Public Safety Employer-Employee Cooperation Act

II 116TH CONGRESS 1ST SESSION S. 1394 To provide collective bargaining rights for public safety officers employed by States or their political subdivisions. IN THE SENATE OF THE UNITED STATES MAY 9, 2019 Ms. BALDWIN (for herself, Ms. KLOBUCHAR, Mrs. MURRAY, Ms. STABENOW, Ms. HIRONO, Mr. VAN HOLLEN, Mr. WYDEN, and Mr. MURPHY) intro- duced the following bill; which was read twice and referred to the Com- mittee on Health, Education, Labor, and Pensions 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 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 ‘‘Public Safety Em- 4 ployer-Employee Cooperation Act’’. 5 SEC. 2. PURPOSE AND POLICY. 6 Congress declares that the following is the policy of 7 the United States: 8 VerDate Sep 11 2014 21:51 May 17, 2019 Jkt 089200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S1394.IS S1394 pbinns on DSK79D2C42PROD with BILLS 2 •S 1394 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 public safety mission in a 7 quality work environment. In many public safety 8 agencies, it is the union that provides the institu- 9 tional stability as elected leaders and appointees 10 come and go. 11 (2) State and local public safety officers play an 12 essential role in the efforts of the United States to 13 detect, prevent, and respond to terrorist attacks, and 14 to respond to natural disasters, hazardous materials, 15 and other mass casualty incidents. State and local 16 public safety officers, as first responders, are a com- 17 ponent of our Nation’s National Incident Manage- 18 ment System, developed by the Department of 19 Homeland Security to coordinate response to and re- 20 covery from terrorism, major natural disasters, and 21 other major emergencies. Public safety employer-em- 22 ployee cooperation is essential in meeting these 23 needs and is, therefore, in the National interest. 24 VerDate Sep 11 2014 21:51 May 17, 2019 Jkt 089200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S1394.IS S1394 pbinns on DSK79D2C42PROD with BILLS 3 •S 1394 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 public safety employers and employees has im- 12 plications for the security of employees and can af- 13 fect interstate and intrastate commerce. The lack of 14 such labor-management cooperation can detrimen- 15 tally impact the upgrading of law enforcement, fire, 16 and emergency medical services of local commu- 17 nities, the health and well-being of public safety offi- 18 cers, and the morale of law enforcement, fire, and 19 EMS departments. Additionally, these factors could 20 have significant commercial repercussions. Moreover, 21 providing minimal standards for collective bar- 22 gaining negotiations in the public safety sector can 23 prevent industrial strife between labor and manage- 24 VerDate Sep 11 2014 21:51 May 17, 2019 Jkt 089200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S1394.IS S1394 pbinns on DSK79D2C42PROD with BILLS 4 •S 1394 IS ment that interferes with the normal flow of com- 1 merce. 2 (5) Many States and localities already provide 3 public safety officers with collective bargaining 4 rights comparable to or greater than the rights and 5 responsibilities set forth in this Act, and such State 6 and local laws should be respected. 7 SEC. 3. DEFINITIONS. 8 In this Act: 9 (1) AUTHORITY.—The term ‘‘Authority’’ means 10 the Federal Labor Relations Authority. 11 (2) CONFIDENTIAL EMPLOYEE.—The term 12 ‘‘confidential employee’’ has the meaning given such 13 term under applicable State law on the date of en- 14 actment of this Act. If no such applicable State law 15 is in effect, the term means an individual, employed 16 by a public safety employer, who— 17 (A) is designated as confidential; and 18 (B) is an individual who routinely assists, 19 in a confidential capacity, supervisory employ- 20 ees and management employees. 21 (3) EMERGENCY MEDICAL SERVICES PER- 22 SONNEL.—The term ‘‘emergency medical services 23 personnel’’ means an individual who provides out-of- 24 hospital emergency medical care, including an emer- 25 VerDate Sep 11 2014 21:51 May 17, 2019 Jkt 089200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S1394.IS S1394 pbinns on DSK79D2C42PROD with BILLS 5 •S 1394 IS gency medical technician, paramedic, or first re- 1 sponder. 2 (4) EMPLOYER; PUBLIC SAFETY AGENCY; PUB- 3 LIC SAFETY EMPLOYER.—The terms ‘‘employer’’, 4 ‘‘public safety agency’’, and ‘‘public safety em- 5 ployer’’ mean any State, or political subdivision of a 6 State, that employs public safety officers. 7 (5) FIREFIGHTER.