military. You
just did not ignore it.
And the last one was public safety officials. Well, the
next step would be teachers, you said. But doesn't this focus
us on public safety officials?
Do I have your argument wrong?
Mr. Reichenberg. First, let me again reiterate that the
organizations that I am testifying on behalf of today do
support collective bargaining rights. So we are not here to say
that we are opposed to collective bargaining.
However, our primary concerns with this legislation focus
around whether this is something that Congress should mandate,
or is it something that is best decided by state and local
governments? Where state and local governments decide that, we
are fully supportive of those efforts. We have a long history
of doing that. We have focused a large amount of attention
during my tenure on the whole issue of labor-management
cooperation. We are strong supporters of labor-management
cooperation.
However, we do not necessarily believe that the Congress
and the FLRA should determine whether state and local
governments enter into collective bargaining agreements, and in
terms of whether the other public employee unions would be
coming to Congress and saying, ``Me too,'' I would be very
surprised, if not shocked, if this law is passed, if, in the
next session of Congress, there isn't a bill introduced
mandating collective bargaining for teachers and other
occupations, and, again, if state and local governments want to
mandate, that is where we believe this issue should rightfully
be decided.
Mr. Sestak. But in the past, would you agree that there
have been certain times in our nation where the federal
government potentially held up a national mirror and said, ``We
are better than this in ensuring equal rights in areas such as
civil rights or women's right to vote.'' Could this not be the
same? I mean, I understand, but is it really a black and white
issue on every one? It has proven better in the past to have
done it, or am I wrong?
Mr. Reichenberg. Well, I think that there is a distinction
between laws like the Americans with Disabilities Act and Title
VII, which is providing protection to individuals that have
historically been discriminated against. I think there is a
clear distinction in that and the situation with public safety.
I believe that public safety employees, if you look at
compensation, if you look at benefits, if you look at pensions,
they are certainly more generous than they are in the private
sector, and they tend within state and local governments to be
more generous, and that is fine. Those are decisions made
locally. We are fully supportive of Title VII of ADA, of FLMA.
We are one of the few management organizations to actually
endorse the Federal Family and Medical Leave Act.
So, yes, but that is providing a floor for rights, and we
fully support those. This, in terms of collective bargaining, I
do not think you have employees who have been traditionally
discriminated against here in terms of public safety employees.
Mr. Sestak. Mr. Chairman, may I make one final 30-second
closing comment?
Chairman Andrews. Sure.
Mr. Sestak. I was struck by your comment ``historically
discriminated against,'' is how the federal government has
intervened. I cannot ask another question, but I believe it
would be right to say that those who could not collectively
bargain for however long historically, that we are
discriminating against them historically also. I am sorry I
cannot ask more, but I would place that in the same category.
Thank you, Mr. Chairman.
Chairman Andrews. The gentleman's time has expired.
The chair recognizes the gentlelady from New York, who has
had considerable experience with local labor issues as a member
of the city council in the city of New York. The gentlelady is
recognized for 5 minutes.
Ms. Clarke. Thank you so much, Mr. Chair.
I thank each of you for your testimony here today, and I
want to just start by stating that I believe that strengthening
state and local efforts for collective bargaining for our
front-line first responders post-9/11 is an imperative.
September 11 has redefined and expands the role of the public
safety employee in a way in which none of us could ever have
envisioned before.
Just this past weekend, Mr. Chairman, the FBI, the NYPD,
the Port Authority Police Department and other law enforcement
agencies joined forces to stop a planned terrorism attack on
JFK International Airport. The plan called for the explosion of
jet fuel reserves at JFK. The jet fuel is delivered to JFK by a
series of pipelines which traverses my home district of
Brooklyn, New York. By exposing this plot, law enforcement
agencies saved countless lives.
These dedicated, hardworking men and women deserve the
right to discuss workplace and safety issues with their
employer. In fact, statistics show that when first responders
can discuss workplace issues with their employers, the results
are improved public safety.
For example, firefighters that do not have the right to
discuss workplace safety are often twice as likely to die in
the line of duty. Civilian fire deaths are 21 percent lower in
the states where firefighters and their employers have a
mechanism to address fire safety issues. Nine of the top 10
states with the highest civilian fire death rates were non-
collective bargaining states.
