[Congressional Record Volume 156, Number 50 (Monday, April 12, 2010)]
[Senate]
[Pages S2209-S2212]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




          STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS

      By Mr. SPECTER:
  S. 3192. A bill to amend title 38, United States Code, to provide for 
the tolling of the timing of review for appeals of final decisions of 
the Board of Veterans' Appeals, and for other purposes; to the 
Committee on Veterans' Affairs.
  Mr. SPECTER. Mr. President, I have sought recognition to urge passage 
of the bill I have just introduced, the Fair Access to Veterans 
Benefits Act of 2010. Its main provision would require the United 
States Court of Appeals for Veterans Claims, known as the Veterans 
Court, to hear appeals by veterans of administrative decisions denying 
them benefits when circumstances beyond their control--sometimes the 
very service-related disabilities that entitle them to benefits--render 
them unable to meet the deadline for filing an appeal. Let me briefly 
explain why this legislation is so urgently needed.
  Until 1988, veterans denied benefits by the administrative Board of 
Veterans' Appeals had no right to appeal their cases to any court. 
Congress responded that year with legislation establishing the Veterans 
Court. The legislation's purpose was to ``ensure that all veterans are 
served with compassion, fairness, and efficiency and that each 
individual veteran receives . . . every benefit and service to which he 
or she is entitled under law'', S. Rep. 100-418, 110th Cong., 2d Sess. 
30-31. Proceedings of the Veterans Court were to be ``informal, 
efficient, and fair'' rather than ``formalized'', H.R. Rep. No. 100-
963, 110th Cong., 2d Sess. 26, 1988. This was important because most 
veterans handle their own appeals without a lawyer.
  Veterans Court has, by and large, served its intended function well. 
It regularly corrects many erroneous denials of benefits. The court's 
last-published annual report notes that, in 2008, veterans prevailed in 
about eighty percent of the appeals.
  A recent court decision, however, will close the Veterans Court to 
too many deserving veterans. I refer to last year's decision of the 
United States Court of Appeals for the Federal Circuit, which hears 
appeals from Veterans Court, in Henderson v. Shinseki, 589 F.3d 1201. 
Mr. Henderson suffered from paranoid schizophrenia as a result of his 
active-duty service in the Korean War. His appeal of an administrative 
denial of benefits to the Veterans Court was filed just 15 days late. 
He asked the Veterans Court to excuse his late filing--in legal 
parlance, to ``equitably toll'' the filing period--because it was 
caused by his service-related disability. The Veterans Court refused to 
do so, and a divided Federal Circuit affirmed its decision. Like the 
Veterans Court, the Federal Circuit held that

[[Page S2210]]

this unjust result was compelled by a controversial 2007 decision of 
the Supreme Court, Bowles v. Russell, 551 U.S. 205, which held that the 
deadline for filing a notice of appeal from a district court's order is 
``jurisdictional'' and hence not waivable. Three judges dissented in 
Henderson on the ground that Bowles was distinguishable.
  Whether or not correctly decided in the wake of Bowles, Henderson 
cannot stand. It creates, in the words of the three dissenting judges, 
a ``Kafkaesqe adjudicatory process in which those veterans who are most 
deserving of service-connected benefits will frequently be those least 
likely to obtain benefits. It is the veteran who incurs the most 
devastating service-related injury who will often be least able to 
comply with rigidly enforced deadlines.'' Even two of the judges in the 
majority felt constrained to note, in a concurring opinion, ``that the 
deadline of the existing statute can and does lead to unfairness. This 
is particularly so in many cases where the veteran is not represented 
by counsel . . . and/or is suffering from a mental disability. These 
circumstances can make it extremely difficult for a veteran to navigate 
the system and meet the statutory deadlines.'' Mr. Henderson's 
situation is not unique. Already a disturbing number of veterans just 
like him have been denied their day in court.
  The two concurring judges in Henderson called upon Congress to 
``amend the statute to provide for a good cause exception. My bill 
would do just that. It would require the Veterans Court to excuse late 
filings upon a showing by the veteran of ``good cause.'' This simple 
amendment will ensure that each year upwards of a hundred of veterans 
will receive the benefits to which they are so justly entitled.
  My bill will also require the Veterans Court to reinstate untimely 
appeals already dismissed as a result of that court's failure to 
equitably toll the filing period. The veterans who filed those appeals 
should also have their day in court.
  There are no countervailing policy considerations. As the dissenting 
judges in Henderson persuasively noted, ``because it takes many years--
in some cases several decades--to obtain service-connected benefits, 
the government is hardly in a position to complain that equitable 
tolling will result in inordinate delays.''
  I urge my colleagues on both sides of the aisle, whatever their views 
on the issue addressed in Bowles, to support our veterans by passing my 
bill without delay.
                                 ______
                                 
      By Mr. REID:
  S. 3194. A bill to provide collective bargaining rights for public 
safety officers employed by States or their political subdivisions; 
read the first time.
  Mr. REID. Mr. President, I ask unanimous consent that the text of the 
bill be printed in the Record.
  There being no objection, the text of the bill was ordered to be 
printed in the Record, as follows:

                                S. 3194

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Public Safety Employer-
     Employee Cooperation Act of 2009''.