—The term ‘‘firefighter’’ has 8 the meaning given the term ‘‘employee in fire protec- 9 tion activities’’ in section 3(y) of the Fair Labor 10 Standards Act of 1938 (29 U.S.C. 203(y)). 11 (6) LABOR ORGANIZATION.—The term ‘‘labor 12 organization’’ means an organization of any kind, in 13 which employees participate and which exists for the 14 purpose, in whole or in part, of dealing with employ- 15 ers concerning grievances, conditions of employment, 16 and related matters. 17 (7) LAW ENFORCEMENT OFFICER.—The term 18 ‘‘law enforcement officer’’ has the meaning given 19 such term in section 1204 of the Omnibus Crime 20 Control and Safe Streets Act of 1968 (34 U.S.C. 21 10284). 22 (8) MANAGEMENT EMPLOYEE.—The term 23 ‘‘management employee’’ has the meaning given 24 such term under applicable State law in effect on 25 VerDate Sep 11 2014 21:51 May 17, 2019 Jkt 089200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S1394.IS S1394 pbinns on DSK79D2C42PROD with BILLS 6 •S 1394 IS the date of enactment of this Act. If no such appli- 1 cable State law is in effect, the term means an indi- 2 vidual employed by a public safety employer in a po- 3 sition that requires or authorizes the individual to 4 formulate, determine, or influence the policies of the 5 employer. 6 (9) PERSON.—The term ‘‘person’’ means an in- 7 dividual or a labor organization. 8 (10) PUBLIC SAFETY OFFICER.—The term 9 ‘‘public safety officer’’— 10 (A) means an employee of a public safety 11 agency who is a law enforcement officer, a fire- 12 fighter, or an emergency medical services per- 13 sonnel; 14 (B) includes an individual who is tempo- 15 rarily transferred to a supervisory or manage- 16 ment position; and 17 (C) does not include a permanent super- 18 visory, management, or confidential employee. 19 (11) STATE.—The term ‘‘State’’ means each of 20 the several States of the United States, the District 21 of Columbia, and any territory or possession of the 22 United States. 23 (12) SUBSTANTIALLY PROVIDES.—The term 24 ‘‘substantially provides’’, when used with respect to 25 VerDate Sep 11 2014 21:51 May 17, 2019 Jkt 089200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S1394.IS S1394 pbinns on DSK79D2C42PROD with BILLS 7 •S 1394 IS the rights and responsibilities described in section 1 4(b), means providing rights and responsibilities 2 that are comparable to or greater than each right 3 and responsibility described in such section. 4 (13) SUPERVISORY EMPLOYEE.—The term ‘‘su- 5 pervisory employee’’ has the meaning given such 6 term under applicable State law in effect on the date 7 of enactment of this Act. If no such applicable State 8 law is in effect, the term means an individual, em- 9 ployed by a public safety employer, who— 10 (A) has the authority in the interest of the 11 employer to hire, direct, assign, promote, re- 12 ward, transfer, furlough, lay off, recall, sus- 13 pend, discipline, or remove public safety offi- 14 cers, to adjust their grievances, or to effectively 15 recommend such action, if the exercise of the 16 authority is not merely routine or clerical in na- 17 ture but requires the consistent exercise of 18 independent judgment; and 19 (B) devotes a majority of time at work to 20 exercising such authority. 21 SEC. 4. DETERMINATION OF RIGHTS AND RESPONSIBIL- 22 ITIES. 23 (a) DETERMINATION.— 24 VerDate Sep 11 2014 21:51 May 17, 2019 Jkt 089200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S1394.IS S1394 pbinns on DSK79D2C42PROD with BILLS 8 •S 1394 IS (1) IN GENERAL.—Not later than 180 days 1 after the date of enactment of this Act, the Author- 2 ity shall make a determination as to whether a State 3 substantially provides for the rights and responsibil- 4 ities described in subsection (b). 5 (2) CONSIDERATION OF ADDITIONAL OPIN- 6 IONS.—In making the determination described in 7 paragraph (1), the Authority shall consider the opin- 8 ions of affected employers and labor organizations. 9 In the case where the Authority is notified by an af- 10 fected employer and labor organization that both 11 parties agree that the law applicable to such em- 12 ployer and labor organization substantially provides 13 for the rights and responsibilities described in sub- 14 section (b), the Authority shall give such agreement 15 weight to the maximum extent practicable in making 16 the Authority’s determination under this subsection. 17 (3) LIMITED CRITERIA.—In making the deter- 18 mination described in paragraph (1), the Authority 19 shall be limited to the application of the criteria de- 20 scribed in subsection (b) and shall not require any 21 additional criteria. 22 (4) SUBSEQUENT DETERMINATIONS.— 23 (A) IN GENERAL.