The federal government already grants the right to
collective bargaining to most employees. I support extending
this right to courageous first responders who are the public's
first line of defense.
Having said that, I would like to ask my first question of
Kevin O'Connor, and I would like to ask how are your membership
suggestions currently being addressed without collective
bargaining rights, and are the employers seeking your
suggestions or input into workplace safety issues?
Mr. O'Connor. Well, obviously, in collective bargaining
states, it is governed by the process that has been described
here by all the panelists. So I am going to limit my comments
to places where there are non-collective bargaining states.
I cannot sit here and tell you that in every one of those
states, there is no cooperation between employers and
employees. That would be a fallacy. But, unfortunately, without
a structured process, it is a very haphazard process. Some
places, input is solicited, but it is solicited when management
actually wants to sit down and discuss an issue. If there is an
issue that they think is a little bit thorny, by and large,
there will not be a cooperative dialogue on it.
There are best case examples. Representative Kildee
referenced Fairfax County and his personal knowledge there.
Currently, there is a wonderful cooperative policy between the
fire chief and the local union, but, in order for them to
really discuss anything with the board of supervisors, they
have to go through a very roundabout process, and it is our
contention that it would be much more uniform, much more
productive and much more efficient without imposing any type of
financial burden on the local jurisdiction by having a
structured process.
That is why the words I chose in my oral statement, I chose
them very carefully. This bill mandates a process, not an
outcome.
Ms. Clarke. This question is for Kevin O'Connor and Paul
Nunziato. Based on your testimonies, it appears that an
organization's morale is affected by their collective
bargaining status.
Can you both elaborate on how morale impacts both
organizations that have collective bargaining as well as those
that do not have collective bargaining privileges?
Mr. Nunziato. Well, I can only speak for my association and
my police department. We do have collective bargaining. I sit
on the equipment meeting with the Port Authority. We discuss
all issues of safety and equipment. I cannot imagine not having
a collective bargaining agreement to protect our members and
myself.
I do not know how the other states--the morale there--I
cannot imagine how low it would be without a union behind it to
protect your rights and your equipment and safety issues.
Mr. O'Connor. I can give an anecdote from the National
Capital Region. Here, firefighters and law enforcement officers
in the District of Columbia enjoy collective bargaining rights.
They also enjoy that in Maryland.
Responses, like the Pentagon during 9/11, brought
responders from all three jurisdictions. When the Virginia
firefighters go back to their respective jurisdictions, Fairfax
being a notable example to the contrary--firefighters in
Arlington really did not have an opportunity to sit down and
kind of decompress and do a critique of operations in that kind
of a structured process, and, in fact, we actually got
commentary from some of our leadership and rank-and-file
members when they talked to their colleagues in places that do
have collective bargaining.
It is particularly a troublesome issue where there is a
contiguous nature of jurisdictions, some of which enjoy
bargaining, some of which do not.
Chairman Andrews. The gentlelady's time has expired. Thank
you very much.
I would recognize for his closing comments the ranking
member, my friend from Minnesota.
Mr. Kline. Thank you, Mr. Chairman.
I want to thank the panel members for coming. As we
expected, quite an expert panel. It was great to hear from all
of you.
It probably would have been even more fun if we could have
heard real-world stories from the field from Officer Nunziato
and Mr. O'Connor or perhaps some more tax-cutting stories from
the mayor. Those are always well-received over here.
But I just want to thank you all for coming. It was a
really fine hearing.
And thank you, Mr. Chairman. I yield back.
Chairman Andrews. I thank you.
I would like to join with my friend in thanking the
witnesses for extraordinarily fine testimony, very thoughtful.
You have educated the members of the committee and, I think,
done a very, very good job.
We appreciate each of you taking time away from what I know
is a very, very busy set of obligations in your careers.
Mayor, you came all the way here from Indiana. We are very,
very happy to have you with us.
Officer Nunziato, I did want to mention that we in the New
York-New Jersey area are profoundly grateful for the work that
the Port Authority Police did in this weekend's events at JFK
Airport. We know that you played a central role, along with the
FBI and others, in what appears to be an excellent achievement
in law enforcement. We are very grateful for that.
The way the committee will proceed is that we will take the
testimony, we will review it. I am certain that we will have an
attempt to debate probably at the full committee level the pros
and cons of the issues that we have heard today.
