[House Report 110-232]
[From the U.S. Government Publishing Office]





110th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 1st Session                                                    110-232

======================================================================



 
        PUBLIC SAFETY EMPLOYER-EMPLOYEE COOPERATION ACT OF 2007

                                _______
                                

 July 13, 2007.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

                                _______
                                

 Mr. George Miller of California, from the Committee on Education and 
                     Labor, submitted the following

                              R E P O R T

                             together with

                             MINORITY VIEWS

                        [To accompany H.R. 980]

      [Including cost estimate of the Congressional Budget Office]

  The Committee on Education and Labor, to whom was referred 
the bill (H.R. 980) to provide collective bargaining rights for 
public safety officers employed by States or their political 
subdivisions, having considered the same, report favorably 
thereon with an amendment and recommend that the bill as 
amended do pass.
  The amendment is as follows:
  Strike all after the enacting clause and insert the 
following:

SECTION 1. SHORT TITLE.

  This Act may be cited as the ``Public Safety Employer-Employee 
Cooperation Act of 2007''.

SEC. 2. FINDINGS AND DECLARATION OF PURPOSE.

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

SEC. 3. DEFINITIONS.

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

SEC. 4. DETERMINATION OF RIGHTS AND RESPONSIBILITIES.

  (a) Determination.--
          (1) In general.--Not later than 180 days after the date of 
        enactment of this Act, the Authority shall make a determination 
        as to whether a State substantially provides for the rights and 
        responsibilities described in subsection (b). In making such 
        determinations, the Authority shall consider the opinion of 
        affected employers and labor organizations. Where the Authority 
        is notified by an employer and an affected labor organization 
        that both parties agree that the law applicable to such 
        employer and labor organization substantially provides for the 
        rights and responsibilities described in subsection (b), the 
        Authority shall give such agreement weight to the maximum 
        extent practicable in making its determination under this 
        subsection.
          (2) Subsequent determinations.--(A) A determination made 
        pursuant to paragraph (1) shall remain in effect unless and 
        until the Authority issues a subsequent determination, in 
        accordance with the procedures set forth in subparagraph (B).
          (B) An employer or a labor organization may submit a written 
        request for a subsequent determination, on the basis of a 
        material change in State law or its interpretation. If the 
        Authority determines that a material change in State law or its 
        interpretation has occurred, the Authority shall issue a 
        subsequent determination not later than 30 days after receipt 
        of such request.
          (3) Judicial review.--Any person aggrieved by a determination 
        of the Authority under this section may, during the 60-day 
        period beginning on the date on which the determination was 
        made, petition any United States Court of Appeals in the 
        circuit in which the person resides or transacts business or in 
        District of Columbia circuit, for judicial review. In any 
        judicial review of a determination by the Authority, the 
        procedures contained in section 7123(c) of title 5, United 
        States Code, shall be followed.
  (b) Rights and Responsibilities.--In making a determination described 
in subsection (a), the Authority shall consider a State's law to 
provide adequate rights and responsibilities unless such law fails to 
substantially provide rights and responsibilities comparable to or 
greater than each of the following:
          (1) Granting public safety officers the right to form and 
        join a labor organization, which may exclude management and 
        supervisory employees, that is, or seeks to be, recognized as 
        the exclusive bargaining representative of such employees.
          (2) Requiring public safety employers to recognize the 
        employees' labor organization (freely chosen by a majority of 
        the employees), to agree to bargain with the labor 
        organization, and to commit any agreements to writing in a 
        contract or memorandum of understanding.
          (3) Providing for bargaining over hours, wages, and terms and 
        conditions of employment.
          (4) Making available an interest impasse resolution 
        mechanism, such as fact-finding, mediation, arbitration, or 
        comparable procedures.
          (5) Requiring enforcement through State courts of--
                  (A) all rights, responsibilities, and protections 
                provided by State law and enumerated in this 
                subsection; and
                  (B) any written contract or memorandum of 
                understanding.
  (c) Failure To Meet Requirements.--
          (1) In general.--If the Authority determines, acting pursuant 
        to its authority under subsection (a), that a State does not 
        substantially provide for the rights and responsibilities 
        described in subsection (b), such State shall be subject to the 
        regulations and procedures described in section 5.
          (2) Effective date.--Paragraph (1) shall apply in each State 
        on the later of--
                  (A) 2 years after the date of enactment of this Act; 
                or
                  (B) the date of the end of the first regular session 
                of the legislature of that State that begins after the 
                date of the enactment of this Act.

SEC. 5. ROLE OF THE AUTHORITY.

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

SEC. 6. STRIKES AND LOCKOUTS PROHIBITED.

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

SEC. 7. EXISTING COLLECTIVE BARGAINING UNITS AND AGREEMENTS.

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

SEC. 8. CONSTRUCTION, COMPLIANCE, AND ENFORCEMENT.

  (a) Construction.--Nothing in this Act or the regulations issued 
under this Act shall be construed--
          (1) to preempt or limit the remedies, rights, and procedures 
        of any law of any State or political subdivision of any State 
        or jurisdiction that substantially provides greater or 
        comparable rights and responsibilities described in section 
        4(b);
          (2) to prevent a State from enforcing a State law which 
        prohibits employers and labor organizations from negotiating 
        provisions in a labor agreement that require union membership 
        or payment of union fees as a condition of employment;
          (3) to preempt any State law in effect on the date of 
        enactment of this Act that substantially provides for the 
        rights and responsibilities described in section 4(b) solely 
        because--
                  (A) such State law permits an employee to appear in 
                his or her own behalf with respect to his or her 
                employment relations with the public safety agency 
                involved;
                  (B) such State law excludes from its coverage 
                employees of a state militia or national guard;
                  (C) such rights and responsibilities have not been 
                extended to other categories of employees covered by 
                this Act, in which case the Authority shall only 
                exercise the powers provided in section 5 of this Act 
                with respect to those categories of employees who have 
                not been afforded the rights and responsibilities 
                described in section 4(b); or
                  (D) such laws or ordinances provide that a contract 
                or memorandum of understanding between a public safety 
                employer and a labor organization must be presented to 
                a legislative body as part of the process for approving 
                such contract or memorandum of understanding;
          (4) to permit parties subject to the National Labor Relations 
        Act (29 U.S.C. 151 et seq.) and the regulations under such Act 
        to negotiate provisions that would prohibit an employee from 
        engaging in part-time employment or volunteer activities during 
        off-duty hours;
          (5) to require a State to rescind or preempt laws or 
        ordinances of any of its political subdivisions if such laws 
        substantially provide rights and responsibilities for public 
        safety officers that are comparable to or greater than the 
        rights and responsibilities enumerated in section 4(b) of this 
        Act; or
          (6) preempt any State law that substantially provides for the 
        rights and responsibilities described in section 4(b) solely 
        because such law does not require bargaining with respect to 
        pension and retirement benefits.
  (b) Partial Exemption.--A State may exempt from its State law, or 
from the requirements established under this Act, a political 
subdivision of the State that has a population of less than 5,000 or 
that employs fewer than 25 full time employees. For purposes of this 
subsection, the term ``employees'' includes each individual employed by 
the political subdivision except any individual elected by popular vote 
or appointed to serve on a board or commission.
  (c) Enforcement.--Notwithstanding any other provision of the Act, and 
in the absence of a waiver of a State's sovereign immunity, the 
Authority shall have the exclusive power to enforce the provisions of 
this Act with respect to public safety officers employed by a State.

SEC. 9. AUTHORIZATION OF APPROPRIATIONS.

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

                               COVER PAGE

    Provided by the Office of Legislative Counsel.

                                PURPOSE

 COMMITTEE ACTION INCLUDING LEGISLATIVE HISTORY AND VOTES IN COMMITTEE

                             104TH CONGRESS

    On April 7, 1995, the Public Safety Employer-Employee 
Cooperation Act was first introduced as the Public Safety 
Employer-Employee Relations Act of 1995, H.R. 1484 by 
Representative Dale Kildee (D-MI). It was referred to the 
Government Reform and Oversight Committee, and the House 
Committee on Economic and Educational Opportunities where it 
was referred to the Subcommittee on Employer-Employee 
Relations. H.R 1484 had 50 co-sponsors. Neither the Committee 
nor the Subcommittee took any action on the bill.

                             105TH CONGRESS

    On April 21, 1997, the Public Safety Employer-Employee 
Cooperation Act of 1997 was re-introduced in the 105th Congress 
as H.R. 1173 by Representative Dale Kildee (D-MI), joined by 
Representative Robert Ney (R-OH) as a lead co-sponsor. H.R 1173 
was referred to the House Committee on Education and the 
Workforce where it was referred to the Subcommittee on 
Employer-Employee Relations. The legislation had 204 co-
sponsors, both Democratic and Republican. Neither full 
Committee nor the Subcommittee took any action on the bill.

                             106TH CONGRESS

    On March 11, 1999, the Public Safety Employer-Employee 
Cooperation Act of 1999 was re-introduced by Representatives 
Dale Kildee (D-MI) and Robert Ney (R-OH) as H.R. 1093. It was 
referred to the House Committee on Education and the Workforce 
where it was referred to the Subcommittee on Employer-Employee 
Relations. H.R. 1093 garnered 247 co-sponsors both Democratic 
and Republican. A companion bill, S. 1016 was introduced in the 
Senate by Senator Mike DeWine (R-OH).

Subcommittee hearing on the Public Safety Employer-Employee Cooperation 
        Act

    On May 9, 2000, the Employer-Employee Relations 
Subcommittee led by Chairman John Boehner (R-OH), conducted the 
first legislative hearing on the Public Safety Employer-
Employee Cooperation Act of 1999. The hearing featured 
testimony from witnesses, including: Representative Dale Kildee 
(D-MI); Dr. Frederick Nesbitt, the Director of Governmental 
Affairs for the International Association of Fire Fighters; Mr. 
Gilbert G. Gallegos, the National President of the Grand Lodge 
of the Fraternal Order of Police; Mr. Kenneth Lyons, National 
President of the International Brotherhood of Police Officers; 
Mr. R. Theodore Clark on behalf of the National Public Employer 
Labor Relations Association; Mayor Gene Kinsey of Grand 
Junction, Colorado; and Mr. George Costello, a Legislative 
Attorney of the Congressional Research Service. Testimony was 
submitted for the hearing record by Mr. Robert Scully, 
Executive Director of the National Association of Police 
Organizations.
    H.R. 1093 received no further consideration after the May 
9, 2000, Subcommittee hearing.

Senate hearing on the Public Safety Employer-Employee Cooperation Act

    On July 25, 2000 the Senate Health, Education, Labor and 
Pensions (HELP) Committee led by Chairman James Jeffords held a 
hearing on S. 1016, the Public Safety Employer-Employee 
Cooperation Act. The hearing featured testimony from witnesses, 
including: Mr. Gerald Flynn, National Vice President for the 
International Brotherhood of Police Officers; Dr. Frederick H. 
Nesbitt, Director of Governmental Affairs for the International 
Association of Fire Fighters; Mr. Gilbert G. Gallegos, the 
National President of the Grand Lodge of the Fraternal Order of 
Police; Mr. R. Theodore Clark, on behalf of the National League 
of Cities, U.S. Conference of Mayors, National Association of 
Counties, National Public Employer Labor Relations Association, 
and the International Personnel Management Association; Mr. Sam 
Cabral, President of the International Union of Police 
Associations, AFL-CIO and Mr. Reed Larson, President of the 
National Right to Work Committee. Testimony was submitted for 
the record by Mr. Robert T. Scully, Executive Director of the 
National Association of Police Organizations, the American 
Federation of State, County and Municipal Employees, and Mr. 
David S. Smith, Solicitor, Federal Labor Relations Authority.
    S. 1016 received no further consideration after the July 
25, 2000 HELP Committee hearing.