     SEC. 2. DECLARATION OF PURPOSE AND POLICY.

       The Congress declares that the following is the policy of 
     the United States:
       (1) Labor-management relationships and partnerships are 
     based on trust, mutual respect, open communication, bilateral 
     consensual problem solving, and shared accountability. Labor-
     management cooperation fully utilizes the strengths of both 
     parties to best serve the interests of the public, operating 
     as a team, to carry out the public safety mission in a 
     quality work environment. In many public safety agencies, it 
     is the union that provides the institutional stability as 
     elected leaders and appointees come and go.
       (2) State and local public safety officers play an 
     essential role in the efforts of the United States to detect, 
     prevent, and respond to terrorist attacks, and to respond to 
     natural disasters, hazardous materials, and other mass 
     casualty incidents. State and local public safety officers, 
     as first responders, are a component of our Nation's National 
     Incident Management System, developed by the Department of 
     Homeland Security to coordinate response to and recovery from 
     terrorism, major natural disasters, and other major 
     emergencies. Public safety employer-employee cooperation is 
     essential in meeting these needs and is, therefore, in the 
     National interest.
       (3) The Federal Government needs to encourage conciliation, 
     mediation, and voluntary arbitration to aid and encourage 
     employers and the representatives of their employees to reach 
     and maintain agreements concerning rates of pay, hours, and 
     working conditions, and to make all reasonable efforts 
     through negotiations to settle their differences by mutual 
     agreement reached through collective bargaining or by such 
     methods as may be provided for in any applicable agreement 
     for the settlement of disputes.
       (4) The absence of adequate cooperation between public 
     safety employers and employees has implications for the 
     security of employees and can affect interstate and 
     intrastate commerce. The lack of such labor-management 
     cooperation can detrimentally impact the upgrading of police 
     and fire services of local communities, the health and well-
     being of public safety officers, and the morale of the fire 
     and police departments. Additionally, these factors could 
     have significant commercial repercussions. Moreover, 
     providing minimal standards for collective bargaining 
     negotiations in the public safety sector can prevent 
     industrial strife between labor and management that 
     interferes with the normal flow of commerce.
       (5) Many States and localities already provide public 
     safety officers with collective bargaining rights comparable 
     to or greater than the rights and responsibilities set forth 
     in this Act, and such State and local laws should be 
     respected.

     SEC. 3. DEFINITIONS.