I think you frame the issue this way: The general rule in
American labor law is people have the right to organize and
bargain collectively and have a remedy if there is not
bargaining in good faith. There is an exception, which exists
in the case of some public safety personnel. The issue is
whether that exception should continue to exist, whether there
is a policy or legal basis for that exception. You have given
us, I think, ample food for thought as we debate that question.
I, again, thank the author of the bill, Mr. Kildee, for his
persistence over the years in dealing with this.
As per the announcement at the beginning of the hearing,
members will have 14 days to submit additional materials for
the hearing record. And if there are any follow-up questions,
they should be submitted within 7 days.
We, again, thank the witnesses for your participation.
And we stand adjourned.
[Additional materials submitted on behalf of Mr. Andrews
follow:]
STATE RECOGNITION OF PUBLIC SAFETY OFFICERS' COLLECTIVE BARGAINING RIGHTS
--------------------------------------------------------------------------------------------------------------------------------------------------------
Employer must Agreement Interest
recognize union Right to bargain reduced to Union chosen by impasse Enforced or All required
State as exclusive collectively written majority mechanism reviewed thru employees
bargaining rep contract required state courts covered
--------------------------------------------------------------------------------------------------------------------------------------------------------
Alabama........................ N N N N N N N
(right to form/
join applies
only to fire
fighters)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Alaska......................... Y Y Y Y Y ............... Y
(binding
arbitration on
request of
either party)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Arizona........................ N Y N N N N N
(meet and (some selected (state
confer) political employees
subdivisions excluded)
may have the
authority to
enter into
agreements,
but not all)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Arkansas....................... N N N N N N N
--------------------------------------------------------------------------------------------------------------------------------------------------------
California..................... Y Y Y Y No (mediation Y Y
(non-binding only by
agreement may agreement of
be submitted both parties;
to governing allows local
body for ordinances on
determination) interest
arbitration)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Colorado....................... N N N N N N N
--------------------------------------------------------------------------------------------------------------------------------------------------------
Connecticut.................... Y Y Y Y Y ............... Y
(individual (binding
cotnractual arbitration)
grievances must
be permitted)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Delaware....................... Y Y Y Y Y Y N
(individual (police and
right to fire fighters
present only; State
complaints for and political
adjustment) subdivisions
are covered,
but no EMS)
--------------------------------------------------------------------------------------------------------------------------------------------------------
D.C............................ Y Y Y Y Y Y Y
--------------------------------------------------------------------------------------------------------------------------------------------------------
Florida........................ Y Y Y Y Yes (issues at Y Y
(individual impasse are
cotnractual submitted to
grievances must the employer's
be permitted) legislative
body for
binding
resolution
--------------------------------------------------------------------------------------------------------------------------------------------------------
Georgia........................ Y Y Y Y N N N
(may include (only (fire fighters
duty to reduce enforceable employed by
to writing) through certain large
mediation) municipalities
only; statute
is at option
of
municipality)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Hawaii......................... Y Y Y Y Y PPCs expressly Y
reviewable; (State and
bargaining Counties;
unit Hawaii has no
determinations cities)
appear to be
subject to
state policy
favoring
judicial
review of
administrative
decisions
--------------------------------------------------------------------------------------------------------------------------------------------------------
Idaho.......................... Y Y Y Y Y Y N
(no state (statute on
agency, via right to form/
declaratory join covers
judgment) all employees,
but collective
bargaining
laws are for
fire fighters
employed by
political
subdivisions
only--no State
employees, no
police or EMS)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Illinois....................... Y Y Y Y Y Y Y
(for EMT-only units) (either party (contract); (collectively)
may request admin
mediation; by decisions
consent, fact unknown
finding)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Illinois....................... Y Y Y Y Y Y Y
(for Police, Fire, and PM (mediation is (contract); (collectively)
units) mandated; admin
either party decisions
may request unknown
arbitration)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Indiana........................ N N N N N N N
--------------------------------------------------------------------------------------------------------------------------------------------------------
Iowa........................... Y Y Y Y Y Y Y
--------------------------------------------------------------------------------------------------------------------------------------------------------
Kansas......................... Y Y Y Y Y Y Y
(admin
decisions;
contract must
be implemented
by governing
body in the
form of law,
resolution,
ordinance or
executive
