Fire Fighters and EMS Employer-Employee Cooperation Act

II 117TH CONGRESS 1ST SESSION S. 2178 To provide collective bargaining rights for fire fighters and emergency medical services personnel employed by States or their political subdivisions, and for other purposes. IN THE SENATE OF THE UNITED STATES JUNE 22, 2021 Mr. HICKENLOOPER (for himself and Ms. HASSAN) introduced the following bill; which was read twice and referred to the Committee on Health, Edu- cation, Labor, and Pensions A BILL To provide collective bargaining rights for fire fighters and emergency medical services personnel employed by States or their political subdivisions, and for other purposes. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE. 3 This Act may be cited as the ‘‘Fire Fighters and 4 EMS Employer-Employee Cooperation Act’’. 5 SEC. 2. PURPOSE AND POLICY. 6 It is the sense of Congress that the following is the 7 policy of the United States: 8 VerDate Sep 11 2014 22:36 Jun 30, 2021 Jkt 019200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S2178.IS S2178 kjohnson on DSK79L0C42PROD with BILLS 2 •S 2178 IS (1) Labor-management relationships and part- 1 nerships are based on trust, mutual respect, open 2 communication, bilateral consensual problem solving, 3 and shared accountability. Labor-management co- 4 operation fully utilizes the strengths of both parties 5 to best serve the interests of the public, operating as 6 a team, to carry out the fire and EMS mission in 7 a quality work environment. In many fire and EMS 8 agencies, it is the labor organization that provides 9 the institutional stability as elected leaders and ap- 10 pointees come and go. 11 (2) State and local fire and EMS personnel 12 play an essential role in the efforts of the United 13 States to detect, prevent, and respond to terrorist 14 attacks, and to respond to natural disasters, haz- 15 ardous materials, and other mass casualty incidents. 16 State and local fire and EMS personnel, as first re- 17 sponders, are a component of the National Incident 18 Management System, developed by the Department 19 of Homeland Security to coordinate response to and 20 recovery from terrorism, major natural disasters, 21 and other major emergencies. Fire and EMS em- 22 ployer-employee cooperation is essential in meeting 23 these needs and is, therefore, in the National inter- 24 est. 25 VerDate Sep 11 2014 22:36 Jun 30, 2021 Jkt 019200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S2178.IS S2178 kjohnson on DSK79L0C42PROD with BILLS 3 •S 2178 IS (3) The Federal Government needs to encour- 1 age conciliation, mediation, and arbitration to aid 2 and encourage employers and the representatives of 3 their employees to reach and maintain agreements 4 concerning rates of pay, hours, and working condi- 5 tions, and to make all reasonable efforts through ne- 6 gotiations to settle their differences by mutual agree- 7 ment reached through collective bargaining or by 8 such methods as may be provided for in any applica- 9 ble agreement for the settlement of disputes. 10 (4) The absence of adequate cooperation be- 11 tween fire and EMS employers and employees has 12 implications for the security of employees and can 13 affect interstate and intrastate commerce. The lack 14 of such labor-management cooperation can detrimen- 15 tally impact the upgrading of fire and emergency 16 medical services of local communities, the health and 17 well-being of fire and EMS personnel, and the mo- 18 rale of fire and EMS departments. Additionally, 19 these factors could have significant commercial re- 20 percussions. Moreover, providing minimal standards 21 for collective bargaining negotiations in the fire and 22 EMS sector can prevent industrial strife between 23 labor and management that interferes with the nor- 24 mal flow of commerce. 25 VerDate Sep 11 2014 22:36 Jun 30, 2021 Jkt 019200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S2178.IS S2178 kjohnson on DSK79L0C42PROD with BILLS 4 •S 2178 IS (5) Many States and localities already provide 1 fire and EMS personnel with collective bargaining 2 rights comparable to or greater than the rights and 3 responsibilities set forth in this Act, and such State 4 and local laws should be respected. 5 SEC. 3. DEFINITIONS. 6 In this Act: 7 (1) AUTHORITY.—The term ‘‘Authority’’ means 8 the Federal Labor Relations Authority. 9 (2) CONFIDENTIAL EMPLOYEE.—The term 10 ‘‘confidential employee’’ has the meaning given such 11 term under applicable State law on the date of en- 12 actment of this Act. If no such State law is in effect, 13 the term means an individual, employed by a fire 14 and EMS employer, who— 15 (A) is designated as confidential; and 16 (B) is an individual who routinely assists, 17 in a confidential capacity, supervisory employ- 18 ees and management employees. 19 (3) EMERGENCY MEDICAL SERVICES PER- 20 SONNEL.