       In this Act:
       (1) Authority.--The term ``Authority'' means the Federal 
     Labor Relations Authority.
       (2) Confidential employee.--The term ``confidential 
     employee'' has the meaning given such term under applicable 
     State law on the date of enactment of this Act. If no such 
     State law is in effect, the term means an individual, 
     employed by a public safety employer, who--
       (A) is designated as confidential; and
       (B) is an individual who routinely assists, in a 
     confidential capacity, supervisory employees and management 
     employees.
       (3) Emergency medical services personnel.--The term 
     ``emergency medical services personnel'' means an individual 
     who provides out-of-hospital emergency medical care, 
     including an emergency medical technician, paramedic, or 
     first responder.
       (4) Employer; public safety agency.--The terms ``employer'' 
     and ``public safety agency'' mean any State, or political 
     subdivision of a State, that employs public safety officers.
       (5) Firefighter.--The term ``firefighter'' has the meaning 
     given the term ``employee engaged in fire protection 
     activities'' in section 3(y) of the Fair Labor Standards Act 
     of 1938 (29 U.S.C. 203(y)).
       (6) Labor organization.--The term ``labor organization'' 
     means an organization composed in whole or in part of 
     employees, in which employees participate, and which 
     represents such employees before public safety agencies 
     concerning grievances, conditions of employment, and related 
     matters.
       (7) Law enforcement officer.--The term ``law enforcement 
     officer'' has the meaning given such term in section 1204 of 
     the Omnibus Crime Control and Safe Streets Act of 1968 (42 
     U.S.C. 3796b).
       (8) Management employee.--The term ``management employee'' 
     has the meaning given such term under applicable State law in 
     effect on the date of enactment of this Act. If no such State 
     law is in effect, the term means an individual employed by a 
     public safety employer in a position that requires or 
     authorizes the individual to formulate, determine, or 
     influence the policies of the employer.
       (9) Person.--The term ``person'' means an individual or a 
     labor organization.
       (10) Public safety officer.--The term ``public safety 
     officer''--
       (A) means an employee of a public safety agency who is a 
     law enforcement officer, a firefighter, or an emergency 
     medical services personnel;
       (B) includes an individual who is temporarily transferred 
     to a supervisory or management position; and
       (C) does not include a permanent supervisory, management, 
     or confidential employee.
       (11) State.--The term ``State'' means each of the several 
     States of the United States, the District of Columbia, and 
     any territory or possession of the United States.
       (12) Substantially provides.--The term ``substantially 
     provides'', when used with respect to the rights and 
     responsibilities described in section 4(b), means compliance 
     with each right and responsibility described in such 
     section.
       (13) Supervisory employee.--The term ``supervisory 
     employee'' has the meaning given such term under applicable 
     State law in effect on the date of enactment of this Act. If 
     no such State law is in effect, the term means an individual, 
     employed by a public safety employer, who
       (A) has the authority in the interest of the employer to 
     hire, direct, assign, promote, reward, transfer, furlough, 
     lay off, recall, suspend, discipline, or remove public safety 
     officers, to adjust their grievances, or to effectively 
     recommend such action, if the exercise of the authority is 
     not merely routine or clerical in nature but requires the 
     consistent exercise of independent judgment; and
       (B) devotes a majority of time at work to exercising such 
     authority.

[[Page S2211]]

     SEC. 4. DETERMINATION OF RIGHTS AND RESPONSIBILITIES.

       (a) Determination.--
       (1) In general.--Not later than 180 days after the date of 
     enactment of this Act, the Authority shall make a 
     determination as to whether a State substantially provides 
     for the rights and responsibilities described in subsection 
     (b).
       (2) Consideration of additional opinions.--In making the 
     determination described in paragraph (1), the Authority shall 
     consider the opinions of affected employers and labor 
     organizations. In the case where the Authority is notified by 
     an affected employer and labor organization that both parties 
     agree that the law applicable to such employer and labor 
     organization substantially provides for the rights and 
     responsibilities described in subsection (b), the Authority 
     shall give such agreement weight to the maximum extent 
     practicable in making the Authority's determination under 
     this subsection.
       (3) Limited criteria.--In making the determination 
     described in paragraph (1), the Authority shall be limited to 
     the application of the criteria described in subsection (b) 
     and shall not require any additional criteria.
       (4) Subsequent determinations.--
       (A) In general.--A determination made pursuant to paragraph 
     (1) shall remain in effect unless and until the Authority 
     issues a subsequent determination, in accordance with the 
     procedures set forth in subparagraph (B).
       (B) Procedures for subsequent determinations.--Upon 
     establishing that a material change in State law or its 
     interpretation has occurred, an employer or a labor 
     organization may submit a written request for a subsequent 
     determination. If satisfied that a material change in State 
     law or its interpretation has occurred, the Authority shall 
     issue a subsequent determination not later than 30 days after 
     receipt of such request.
       (5) Judicial review.--Any person or employer aggrieved by a 
     determination of the Authority under this section may, during 
     the 60-day period beginning on the date on which the 
     determination was made, petition any United States Court of 
     Appeals in the circuit in which the person or employer 
     resides or transacts business or in the District of Columbia 
     circuit, for judicial review. In any judicial review of a 
     determination by the Authority, the procedures contained in 
     subsections (c) and (d) of section 7123 of title 5, United 
     States Code, shall be followed.
       (b) Rights and Responsibilities.--In making a determination 
     described in subsection (a), the Authority shall consider a 
     State's law to substantially provide the required rights and 
     responsibilities unless such law fails to provide rights 
     and responsibilities comparable to or greater than the 
     following:
       (1) Granting public safety officers the right to form and 
     join a labor organization, which may exclude management 
     employees, supervisory employees, and confidential employees, 
     that is, or seeks to be, recognized as the exclusive 
     bargaining representative of such employees.
       (2) Requiring public safety employers to recognize the 
     employees' labor organization (freely chosen by a majority of 
     the employees), to agree to bargain with the labor 
     organization, and to commit any agreements to writing in a 
     contract or memorandum of understanding.
       (3) Providing for the right to bargain over hours, wages, 
     and terms and conditions of employment.
       (4) Making available an interest impasse resolution 
     mechanism, such as fact-finding, mediation, arbitration, or 
     comparable procedures.
       (5) Requiring enforcement of all rights, responsibilities, 
     and protections provided by State law and enumerated in this 
     section, and of any written contract or memorandum of 
     understanding between a labor organization and a public 
     safety employer, through--
       (A) a State administrative agency, if the State so chooses; 
     and
       (B) at the election of an aggrieved party, the State 
     courts.
       (c) Compliance With Requirements.--If the Authority 
     determines, acting pursuant to its authority under subsection 
     (a), that a State substantially provides rights and 
     responsibilities described in subsection (b), then this Act 
     shall not preempt State law.
       (d) Failure To Meet Requirements.--
       (1) In general.--If the Authority determines, acting 
     pursuant to its authority under subsection (a), that a State 
     does not substantially provide for the rights and 
     responsibilities described in subsection (b), then such State 
     shall be subject to the regulations and procedures described 
     in section 5 beginning on the later of--
       (A) the date that is 2 years after the date of enactment of 
     this Act;
       (B) the date that is the last day of the first regular 
     session of the legislature of the State that begins after the 
     date of the enactment of this Act; or
       (C) in the case of a State receiving a subsequent 
     determination under subsection (a)(4), the date that is the 
     last day of the first regular session of the legislature of 
     the State that begins after the date the Authority made the 
     determination.
       (2) Partial failure.--If the Authority makes a 
     determination that a State does not substantially provide for 
     the rights and responsibilities described in subsection (b) 
     solely because the State law substantially provides for such 
     rights and responsibilities for certain categories of public 
     safety officers covered by the Act but not others, the 
     Authority shall identify those categories of public safety 
     officers that shall be subject to the regulations and 
     procedures described in section 5, pursuant to section 
     8(b)(3) and beginning on the appropriate date described in 
     paragraph (1), and those categories of public safety officers 
     that shall remain subject to State law.