order)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Kentucky....................... N N N N N N N
--------------------------------------------------------------------------------------------------------------------------------------------------------
Louisiana...................... N N N N N N N
--------------------------------------------------------------------------------------------------------------------------------------------------------
Maine.......................... Y Y Y Y Y Y Y
--------------------------------------------------------------------------------------------------------------------------------------------------------
Maryland....................... N N N N N Y n/a
--------------------------------------------------------------------------------------------------------------------------------------------------------
Massachusetts.................. Y Y Y Y Y Y N
(cannot bargain (admin (employees of
over decisions; militia or
contributions arbitration is national guard
to certain enforceable excluded)
retirement via agency)
benefits)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Michigan....................... Y Y Y Y Y Y Y
--------------------------------------------------------------------------------------------------------------------------------------------------------
Minnesota...................... Y Y Y Y Y Y Y
(mandatory for
FFs and
Police; via
petition to
state agency
for non-
essential
employees)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Mississippi.................... N N N N N N N
--------------------------------------------------------------------------------------------------------------------------------------------------------
Missouri....................... Y Y Y Y N Y N
(implied) (meet and (police,
confer) national guard
excluded)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Montana........................ Y Y Y Y Y Y Y
--------------------------------------------------------------------------------------------------------------------------------------------------------
Nebraska....................... Y Y Y Y Y ............... N
(National Guard
and militia
excluded)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Nevada......................... Y Y Y Y Y Y N
(different (admin (state
mechanism for decisions; employees
EMS-only contract excluded)
employees) unknown)
--------------------------------------------------------------------------------------------------------------------------------------------------------
New Hampshire.................. Y Y Y Y Y Y Y
(admin
decisions;
contract
unknown)
--------------------------------------------------------------------------------------------------------------------------------------------------------
New Jersey..................... Y Y Y Y Y Y Y
(different
mechanism for
EMS-only
employees)
--------------------------------------------------------------------------------------------------------------------------------------------------------
New Mexico..................... Y Y Y Y Y Y Y
--------------------------------------------------------------------------------------------------------------------------------------------------------
New York....................... Y Y Y Y Y Y Y
(except (see NY PERB
retirement Rules, 4 NYCRR
contributions) 201.1 et seq.
--------------------------------------------------------------------------------------------------------------------------------------------------------
North Carolina................. N N N N N N n/a
--------------------------------------------------------------------------------------------------------------------------------------------------------
North Dakota................... N N N N N Y Y
(right to
membership
only)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Ohio........................... Y Y Y Y Y Y N
(limited to the (population of
termination or at least 5,000
modification required)
of an existing
collective
bargaining
agreement or
negotiation of
a successor
agreement, or
the
negotiation of
an initial
collective
bargaining
agreement)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Oklahoma....................... Y Y Y Y Y Y N
(admin (EMS-only
decisions; departments,
contract and State
unknown) employees,
excluded)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Oregon......................... Y Y Y Y Y ............... Y
(State, cities,
counties,
service
districts, and
municipal
corporations)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Pennsylvania................... Y Y Y Y Y Y Y
--------------------------------------------------------------------------------------------------------------------------------------------------------
Rhode Island................... Y Y Y Y Y Y Y
(arbitration
awards for
city or town
fire or police
may only be
reviewed by
writ of
certiorari to
State Supreme
[highest]
Court)
--------------------------------------------------------------------------------------------------------------------------------------------------------
South Carolina................. N N N N N N n/a
--------------------------------------------------------------------------------------------------------------------------------------------------------
South Dakota................... Y Y Y Y Y Y Y
(governing body (if approved by
shall governing
implement [a body)
bargaining]
settlement in
the form of an
agreement
which shall be
effective only
upon approval
by resolution
of the
governing
body.)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Tennessee...................... N N N N N N N
--------------------------------------------------------------------------------------------------------------------------------------------------------
Texas.......................... Y Y Y Y Y Y N
(conditional on (conditional on (conditional on (conditional on (conditional on (conditional on (collective
adoption) adoption) adoption) adoption) adoption) adoption) bargaining is
prohibited for
State
employees; EMS-