                             107TH CONGRESS

    On April 4, 2001, the Public Safety Employer-Employee 
Cooperation Act of 2001 was re-introduced by Representatives 
Dale Kildee (D-MI) and Robert Ney (R-OH) as H.R. 1475. It was 
referred to the House Committee on Education and the Workforce 
where it was referred to the Subcommittee on Employer-Employee 
Relations. H.R. 1475 garnered 226 Democratic and Republican co-
sponsors. Senator Judd Gregg (R-NH), joined by Senators Ted 
Kennedy (D-MA) and Evan Bayh (D-IN) introduced the Senate 
companion, S. 952 on May 24, 2001. S. 952 had 23 Democratic and 
Republican co-sponsors. The bill was referred to the Committee 
on Health, Education, Labor, and Pensions (HELP).
    On September 19, 2001, Senate HELP Committee chairman Ted 
Kennedy (D-MA) reported S. 952 favorably out of Committee 
without amendment and without a written 2 report. On October 
31, 2001 Senator Thomas Daschle (D-SD) offered the Public 
Safety Employer-Employee Cooperation Act as amendment number 
2044 to H.R. 3061, the Department of Labor, Health and Human 
Services, and Education and Related Agencies Appropriations Act 
of 2002. On November 6, 2001 Senator Daschle requested a vote 
to close debate on the amendment. The cloture vote was defeated 
by a vote of 56-44, and Senator Daschle subsequently withdrew 
the amendment.

                             108TH CONGRESS

    On February 13, 2003, Representatives Dale Kildee and 
Robert Ney re-introduced the Public Safety Employer-Employee 
Cooperation Act of 2003, H.R. 814. The bill was referred to the 
House Committee on Education and the Workforce where it was 
referred to the Subcommittee on Employer-Employee Relations. 
H.R. 814 garnered 180 Democratic and Republican co-sponsors. 
Neither the full Committee nor the Subcommittee took any action 
on the bill.
    On March 12, 2003, Senator Judd Gregg re-introduced the 
companion bill, S. 606. The bill had 28 Democratic and 
Republican co-sponsors and was referred to the Committee on 
Health, Education, Labor and Pensions. Senator Gregg, the HELP 
Committee chairman and the sponsor of S. 606 reported the bill 
favorably out of Committee without amendment. No further action 
was taken on the bill.

                             109TH CONGRESS

    On March 10, 2005, the Public Safety Employer-Employee 
Cooperation Act of 2005 was introduced by Representatives Dale 
Kildee (D-MI) and Bob Ney (R-OH) as H.R. 1249. It was referred 
to the House Committee on Education and the Workforce where it 
was referred to the Subcommittee on Employer-Employee 
Relations. H.R. 1249 garnered 121 co-sponsors, both Democratic 
and Republican. Senator Judd Gregg reintroduced the companion 
bill, S.513 on March 3, 2005 which had 21 Democratic and 
Republican cosponsors. Neither the House nor the Senate took 
further action on the Public Safety Employer-Employee Act of 
2005.

                             110TH CONGRESS

    On February 12 2007, the Public Safety Employer-Employee 
Cooperation Act of 2007 was introduced as H.R. 980 by 
Representative Dale Kildee (D-MI), joined by Representative 
John Duncan (R-TN). H.R. 980 has 271 Democratic and Republican 
cosponsors. The bill was referred to the House Committee on 
Education and Labor where it was referred to the Subcommittee 
on Health, Employment, Labor, and Pensions.

Subcommittee hearing on the H.R. 980

    On June 5, 2007, the Subcommittee on Health, Employment, 
Labor, and Pensions (HELP), led by Chairman Robert Andrews (D-
NJ), conducted a legislative hearing on H.R. 980, ``Ensuring 
Collective Bargaining Rights for First Responders: H.R. 980, 
The Public Safety Employer-Employee Cooperation Act of 2007.'' 
This hearing consisted of two panels. The first panel included 
the bill's sponsor Representative Dale Kildee. The second panel 
consisted of: Mr. Kevin O'Connor Assistant to the General 
President of the International Association of Fire fighters; 
Mayor Wayne Seybold of Marion, Indiana; Mr. Paul Nunziato, a 
New York/New Jersey Port Authority Police Officer and Vice 
President of the Police Benevolent Association in New York 
City, New York; Professor William Banks of Syracuse University; 
and Mr. R. Theodore Clark, Jr., speaking on behalf of the 
National Public Employer Labor Relations Association; and Neil 
Reichenberg, Executive Director of International Public 
Management Association for Human Resources.

Full committee mark-up of the Public Safety Employer-Employee 
        Cooperation Act of 2007

    On June 20, 2007, the Committee on Education and Labor met 
to markup H.R. 980, the Public Safety Employer-Employee 
Cooperation Act of 2007. The Committee adopted by voice vote an 
amendment in the nature of a substitute offered by Mr. Kildee 
and reported the bill favorably as amended by a vote of 42-1 to 
the House of Representatives.
    The Kildee amendment in the nature of a substitute 
contained minor technical changes, including the following 
modifications to H.R. 980:
         If an employer and an affected labor 
        organization notify the Authority that a state's law 
        substantially provides public safety officers with the 
        basic bargaining rights as defined in Section 4(b), the 
        Authority shall give such agreement weight to the 
        maximum extent practicable in making its determination 
        under this subsection.
         When determining whether or not a state law 
        complies with H.R. 980, the Authority shall consider 
        whether the state substantially provides the rights and 
        responsibilities comparable to or greater than each of 
        the rights defined in Section 4(b)(1)-4(b)(5).
         The FLRA has the authority to supervise and 
        conduct elections to determine whether a labor 
        organization has been selected by a majority of 
        employees.
         Neither public safety officers nor any labor 
        organization representing those public safety employees 
        may engage in a strike against such public safety 
        employer.
         H.R. 980 shall not preempt any state law that 
        substantially provides the rights in Section 4(b) 
        solely because the law does not require bargaining with 
        respect to pension and retirement benefits.
    Representative Mark Souder (R-IN) offered an amendment in 
the nature of a substitute which would have required that 
employers or public safety agencies only be permitted to 
recognize a labor organization if that labor organization was 
chosen through a secret ballot election. H.R. 980, however, 
imposes no such requirement. It requires that public safety 
agencies recognize employees' freely-made majority choice and 
does not specify the process by which such recognition is 
achieved. So long as employees freely choose and the majority's 
choice is effectuated, the state or locality may decide how to 
discern 4 the employees' majority choice, whether via secret 
ballot elections, majority signup processes, or other means. 
Representative Souder withdrew his amendment.

                                SUMMARY

    The Public Safety Employer-Employee Cooperation Act of 2007 
would extend to public safety officers (i.e., fire fighters; 
law enforcement officers; and emergency medical services 
personnel) the right to bargain collectively with their 
employers.
    In addition to guaranteeing the right of public safety 
officers to form and join a union, H.R. 980: (1) guarantees 
these workers the right to bargain collectively over hours, 
wages, and conditions of employment; (2) provides for 
enforcement of contracts through federal courts; (3) excludes 
management and supervisory employees (chiefs and assistant 
chiefs) but retains the right of fire lieutenants and captains, 
as well as police sergeants to join a bargaining unit; (4) 
protects all existing certification, recognitions, elections, 
collective bargaining agreements and memorandums of 
understanding; (5) outlaws strikes and provides for dispute 
resolution mechanisms, such as mediation, fact finding or 
arbitration to resolve disputes; (6) exempts all states with a 
state collective bargaining law for public safety officers 
equal to or greater than the bill's basic minimum standards; 
(7) provides states with two years to implement a basic 
collective bargaining law; (8) protects state right-to-work 
laws; (9) protects the rights of volunteer fire fighters; and 
(10) allows states to exempt localities with a population of 
less than 5,000 or that employ fewer than 25 full time 
employees.
    Most states already meet or exceed the basic collective 
bargaining rights established under H.R. 980, and therefore 
would be exempt from its provisions, so long as those rights 
are guaranteed. To the extent that a state or locality does not 
meet the minimum protections of H.R. 980, the Federal Labor 
Relations Authority (FLRA)\1\ would administer the bill's 
provisions protecting the collective bargaining rights of 
public safety officers.
---------------------------------------------------------------------------
    \1\The FLRA, created by the Federal Service Labor-Management 
Relations Statute is an independent agency responsible for 
administering the labor relations program for approximately 1.9 million 
nonpostal Federal employees worldwide. Approximately 1.1 million of 
these Federal employees are represented in 2,200 bargaining units. The 
Authority is charged by statute with establishing policies and 
guidelines relating to Federal sector labor-management relations; 
resolving disputes arising among Federal agencies, unions, and 
employees; and ensuring compliance with Title VII of the Civil Service 
Reform Act of 1978.
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                     STATEMENT AND COMMITTEE VIEWS

    The Committee on Education and Labor of the 110th Congress 
is committed to strengthening the middle class, ensuring the 
full protection of the rights of workers, and fostering 
cooperative labor-management relationships. On March 1, 2007, 
this Congress took a major step in that effort with the passage 
of the Employee Free Choice Act, H.R. 800.
    The Public Safety Employer-Employee Cooperation Act is 
another step in that effort. It will ensure that all public 
safety employees have the right to discuss with their employers 
wages, benefits, health and safety issues, and finding ways to 
better protect the public safety. While states and cities and 
towns have historically managed their own labor relations, 
approximately twenty-one states do not provide full collective 
bargaining rights for all public safety officers. Given the 
demands and pressures of their jobs, public safety employees 
ought to have a strong voice at work.
    The Public Safety Employer-Employee Cooperation Act is 
about giving every first responder a voice on critical issues 
like safety on the job and on whether public services are being 
provided in the most efficient and effective manner. It is 
intended to improve communication and cooperation between rank-
and-file public safety employees and management in order to 
create more cohesive and coordinated operations. Strengthening 
the voice of public safety employees will improve public safety 
and provide greater security for our country.

Fundamental fairness

    The right to collectively bargain is an internationally 
recognized human right. H.R. 980 provides fundamental fairness 
to the nation's public safety employees. It ensures that all 
public safety employees have the right to collectively bargain, 
a right that the vast majority of Americans already enjoy. 
American workers, including private sector employees,\2\ 
transportation workers,\3\ federal government employees\4\ and 
congressional staff\5\ already have the right to bargain 
collectively with employers. H.R. 980 will put public safety 
officers on equal footing with other employees and provide them 
with the legal right to negotiate with employers over basic 
issues such as hours, wages, workplace conditions, and health 
and safety issues.
---------------------------------------------------------------------------
    \2\29 U.S.C. 151 et seq.
    \3\45 U.S.C. 151-188 (as a condition of federal financial 
assistance to the employer).
    \4\27 F.R. 551; 3 CFR, 1959-1963 Comp., p. 521.
    \5\P.L. 104-1.
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Collective bargaining in the private and public sectors

    For over 70 years, collective bargaining has allowed labor 
and management to work together to improve job conditions and 
enhance productivity. Through collective bargaining, labor and 
management have led the way on many critical improvements in 
today's workplace, such as health benefits, sick leave, and 
workplace safety. In the U.S., the right is protected by the 
National Labor Relations Act\6\ for the private sector. Section 
1 of the NLRA declares ``it is the policy of the United 
States'' to ``encourage the practice and procedure of 
collective bargaining and to protect the exercise by workers of 
full freedom of association, self-organizing and designation of 
representatives of their own choosing, for the purpose of 
negotiating the terms and conditions of their employment, or 
other mutual aid or protection.''\7\
---------------------------------------------------------------------------
    \6\29 U.S.C. 151 et seq.
    \7\Id.
---------------------------------------------------------------------------
    While collective bargaining in the public sector was once a 
controversial issue, it is now widely accepted. On January 
1962, President John F. Kennedy signed Executive Order 10988, 
``Employee-Management Cooperation in the Federal Service.''\8\ 
The Executive Order declares that ``participation of employees 
in the formulation and implementation of personnel policies 
affecting them contributes to effective conduct of public 
business.'' The Federal Service Labor-Management Relations 
Statute likewise declares:
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    \8\Executive Order 10988 was reaffirmed and strengthened by 
President Richard Nixon in 1970, and codified by Congress as part of 
the Civil Service Reform Act of 1978.