—The term ‘‘emergency medical services 21 personnel’’ means an individual who provides out-of- 22 hospital emergency medical care, including an emer- 23 gency medical technician, paramedic, or first re- 24 sponder. 25 VerDate Sep 11 2014 22:36 Jun 30, 2021 Jkt 019200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S2178.IS S2178 kjohnson on DSK79L0C42PROD with BILLS 5 •S 2178 IS (4) EMPLOYER; FIRE AND EMS AGENCY; FIRE 1 AND EMS EMPLOYER.—The terms ‘‘employer’’, ‘‘fire 2 and EMS agency’’, and ‘‘fire and EMS employer’’ 3 mean any State, or political subdivision of a State, 4 that employs fire and EMS personnel. 5 (5) FIRE AND EMS PERSONNEL.—The term 6 ‘‘fire and EMS personnel’’— 7 (A) means an employee of a fire and EMS 8 agency who is— 9 (i) a firefighter; 10 (ii) an emergency medical services 11 personnel; or 12 (iii) an individual trained as a fire- 13 fighter who provides out-of-hospital emer- 14 gency medical care; 15 (B) includes an individual who is tempo- 16 rarily transferred to a supervisory or manage- 17 ment position; and 18 (C) does not include a permanent super- 19 visory, management, or confidential employee. 20 (6) FIREFIGHTER.—The term ‘‘firefighter’’ has 21 the meaning given the term ‘‘employee in fire protec- 22 tion activities’’ in section 3(y) of the Fair Labor 23 Standards Act of 1938 (29 U.S.C. 203(y)). 24 VerDate Sep 11 2014 22:36 Jun 30, 2021 Jkt 019200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S2178.IS S2178 kjohnson on DSK79L0C42PROD with BILLS 6 •S 2178 IS (7) LABOR ORGANIZATION.—The term ‘‘labor 1 organization’’ means an organization of any kind, in 2 which employees participate and which exists for the 3 purpose, in whole or in part, of dealing with employ- 4 ers concerning grievances, conditions of employment, 5 and related matters. 6 (8) MANAGEMENT EMPLOYEE.—The term 7 ‘‘management employee’’ has the meaning given 8 such term under applicable State law in effect on 9 the date of enactment of this Act. If no such State 10 law is in effect, the term means an individual em- 11 ployed by a fire and EMS employer in a position 12 that requires or authorizes the individual to formu- 13 late, determine, or influence the policies of the em- 14 ployer. 15 (9) PERSON.—The term ‘‘person’’ means an in- 16 dividual or a labor organization. 17 (10) STATE.—The term ‘‘State’’ means each of 18 the several States of the United States, the District 19 of Columbia, and any territory or possession of the 20 United States. 21 (11) SUBSTANTIALLY PROVIDES.—The term 22 ‘‘substantially provides’’, when used with respect to 23 the rights and responsibilities described in section 24 4(b), means providing rights and responsibilities 25 VerDate Sep 11 2014 22:36 Jun 30, 2021 Jkt 019200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S2178.IS S2178 kjohnson on DSK79L0C42PROD with BILLS 7 •S 2178 IS that are comparable to or greater than each right 1 and responsibility described in such section. 2 (12) SUPERVISORY EMPLOYEE.—The term ‘‘su- 3 pervisory employee’’ has the meaning given such 4 term under applicable State law in effect on the date 5 of enactment of this Act. If no such State law is in 6 effect, the term means an individual, employed by a 7 fire and EMS employer, who— 8 (A) has the authority in the interest of the 9 employer to hire, direct, assign, promote, re- 10 ward, transfer, furlough, lay off, recall, sus- 11 pend, discipline, or remove fire and EMS per- 12 sonnel, to adjust their grievances, or to effec- 13 tively recommend such action, if the exercise of 14 the authority is not merely routine or clerical in 15 nature but requires the consistent exercise of 16 independent judgment; and 17 (B) devotes a majority of time at work to 18 exercising such authority. 19 SEC. 4. DETERMINATION OF RIGHTS AND RESPONSIBIL- 20 ITIES. 21 (a) DETERMINATION.— 22 (1) IN GENERAL.—Not later than 180 days 23 after the date of enactment of this Act, the Author- 24 ity shall make a determination as to whether a State 25 VerDate Sep 11 2014 22:36 Jun 30, 2021 Jkt 019200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S2178.IS S2178 kjohnson on DSK79L0C42PROD with BILLS 8 •S 2178 IS substantially provides for the rights and responsibil- 1 ities described in subsection (b). 2 (2) CONSIDERATION OF ADDITIONAL OPIN- 3 IONS.—In making the determination described in 4 paragraph (1), the Authority shall consider the opin- 5 ions of affected employers and labor organizations. 6 In the case where the Authority is notified by an af- 7 fected employer and labor organization that both 8 parties agree that the law applicable to such em- 9 ployer and labor organization substantially provides 10 for the rights and responsibilities described in sub- 11 section (b), the Authority shall give such agreement 12 weight to the maximum extent practicable in making 13 the Authority’s determination under this subsection. 14 (3) LIMITED CRITERIA.—In making the deter- 15 mination described in paragraph (1), the Authority 16 shall be limited to the application of the criteria de- 17 scribed in subsection (b) and shall not require any 18 additional criteria. 