only
departments in
local
governments
excluded;
statutory
protections do
not apply
without
successful
referendum)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Utah........................... Y Y N Y Y Y N
(but implied (via (collective
from text of declaratory bargaining
statute) enforcement only for
only) municipal fire
fighters;
other
employees have
right to form
union)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Vermont........................ Y Y Y Y Y Y Y
--------------------------------------------------------------------------------------------------------------------------------------------------------
Virginia....................... N N N N N N N
--------------------------------------------------------------------------------------------------------------------------------------------------------
Washington..................... Y Y Y Y Y Y Y
--------------------------------------------------------------------------------------------------------------------------------------------------------
West Virginia.................. N N N N N N N
--------------------------------------------------------------------------------------------------------------------------------------------------------
Wisconsin...................... Y Y Y Y Y Y Y
--------------------------------------------------------------------------------------------------------------------------------------------------------
Wyoming........................ Y Y Y Y Y Y N
(via (some political
declaratory subdivisions
enforcement may be
only) excluded from
coverage; no
police or EMS;
no state
employees)
--------------------------------------------------------------------------------------------------------------------------------------------------------
*The Pennsylvania Supreme Court, attempting to resolve dissonant elements of three separate labor relations statutes, concluded that ``by imposing that
[collective bargaining] duty in Act No. 111, the Legislature intended that the exclusion of public employers from the definition of `employer' in the
PLRA be pro tanto repealed.'' (Philadelphia Fire Officers Asso. v. Pennsylvania Labor Relations Bd., 369 A.2d 259, 261-262 (Pa. 1977). Thus, police
and fire fighters covered by Act 111 are protected in their right to organize under the 1937 Pennsylvania Labor Relations Act. In addition, EMS-only
departments, which are not covered by Act 111, are protected under 43 P.S. Sec. 1101.401.
[U.S. Department of Labor news release, dated May 28, 1996]
Report Finds Labor Management Cooperation Critical
To State and Local Government Success
A study of 50 public workplaces found that labor-management
cooperation and employee participation in the public sector leads to
dramatic improvements in quality, costs and delivery of service, the
U.S. Department of Labor announced today.
The report, entitled ``Working Together for Public Service,''
details specific service improvements and cost savings that result from
cooperation and participation, as well as methods that can be used to
bring workplace cooperation to many government services and
jurisdictions.
The report was issued by the Task Force on Excellence in State and
Local Government Through Labor-Management Cooperation. It was comprised
of 14 elected officials, labor leaders and academics and was appointed
by Labor Secretary Robert B. Reich and co-chaired by former Governor
Jim Florio of New Jersey and Mayor Jerry Abramson of Louisville,
Kentucky. The task force was unanimous in the view that public
workplaces must change from traditional ways of doing business and move
towards workplace cooperation, participation and quality improvement.
Further, the task force believes that the public sector offers
significant opportunity-far more than is commonly believed--for
employee participation and labormanagement cooperation.
``It is evident from these findings that employee involvement and
labor-management cooperation represent a high-potential strategy for
meeting the demands on state and local government. I join the task
force in challenging elected officials, union leaders, public employees
and administrators to move towards models of workplace paroidpation and
cooperation. Some of the most dramatic turnarounds in business
performance come from labor-management cooperation and employee
participation. We should apply the same lessons to the public sector,''
said Reich.
Mayor Abramson agreed, stating that by ``working together, we can
cut red tape that contributes to the public's low opinion of government
today. Citizens are our customers, and they deserve the best service we
can provide. This report will help those of us in the public sector
improve our image by improving our performance in servicing our
customers.''
Noting that many traditional ways of planning and performing public
services are antiquated and not responsive to the needs of communities,
Governor Florio commented that, ``cumbersome procurement, accounting
and civil service rules, authoritarian organizational relationships and
labor management confrontation are often part of the landscape, but
surely won't serve our communities well anymore. These findings suggest
how to break old molds and use some approaches that can actually
produce better service.''
Also among the report findings: Absenteeism, time loss injuries,
and overtime were often reduced significantly. Work schedules and
procedures were changed to save time and money and to provide better
service. School performance improved, public safety services increased,
and vehicle readiness and equipment purchasing were improved to save
overtime and other costs and improve the quality of service.
In every case where there was a collective bargaining relationship
related to a service-focused partnership, the task force found that
there were fewer grievances and contracts were negotiated more quickly.
Usually, contracts were shorter, more flexible and focused on service
responsibilities.