          Congress finds that experience in both private and 
        public employment indicates that the statutory 
        protection of the right of employees to organize, 
        bargain collectively, and participate through labor 
        organizations by their own choosing in decisions which 
        affect them--safeguards the public interest, 
        contributes to the effective conduct of public 
        interest, and facilitates and encourages amicable 
        settlements of disputes between employees and their 
        employers involving conditions of employment.\9\
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    \9\5 U.S.C. 71.7101(a)(1)(A)(B)(C).

    Over twelve years ago, Congress extended the right to 
collective bargaining to congressional employees, including the 
Capitol Police Force through the Congressional Accountability 
Act.\10\ With the enactment of the Congressional Accountability 
Act, state and local government employees remain as one of the 
largest segments of the American workforce lacking the 
guaranteed right to enter into collective bargaining agreements 
with their employers.
---------------------------------------------------------------------------
    \10\P.L. 104-1.
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    Historically, states and localities have possessed the 
authority to manage their own labor relations. Consequently, 
protection for state and local public employees is a patchwork, 
riddled with holes. Many states have adopted their own labor-
management relations statutes affording collective bargaining 
rights to state and local public employees. However, 
approximately twenty-one states do not fully protect the 
collective bargaining rights of public safety employees.\11\
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    \11\North Carolina and Virginia prohibit bargaining altogether; 
Alabama, Arkansas, South Carolina, and Tennessee permit bargaining by 
local option but prohibit legally enforceable contracts; Arizona, 
Colorado, Georgia, Indiana, Kansas, Kentucky, Louisiana, Maryland, 
Mississippi, Texas and West Virginia permit bargaining by local option 
only; and Idaho, Missouri, Utah, and Wyoming require bargaining for 
fire fighters, but not for law enforcement.
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    Extending the right to collectively bargain has practical 
economic benefits for public safety employees, and it has major 
implications for homeland security and public safety. Workers 
who join together to collectively bargain are able to achieve 
better wages, benefits and working conditions. When compared to 
the rest of the nation, the pay, benefits and working 
conditions where public safety employees cannot collectively 
bargain tend to be substandard.\12\ Bargaining in the public 
safety arena is unique in that it has an emphasis on health and 
safety issues. The primary concern for public safety officers 
at the bargaining table is how they can do their jobs more 
effectively and more safely.\13\
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    \12\Public Safety Employer-Employee Cooperation Act of 1999, S. 
1016, hearing before the Senate Health, Education, Labor and Pensions 
Committee, 106th Cong., 2nd Sess. (1999) (written testimony of Robert 
Scully, Executive Director, National Association of Police 
Organizations, at 1) [hereinafter Scully Testimony].
    \13\The Public Employer-Employee Cooperation Act, Hearing Before 
the Subcommittee on Employer-Employee Relations, 106 Cong., 2nd Sess. 
(2000) (written testimony of Frederick H. Nesbitt, Director of 
Governmental Affairs, International Association of Fire Fighters, at 5) 
[hereinafter Nesbitt Testimony].
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    In a post-9/11 world, there has been a significant national 
policy emphasis on facilitating the ability of first responders 
to deal with, coordinate responses to, and prevent emergencies 
such as terrorist attacks or natural disasters, as well as 
these workers' responsibility for on-going day-to-day public 
safety issues. Ensuring that public safety officers can fulfill 
this need necessitates the right to a meaningful voice on the 
job. Providing collective bargaining rights to all public 
safety employees will improve first responders' ability to 
protect themselves, their families, communities and this 
country.

Collective bargaining protects the health and safety of public safety 
        employees

    Public safety employees serve in some of the country's most 
dangerous, strenuous and stressful jobs. Every year, more than 
75,000 fire fighters are injured on the job. In his testimony 
before the HELP Subcommittee's hearing on June 5, 2007, Kevin 
O'Conner, Assistant to the General President of IAFF echoed 
this reality, ``one-third of our members are injured in the 
line of duty. In 2007, approximately 100 of my brothers and 
sisters will pay the ultimate price. Thousands of times a day, 
in every corner of America, an alarm will ring in the firehouse 
and men and women will bravely put themselves in harm's 
way.''\14\ Sadly this point was brought home on June 18, 2007 
when nine brave fire fighters in Charleston, South Carolina 
gave their own lives to save the lives of others. Having a 
voice on the job facilitates rank-and-file input into workplace 
safety and the efficient and effective provision of public 
safety services.
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    \14\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 & 
Pensions, 110th Cong., 1st Sess. (2007) (written testimony of Kevin 
O'Connor, at 2) [hereinafter O'Connor Testimony].
---------------------------------------------------------------------------
    The American Federal of State, County and Municipal 
Employees (AFSCME) represents over 60,000 corrections officers 
and has decades of experience representing these employees in 
labor-management relations. AFSCME submitted a statement for 
the record of the July 25, 2000, Senate HELP Committee hearing 
on the Public Safety Employer-Employee Cooperation Act.\15\ In 
the statement, AFSCME noted that corrections officers work in 
dangerous conditions with the most violent members of our 
society and they risk their lives to ensure that the public is 
held safe from these individuals. Experience ``has demonstrated 
that the collective bargaining process is a tried and true 
method of improving communications among line corrections 
officers and upper management. The result is safety and more 
effective corrections systems.''\16\ H.R. 980 would extend 
collective bargaining rights to approximately 100,000 state and 
local government corrections officers who reside in states that 
deny public employees collective bargaining rights.\17\
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    \15\Public Safety Employer-Employee Cooperation Act of 1999, S. 
1016, hearing before the Senate Health, Education, Labor and Pensions 
Committee, 106th Cong., 2nd Sess. (1999) (written testimony of the 
American Federation of State, County, and Municipal Employees, at 2) 
[hereinafter AFSCME Testimony].
    \16\AFSCME Testimony, at 2.
    \17\AFSCME Testimony, at 1.
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    Fire and police departments and local communities benefit 
immeasurably from productive partnerships between employers and 
employees, as does the federal government, which has a 
compelling interest in ensuring that public safety units are 
properly staffed, trained, and equipped to secure the homeland 
by protecting communities, and responding in times of crisis. 
States that do not recognize the right of public safety 
officers to collectively bargain experience recruitment and 
retention difficulties, and face diminished employee morale. 
These problems can result in diminished security and safety.
    Gilbert Gallegos, National President of the Grand Lodge, 
Fraternal Order of Police notes that ``public safety service is 
delivered by rank-and-file officers, therefore it is their 
observations and experiences which will refine the delivery of 
the service. To exclude them from having any input relating to 
their job--particularly when their lives are on the line is not 
only unfair to the officers, but also to the public they are 
sworn to protect.''\18\
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    \18\The Public Employer-Employee Cooperation Act, Hearing Before 
the Subcommittee on Employer-Employee Relations, 106 Cong., 2nd Sess. 
(2000) (written testimony of Gilbert Gallegos, National President of 
the Grand Lodge Fraternal Order of Police, at 3) [hereinafter Gallegos 
Testimony].
---------------------------------------------------------------------------
    Collective bargaining benefits the lives of public safety 
officers and their families. In his May 9, 2000 testimony 
before the House Education Workforce Committee, Employer-
Employee Relations Subcommittee hearing, Frederick Nesbitt, 
Director of Governmental Affairs for the International 
Association of Fire Fighters highlighted the stories of those 
who will benefit from the enactment of the Public Safety 
Employer-Employee Cooperation Act.\19\ He discusses the plight 
of Matt Moseley and the Atlanta fire department. According to 
Dr. Nesbitt, the department was operating without adequate 
staffing, and fire fighters were forced to use defective 
breathing apparatus and the city government refused to meet 
with the fire fighter local union to hear their concerns. The 
city only agreed to work with the union after Moseley publicly 
discussed the problems facing the fire department.\20\
---------------------------------------------------------------------------
    \19\Nesbitt Testimony, at 5.
    \20\Id.
---------------------------------------------------------------------------
    Nesbitt also discusses the story of Michael Regan of the 
Fairfax County Fire Department. Lieutenant Regan is part of an 
Urban Search and Rescue Team that is an integral part of our 
nation's response to disaster abroad and at home. In addition 
to responding to the Pentagon attack on September 11, 2001, 
Lieutenant Regan has been sent by the federal government to 
places all over the world to find victims of natural disasters, 
and to rescue victims of terrorism. Despite the experience and 
expertise Lieutenant Regan has garnered throughout his career, 
he is still denied the right to use this experience to discuss 
and collectively bargain safety concerns with his employer, and 
potentially provide greater protection to the Fairfax County 
community.\21\
---------------------------------------------------------------------------
    \21\Id.
---------------------------------------------------------------------------
    David Foote, a fire fighter in LeMay Township, Missouri was 
fired for telling a meeting of the local Republican Party about 
the fire department's refusal to replace unsafe personal 
protective gear. Foote filed suit and the court ordered that he 
be rehired and receive in excess of $400,000 in damages.\22\
---------------------------------------------------------------------------
    \22\O'Connor Testimony, at 6.
---------------------------------------------------------------------------
    Michael Staples, Assistant Fire Marshall in Arlington 
County, Virginia and President of the Arlington Professional 
Firefighters & Paramedics Association, Local 2800 (APFPA) of 
the IAFF reported that his department faces recruitment and 
retention difficulties because the Commonwealth of Virginia 
refuses to collectively bargain with public safety employees. 
The reality that fire fighters in nearby Maryland and 
Washington, D.C. are able to collectively bargain, makes it 
difficult for Virginia fire departments to recruit and retain 
experienced fire fighters. Inexperience and untested public 
safety departments can directly impact the safety of the fire 
fighters and that of the community.\23\
---------------------------------------------------------------------------
    \23\Briefing on H.R. 980, the Public Safety Employer-Employee 
Cooperation Act before the Education and Labor Committee staff, May 31, 
2007.
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    Law enforcement officers perform under strenuous conditions 
and often work long hours under difficult circumstances 
involving the potential use of deadly force. Each year, an 
average of 160 officers die in the line of duty, 62,552 
officers are assaulted, and 21,433 suffer on-the-job 
injuries.\24\ Collective bargaining gives police officers a 
voice in improving their working conditions, which not only 
affect the ability to recruit and retrain qualified law 
enforcement officers, but can directly jeopardize officer 
safety and increase the risk of serious injury or death.\25\
---------------------------------------------------------------------------
    \24\Scully Testimony, at 3.
    \25\Scully Testimony, at 2.
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    In his testimony before the Senate HELP Committee's July 
25, 2000, hearing on the Public Safety Employer-Employee 
Cooperation Act, Robert Scully, Executive Director of the 
National Association of Police Organizations discussed the 
situation in a state where police officers did not have the 
right to collective bargaining. Officers in this state ``were 
not always able to communicate with their superiors in life-
threatening situations,''\26\ because the municipality used 
radio transmitters that had limited coverage. Despite the 
evident safety risks, Officers fear losing their jobs so they 
often choose not to speak up. Scully testified that ``history 
proves that the denial of the right of officers to collectively 
bargain and the absence of dispute-resolution mechanisms can 
cause poor employee morale, inadequate working conditions, and 
less effective law enforcement.''\27\
---------------------------------------------------------------------------
    \26\Id.
    \27\Id.
---------------------------------------------------------------------------
    Accordingly, the Public Safety Employer-Employee 
Cooperation Act ensures that collective bargaining is 
universally available to those public safety employees who want 
it. The purpose of the bill is to have laws in all fifty states 
that give public safety employees access to a bargaining 
process that fosters cooperation between first responders and 
their employers, and creates an atmosphere in which all parties 
are stakeholders in improving safety and making communities 
more secure. To achieve this goal, the Act simply requires 
that: public safety officers have the right to join a union; 
employers must recognize the union; the parties are required to 
bargain over hours, wages and terms of conditions of 
employment; impasse resolution mechanisms must be made 
available; and agreements can be enforced through state courts.