19 (4) SUBSEQUENT DETERMINATIONS.— 20 (A) IN GENERAL.—A determination made 21 pursuant to paragraph (1) shall remain in ef- 22 fect unless and until the Authority issues a sub- 23 sequent determination, in accordance with the 24 procedures set forth in subparagraph (B). 25 VerDate Sep 11 2014 22:36 Jun 30, 2021 Jkt 019200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S2178.IS S2178 kjohnson on DSK79L0C42PROD with BILLS 9 •S 2178 IS (B) PROCEDURES FOR SUBSEQUENT DE- 1 TERMINATIONS.—Upon establishing that a ma- 2 terial change in State law or its interpretation 3 has occurred, an employer or a labor organiza- 4 tion may submit a written request for a subse- 5 quent determination. If satisfied that a material 6 change in State law or its interpretation has oc- 7 curred, the Authority shall issue a subsequent 8 determination not later than 30 days after re- 9 ceipt of such request. 10 (5) JUDICIAL REVIEW.—Any person or em- 11 ployer aggrieved by a determination of the Authority 12 under this section may, during the 60-day period be- 13 ginning on the date on which the determination was 14 made, petition any United States Court of Appeals 15 in the circuit in which the person or employer re- 16 sides or transacts business or in the District of Co- 17 lumbia Circuit for judicial review. 18 (b) RIGHTS AND RESPONSIBILITIES.—In making a 19 determination described in subsection (a), the Authority 20 shall consider a State’s law to substantially provide the 21 required rights and responsibilities unless such law fails 22 to provide rights and responsibilities comparable to or 23 greater than the following: 24 VerDate Sep 11 2014 22:36 Jun 30, 2021 Jkt 019200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S2178.IS S2178 kjohnson on DSK79L0C42PROD with BILLS 10 •S 2178 IS (1) Granting fire and EMS personnel the right 1 to form and join a labor organization, which may ex- 2 clude management employees, supervisory employ- 3 ees, and confidential employees, that is, or seeks to 4 be, recognized as the exclusive bargaining represent- 5 ative of such employees. 6 (2) Requiring fire and EMS employers to recog- 7 nize the employees’ labor organization (freely chosen 8 by a majority of the employees), to agree to bargain 9 with the labor organization, and to commit any 10 agreements to writing in a contract or memorandum 11 of understanding. 12 (3) Providing for the right to bargain over 13 hours, wages, and terms and conditions of employ- 14 ment. 15 (4) Making available an interest impasse resolu- 16 tion mechanism, such as fact-finding, mediation, ar- 17 bitration, or comparable procedures. 18 (5) Requiring enforcement of all rights, respon- 19 sibilities, and protections enumerated in this section, 20 and of any written contract or memorandum of un- 21 derstanding between a labor organization and a fire 22 and EMS employer, through— 23 (A) a State administrative agency, if the 24 State so chooses; or 25 VerDate Sep 11 2014 22:36 Jun 30, 2021 Jkt 019200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S2178.IS S2178 kjohnson on DSK79L0C42PROD with BILLS 11 •S 2178 IS (B) any court of competent jurisdiction. 1 (c) COMPLIANCE WITH REQUIREMENTS.—If the Au- 2 thority determines, acting pursuant to its authority under 3 subsection (a), that a State substantially provides rights 4 and responsibilities described in subsection (b), then this 5 Act shall not preempt State law. 6 (d) FAILURE TO MEET REQUIREMENTS.— 7 (1) IN GENERAL.—If the Authority determines, 8 acting pursuant to its authority under subsection 9 (a), that a State does not substantially provide for 10 the rights and responsibilities described in sub- 11 section (b), then such State shall be subject to the 12 regulations and procedures described in section 5 be- 13 ginning on the later of— 14 (A) the date that is 2 years after the date 15 of enactment of this Act; or 16 (B)(i) in the case of a State receiving an 17 initial determination under subsection (a)(1), 18 the date that is the last day of the first regular 19 session of the legislature of the State that be- 20 gins after the date the Authority makes the de- 21 termination under such subsection; or 22 (ii) in the case of a State receiving a sub- 23 sequent determination under subsection (a)(4), 24 the date that is the last day of the first regular 25 VerDate Sep 11 2014 22:36 Jun 30, 2021 Jkt 019200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S2178.IS S2178 kjohnson on DSK79L0C42PROD with BILLS 12 •S 2178 IS session of the legislature of the State that be- 1 gins after the date the Authority makes the de- 2 termination under such subsection. 3 (2) PARTIAL FAILURE.—If the Authority makes 4 a determination that a State does not substantially 5 provide for the rights and respons [Text truncated for display. 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