[Congressional Bills 111th Congress]
[From the U.S. Government Publishing Office]
[S. 3194 Placed on Calendar Senate (PCS)]
Calendar No. 343
111th CONGRESS
2d Session
S. 3194
To provide collective bargaining rights for public safety officers
employed by States or their political subdivisions.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
April 12, 2010
Mr. Reid introduced the following bill; which was read the first time
April 13, 2010
Read the second time and placed on the calendar
_______________________________________________________________________
A BILL
To provide collective bargaining rights for public safety officers
employed by States or their political subdivisions.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Public Safety Employer-Employee
Cooperation Act of 2009''.
SEC. 2. DECLARATION OF PURPOSE AND POLICY.
The Congress declares that the following is the policy of the
United States:
(1) Labor-management relationships and partnerships are
based on trust, mutual respect, open communication, bilateral
consensual problem solving, and shared accountability. Labor-
management cooperation fully utilizes the strengths of both
parties to best serve the interests of the public, operating as
a team, to carry out the public safety mission in a quality
work environment. In many public safety agencies, it is the
union that provides the institutional stability as elected
leaders and appointees come and go.
(2) State and local public safety officers play an
essential role in the efforts of the United States to detect,
prevent, and respond to terrorist attacks, and to respond to
natural disasters, hazardous materials, and other mass casualty
incidents. State and local public safety officers, as first
responders, are a component of our Nation's National Incident
Management System, developed by the Department of Homeland
Security to coordinate response to and recovery from terrorism,
major natural disasters, and other major emergencies. Public
safety employer-employee cooperation is essential in meeting
these needs and is, therefore, in the National interest.
(3) The Federal Government needs to encourage conciliation,
mediation, and voluntary arbitration to aid and encourage
employers and the representatives of their employees to reach
and maintain agreements concerning rates of pay, hours, and
working conditions, and to make all reasonable efforts through
negotiations to settle their differences by mutual agreement
reached through collective bargaining or by such methods as may
be provided for in any applicable agreement for the settlement
of disputes.
(4) The absence of adequate cooperation between public
safety employers and employees has implications for the
security of employees and can affect interstate and intrastate
commerce. The lack of such labor-management cooperation can
detrimentally impact the upgrading of police and fire services
of local communities, the health and well-being of public
safety officers, and the morale of the fire and police
departments. Additionally, these factors could have significant
commercial repercussions. Moreover, providing minimal standards
for collective bargaining negotiations in the public safety
sector can prevent industrial strife between labor and
management that interferes with the normal flow of commerce.
(5) Many States and localities already provide public
safety officers with collective bargaining rights comparable to
or greater than the rights and responsibilities set forth in
this Act, and such State and local laws should be respected.
SEC. 3. DEFINITIONS.
In this Act:
(1) Authority.--The term ``Authority'' means the Federal
Labor Relations Authority.
(2) Confidential employee.--The term ``confidential
employee'' has the meaning given such term under applicable
State law on the date of enactment of this Act. If no such
State law is in effect, the term means an individual, employed
by a public safety employer, who--
(A) is designated as confidential; and
(B) is an individual who routinely assists, in a
confidential capacity, supervisory employees and
management employees.
(3) Emergency medical services personnel.--The term
``emergency medical services personnel'' means an individual
who provides out-of-hospital emergency medical care, including
an emergency medical technician, paramedic, or first responder.
(4) Employer; public safety agency.--The terms ``employer''
and ``public safety officer'' mean any State, or political
subdivision of a State, that employs public safety officers.
(5) Firefighter.--The term ``firefighter'' has the meaning
given the term ``employee engaged in fire protection
activities'' in section 3(y) of the Fair Labor Standards Act of
1938 (29 U.S.C. 203(y)).
(6) Labor organization.--The term ``labor organization''
means an organization composed in whole or in part of
employees, in which employees participate, and which represents
such employees before public safety agencies concerning
grievances, conditions of employment, and related matters.
(7) Law enforcement officer.--The term ``law enforcement
officer'' has the meaning given such term in section 1204 of
the Omnibus Crime Control and Safe Streets Act of 1968 (42
U.S.C. 3796b).