The success of collective bargaining in the public safety sector

    Collective bargaining has proven the most effective and 
democratic means by which labor and management have achieved 
cooperation, improved employment conditions, developed fair and 
reasonable disciplinary procedures and increased 
productivity.\28\
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    \28\Id.
---------------------------------------------------------------------------
    The HELP Subcommittee heard from Paul Nunziato, a police 
officer with the Port Authority of New York and New Jersey 
Police Department during the Subcommittee's June 5, 2007 
hearing on the Public Safety Employer-Employee Cooperation 
Act.\29\ Officer Nunziato testified about his firsthand 
knowledge of the crucial role public safety officers play in 
our nation's counterterrorism and homeland security efforts. He 
testified that collective bargaining rights are critical to the 
protection of the health and welfare of public safety officers 
and their families. Officer Nunziato based these observations 
upon his own experience as a police officer who responded to 
the September 11, 2001 attack on the World Trade Center. While 
only 10 Port Authority police officers were working at the 
World Trade Center on September 11th, within minutes of the 
attack, police officers mobilized from all thirteen police 
commands to respond to the attacks. Of the 23 members of 
Officer Nunziato's rollcall at the PATH\30\ command that day, 
13 members lost their lives.\31\
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    \29\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 & 
Pensions, 110th Cong., 1st Sess. (2007) (written testimony of Paul 
Nunziato) [hereinafter Nunziato Testimony].
    \30\The PATH command center includes the subway system running 
between New York and New Jersey.
    \31\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.
---------------------------------------------------------------------------
    The events of September 11th clearly demonstrated that 
collective bargaining agreements provide substantial security 
to police officers and their families. Officer Nunziato's 
partner, Donald McIntyre lost his life in the World Trade 
Center evacuation. In large part due to the benefits the union 
negotiated for its membership, Officer McIntyre's wife and two 
children will not have to worry about paying bills or receiving 
healthcare.\32\ Officer Nunziato testified that this gave him 
and his fellow police officers a sense of security as they risk 
their lives on a daily basis.
---------------------------------------------------------------------------
    \32\Nunziato Testimony, at 2.
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    The success of cooperative public sector workplace 
partnerships, which can be fostered through collective 
bargaining, was also evidenced in the findings of a Department 
of Labor task force report.\33\ The task force analyzed nearly 
50 examples of cooperative approaches to labor-management 
relationships and found that movement toward employee 
participation and cooperation between labor and management 
improves the delivery and quality of services.
---------------------------------------------------------------------------
    \33\``Working Together for Public Service: Final Report,'' U.S. 
Secretary of Labor's Task Force on Excellence in State and Local 
Government Through Labor-Management Cooperation (1996).
---------------------------------------------------------------------------
    Collective bargaining in the public safety sector improves 
the delivery of emergency services. In his testimony before the 
HELP Subcommittee's June 5, 2007, hearing, Kevin O'Connor 
highlighted the impact collective bargaining has for fire 
fighters. According to the Fire Chief of the Phoenix, Arizona 
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.''\34\ In New York City, a five-year collective bargaining 
agreement was ratified in 2006 to include a long-term solution 
to the Department's staffing shortage.
---------------------------------------------------------------------------
    \34\O'Connor Testimony, at 4.
---------------------------------------------------------------------------
    Before collective bargaining, the Omaha, Nebraska Fire 
Department lost one fire fighter in the line of duty every five 
years. The collective bargaining process has allowed fire 
fighters to address dangerous health hazards and obtain hearing 
protection equipment. In the twelve years that Omaha fire 
fighters have been able to collectively bargain, they have not 
lost a fire fighter.\35\ In Miami, Florida, the local fire 
fighter union was able to offer data that convinced city 
leaders to establish one of the nation's foremost fire 
department-based emergency medical services (EMS) delivery 
models. The EMS system has reduced response times and reduced 
costs to taxpayers. According to Miami Fire Chief William 
Bryson, ``the bottom line is collective bargaining worked to 
improve services in our city.''\36\
---------------------------------------------------------------------------
    \35\Id. at 5.
    \36\Id.
---------------------------------------------------------------------------
    Additionally, collective bargaining can help communities 
during difficult times. Wayne Seybold, Mayor of Marion, Indiana 
testified before the June 5, 2007 HELP Subcommittee and told 
the Subcommittee that at a critical moment in his 
community,\37\ ``the City of Marion's collective bargaining 
units were part of a team that were willing to make sacrifices 
for the betterment of the community.''\38\ He further testified 
that the City's relationship with the Marion Fire Department 
was anything but trusting in the beginning. However, since the 
City began collectively bargaining with the fire fighters, a 
sense of trust and respect has evolved, ``by promoting such 
cooperation, our community enjoys a more effective and 
efficient delivery of emergency services.''\39\
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    \37\One of Marion, Indiana's largest manufacturing plants, Thomson 
Television Picture Tube plant closed in March 2004.
    \38\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 & 
Pensions, 110th Cong., 1st Sess. (2007) (written testimony of Wayne 
Seybold) [hereinafter Seybold Testimony].
    \39\Seybold Testimony, at 2.
---------------------------------------------------------------------------

Protecting public safety employee collective bargaining laws

    After the bill's enactment, the FLRA will have one-hundred 
and eighty days to review existing state laws to determine if 
individual states meet the minimal standards of collective 
bargaining. The only requirement is that they provide the 
rights and responsibilities comparable to or greater to each of 
the rights included within Section 4(b) of the Act. If the FLRA 
determines that states already provide these basic rights, they 
are exempt from any further oversight as long as they maintain 
their law.
    In states where the localities are given the authority to 
determine and regulate the collective bargaining rights of 
public safety officers, those localities which do so would be 
treated in the same manner as the states. Under the Act, the 
FLRA would give these local ordinances the same deference as 
state laws. Therefore, if a state as described above opts not 
to enact a statewide law, FLRA's authority would be limited 
solely to those jurisdictions where public safety officers do 
not have minimum bargaining rights.
    In determining whether a State law ``substantially 
provides'' for the rights and responsibilities enumerated in 
Section 4(b)(3), the Committee recognizes that many effective 
state bargaining laws contain limited exemptions from issues 
subject to bargaining, and directs the authority to allow such 
flexibility as long as the exclusions do not undermine the 
purposes of this Act. Some examples of such special provisions 
that the Committee believes are consistent with the intent of 
the legislation include exemptions for bargaining over: merit 
examinations (Connecticut); job reclassifications (Hawaii); 
promotions (Michigan); work performance standards (Nevada); 
residency requirements (Illinois); and use of technology 
(Delaware), among others.

Public safety employees serve an integral role in Homeland Security

    The federal government has a compelling interest in 
protecting the rights of public safety officers as part of 
protecting homeland security. The Public Safety Employer-
Employee Cooperation Act intends to help ensure the effective 
delivery of emergency services by establishing minimal 
standards for collective bargaining between public safety 
employees and their employers.
    The federal government utilizes local emergency response 
personnel to carry out federal disaster response activities, 
both at home and abroad and it retains the authority to send 
local government employees anywhere they are needed. Since the 
terrorist attacks of September 11, 2001, Congress and the 
President have given significant attention to the role of first 
responders in the nation's homeland security efforts. President 
Bush issued the Homeland Security Presidential Directive-8 
(HSPD-8) which declared it a federal responsibility to 
``strengthen preparedness capabilities of Federal, state, and 
local entities.''\40\ Congress has enacted numerous laws to aid 
first responders, recognizing the essential role that they play 
in the federal government's responsibility to protect homeland 
security.\41\ September 11th demonstrated that the federal 
government has a 13 vested interest in ensuring that public 
safety operations are properly staffed, trained and equipped.
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    \40\Department of Homeland Security, HSPD-8 Overview, available at: 
http://www.ojp.usdoj.gov/odp/assessments/hspd8.htm (last visited June 
25, 2007).
    \41\Shortly after September 11, 2001, Congress created the new 
Department of Homeland Security (P.L. 107-296) and stipulated that the 
Department would be responsible with assisting states and localities 
with their homeland security efforts. The Office for Domestic 
Preparedness (ODP) awards equipment grants, administers training 
programs, and provides technical assistance. The office's authority 
extends from at least four different statutes, most of which provide 
general authority to federal entities to assist states and localities 
with terrorism preparedness (P.L. 104-132, P.L. 104-201; P.L. 107-56; 
P.L. 107-296). Funding for the Assistance to Fire fighters Program 
(P.L. 106-398) which awards grants directly to local fire departments 
for fire fighter safety programs, training, equipment and facility 
improvements was raised from $100 million in FY 2001, to $900 million 
for FY 2003 and FY 2004 (P.L. 107-107) following the September 11th 
terrorist attacks. In addition, after September 11th Congress has 
passed legislation regarding technology, funding, spectrum access and 
other areas critical to first responders and emergency communications. 
The Homeland Security Act of 2002 (P.L. 107-296) addressed 
interoperable emergency communications capability; the Intelligence 
Reform and Terrorism Prevention Act of 2004 (P.L. 458) expanded 
Congress' requirements for action in improving interoperability and 
public safety communications; Congress set a deadline of February 18, 
2009 for the release of radio frequency spectrum for public safety 
radios as part of the Deficit Reduction Act of 2005 (P.L. 109-171). The 
Century Emergency Communications Act of 2006 created an Office of 
Emergency Communications and the position of Director who is required 
to take numerous steps to coordinate emergency communications planning, 
preparedness, and response, particularly at the state and regional 
level (P.L. 109-296, Title VI, Sec. 671(b) `Title XVIII, `Sec. 1801 
`(c) `(7).
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    Officer Nunziato articulated the inherent role public 
safety employees play in homeland security. Prior to September 
11th, the vast majority of the Port Authority police officers 
worked steady eight hour tours on a four day on, two day off 
schedule. By the end of the day on September 11th, every 
officer was switched to twelve hour tours, seven days a week. 
Vacation and personal leave were cancelled. The schedule did 
not return to normal for three years.\42\ September 11th 
demonstrated that homeland security is a vital federal 
government responsibility and first responders play an 
indispensable role in homeland security.
---------------------------------------------------------------------------
    \42\Nunziato Testimony, at 3.
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    September 11th prompted active federal government 
involvement in local emergency response preparedness. The need 
for the federal government to provide support to first 
responders was further evidenced by the devastating affects of 
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 the devastating 
storm.\43\ The lack of cohesion among state and local emergency 
response personnel impaired their ability to organize their 
response activities effectively. The Public Safety Employer-
Employee Cooperation Act will enhance cohesion among agencies 
across jurisdictions that will improve the delivery of critical 
services.
---------------------------------------------------------------------------
    \43\Select Bipartisan to Investigate the Preparation for and 
Response to Hurricane Katrina, U.S. House of Representatives. Available 
at: http://katrina.house.gov/full_katrina_report.htm (last accessed 
June 25, 2007).
---------------------------------------------------------------------------