``Employees usually know the most about how to get a job done. If
you create a way for them to be involved, don't rely on top-down
approaches, and then combine their talents with the priorities of
elected officials, you can find resources you did not know you had and
solve problems that have been in the way for years,'' Reich said.
The report includes examples and detailed discussion of ingredients
to creating cooperative workplace arrangements. The appendix lists
contacts so that parties interested in pursuing their own improvements
can get peer assistance. The report is available on three Internet
sites: the U.S. Departrnent of Labor web site, the Martin P. Catherwood
Library at the School of Industrial and Labor Relations at Cornell
University, and through the Alliance for Reinventing Government's
Public Innovator Learning Network.
Some Typical Examples
The State of Connecticut and District 1l99/New England
Health Care Employees (SEIU) set up employee teams to look into safety
problems, reducing injuries and saving nearly S5 million after
implementation in only half the department.
In Peoria, Illinois, a coalition of unions and management
worked on a joint committee that stopped the bickering and competition
over health coverage, developed a plan with better benefits and
utilization management, and saved $1.2 million--or almost 20 percent--
of expected costs.
As part of a quality improvement/labor-management
partnership, Madison, Wisconsin and AFSCME Local 60 developed a new
approach to electrical code enforcement that has improved safety and
overall compliance and has electrical contractors complimenting the
department. The senior inspector, once known as ``Dr. No'' is now a
well-respected and more satisfied public employee. As a result of a
training program developed after consultation with electrical
contractors, inspection activity costs S30,000 a year less.
At the Foshay School in South Central Los Angeles, drop-
outs have gone from 21 percent to 3.5 percent, test scores from the
bottom to near the state average. Suspensions have gone from 400 cases
to 40, all through a labor-management partnership formed by a new
principal and the local head of the United Teachers or Los Angeles. The
City of Indianapolis, working with AFSCME Local 3131, as part of a
citywide service improvement effort, made substantial improvements in
the city's motor vehicle repairs, showing nearly a 25 percent decline
in that department's budget and a 90 percent decline in grievances.
Rather than annual wage adjustments, the parries agreed during the
current contract to a gain-sharing program, where 25 percent of the
savings accrued to the employees. Although no bargaining unit employee
has lost a job, the city contracts out some services, under ground
rules developed with the input of union representatives. Among other
things, improvements in cost accounting helped labor and management
identify barriers to service improvement.
In the State of Ohio, probably the most comprehensive
effort found at the state level, a state-wide effort in cooperation
with the Ohio Civil Service Employees Association is saving hundreds of
thousands of dollars annually and engaging labor and management
leadership in learning the best quality improvement techniques and
applying them to state government.
In Phoenix, Arizona, the management team and representatives of
Fire Fighters Local 493 gather each year in a planning retreat to
identify service and workplace issues needing attention. Arbitration
has not been used there for 10 years.
The Los Angeles Bureau of Sanitation and SEIU Local 47
have, among other innovations through a joint problem-solving
committee, increased vehicle readiness from 75 percent to 94 percent,
obtaining a large increase in productivity. The overall labor-
management relationship has shifted to a far more positive tone and the
next three years looks for a 25 percent budget reduction with no
layoffs in the department.
In Portland, Maine, the city and AFSCME Local 481 worked
together through a cold winter to use new approaches and skills to
build a community minor league ballpark, millions of dollars below the
projected contract cost. Grievances were resolved by a ``a walk to
center field.'' The pride and lessons from this high-pressure project
has resulted in a complete revamping of the labor-management
relationship and a reorientation of almost all public works services
into self-managed teams. City workers more often than not beat the
estimated private-sector cost of most small construction and repair
projects.
Some Additional Interesting Findings
In conjunction with a participative program and a labor-
management partnership, a ``no-layoff,'' or, at least, a significant
employment safety net and retraining program, contributed greatly to
creativity in finding cost savings and service improvements.
Simple forms of training were found to greatly contribute
to the improvement of a labor-management relationship by teaching the
parties alternatives to traditional bargaining. Investments in
training, normally the first budget item cut in hard times, turned out
to be important also in teaching workers and managers skills in
analyzing and changing service delivery systems and solving other kinds
of workplace issues.
Often, a service-oriented relationship began after a
successful attempt to reduce grievances or conflicts over contract
terms, or after working together to resolve a specific service problem.