     SEC. 5. ROLE OF FEDERAL LABOR RELATIONS AUTHORITY.

       (a) In General.--Not later than 1 year after the date of 
     enactment of this Act, the Authority shall issue regulations 
     in accordance with the rights and responsibilities described 
     in section 4(b) establishing collective bargaining procedures 
     for employers and public safety officers in States which 
     the Authority has determined, acting pursuant to section 
     4(a), do not substantially provide for such rights and 
     responsibilities.
       (b) Role of the Federal Labor Relations Authority.--The 
     Authority, to the extent provided in this Act and in 
     accordance with regulations prescribed by the Authority, 
     shall--
       (1) determine the appropriateness of units for labor 
     organization representation;
       (2) supervise or conduct elections to determine whether a 
     labor organization has been selected as an exclusive 
     representative by a voting majority of the employees in an 
     appropriate unit;
       (3) resolve issues relating to the duty to bargain in good 
     faith;
       (4) conduct hearings and resolve complaints of unfair labor 
     practices;
       (5) resolve exceptions to the awards of arbitrators;
       (6) protect the right of each employee to form, join, or 
     assist any labor organization, or to refrain from any such 
     activity, freely and without fear of penalty or reprisal, and 
     protect each employee in the exercise of such right; and
       (7) take such other actions as are necessary and 
     appropriate to effectively administer this Act, including 
     issuing subpoenas requiring the attendance and testimony of 
     witnesses and the production of documentary or other evidence 
     from any place in the United States, and administering oaths, 
     taking or ordering the taking of depositions, ordering 
     responses to written interrogatories, and receiving and 
     examining witnesses.
       (c) Enforcement.--
       (1) Authority to petition court.--The Authority may 
     petition any United States Court of Appeals with jurisdiction 
     over the parties, or the United States Court of Appeals for 
     the District of Columbia Circuit, to enforce any final orders 
     under this section, and for appropriate temporary relief or a 
     restraining order. Any petition under this section shall be 
     conducted in accordance with subsections (c) and (d) of 
     section 7123 of title 5, United States Code.
       (2) Private right of action.--Unless the Authority has 
     filed a petition for enforcement as provided in paragraph 
     (1), any party has the right to file suit in any appropriate 
     district court of the United States to enforce compliance 
     with the regulations issued by the Authority pursuant to 
     subsection (b), and to enforce compliance with any order 
     issued by the Authority pursuant to this section. The right 
     provided by this subsection to bring a suit to enforce 
     compliance with any order issued by the Authority pursuant to 
     this section shall terminate upon the filing of a petition 
     seeking the same relief by the Authority.