Constitutional authority

    Requiring the states to provide collective bargaining 
rights to all public safety employees is a valid exercise of 
Congress' authority to regulate commerce pursuant to Article 1, 
Section 8 of the Constitution. It is well established that 
Congress may regulate labor management relations for employment 
in, or affecting interstate commerce\44\ and there is little 
question that public safety employees' and their role in 
homeland security affects interstate commerce. The Supreme 
Court has acknowledged that Congress has considerable 
discretion to determine what activities affect interstate 
commerce, to the extent that it held events of purely local 
commerce (such as local working conditions) might, because of 
market forces, negatively affect interstate commerce, and thus 
could be regulated.\45\
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    \44\NLRB v. Jones and Laughlin Steel Corp., 301 U.S. 1 (1937) 
(upholding the National Labor Relations Act, finding that by 
controlling industrial labor strife, Congress was preventing burdens 
from being placed on interstate commerce).
    \45\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).
---------------------------------------------------------------------------
    The economic impact of terrorism and natural disasters is 
not limited to the locality where these events occur. Rather, 
such events have regional and national economic impacts for 
which the federal government must be responsive. In addition to 
the devastating loss of life of September 11th, the City of New 
York estimates that the economic costs from the attacks is 
somewhere between $83 billion and $95 billion. This estimate 
includes the one-time loss of wealth, which includes damage or 
destruction of the physical structures and loss of personal 
income, and also includes the loss of goods and services 
produced and sold.\46\ Furthermore, it is estimated that that 
the economic loss from Hurricane Katrina and subsequent 
flooding in New Orleans is expected to exceed $100 billion.\47\ 
By improving the cohesiveness and effectiveness of public 
safety employers and their employees, H.R. 980 assists in 
stemming these costs.
---------------------------------------------------------------------------
    \46\William C. Thompson, Jr., Comptroller for the City of New York. 
Remarks Prepared for Speech Before the Association for a Better New 
York. (Sept. 4, 2002). Available at: http://www.comptroller.nyc.gov/
press/speeches/print/association_for_better_ny.shtm (last visited June 
25, 2007).
    \47\Risk Management Solutions, ``RMS Expects Economic Loss to 
Exceed $100 Billion from Hurricane Katrina and the Great New Orleans 
Flood,'' Sept. 2, 2005. Available at: http://www.rms.com/NewsPress/
PR_090205_HUKatrina.asp (last accessed June 25, 2007).
---------------------------------------------------------------------------
    Congress' authority to provide collective bargaining rights 
to public safety employees is an extension of the Court's 1995 
decision in Garcia v. San Antonio Metropolitan Transit 
Authority.\48\ The Court in Garcia determined that Congress had 
the authority to extend wage and hour protections to state and 
local workers. If Congress determined that wage and hour 
protections should be extended to public sector workers, the 
Court reasoned that Representatives from those districts 
followed their constituents' policy preferences. Additionally, 
ensuring individual liberty would be advanced by permitting 
Congress to extent wage and hour protections. Over the last 
twelve years, the Public Safety Employer-Employee Cooperation 
Act has garnered the support of no less fifty and as many as 
two-hundred and seventy-four co-sponsors. It is clear that not 
only a majority of the Congress, but the majority in this 
country support extending collective bargaining rights to 
public safety officers.
---------------------------------------------------------------------------
    \48\469 U.S. 528 (1985).
---------------------------------------------------------------------------
    In his testimony before the HELP Subcommittee's June 5, 
2007 hearing, William Banks, Professor of Law at Syracuse 
University and director of its Institute for National Security 
and Counterterrorism, notes that the Court, in certain 
situations, has found that the Tenth Amendment limits Congress' 
ability to extend commerce-based regulations to public 
employees and employers.\49\ However, this limitation applies 
when Congress attempts to ``commandeer'' state or local 
regulatory process, by requiring states and/or cities to adopt 
and implement a federal regulatory program.
---------------------------------------------------------------------------
    \49\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 & 
Pensions, 110th Cong., 1st Sess. (2007) (written testimony of William 
Banks, at 2) [hereinafter Banks Testimony].
---------------------------------------------------------------------------
    The Public Safety Employer-Employee Cooperation Act does 
not ``commandeer'' state or local governments by requiring that 
they enact or implement a federal regulatory program. The Act 
expressly places the onus on states that do not yet provide 
full collective bargaining rights for public sector employees 
to either provide the protections required in the Act, or to 
allow the FLRA to implement the Act.
    The Public Safety Employer-Employee Cooperation Act is 
about fairness and national security. It will protect both our 
first responders and the communities they serve, making the 
nation safer and more secure.

                      SECTION-BY-SECTION ANALYSIS

    Section 1. Provides that the short title of H.R. 980 is the 
``Public Safety Employer-Employee Cooperation Act of 2007.''
    Section 2. Articulates that the intent of the Act is to 
promote labor-management relationships and partnerships between 
public safety employers and public safety employees. A public 
safety employer/employee relationship based on trust, mutual 
respect, open communication, bilateral consensual problem 
solving and shared accountability plays an essential role in 
the efforts of the U.S. to detect, prevent, and respond to 
terrorist attacks, and to respond to natural disasters, 
hazardous materials, and other mass casualty incidents. The 
absence of adequate cooperation between public safety employers 
and public safety employees has implications not only for 
national security, but for the security of public safety 
employees, and for their health and well-being.
    Section 4(a)(1). Provides the timeline by which the Federal 
Labor Relations Authority (``Authority'') shall review State 
collective bargaining laws to see if they meet minimum 
standards with respect to the bargaining rights for public 
safety officers. The Authority shall, no later than one-hundred 
and eighty days after the enactment make the determination as 
to whether a state substantially provides rights and 
responsibilities comparable or greater than those as defined in 
Section 4(b).
    In addition, pursuant to Section 4(a)(2) the Authority can 
make a subsequent determination as to whether a state 
substantially complies with the Act if there is a subsequent 
change in state law or its interpretation. This request can be 
made in writing by an employer or labor organization. The 
Authority shall issue its determination within thirty days. 
Sec. 4(a)(2)(B). Any person aggrieved by the Authority's 
determination has sixty days following that determination to 
petition any U.S. Court of Appeals.\50\
---------------------------------------------------------------------------
    \50\An individual has the right to petition in the circuit in which 
the person resides or transacts business or in D.C. circuit for 
judicial review.
---------------------------------------------------------------------------
    Section 4(b). Defines the adequate rights and 
responsibilities a state must provide in order to substantially 
comply with the Act. The Authority shall consider a state's law 
to provide adequate rights and responsibility unless the 
state's law fails to substantially provide each of the 
following five minimum standards: (1) Granting public safety 
officers to right to form and join a labor organization and 
have it recognized as the exclusive bargaining representative 
of such employees; (2) Requiring public safety employer to 
recognize the employees' labor organization, to agree to 
bargain with the labor organization, and to commit any 
agreements to writing in a contract or memorandum of 
understanding; (3) Providing for bargaining over hours, wages, 
and terms and condition of employment; (4) Making an impasse 
resolution available if the parties are unable to reach an 
agreement, such as fact-finding, medication, arbitration, or 
comparable procedures; (5) Requiring enforcement through (A) 
state courts of all rights, and protections enumerated in this 
subsection; (B) any written contract or memorandum of 
understanding.
    Nothing in Section 4(b) dictates to states the process for 
employees to choose to join a union. The Act only requires that 
the labor organization be ``freely chosen by a majority of the 
employees.'' Employees may choose to join a union through a 
majority sign up process, a secret ballot election or any other 
process that reflects the free choice of employees. The Act 
does not require states or localities to adopt any specific 
means to discern that majority choice, so long as that free 
choice is protected.
    Section 4(b) was amended from earlier versions of the Act 
to reduce the list of standards a state must comply with when 
determining whether or not a state substantially provides 
rights and responsibilities comparable to or greater than those 
provided through Section 4(b) of the Act. Reducing the number 
of minimum requirements intends to give states greater 
flexibility in implementing collective bargaining laws.
    Section 5. Defines the role of the Authority in evaluating 
state collective bargaining laws, and in enforcing the Act in 
those states that do not meet minimum standards. The Authority, 
no later than 1 year after enactment, shall issue regulations 
establishing procedures providing the rights and 
responsibilities defined in 4(b) for those States that the 
Authority determines do not substantially provide for such 
rights and responsibilities for public safety employers and 
officers.
    Section 5(b). In accordance with this Act and the 
regulations prescribed by the Authority, the Authority shall: 
(1) Determine the appropriateness of units for labor 
organization representation; (2) Supervise or conduct elections 
to determine if a labor organization has been selected as the 
exclusive bargaining representative by a 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 
exemptions to the awards of arbitrators; (6) Protect the rights 
of each employee to join, or assist any labor organization; (7) 
Take any actions necessary and appropriate to administer this 
Act.
    Section 5(c)(1). Provides that the Authority has the right 
to petition to enforce the Act. The Authority may petition any 
U.S. Court of Appeals with jurisdiction over the parties to 
enforce any final orders and for temporary relief or a 
restraining order. Any interested party has the right to file 
suit against a municipality or local government in Federal 
court to enforce compliance with the regulations issued by the 
Authority.
    Section 5(c)(2). Provides that any interested party has the 
right to file suit against any political subdivision of a 
state, or if the state has waived its sovereign immunity, 
against the state itself, in any U.S. district court. If the 
Authority subsequently brings suit to enforce compliance with 
any order issued by the Authority, the individual's petition 
shall terminate upon filing by the Authority.
    Section 6. Provides that notwithstanding any right or 
responsibilities provided under State law, public safety 
employers, public safety employees and any labor organization 
representing those public safety employees are prohibited from 
engaging in strikes or lockouts.
    Section 7. Provides that H.R. 980 does not invalidate a 
certification, recognition, collective bargaining agreement or 
memorandum of understanding which has been issued, approved or 
ratified by any public safety employee relations board or 
commission or by any State or political subdivisions or its 
agents.
    Section 8(a). Limits the extent to which the Act can impose 
standards onto the states that relate to collective bargaining. 
Nothing in the Act shall: (1) Preempt or limit the remedies, 
rights and procedures of any State law or political subdivision 
that substantially provide greater or comparable rights and 
responsibilities described in Sec. 4(b). (2) Prevent a State 
from enforcing a Right-to-Work law that prohibits employers and 
labor organizations from negotiating provisions in labor 
agreements that require union membership or payment of union 
fees as a condition of employment; (3) Preempt any State law in 
effect on the date of enactment of the Act that substantially 
provides for the rights and responsibilities in Section 4(b) 
because the State law permits an employee to appear on his own 
with the public safety agency involved, excludes employees of a 
state militia or National Guard from its coverage, provides 
that a contract or memorandum of understanding between a public 
safety employer or labor organization must be presented to the 
State legislature as part of the approval process.
    Section 8(a) further provides that nothing in the Act 
prohibits an employee from engaging in part-time employment or 
volunteer activities during off-duty hours; to 18 require a 
State to rescind or preempt the laws or ordinances of a State's 
political subdivision if it substantially provides the rights 
and responsibilities comparable or greater than those outlined 
in section 4(b) of this Act, or preempt any State law that 
substantially provides for the rights and responsibilities 
described in section 4(b) solely because the law does not 
require bargaining with respect to pension and retirement 
benefits.
    Section 8(b). Provides for a partial exemption from the 
requirements under this Act, or a State may exempt from its 
State law, a political subdivision of the State with a 
population of less than 5,000 or that employs fewer than 25 
full-time employees. The 25 employee exemption includes all 
full-time employees of the political subdivision, not limited 
to public safety employees. Employees elected by popular vote 
or appointed to serve on a board or commission are excluded.
    Section 8(c). Provides the Authority with the exclusive 
power to enforce the provisions of this Act with respect to 
public safety officers employed by a State, notwithstanding any 
other provisions of this Act, and in the absence of a waiver of 
a State's sovereign immunity.
    Section 8(a) was revised from earlier versions of the Act 
to expressly provide that H.R. 980 neither limits a state's 
ability to be ``right to work,'' nor prohibits an individual 
from serving as a volunteer fire fighter. In addition, Section 
8(b) was revised from earlier versions to address concerns 
raised by smaller jurisdictions about the Act's implementation. 
It is the intent of the Act that communities with a population 
of less than 5,000 or that employs less than 25 full-time 
employees be exempt from H.R. 980.
    Section 9. Provides that the authorization of funds shall 
be appropriated as may be necessary to carry out the Act.