(8) Management employee.--The term ``management employee''
has the meaning given such term under applicable State law in
effect on the date of enactment of this Act. If no such State
law is in effect, the term means an individual employed by a
public safety employer in a position that requires or
authorizes the individual to formulate, determine, or influence
the policies of the employer.
(9) Person.--The term ``person'' means an individual or a
labor organization.
(10) Public safety officer.--The term ``public safety
officer''--
(A) means an employee of a public safety agency who
is a law enforcement officer, a firefighter, or an
emergency medical services personnel;
(B) includes an individual who is temporarily
transferred to a supervisory or management position;
and
(C) does not include a permanent supervisory,
management, or confidential employee.
(11) State.--The term ``State'' means each of the several
States of the United States, the District of Columbia, and any
territory or possession of the United States.
(12) Substantially provides.--The term ``substantially
provides'', when used with respect to the rights and
responsibilities described in section 4(b), means compliance
with each right and responsibility described in such section.
(13) Supervisory employee.--The term ``supervisory
employee'' has the meaning given such term under applicable
State law in effect on the date of enactment of this Act. If no
such State law is in effect, the term means an individual,
employed by a public safety employer, who--
(A) has the authority in the interest of the
employer to hire, direct, assign, promote, reward,
transfer, furlough, lay off, recall, suspend,
discipline, or remove public safety officers, to adjust
their grievances, or to effectively recommend such
action, if the exercise of the authority is not merely
routine or clerical in nature but requires the
consistent exercise of independent judgment; and
(B) devotes a majority of time at work to
exercising such authority.
SEC. 4. DETERMINATION OF RIGHTS AND RESPONSIBILITIES.
(a) Determination.--
(1) In general.--Not later than 180 days after the date of
enactment of this Act, the Authority shall make a determination
as to whether a State substantially provides for the rights and
responsibilities described in subsection (b).
(2) Consideration of additional opinions.--In making the
determination described in paragraph (1), the Authority shall
consider the opinions of affected employers and labor
organizations. In the case where the Authority is notified by
an affected employer and labor organization that both parties
agree that the law applicable to such employer and labor
organization substantially provides for the rights and
responsibilities described in subsection (b), the Authority
shall give such agreement weight to the maximum extent
practicable in making the Authority's determination under this
subsection.
(3) Limited criteria.--In making the determination
described in paragraph (1), the Authority shall be limited to
the application of the criteria described in subsection (b) and
shall not require any additional criteria.
(4) Subsequent determinations.--
(A) In general.--A determination made pursuant to
paragraph (1) shall remain in effect unless and until
the Authority issues a subsequent determination, in
accordance with the procedures set forth in
subparagraph (B).
(B) Procedures for subsequent determinations.--Upon
establishing that a material change in State law or its
interpretation has occurred, an employer or a labor
organization may submit a written request for a
subsequent determination. If satisfied that a material
change in State law or its interpretation has occurred,
the Authority shall issue a subsequent determination
not later than 30 days after receipt of such request.
(5) Judicial review.--Any person or employer aggrieved by a
determination of the Authority under this section may, during
the 60-day period beginning on the date on which the
determination was made, petition any United States Court of
Appeals in the circuit in which the person or employer resides
or transacts business or in the District of Columbia circuit,
for judicial review. In any judicial review of a determination
by the Authority, the procedures contained in subsections (c)
and (d) of section 7123 of title 5, United States Code, shall
be followed.
(b) Rights and Responsibilities.--In making a determination
described in subsection (a), the Authority shall consider a State's law
to substantially provide the required rights and responsibilities
unless such law fails to provide rights and responsibilities comparable
to or greater than the following:
(1) Granting public safety officers the right to form and
join a labor organization, which may exclude management
employees, supervisory employees, and confidential employees,
that is, or seeks to be, recognized as the exclusive bargaining
representative of such employees.
(2) Requiring public safety employers to recognize the
employees' labor organization (freely chosen by a majority of
the employees), to agree to bargain with the labor
organization, and to commit any agreements to writing in a
contract or memorandum of understanding.
(3) Providing for the right to bargain over hours, wages,
and terms and conditions of employment.
(4) Making available an interest impasse resolution
mechanism, such as fact-finding, mediation, arbitration, or
comparable procedures.
(5) Requiring enforcement of all rights, responsibilities,
and protections provided by State law and enumerated in this
section, and of any written contract or memorandum of
understanding between a labor organization and a public safety
employer, through--
(A) a State administrative agency, if the State so
chooses; and
(B) at the election of an aggrieved party, the
State courts.