—A determination made 24 pursuant to paragraph (1) shall remain in ef- 25 VerDate Sep 11 2014 21:51 May 17, 2019 Jkt 089200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S1394.IS S1394 pbinns on DSK79D2C42PROD with BILLS 9 •S 1394 IS fect unless and until the Authority issues a sub- 1 sequent determination, in accordance with the 2 procedures set forth in subparagraph (B). 3 (B) PROCEDURES FOR SUBSEQUENT DE- 4 TERMINATIONS.—Upon establishing that a ma- 5 terial change in State law or its interpretation 6 has occurred, an employer or a labor organiza- 7 tion may submit a written request for a subse- 8 quent determination. If satisfied that a material 9 change in State law or its interpretation has oc- 10 curred, the Authority shall issue a subsequent 11 determination not later than 30 days after re- 12 ceipt of such request. 13 (5) JUDICIAL REVIEW.—Any person or em- 14 ployer aggrieved by a determination of the Authority 15 under this section may, during the 60-day period be- 16 ginning on the date on which the determination was 17 made, petition any United States Court of Appeals 18 in the circuit in which the person or employer re- 19 sides or transacts business or in the District of Co- 20 lumbia Circuit, for judicial review. 21 (b) RIGHTS AND RESPONSIBILITIES.—In making a 22 determination described in subsection (a), the Authority 23 shall consider a State’s law to substantially provide the 24 required rights and responsibilities unless such law fails 25 VerDate Sep 11 2014 21:51 May 17, 2019 Jkt 089200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S1394.IS S1394 pbinns on DSK79D2C42PROD with BILLS 10 •S 1394 IS to provide rights and responsibilities comparable to or 1 greater than each of the following: 2 (1) Granting public safety officers the right to 3 form and join a labor organization, which may ex- 4 clude management employees, supervisory employ- 5 ees, and confidential employees, that is, or seeks to 6 be, recognized as the exclusive bargaining represent- 7 ative of such employees. 8 (2) Requiring public safety employers to recog- 9 nize the employees’ labor organization (freely chosen 10 by a majority of the employees), to agree to bargain 11 with the labor organization, and to commit any 12 agreements to writing in a contract or memorandum 13 of understanding. 14 (3) Providing for the right to bargain over 15 hours, wages, and terms and conditions of employ- 16 ment. 17 (4) Providing for binding interest arbitration as 18 a mechanism to resolve an impasse in collective bar- 19 gaining negotiations. 20 (5) Requiring enforcement of all rights, respon- 21 sibilities, and protections enumerated in this section, 22 and of any written contract or memorandum of un- 23 derstanding between a labor organization and a pub- 24 lic safety employer, through— 25 VerDate Sep 11 2014 21:51 May 17, 2019 Jkt 089200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S1394.IS S1394 pbinns on DSK79D2C42PROD with BILLS 11 •S 1394 IS (A) a State administrative agency, if the 1 State so chooses; or 2 (B) any court of competent jurisdiction. 3 (c) COMPLIANCE WITH REQUIREMENTS.—If the Au- 4 thority determines, acting pursuant to its authority under 5 subsection (a), that a State substantially provides rights 6 and responsibilities described in subsection (b), then this 7 Act shall not preempt State law. 8 (d) FAILURE TO MEET REQUIREMENTS.— 9 (1) IN GENERAL.—If the Authority determines, 10 acting pursuant to its authority under subsection 11 (a), that a State does not substantially provide for 12 the rights and responsibilities described in sub- 13 section (b), then such State shall be subject to the 14 regulations and procedures described in section 5 be- 15 ginning on the later of— 16 (A) the date that is 2 years after the date 17 of enactment of this Act; 18 (B) the date that is the last day of the 19 first regular session of the legislature of the 20 State that begins after the date the Authority 21 makes a determination under subsection (a)(1); 22 or 23 (C) in the case of a State receiving a sub- 24 sequent determination under subsection (a)(4), 25 VerDate Sep 11 2014 21:51 May 17, 2019 Jkt 089200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S1394.IS S1394 pbinns on DSK79D2C42PROD with BILLS 12 •S 1394 IS the date that is the last day of the first regular 1 session of the legislature of the State that be- 2 gins after the date the Authority made the sub- 3 sequent determination. 4 (2) PARTIAL FAILURE.—If the Authority makes 5 a determination that a State does not substantially 6 provide for the rights [Text truncated for display. 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