                       EXPLANATION OF AMENDMENTS

    The Amendment in the Nature of a Substitute is explained in 
the body of this report. Representative Souder introduced an 
amendment which would have required the states to conduct 
representational elections exclusively through secret ballot 
procedures. The amendment was withdrawn and no further action 
was taken on the amendment.

              APPLICATION OF LAW TO THE LEGISLATIVE BRANCH

    Section 102(b)(3) of Public Law 104-1, the Congressional 
Accountability Act, requires a description of the application 
of this bill to the legislative branch. The Committee believes 
that H.R. 980 will have no significant impact on the 
legislative branch.

                      REGULATORY IMPACT STATEMENT

    The Committee has determined that H.R. 980 will have 
minimal impact on the regulatory burden.
    (See CBO letter for further analysis)

                       UNFUNDED MANDATE STATEMENT

    Section 423 of the Congressional Budget and Impoundment 
Control Act (as amended by Section 101(a)(2) of the Unfunded 
Mandates Reform Act, P.L. 104-4) requires a statement of 
whether the provisions of the reported bill include unfunded 
mandates.
    (The CBO letter will address this issue)

                           EARMARK STATEMENT

    H.R. 980 does not contain any congressional earmarks, 
limited tax benefits, or limited tariff benefits as defined in 
clause 9(d), 9(e) or 9(f) of rule XXI.


  STATEMENT OF OVERSIGHT FINDINGS AND RECOMMENDATIONS OF THE COMMITTEE

    In compliance with clause 3(c)(1) of rule XIII and clause 
2(b)(1) of rule X of the rules of the House of Representatives, 
the Committee's oversight findings and recommendations are 
reflected in the body of this report.

               NEW BUDGET AUTHORITY AND CBO COST ESTIMATE

    With respect to the requirements of clause 3(c)(2) of rule 
XIII of the House of Representatives and section 308(a) of the 
Congressional Budget Act of 1974 and with respect to 
requirements of 3(c)(3) of rule XIII of the House of 
Representatives and section 402 of the Congressional Budget Act 
of 1974, the Committee has received the following estimate for 
H.R. 980 from the Director of the Congressional Budget Office:

                                                     June 27, 2007.
Hon. George Miller,
Chairman, Committee on Education and Labor,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 980, the Public 
Safety Employer-Employee Cooperation Act of 2007.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contacts are Matthew 
Pickford (for federal costs), who can be reached at 226-2860, 
Elizabeth Cove (for the state and local impact), who can be 
reached at 225-3220, and Paige Shevlin (for the private-sector 
impact), who can be reached at 226-2940.
            Sincerely,
                                                   Peter R. Orszag.
    Enclosure.

H.R. 980--Public Safety Employer-Employee Cooperation Act of 2007

    Summary: H.R. 980 would establish federal standards 
regarding the collective bargaining and conflict resolution 
measures available to public safety personnel employed by state 
and local governments, the District of Columbia, and any U. S. 
territory or possession that employs such personnel. CBO 
estimates that implementing H.R. 980 would cost $44 million 
over the 2008-2012 period, subject to appropriation of the 
necessary funds. Enacting the bill would not affect direct 
spending or revenues.
    H.R. 980 contains several intergovernmental and private-
sector mandates as defined in the Unfunded Mandates Reform Act 
(UMRA). Because of uncertainties about how employees would 
exercise the collective bargaining rights that would be 
authorized by the bill and, consequently, how state and local 
employers would be affected, CBO cannot estimate whether the 
costs of the intergovernmental mandates would exceed the 
threshold established in the act ($66 million in 2007, adjusted 
annually for inflation). CBO estimates that the direct costs of 
the private-sector mandates would be well below the annual 
threshold specified in UMRA ($131 million in 2007, adjusted 
annually for inflation).
    Estimated cost to the Federal Government: The estimated 
budgetary impact of H.R. 980 is shown in the following table. 
The costs of this legislation fall within budget function 800 
(general government).

----------------------------------------------------------------------------------------------------------------
                                                                     By fiscal year, in millions of dollars--
                                                                 -----------------------------------------------
                                                                   2007    2008    2009    2010    2011    2012
----------------------------------------------------------------------------------------------------------------
                                        SPENDING SUBJECT TO APPROPRIATION

Federal Labor Relations Authority Spending Under Current Law:
    Estimated Authorization Levela..............................      25      26      27      28      29      30
    Estimated Outlays...........................................      25      26      27      28      29      30
Proposed Changes:
    Estimated Authorization Level...............................       0       3      10      10      11      11
    Estimated Outlays...........................................       0       3       9      10      11      11
Federal Labor Relations Authority Spending Under H.R. 980:
    Estimated Authorization Level...............................      25      29      37      38      40      41
    Estimated Outlays...........................................      25      29      36      38      40     41
----------------------------------------------------------------------------------------------------------------
aThe 2007 level is the amount appropriated for that year for the Federal Labor Relations Authority. The 2008-
  2012 levels are CI30's baseline projections, assuming annual adjustments for anticipated inflation.

    Basis of estimate: For this estimate, CBO assumes that the 
legislation will be enacted near the start of fiscal year 2008, 
that the necessary amounts will be appropriated for each fiscal 
year, and that outlays will follow historical trends for 
similar activities.
    H.R. 980 would extend collective bargaining rights to 
public safety personnel under certain conditions and would 
provide for federal administration of those rights in states 
that do not comply with the minimum standards in the bill. It 
would authorize the appropriation of such sums as may be 
necessary for the Federal Labor Relations Authority (FLRA) to 
adopt regulations implementing the bill, determine state 
compliance with the standards, and administer and enforce the 
standards where necessary. The bill would allow for judicial 
review of the FLRA's determinations and judicial enforcement of 
the new standards.
    CBO estimates that the FLRA would spend an additional $3 
million in 2008, subject to the availability of appropriated 
funds, to develop the regulations, determine state compliance 
with the standards, and respond to any judicial review of its 
determinations. Preliminary information from the FLRA suggests 
that about half of the existing state programs would not be in 
substantial compliance with the bill's standards. If the final 
determinations confirm that analysis, about 500,000 public 
safety officers would come under the FLRA's jurisdiction, which 
would increase the agency's workload by about 40 percent, 
beginning in 2009. CBO estimates that a workload increase of 
that magnitude would cost $10 million a year. Costs could be 
lower if states modify their laws and practices to comply with 
the standards in the legislation, but CBO has no basis for 
predicting whether states would make such changes.
    Estimated impact on state, local, and tribal governments: 
H.R. 980 would preempt state authority to regulate the 
collective bargaining rights of its state and local public 
safety employees. The bill would require the FLRA to develop 
and implement regulations that grant certain public safety 
employees the right to collectively bargain in states where 
that authority does not meet a minimum level of coverage as 
determined by the FLRA. Such a preemption of state authority is 
a mandate under UMRA. Costs to states, if any, from this 
mandate would be minimal because the FLRA also would be 
required to enforce the regulations.
    As employers, certain state and local governments would be 
required to meet and bargain with the employees' exclusive 
representative should the employees choose to be represented by 
a collective bargaining unit. Such a requirement would be a 
mandate because those employers, under current law, are not 
required to meet and bargain with employees. The costs of 
complying with the mandate would include administrative 
activities that support the collective bargaining process and 
would vary by state depending on the level of collective 
bargaining rights currently extended to public safety employees 
in each state. Because we cannot predict how employees would 
respond to this new authority--that is, whether they would 
choose to organize a collective bargaining unit and what 
employment conditions they might ultimately negotiate--CBO 
cannot estimate the administrative costs that would result from 
this mandate.
    Section 5 would require state or local governments, if 
subpoenaed, to provide testimony and documentary evidence to 
the FLRA as it enforces the collective bargaining system. Such 
a requirement would be a mandate as defined by UMRA. CBO cannot 
predict the degree to which this subpoena power would be 
exercised, but the cost of complying with the mandate is not 
likely to be significant.
    Section 6 would prohibit public-sector employers from 
engaging in lockouts or any other actions designed to compel a 
public safety officer or labor union to agree to terms of a 
proposed contract. This prohibition would not impose costs on 
any state or local government because it would maintain regular 
staffing levels during instances of disagreement between labor 
and management.
    Section 8 would prohibit states from preempting any local 
laws or ordinances that provide collective bargaining rights 
that are equal to or greater than the rights provided in the 
bill. This preemption, also a mandate under UMRA, would not 
impose any costs on state governments.
    Because of the uncertainties about how the FLRA regulations 
would be implemented and how many public-sector employees would 
exercise their new rights to enter into collective bargaining 
agreements, CBO cannot determine whether the aggregate costs of 
the mandates contained in the bill would exceed the annual 
thresholds established by UMRA ($66 million in 2007, adjusted 
annually for inflation).
    Estimated impact on the private sector: H.R. 980 contains 
two private-sector mandates as defined by UMRA. Section 5 would 
require public safety officers or other private-sector 
entities, if subpoenaed, to provide testimony and evidence 
related to matters the FLRA would be empowered to investigate. 
Such a requirement would be a private-sector mandate as defined 
by UMRA. Although the precise number of individuals likely to 
be subpoenaed under this provision is uncertain, CBO expects 
that the direct cost of the mandate to private-sector entities 
would be well below the annual threshold established by UMRA 
($131 million in 2007, adjusted annually for inflation).
    Section 6 would prohibit labor organizations from engaging 
in strikes. Although this mandate could ultimately affect the 
strength of a public safety union's bargaining power, CBO 
estimates that the mandate would impose no direct cost on 
private-sector entities.
    Estimate prepared by: Federal Costs: Matthew Pickford; 
Impact on State, Local, and Tribal Governments: Elizabeth Cove; 
Impact on the Private Sector: Paige Shevlin.
    Estimate approved by: Peter H. Fontaine, Deputy Assistant 
Director for Budget Analysis.

         STATEMENT OF GENERAL PERFORMANCE GOALS AND OBJECTIVES

    In accordance with Clause 3(c) of House rule XIII, the goal 
of H.R. 980 is to provide basic labor protections to public 
safety officers.

                   CONSTITUTIONAL AUTHORITY STATEMENT

    Under clause 3(d)(1) of rule XIII of the Rules of the House 
of Representatives, the Committee must include a statement 
citing the specific powers granted to Congress in the 
Constitution to enact the law proposed by H.R. 980. The 
Committee believes that the 20 amendments made by this bill 
which extend collective bargaining rights to public safety 
employees are within Congress' authority under Article I, 
Section 8 of the U.S. Constitution.

                           COMMITTEE ESTIMATE

    Clause 3(d)(2) of rule XIII of the Rules of the House of 
Representatives requires an estimate and a comparison of the 
costs that would be incurred in carrying out H.R. 980. However, 
clause 3(d)(3)(B) of that rule provides that this requirement 
does not apply when the Committee has included in its report a 
timely submitted cost estimate of the bill prepared by the 
Director of the Congressional Budget Office under section 402 
of the Congressional Budget Act.

         CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED

    This legislation does not change existing law, it creates 
new law.

                        COMMITTEE CORRESPONDENCE

    None.

                             MINORITY VIEWS

                              Introduction

    Committee Republicans do not view the debate over H.R. 980, 
the ``Public Safety Employer-Employee Cooperation Act of 
2007,'' as a question of whether firefighters, police officers, 
emergency medical services employees, and other public safety 
workers and first responders should be permitted to organize. 
Rather, the question was--and always had been--whether the 
federal government should dictate to state, local, and 
municipal governments not only an obligation to permit 
organization and to require bargaining, but indeed, to set the 
minimum standards that such bargaining must entail. We 
recognize and agree that persons can, in good conscience, 
differ in their views as to the correct answer(s) to these 
questions.
    We supported this bill during its consideration in the 
Committee on Education and Labor recognizing these facts, and 
with the express concerns we set forth and detail herein. As 
this bill continues to work its way through the legislative 
process, we are hopeful that efforts can be made to address the 
core concerns of federalism and states' rights raised by H.R. 
980.

                               Background

    The National Labor Relations Act (``NLRA'' or the ``Act'') 
generally affords a range of rights and protections to covered 
workers. Such workers are afforded, for example, the right to 
engage (or not engage) in collective activity; to vote in an 
election on the question of whether to join a union; to 
collectively bargain over the terms and conditions of their 
employment; and, subject to contractual and other restrictions, 
whether to engage in a work stoppage or strike.\1\
---------------------------------------------------------------------------
    \1\See generally Section 7 of the NLRA (29 U.S.C. Sec. 157).
---------------------------------------------------------------------------
    In deference to states' rights, and recognizing the unique 
needs of states and localities, employees of state and local 
governments have been expressly excluded from coverage under 
the NLRA since its enactment in 1939.\2\ As such, the labor 
rights and protections of state and local employees are 
governed by various state and local laws. States vary in their 
application of labor laws to various public employees. Some 
states have adopted a comprehensive set of labor law 
protections for all public employees; others have adopted more 
limited codes of law, or laws applicable to specific sorts of 
public-employees; still other states prohibit collective 
bargaining for public-sector employees entirely.
---------------------------------------------------------------------------
    \2\See 29 U.S.C. Sec. 152(2) (excluding, inter alia, states and 
political subdivisions from definition of ``employer'').
---------------------------------------------------------------------------
    Supporters of current law argue that the delegation of 
public-employee labor relations to states not only reflects 
long-standing and well-settled federal law, but is also a 
proper recognition of states' rights and local needs and 
interests. Supporters of an expanded federal role in state 
labor relations--such as that contemplated under H.R. 980--
argue in response that the federal government should set 
minimum labor standards for employees, particularly those who 
may be called upon in situations in which there is a strong 
federal interest (such as, for example, a terrorist attack or 
hazardous waste contamination on federal property). There is no 
debate that H.R. 980 would provide for such an expanded federal 
role.

  H.R. 980, the ``Public Safety Employer-Employee Cooperation Act of 
                                 2007''

    On February 12, 2007, Representative Dale Kildee (D-MI), 
joined by Representative John J. Duncan, Jr. (R-TN), introduced 
H.R. 980, the `Public Safety Employer-Employee Cooperation Act 
of 2007.'''
    H.R. 980 would provide federal labor law standards for a 
range of public safety employees. H.R. 980 sets forth a list of 
federal labor law standards, and directs the Federal Labor 
Relations Authority (``FLRA'' or the ``Authority'')\3\ to 
review the labor laws of each of the fifty states. If the FLRA 
determines that a state's laws do not contain provisions 
``substantially similar'' to the core labor provisions set 
forth in H.R. 980, a state is faced with two choices: (1) enact 
within a specified time period laws that conform to the federal 
standard; or (2) have federal labor law, administered by the 
FLRA, govern the rights of state and local firefighters and 
public safety officers.
---------------------------------------------------------------------------
    \3\The FLRA is the federal agency tasked under the Civil Service 
Reform Act of 1978 with administering labor laws applicable to non-
postal federal employees.
---------------------------------------------------------------------------
    More specifically, H.R. 980 provides that with respect to 
firefighters and public safety officers (defined to include law 
enforcement officers, firefighters, and emergency medical 
services personnel), the FLRA must, within 180 days of 
enactment, review the laws of each of the fifty states and make 
a determination as to whether each state's laws ``substantially 
provide'' the core labor rights described in the bill. To meet 
the federal standards set forth under H.R. 980, a state's labor 
law must ``substantially provide'' specified public-sector 
employees with rights ``comparable to or greater than'' the 
following:
     The right to form and join a union, and to have 
such union recognized as a collective bargaining representative 
of these employees;
     A requirement that public employers recognize and 
bargain with such union, and commit any agreement to a written 
contract or memorandum of understanding;
     The right to bargain specifically over hours, 
wages, and terms and conditions of employment;
     The right to a third-party impasse resolution 
mechanism, which may include mediation or binding arbitration; 
and
     The right to enforce these rights and any rights 
granted under a collective bargaining agreement by way of the 
state's court system.
    Within one year of the bill's date of enactment, the FLRA 
is required to promulgate federal regulations that provide the 
rights set forth above to public-sector firefighters and public 
safety personnel. If the Authority has determined that a 
state's laws do not meet these requirements, the federal 
regulations will become binding on that state one year 
later.\4\
---------------------------------------------------------------------------
    \4\Put more simply, states which are initially determined to not 
meet the federal standard are given the time from that first 
determination to the effective date of the federal regulations eighteen 
months later to enact or amend their state laws so as to bring them 
into compliance.
---------------------------------------------------------------------------
    H.R. 980's proponents estimate that 29 of 50 states 
currently have laws in place that would meet the federal 
standard; the 21 remaining states would be required to enact 
new state labor legislation, or face the prospect of regulation 
by the federal governments.\5\ These analyses are by no means 
determinative, however: At the outset, every state's law would 
be subject to scrutiny and a determination by the FLRA as to 
whether it meets federal minimum standards. It is unclear how 
significantly a state law may be allowed to vary from federal 
``standards'' before being subject to federal preemption.\6\
---------------------------------------------------------------------------
    \5\H.R. 980's supporters' analyses indicate that the following 
states would be required to adopt some change to their state or local 
labor laws to meet the bill's requirements: Alabama, Arizona, Arkansas, 
Colorado, Georgia, Idaho, Indiana, Kansas, Kentucky, Louisiana, 
Maryland, Mississippi, Missouri, North Carolina, South Carolina, 
Tennessee, Texas, Utah, Virginia, West Virginia, and Wyoming. As noted 
above, however, it is not at all clear that the effects of H.R. 980 are 
limited to these states; indeed, at the outset, every state is subject 
to an initial review and determination of compliance by federal 
authorities.
    \6\For example, H.8. 980 provides a ``small employer'' exemption 
for localities that employ less than 25 people; small employer 
exemptions in various state laws may vary up or down from that figure. 
It is unclear in this example what variance the FLRA would find 
reflects ``substantial'' compliance with HR. 980's federal 
requirements, or whether small deviations from the federal standard 
would be sufficient to result in federal preemption.
---------------------------------------------------------------------------
    On June 5, 2007, the Subcommittee on Health, Employment, 
Labor, and Pensions held a legislative hearing entitled 
``Ensuring Collective Bargaining Rights for First Responders: 
H.R. 980, the `Public Safety Employer-Employee Cooperation Act 
of 2007.''' Previously, the Subcommittee had considered this 
issue in 2000, when the Committee on Education and the 
Workforce's Subcommittee on Employer-Employee Relations (as the 
Committee on Education and Labor's Subcommittee on Health, 
Employment, Labor, and Pensions was then known) held a 
legislative hearing on a prior iteration of H.R. 980.\7\
---------------------------------------------------------------------------
    \7\See Committee on Education and the Workforce, Subcommittee on 
Employer-Employee Relations, Hearing on H.R. 1093, the ``Public Safety 
Employer-Employee Cooperation Act of 1999,'' Serial No. 106-106 (May 9, 
2000) (available online at http://webharvest.gov/congress109th/
20061114005627/commdocs.house.gov/committees/edu/hedcew6-106.000/
hedcew6-106.htm). Testimony and statements from the hearing are also 
available online at http://webharvest.gov/congress109th/20061114062813/
edworkforce.house.gov/hearings/106th/eer/pubsafety5900/w15900.htm.
---------------------------------------------------------------------------

                            REPUBLICAN VIEWS

    Historically, a number of concerns have been raised with 
this legislation, or similar attempts to mandate federal labor 
law standards onto state or local employees. These concerns 
relate primarily to question of states' rights, federal 
mandates, and the practical consequences of the bill, as well 
as the constitutionality of efforts by the federal government 
to regulate a state's labor relations with its public 
employees. These concerns were expressed in testimony at the 
Subcommittee's hearing, and are set forth below.

States' rights and Federal mandates

    As a matter of federalism, H.R. 980 directly raises concern 
with states' rights, and the ability of state and local 
governments to establish a code of labor law that addresses 
local concerns, needs, and interests. Although H.R. 980's 
supporters argue that administration of state labor laws will 
be left to the states, as a practical matter, H.R. 980 
represents a federalization of state labor law by the 
importation of specific ``minimum'' requirements under state 
law. More to the point, H.R. 980 would explicitly apply federal 
law to those states which do not adopt laws that meet these 
federal standards. Thus whether through direct regulation or 
the indirect establishment of mandatory standards, H.R. 980 
interjects the federal government directly into the labor 
relations of states and their public employees. Equally 
important, as a practical matter, H.R. 980 would require states 
that do not currently bargain with public-sector safety 
employees to now do so, and could potentially expand the scope 
of such bargaining in states that do.
    These concerns were summarized in testimony by Neil E. 
Reichenberg, Esq., CAE, the Executive Director of the 
International Public Management Association for Human Resources 
(IPMA-HR), who testified on behalf of that organization and the 
International Municipal Lawyers Association (IMLA).\8\ As Mr. 
Reichenberg testified:

    \8\See Testimony of Neil E. Reichenberg, Esq., Subcommittee on 
Health, Employment, Labor, and Pensions Hearing ``Ensuring Collective 
Bargaining Rights for First Responders: H.R. 980, The Public Safety 
Employer-Employee Cooperation Act of 2007'' (June 5, 2007), available 
at: http://edlabor.house.gov/testimony/
060507NeilReichenbergTestimony.pdf (hereinafter, ``Reichenberg 
Testimony''), at 2.

          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.

    At the Subcommittee's hearing, R. Theodore Clark, 
testifying on behalf of the National Public Employer Labor 
Relations Association, testified that even one supportive of 
the right to collective bargaining for public safety 
employees--or agnostic on the point--may be concerned with H.R. 
980:

          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 . . .
          [M]y 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.\9\

    \9\Testimony of R. Theodore Clark, Subcommittee on Health, 
Employment, Labor, and Pensions Hearing ``Ensuring Collective 
Bargaining Rights for First Responders: H.R. 980, The Public Safety 
Employer-Employee Cooperation Act of 2007'' (June 5, 2007), available 
at: http://edlabor.house.gov/testimony/
060507RTheodoreClarkTestimony.pdf (hereinafter, ``Clark Testimony''), 
at 1-2 (emphasis added).

    Committee Republicans recognize and share the concerns 
expressed by these witnesses that irrespective of one's views 
as to the merit or propriety of collective bargaining by safety 
employees in the public sector, H.R. 980 represents an 
unprecedented federalization of what has traditionally been an 
area of law expressly reserved to states and localities.

