On May 13, 2008, the Senate is expected to begin consideration of H.R.980/S.2123, the Public Safety Employer-Employee Cooperation Act of 2007, which would guarantee public safety officers’ collective bargaining rights in all fifty states and the District of Columbia, while avoiding any disruptions to public safety by prohibiting employer lockouts and employee strikes. This legislation would provide a framework for enhancing the collective bargaining rights of America’s first responders, but would allow states to continue to draft laws that are tailor-made to their local needs. H.R.980/S.2123 would neither interfere with states that already provide adequate collective bargaining rights for first responders nor prohibit the enforcement of state right-to-work laws.
Definitions. H.R980/S.2123 would define: “Authority” as the Federal Labor Relations Authority; “public safety officer” to include an individual who is temporarily, not permanently, transferred to a supervisory or management position. The bill also provides other key definitions.
Determination of Rights and Responsibilities. H.R.980/S.2123 would require States, the District of Columbia, and territories to “substantially provide” for the following collective bargaining rights and responsibilities:
- granting the right of public safety officers to form and join a labor organization;
- requiring a public safety employer to recognize and agree to bargain with employees’ — freely and majority chosen — labor organization;
- providing for bargaining over hours, wages, and the terms and conditions of employment;
- providing a means to resolve impasses, including fact-finding, mediation, and arbitration; and
- permitting enforcement of these rights, responsibilities, and protections and any written contract or memorandum of understanding through State courts.
No later than one year after enactment, the Federal Labor Relations Authority (“Authority”) must issue regulations establishing procedures by which states can meet these requirements.
H.R.980/S.2123 would require the Authority to determine within 180 days whether a state has met these requirements. The Authority could consider the opinion of affected employers and labor organizations, and an agreement by both parties that the applicable law is sufficient would be give maximum weight.
The Authority’s determination would remain in effect until an employer or labor organization requests a subsequent determination on the basis of a material change in state law or its interpretation has occurred, the Authority agrees a material change has occurred, and the Authority issues a subsequent determination within 30 days of the request
- H.R.980/S.2123 would permit the Authority to petition the U.S. Court of Appeals to enforce any final orders or to gain temporary relief or a restraining order; and
- H.R.980/S.2123 would, in absence of a petition by the Authority in the U.S. Court of Appeals, establish a private right of action, which would permit any interested party to sue, in U.S. District Court, any political subdivision of the state or, if the state has waived sovereign immunity, the state itself to enforce compliance with an Authority order or the prohibition on strikes and lockouts.
H.R.980/S.2123 would authorize the Authority to determine the appropriateness of units for labor organization representation; supervise and conduct elections to determine whether a labor organization has been selected as an exclusive representative by a voting majority of the employees; resolve issues relating to the duty to bargain in good faith; conduct hearings and resolve complaints of unfair labor practices; resolve exceptions to the awards of arbitrators; protect the right of each employee to form, join, or assist any labor organization or to refrain from such activities without fear of penalty; direct compliance of a state that is not in compliance with the regulations; and to take necessary and appropriate actions, including issuing subpoenas, administering oaths, taking depositions, ordering responses to written interrogatories, and receiving and examining witnesses, to effectively administer the law.
Strikes and Lockouts. H.R.980/S.2123 would expressly prohibit strikes and work slowdowns by public safety officers or labor unions or lockouts by public safety employers. In addition to strikes and lockouts, the legislation would ban any other action that will measurably disrupt the delivery of emergency services. It would not, however, be a violation to refuse to carry out services not required under the mandatory terms and conditions of employment.
Existing Collective Bargaining Units and Agreements. H.R.980/S.2123 would not invalidate existing collective bargaining units and agreements which have been issued, approved, or ratified by any public employee relations board or commission or by any state or state political subdivision.
- Pre-empt or limit state laws that provide greater or comparable collective bargaining rights and responsibilities;
- Require a state to rescind or pre-empt laws or ordinances of any of its political subdivisions if those laws provide greater or comparable collective bargaining rights and responsibilities;
- Prevent state right-to-work laws, which ban contracts that require union membership or payment of union fees as a condition of employment;
- Permit parties subject to the National Labor Relations Act to negotiate provisions that would prohibit an employee from engaging in part-time employment or volunteer activities during off-duty hours; or
- Preempt a state law that substantially provides for collective bargaining rights and responsibilities for public safety officers solely because the state law:
- permits an employee to appear in his her own behalf with respect to his or her employment relations;
- excludes coverage of employees of a state militia or the national guard;
- excludes categories of employees covered by this Act, in which case the Authority will only exercise its powers with respect to the employees excluded;
- provides that an agreement between a public safety employee/employer agreement be presented to a legislative body as part of the approval process; or
- does not require bargaining with respect to pension, retirement, or health benefits.
H.R.980/S.2123 would permit a state to exempt from its state law or the requirements of this Act a political subdivision that has a population of less than 5,000 or that employs fewer than 25 full-time employees.
In the absence of a waiver of the state’s sovereign immunity, H.R.980/S.2123 would grant the Authority exclusive power to enforce the provisions of this Act with respect to public safety officers employed by state.
H.R.980, the Public Safety Employer-Employee Cooperation Act of 2007, passed the House on July 17, 2007 on a 314 to 97 vote, and was then placed on the Senate Legislative Calendar. This bipartisan bill had 280 co-sponsors. On October 1, 2007, a companion bill, S.2123, was introduced in the Senate by Senator Kennedy, Chairman of the Senate Committee on Health, Education, Labor and Pensions, and Senator Gregg. The Senate bill, which has 34 co-sponsors, was unsuccessfully offered as an amendment to H.R.2419, the Food and Energy Security Act of 2007. Similar pieces of legislation have been offered every Congress going back to at least the 104th Congress.
On May 13, 2008, the Senate invoked cloture on a motion to proceed to H.R.980, the Public Safety Employer-Employee Cooperation Act of 2007. It is anticipated that the Senate will substitute the text of H.R.980 with that of S.2123, which includes small changes negotiated to improve the bill, which have been reflected in the summary section of this bulletin.
Several amendments are expected to be offered to H.R.980. The first of which is S.A. 4751, offered by Senators Kennedy and Gregg, to substitute the language of H.R.980 with that of S.2123. As it becomes available, materials on amendments will be distributed via the DPC e-mail lists.
Statement of Administration Policy
On May 13, the Administration issued a Statement of Administration Policy in opposition to H.R.980.