(c) Compliance With Requirements.--If the Authority determines,
acting pursuant to its authority under subsection (a), that a State
substantially provides rights and responsibilities described in
subsection (b), then this Act shall not preempt State law.
(d) Failure To Meet Requirements.--
(1) In general.--If the Authority determines, acting
pursuant to its authority under subsection (a), that a State
does not substantially provide for the rights and
responsibilities described in subsection (b), then such State
shall be subject to the regulations and procedures described in
section 5 beginning on the later of--
(A) the date that is 2 years after the date of
enactment of this Act;
(B) the date that is the last day of the first
regular session of the legislature of the State that
begins after the date of the enactment of this Act; or
(C) in the case of a State receiving a subsequent
determination under subsection (a)(4), the date that is
the last day of the first regular session of the
legislature of the State that begins after the date the
Authority made the determination.
(2) Partial failure.--If the Authority makes a
determination that a State does not substantially provide for
the rights and responsibilities described in subsection (b)
solely because the State law substantially provides for such
rights and responsibilities for certain categories of public
safety officers covered by the Act but not others, the
Authority shall identify those categories of public safety
officers that shall be subject to the regulations and
procedures described in section 5, pursuant to section 8(b)(3)
and beginning on the appropriate date described in paragraph
(1), and those categories of public safety officers that shall
remain subject to State law.
SEC. 5. ROLE OF FEDERAL LABOR RELATIONS AUTHORITY.
(a) In General.--Not later than 1 year after the date of enactment
of this Act, the Authority shall issue regulations in accordance with
the rights and responsibilities described in section 4(b) establishing
collective bargaining procedures for employers and public safety
officers in States which the Authority has determined, acting pursuant
to section 4(a), do not substantially provide for such rights and
responsibilities.
(b) Role of the Federal Labor Relations Authority.--The Authority,
to the extent provided in this Act and in accordance with regulations
prescribed by the Authority, shall--
(1) determine the appropriateness of units for labor
organization representation;
(2) supervise or conduct elections to determine whether a
labor organization has been selected as an exclusive
representative by a voting majority of the employees in an
appropriate unit;
(3) resolve issues relating to the duty to bargain in good
faith;
(4) conduct hearings and resolve complaints of unfair labor
practices;
(5) resolve exceptions to the awards of arbitrators;
(6) protect the right of each employee to form, join, or
assist any labor organization, or to refrain from any such
activity, freely and without fear of penalty or reprisal, and
protect each employee in the exercise of such right; and
(7) take such other actions as are necessary and
appropriate to effectively administer this Act, including
issuing subpoenas requiring the attendance and testimony of
witnesses and the production of documentary or other evidence
from any place in the United States, and administering oaths,
taking or ordering the taking of depositions, ordering
responses to written interrogatories, and receiving and
examining witnesses.
(c) Enforcement.--
(1) Authority to petition court.--The Authority may
petition any United States Court of Appeals with jurisdiction
over the parties, or the United States Court of Appeals for the
District of Columbia Circuit, to enforce any final orders under
this section, and for appropriate temporary relief or a
restraining order. Any petition under this section shall be
conducted in accordance with subsections (c) and (d) of section
7123 of title 5, United States Code.
(2) Private right of action.--Unless the Authority has
filed a petition for enforcement as provided in paragraph (1),
any party has the right to file suit in any appropriate
district court of the United States to enforce compliance with
the regulations issued by the Authority pursuant to subsection
(b), and to enforce compliance with any order issued by the
Authority pursuant to this section. The right provided by this
subsection to bring a suit to enforce compliance with any order
issued by the Authority pursuant to this section shall
terminate upon the filing of a petition seeking the same relief
by the Authority.
SEC. 6. STRIKES AND LOCKOUTS PROHIBITED.
(a) In General.--Subject to subsection (b), an employer, public
safety officer, or labor organization may not engage in a lockout,
sickout, work slowdown, strike, or any other organized job action that
will measurably disrupt the delivery of emergency services and is
designed to compel an employer, public safety officer, or labor
organization to agree to the terms of a proposed contract.
(b) No Preemption.--Nothing in this section shall be construed to
preempt any law of any State or political subdivision of any State with
respect to strikes by public safety officers.