Constitutional issues

    Reflecting to some extent H.R. 980's insertion of the 
federal government in an area traditionally regulated by 
states, some have argued that H.R. 980 may not pass muster 
under the Constitution. More specifically, it is unclear 
whether H.R. 980 would be held to be a valid exercise of 
Congress's authority to adopt laws affecting interstate 
commerce by virtue of the Commerce Clause of the U.S. 
Constitution.\10\ Similarly, the Tenth Amendment to the 
Constitution reserves to states those powers not expressly 
delegated to the federal government under the Constitution, 
while the Eleventh Amendment generally provides states with 
sovereign immunity from suit under federal law.\11\
---------------------------------------------------------------------------
    \10\See U.S. Constitution, Article I, Section 8, clause 3.
    \11\See id., Amendments X, XI.
---------------------------------------------------------------------------
    At the Subcommittee's hearing on June 6, 2007, R. Theodore 
Clark testified that in his view, H.R. 980 would likely be held 
by the Supreme Court to be unconstitutional. As Mr. Clark 
explained:

          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.'' 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, 517 U.S. 44, 116 S.Ct. 
        1114 (1996), 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.
          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.\12\
---------------------------------------------------------------------------
    \12\Clark Testimony at 15-16.

    Mr. Reichenberg also expressed the view of the 
organizations he represented that the constitutionality of H.R. 
---------------------------------------------------------------------------
980 is questionable at best:

          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.\13\
---------------------------------------------------------------------------
    \13\Reichenberg Testimony at 10-11.

    Committee Republicans recognize and share the concern that 
H.R. 980, as drafted, raises serious constitutional questions. 
At a minimum it limns Congressional authority to legislate 
within the confines of the Commerce Clause, and, as noted, in 
the views of many, exceeds that authority.

                  Committee Consideration of H.R. 980

    H.R. 980 was considered by the full Committee on Wednesday, 
June 20, 2007. An Amendment in the Nature of a Substitute was 
offered by Representative Kildee and adopted by voice vote. A 
second amendment was offered by Representative Souder and 
withdrawn by unanimous consent. While the Kildee Amendment 
incorporated a number of changes and improvements in the 
underlying text, Committee Republicans remain concerned that 
core issues of federalism and states' rights remain in this 
bill, and urge that these issues are addressed as this bill is 
readied for the House Floor, and in any legislative action 
beyond.
            Amendment in the Nature of a Substitute
    The Committee adopted by voice vote an Amendment in the 
Nature of a Substitute offered by Representative Kildee, the 
bill's sponsor. The Kildee Amendment incorporates a number of 
important changes to the text of H.R. 980 as introduced, 
several of which were highlighted at the Subcommittee's June 5, 
2007 hearing.
    Committee Republicans are pleased that both sides of the 
aisle were able to work in a cooperative fashion in crafting 
these changes. The deliberative process through which the 
Committee has addressed H.R. 980, including a legislative 
hearing devoted to its specific provisions, underscores the 
value of and need for regular order and deliberate 
consideration of significant legislation before the Committee.
    Specifically, the Substitute does the following:
    Levels the Playing Field for All Parties. Concern was 
raised at the hearing that in making a determination as to 
whether a state's law passed federal muster and ``substantially 
provided'' the federal minimum standards set forth in the bill, 
the views of just one affected party--unions representing 
employees--were to be given undue weight by the FLRA. The 
Substitute addresses this issue and levels the playing field by 
providing that the views of all affected parties--employers and 
unions representing employees--will be afforded equal 
importance, and given weight by the FLRA in making its 
determination where the parties agree that state law 
substantially provides the minimum standards set forth in the 
bill.
    Presumes State Law Complies with Federal Standards. 
Supporters of H.R. 980 have steadfastly maintained that it is 
the intent of the legislation to displace as little state law 
as possible, and that where a question of whether a state's 
labor law ``substantially complies'' with the federal standard 
is close, the default presumption should be that it does. To 
make this expressed intention explicit, section 4(b) of the 
Substitute provides that a state's labor laws are presumed to 
be in compliance with federal standards unless the FLRA 
affirmatively finds to the contrary.
    Ensures State Law is Not Preempted Solely Because It 
Excludes Pension and Retirement Benefits from the Scope of 
Bargaining. At the hearing, the Subcommittee heard extensive 
testimony expressing concern that the bill might 
unintentionally preempt a range of states' laws simply because 
those laws exclude from the scope of bargaining the issue of 
pension and retirement benefits. As R. Theodore Clark 
explained:

          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. 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.'' 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.\14\
---------------------------------------------------------------------------
    \14\Clark Testimony at 4-5.

    To address this concern, the Substitute expressly provides 
in section 8(a)(6) that the bill shall not be construed to 
preempt ``any State law that substantially provides for the 
rights and responsibilities described in section 4(b) solely 
because such law does not require bargaining with respect to 
pension and retirement benefits'' (emphasis added). We reaffirm 
that H.R. 980 is not intended to preempt such laws.
    With respect to the general scope of the phrase ``terms and 
conditions of employment,'' we note that, consistent with the 
purpose of this bill, it is the intent of Committee Republicans 
that the FLRA interpret that term holistically, and not give 
undue focus to the exclusion of discrete or limited items from 
the required scope of bargaining under existing state law. In 
that light, we note our concurrence with the Majority that:

          In determining whether a State law ``substantially 
        provides'' for the rights and responsibilities 
        enumerated in Section 4(b)(3), the Committee urges the 
        Authority to avoid an overbroad, all-inclusive 
        interpretation of ``terms and conditions of 
        employment.'' The Committee recognizes that many 
        effective state bargaining laws contain reasonable 
        exemptions from issues subject to bargaining, and 
        directs the authority to allow such flexibility as long 
        as the exclusions do not undermine the purposes of this 
        Act.\15\
---------------------------------------------------------------------------
    \15\Majority Views, ante, at __.

    Conforms the Definition of Supervisory Employee to that 
Contained in the Federal Labor Relations Act. The Substitute 
modifies the definition of ``supervisory employee'' in the bill 
to conform the definition to that of the Federal Labor 
Relations Act, and to delete a requirement that an employee 
spend the ``majority'' of his or her time on supervisory 
duties. The proportion of time that a supervisory employee must 
devote to supervisory duties to be considered a ``supervisor'' 
under the National Labor Relation Act is currently under 
significant scrutiny, and is the subject of debate and 
legislation presently before the Committee. Eliminating the 
``majority'' requirement in favor of existing language under 
the Federal Labor Relations Act is intended to make clear the 
Committee's view that this controversy should not be imported 
into this new legislation, and that the term ``supervisory 
employee'' shall be construed as it is currently under the 
Federal Labor Relations Act.
    On this point, the Substitute also makes clear that the 
applicable state law definition of ``supervisory employee'' and 
``management employee'' shall apply, or in the absence of those 
exact terms, substantially equivalent ones. It is not the 
intent of the Committee that a federal definition of 
``supervisory employee'' preempt a state definition of 
``supervisor'' simply by virtue of semantics or word choices 
made by state legislators who could not know that federal law 
would later look to these distinctions.
    Provides a Mechanism for Enforcement of the Bill's No-
Strike Clause. In the past, critics have noted that although 
the legislation forbids a union or public safety employees from 
engaging in a strike (or a covered employer from locking out 
employees), those provisions had no effective enforcement 
mechanism. The Substitute addresses this point by including in 
section 5(c)(2) an express right for aggrieved parties to 
enforce by way of court the provisions contained in section 6 
(prohibiting strikes or lockouts).
    Ensures States Are Afforded Adequate Time to Conform Their 
Laws If They So Choose. As drafted, H.R. 980 would have 
provided that in some instances where a state legislature meets 
infrequently, and that state's laws were found to not 
``substantially comply'' with the federal standards set forth 
in H.R. 980, the state would have had insufficient time to 
amend its laws if it so chose, and thus be subject to direct 
federal regulation. The Substitute directly addresses that 
concern, by providing that the federal regulations set forth in 
the bill shall not become effective until the later of: (a) two 
years after the date of the bill's enactment; or (b) the date 
of the end of the first regular session of the legislature that 
begins after the date of enactment of the bill. In this way, 
every state can be certain that its legislature is given the 
opportunity to address the impact of H.R. 980 on the state 
level, rather than be subject to direct federal regulation.
    Provides for Meaningful Judicial Review of FLRA 
Determinations. Finally, the Substitute ensures that courts 
will be able to provide meaningful review to determinations 
made by the Federal Labor Relations Authority by deleting a 
presumption of law that, in the view of many, tipped the scale 
too far in the Authority's favor. Specifically, the Substitute 
makes clear that only findings of fact by the FLRA shall be 
entitled to deference in administrative review proceedings, but 
that findings of law shall receive de novo scrutiny by 
reviewing courts.
    Committee Republicans view the changes contained in the 
Substitute as improving the underlying text of H.R. 980, while 
recognizing that they do not address larger concerns with 
federalism and states' rights that have been raised with 
respect to the bill.
            The Souder Amendment: Preserving the Right to a Secret 
                    Ballot
    As was made plain earlier this year, when the Committee 
considered H.R. 800, the deceptively-named ``Employee Free 
Choice Act,'' Committee Republicans are united in their belief 
that the right to a private ballot is sacrosanct, and the 
cornerstone of our democracy. In the context of whether 
employees wish to form and join a union, the right to vote on 
that question--free of harassment, coercion, or intimidation--
and the right to have one's vote known only to oneself--not an 
employer, not a coworker, and not a union--has been among the 
most vital protections that federal labor law affords to 
workers.
    It was in that spirit that Representative Souder offered an 
amendment to ensure that public safety employees who would be 
given the opportunity to organize under this bill would always 
have the right to do so by way of secret ballot. The Souder 
Amendment did two things. First, it provided that the federal 
regulations promulgated by the FLRA under this bill would in no 
instance require recognition of a union by way of card check, 
thus preserving the right to a secret-ballot election where one 
is requested. Second, the Souder Amendment would have provided, 
on a prospective basis, that no state could impair the right to 
a secret ballot with respect to the organization of public 
safety employees as defined in this bill, or otherwise require 
that such recognition be granted on the basis of an inherently 
unreliable ``card check.''
    The issues raised by the Souder Amendment touch on the 
fundamental tenets of our nation's labor law, and continue to 
be debated in other pieces of legislation at this writing. 
Republicans are united in their commitment to the right to a 
secret-ballot election. Recognizing that the text of H.R. 980, 
as amended by the Substitute, does not expressly impair that 
right, the Souder Amendment was withdrawn.
    It goes without saying that should subsequent iterations of 
the bill threaten or impair the right of employees to a secret-
ballot election, any such provision would be met with the 
strongest opposition by Committee Republicans.

                               Conclusion

    As we noted at the outset, Committee Republicans do not 
view the debate over H.R. 980 as a question of whether 
firefighters, police officers, emergency medical services 
employees, and other public safety workers and first responders 
should be permitted to organize. Rather, the question was--and 
always had been--whether the federal government should dictate 
to state, local, and municipal governments not only an 
obligation to permit organization and to bargain, but indeed, 
the minimum standards that such bargaining must entail. We 
supported this bill in Committee recognizing these facts, and 
with the express concerns we noted above. As this bill 
continues to work its way through the legislative process, we 
urge that every effort be made to address the core concerns of 
federalism and states' rights raised by H.R. 980.

                                   Howard P. Buck McKeon.
                                   Peter Hoekstra.
                                   Mark Souder.
                                   Vernon J. Ehlers.
                                   Judy Biggert.
                                   Joe Wilson.
                                   John Kline.
                                   Kenny Marchant.
                                   Luis Fortuno.
                                   Charles Boustany, Jr.
                                   Virginia Foxx.
                                   Rob Bishop.

                                  