The improved trust and better problem-solving skills then were applied
to larger service issues. Most successful service partnerships started
small, on one issue, or in one department or division, and then spread.
In a brief examination of contracting out, the task force found
that cooperative models of workplace cooperation generally got as good
or better results than a policy of imposed contracting out, and offered
other long term benefits. Contracting out as part of a cooperative
relationship was often a useful tool, but not the primary answer to
cost and quality of services.
Supervisory and managerial levels were often reduced as a result of
participative examination of services for improvements and
efficiencies, and there was a far greater use of teams and labor-
management committees.
Jurisdictions involved in workplace partnerships where there was a
collective bargaining relationship used the features and mechanisms of
a collective bargaining relationship to the advantage of service
improvement.
Changes and improvements in budgeting, cost accounting, procurement
practices and in civil service systems often accompanied successful
cooperative partnerships and greatly aided efforts to improve services.
Employee involvement contributed centrally to identifying the most
important changes and to developing alternatives.
Support and encouragement from national labor, management, neutral
and research organizations have and can help spread the use of
effective workplace participation and labor-management cooperation
aimed at improved service delivery.
Successful cooperative relationships emerged not only from
visionary leadership, but often from bitter or difficult relationships
or came up around problems that had previously seemed insurmountable.
______
[Materials submitted on behalf of Mr. Kline follow:]
Fraternal Order of Police,
International Association of Fire Fighters,
April 18, 2007.
Hon. George Miller, Chairman,
Hon. Buck McKeon, Ranking Member,
Committee on Education and Labor, U.S. House of Representatives,
Washington, DC.
Dear Chairman Miller and Ranking Member McKeon: On behalf of over
600,000 public safety officers across our Nation, we are writing to
respectfully request that you approve the Kildee Substitute, and oppose
any further amendments to H.R. 980, the Public Safety Employer-Employee
Cooperation Act, when it is considered before the Committee on
Education and Labor.
The Kildee substitute is the result of bipartisan cooperation, and
follows more than a decade of refinements and improvements to the
Cooperation Act. We believe it strikes the proper balance between
providing important protections to thousands of public safety officers,
while respecting the rights of states to determine labor law for public
employees. We fear further amendments would jeopardize the careful
compromise that has garnered strong, bipartisan support.
Thank you for all your efforts on behalf of the nation's public
safety officers. We look forward to working with you on this and other
important issues throughout the 110th Congress.
Sincerely,
Chuck Canterbury,
National President, Fraternal Order of Police.
Harold A. Schaitberger,
General President, International Association of Fire Fighters.
______
International Association of Chiefs of Police,
Alexandria, VA, April 18, 2007.
Hon. Bob Etheridge,
U.S. House of Representatives, Washington, DC.
Dear Representative Etheridge: On behalf of the International
Association of Chiefs of Police (IACP), I am writing you to express our
strong opposition of the Public Safety Employer-Employee Cooperation
Act of 2007 (H.R. 980). IACP is the world's oldest and largest
association of law enforcement executives, with more than 22,000
members in 100 countries.
Safe streets and safe neighborhoods require well-trained and well-
managed police departments that are responsive and accountable to the
communities they serve. The IACP believes that the provisions of H.R.
980 would effectively federalize state and local government labor-
management relations and as a result, would make these goals harder to
achieve.
H.R. 980 seeks to deprive state and local governments of the
necessary flexibility to manage their public safety operations in a
manner that they choose. By mandating a ``one-size fits all'' approach
to labor-management relations, H.R. 980 ignores the fact that every
jurisdiction has unique needs and therefore requires the freedom to
manage its public safety workforce in the manner that they have
determined to be the most effective.
The IACP believes that H.R. 980 would only harm the efficiency of
state and local public safety agencies by forcing them to divert their
precious resources from their primary mission of protecting the public
and instead use them for collective bargaining administration.
Should you have any questions or require additional information,
please do not hesitate to contact our Legislative Affairs Office. The
IACP stands ready to assist you in any way possible.
Sincerely,
Joseph C. Carter,
President.
______
June 5, 2007.
Hon. Robert Andrews, Chairman,
Health, Employment, Labor and Pensions Subcommittee, Committee on
Education and Labor, U.S. House of Representatives, Rayburn
House Office Building, Washington, DC.