SEC. 7. EXISTING COLLECTIVE BARGAINING UNITS AND AGREEMENTS.
A certification, recognition, election-held, collective bargaining
agreement or memorandum of understanding which has been issued,
approved, or ratified by any public employee relations board or
commission or by any State or political subdivision or its agents
(management officials) and is in effect on the day before the date of
enactment of this Act shall not be invalidated by the enactment of this
Act.
SEC. 8. CONSTRUCTION AND COMPLIANCE.
(a) Construction.--Nothing in this Act shall be construed--
(1) to preempt or limit the remedies, rights, and
procedures of any law of any State or political subdivision of
any State that provides greater or comparable rights and
responsibilities than the rights and responsibilities described
in section 4(b);
(2) to prevent a State from enforcing a right-to-work law
that prohibits employers and labor organizations from
negotiating provisions in a labor agreement that require union
membership or payment of union fees as a condition of
employment;
(3) to preempt or limit any State law in effect on the date
of enactment of this Act that provides for the rights and
responsibilities described in section 4(b) solely because such
State law permits an employee to appear on the employee's own
behalf with respect to the employee's employment relations with
the public safety agency involved;
(4) to preempt or limit any State law in effect on the date
of enactment of this Act that provides for the rights and
responsibilities described in section 4(b) solely because such
State law excludes from its coverage employees of a State
militia or national guard;
(5) to permit parties in States subject to the regulations
and procedures described in section 5 to negotiate provisions
that would prohibit an employee from engaging in part-time
employment or volunteer activities during off-duty hours;
(6) to prohibit a State from exempting from coverage under
this Act a political subdivision of the State that has a
population of less than 5,000 or that employs less than 25
full-time employees; or
(7) to preempt or limit the laws or ordinances of any State
or political subdivision of a State that provide for the rights
and responsibilities described in section 4(b) solely because
such law or ordinance does not require bargaining with respect
to pension, retirement, or health benefits.
For purposes of paragraph (6), the term ``employee'' includes each and
every individual employed by the political subdivision except any
individual elected by popular vote or appointed to serve on a board or
commission.
(b) Compliance.--
(1) Actions of states.--Nothing in this Act or the
regulations promulgated under this Act shall be construed to
require a State to rescind or preempt the laws or ordinances of
any of the State's political subdivisions if such laws provide
rights and responsibilities for public safety officers that are
comparable to or greater than the rights and responsibilities
described in section 4(b).
(2) Actions of the authority.--Nothing in this Act or the
regulations promulgated under this Act shall be construed to
preempt--
(A) the laws or ordinances of any State or
political subdivision of a State, if such laws provide
collective bargaining rights for public safety officers
that are comparable to or greater than the rights
enumerated in section 4(b);
(B) the laws or ordinances of any State or
political subdivision of a State that provide for the
rights and responsibilities described in section 4(b)
with respect to certain categories of public safety
officers covered by this Act solely because such rights
and responsibilities have not been extended to other
categories of public safety officers covered by this
Act; or
(C) the laws or ordinances of any State or
political subdivision of a State that provide for the
rights and responsibilities described in section 4(b),
solely because such laws or ordinances provide that a
contract or memorandum of understanding between a
public safety employer and a labor organization must be
presented to a legislative body as part of the process
for approving such contract or memorandum of
understanding.
(3) Limited enforcement power.--In the case of a law
described in paragraph (2)(B), the Authority shall only
exercise the powers provided in section 5 with respect to those
categories of public safety officers who have not been afforded
the rights and responsibilities described in section 4(b).
(4) Exclusive enforcement provision.--Notwithstanding any
other provision of the Act, and in the absence of a waiver of a
State's sovereign immunity, the Authority shall have the
exclusive power to enforce the provisions of this Act with
respect to employees of a State.
SEC. 9. AUTHORIZATION OF APPROPRIATIONS.
There are authorized to be appropriated such sums as may be
necessary to carry out the provisions of this Act.
Calendar No. 343
111th CONGRESS
2d Session
S. 3194
_______________________________________________________________________
A BILL
To provide collective bargaining rights for public safety officers
employed by States or their political subdivisions.
_______________________________________________________________________
April 13, 2010
Read the second time and placed on the calendar