     SEC. 6. STRIKES AND LOCKOUTS PROHIBITED.

       (a) In General.--Subject to subsection (b), an employer, 
     public safety officer, or labor organization may not engage 
     in a lockout, sickout, work slowdown, strike, or any other 
     organized job action that will measurably disrupt the 
     delivery of emergency services and is designed to compel an 
     employer, public safety officer, or labor organization to 
     agree to the terms of a proposed contract.
       (b) No Preemption.--Nothing in this section shall be 
     construed to preempt any law of any State or political 
     subdivision of any State with respect to strikes by public 
     safety officers.

     SEC. 7. EXISTING COLLECTIVE BARGAINING UNITS AND AGREEMENTS.

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

     SEC. 8. CONSTRUCTION AND COMPLIANCE.

       (a) Construction.--Nothing in this Act shall be construed--
       (1) to preempt or limit the remedies, rights, and 
     procedures of any law of any State or political subdivision 
     of any State that provides greater or comparable rights and 
     responsibilities than the rights and responsibilities 
     described in section 4(b);
       (2) to prevent a State from enforcing a right-to-work law 
     that prohibits employers and labor organizations from 
     negotiating provisions in a labor agreement that require 
     union membership or payment of union fees as a condition of 
     employment;
       (3) to preempt or limit any State law in effect on the date 
     of enactment of this Act that provides for the rights and 
     responsibilities described in section 4(b) solely because 
     such State law permits an employee to appear on the 
     employee's own behalf with respect to the employee's 
     employment relations with the public safety agency involved;
       (4) to preempt or limit any State law in effect on the date 
     of enactment of this Act

[[Page S2212]]

     that provides for the rights and responsibilities described 
     in section 4(b) solely because such State law excludes from 
     its coverage employees of a State militia or national guard;
       (5) to permit parties in States subject to the regulations 
     and procedures described in section 5 to negotiate provisions 
     that would prohibit an employee from engaging in part-time 
     employment or volunteer activities during off-duty hours;
       (6) to prohibit a State from exempting from coverage under 
     this Act a political subdivision of the State that has a 
     population of less than 5,000 or that employs less than 25 
     full-time employees; or
       (7) to preempt or limit the laws or ordinances of any State 
     or political subdivision of a State that provide for the 
     rights and responsibilities described in section 4(b) solely 
     because such law or ordinance does not require bargaining 
     with respect to pension, retirement, or health benefits.

     For purposes of paragraph (6), the term ``employee'' includes 
     each and every individual employed by the political 
     subdivision except any individual elected by popular vote or 
     appointed to serve on a board or commission.
       (b) Compliance.--
       (1) Actions of states.--Nothing in this Act or the 
     regulations promulgated under this Act shall be construed to 
     require a State to rescind or preempt the laws or ordinances 
     of any of the State's political subdivisions if such laws 
     provide rights and responsibilities for public safety 
     officers that are comparable to or greater than the rights 
     and responsibilities described in section 4(b).
       (2) Actions of the authority.--Nothing in this Act or the 
     regulations promulgated under this Act shall be construed to 
     preempt--
       (A) the laws or ordinances of any State or political 
     subdivision of a State, if such laws provide collective 
     bargaining rights for public safety officers that are 
     comparable to or greater than the rights enumerated in 
     section 4(b);
       (B) the laws or ordinances of any State or political 
     subdivision of a State that provide for the rights and 
     responsibilities described in section 4(b) with respect to 
     certain categories of public safety officers covered by this 
     Act solely because such rights and responsibilities have not 
     been extended to other categories of public safety officers 
     covered by this Act; or
       (C) the laws or ordinances of any State or political 
     subdivision of a State that provide for the rights and 
     responsibilities described in section 4(b), solely because 
     such laws or ordinances provide that a contract or memorandum 
     of understanding between a public safety employer and a labor 
     organization must be presented to a legislative body as part 
     of the process for approving such contract or memorandum of 
     understanding.
       (3) Limited enforcement power.--In the case of a law 
     described in paragraph (2)(B), the Authority shall only 
     exercise the powers provided in section 5 with respect to 
     those categories of public safety officers who have not been 
     afforded the rights and responsibilities described in section 
     4(b).
       (4) Exclusive enforcement provision.--Notwithstanding any 
     other provision of the Act, and in the absence of a waiver of 
     a State's sovereign immunity, the Authority shall have the 
     exclusive power to enforce the provisions of this Act with 
     respect to employees of a State.

     SEC. 9. AUTHORIZATION OF APPROPRIATIONS.

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

                          ____________________