Dear Chairman Andrews: On behalf of the National Association of
Counties, I write to express concern with H.R. 980, the Public Safety
Employer-Employee Cooperation Act of 2007, and request that it be
modified so as not to mandate collective bargaining rights for public
safety employees.
NACo believes that each state legislature should decide this issue
based upon local conditions and circumstances and thus opposes a
federal mandate. Currently, 34 states have enacted public sector
collective bargaining laws covering both police officers and
firefighters. There is no need for a federal mandate which could
undermine state and local authority in employment practices and
decisions.
NACo respectfully urges modification of this legislation, so as not
to hinder public sector employer-employee relations at the state and
local level.
Larry E. Naake,
Executive Director.
______
Hon. John P. Kline, Senior Republican Member,
Health, Employment, Labor and Pensions Subcommittee, Committee on
Education and Labor, U.S. House of Representatives, Rayburn
House Office Building, Washington, DC.
Dear Representative Kline: Thank you for your June 7, 2007 letter
informing me of the status of H.R. 980, the ``Public Safety Employer-
Employee Cooperation Act of 2007.'' However, the National Conference of
State Legislatures does not have policy on this matter and cannot at
this time submit an official position or commentary.
NCSL appreciates your efforts on this issue and would like for you
to continue to keep us informed on this and other issues that have an
impact on state laws and policies. Please do not hesitate to contact me
in NCSL's Washington, D.C. office for further updates on H.R. 980 or to
discuss any other issues before the Committee.
Sincerely,
Senator Leticia Van de Putte,
Texas Senate; President, National Conference of State Legislatures.
______
National League of Cities,
Washington, DC, June 19, 2007.
Hon. Dale Kildee, Vice Chairman,
Committee on Education and Labor, U.S. House of Representatives
Washington, DC.
Dear Rep. Kildee: On behalf of the 19,000 cities and towns
represented by the National League of Cities (NLC), I write to express
our strong opposition to H.R. 980, the Public Safety Employer-Employee
Cooperation Act of 2007.
It has long been the position of the NLC that the federal
government should not undermine municipal autonomy with respect to
making fundamental employment decisions by mandating specific working
conditions, including collective bargaining.
Currently, 33 states have granted their state and local government
employees the right to enter into collective bargaining arrangements.
Your legislation would mandate collective bargaining rights for all
police, fire and emergency medical workers without regard to state laws
or constitutions and establish a precedent for federal interference in
all employee-employer relationships in municipal government.
I urge you to modify this legislation, so that it respects the
long-standing principal of non-interference in employer-employee
relations that has existed among the federal, state and local
governments.
If you have any questions about NLC's position with respect to H.R.
980, please contact us.
Donald J. Borut,
Executive Director.
______
National League of Cities,
Washington, DC, June 19, 2007.
Hon. George Miller, Chairman,
Hon. Howard McKeon, Ranking Minority Member,
Committee on Education and Labor, U.S. House of Representatives
Washington, DC.
Dear Chairman Miller and Ranking Minority Member McKeon: On behalf
of the 19,000 cities and towns represented by the National League of
Cities (NLC), I write to express our strong opposition to H.R. 980, the
Public Safety Employer-Employee Cooperation Act.
It has long been the position of the NLC that the federal
government should not undermine municipal autonomy with respect to
making fundamental employment decisions by mandating specific working
conditions, including collective bargaining. In light of the labor
protections provided by state laws, labor agreements, city government
civil service systems and municipal personnel procedures, NLC opposes
federal legislation which singles out a class of municipal employees
for additional protections like those proposed in H.R. 980.
Currently, more than 35 states have granted their state and local
government employees the right to enter into collective bargaining
arrangements. These states have done so within the framework of their
constitutions and state laws. Your legislation would mandate collective
bargaining rights for all police, fire and emergency medical workers
without regard to state laws or constitutions and establish a precedent
for federal interference in all employee-employer relationships in
municipal government.
I urge you to modify this legislation, so that it respects the
long-standing principal of non-interference in employer-employee
relations that has existed among the federal, state and local
governments.
If you have any questions about NLC's position with respect to H.R.
980, please contact us.
Donald J. Borut,
Executive Director.
______
[Whereupon, at 4:34 p.m., the subcommittee was adjourned.]