By John M. (Jack) Collins, General Counsel, Massachusetts Chiefs of Police Association, Grafton, Massachusetts
everal nearly identical pieces of proposed legislation introduced into Congress over the past several years would require all state and local governments to collectively bargain with public safety officers—that is, police officers, firefighters, and emergency medical services (EMS) personnel, excluding permanent supervisory or management employees.
The legislation would require all states to provide public safety personnel with the right to form and join a union and to bargain collectively over wages, hours, and terms of employment. Some contract impasse resolution procedures and several other provisions found in most collective bargaining laws would also be required. On its face, the legislation mandates a minimum threshold that would apply only in states that offer little or no bargaining rights at the present time. A fear among other states is that future amendments might apply to the entire country.
Under the new statute, every state’s laws must, at a minimum, provide the following bargaining rights to public safety employees:
- Grant public safety officers the right to form and join a labor organization that is or seeks to be recognized as the exclusive bargaining representative of the employees, excluding management and supervisory employees.
- Require public safety employers to recognize the employees’ labor organization that has been chosen freely by a majority of employees and agree to bargain with the union and memorialize any agreements by putting them in a written contract or memorandum of understanding.
- Provide for bargaining over hours, wages, and terms and conditions of employment.
- Make available an interest-impasse resolution mechanism, such as fact-finding, mediation, arbitration, or comparable procedures.
- Require enforcement through state courts of all rights, responsibilities, and protections provided by state law and those enumerated in the federal legislation, including enforcing any written contract or memorandum of understanding.
Approximately 38 states appear to offer sufficient bargaining rights to their public safety personnel (34 for police and fire, and 4 for fire) that should exempt them from the new federal mandate. The number of states that also cover EMS workers is unclear.
Serious questions of the bills’ constitutionality have been raised. Following are some related questions.
What Is the Enforcement Mechanism?
The legislation authorizes the Federal Labor Relations Authority (FLRA) to enforce the act by creating and enforcing collective bargaining regulations that provide state and local agency public safety employees with collective bargaining rights. The act requires the FLRA to consider whether each state’s laws provide public safety employees with certain rights and responsibilities.
What about Strikes and Lockouts?
The legislation prohibits public safety employers, employees, and labor organizations from engaging in lockouts or strikes.
Will All Public Safety Personnel Be Required to Join a Union?
No, the bills allow so-called “right to work” laws in states. Under such provisions, workers need not join a union, but often must pay a sum substantially equivalent to union dues for the benefits that workers receive from the union’s bargaining efforts.
What Happens if a State Does Not Provide Sufficient Bargaining Rights?
If the FLRA determines that a state does not “substantially provide” the bargaining rights expressly provided for in the bill, the FLRA will manage labor relations in the public safety sector arena within the state. Within one year of the law’s enactment, the FLRA must promulgate regulations establishing procedures for implementing the specified rights for public safety employees in states where the FLRA has determined they do not exist.
How Much Authority Will the FLRA Have over Local Bargaining?
The legislation specifically provides the FLRA with the authority to
- determine whether a bargaining unit is appropriate;
- 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;
- 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 activity;
- order any state that is not in compliance with the FLRA’s regulations promulgated to enforce this act to comply with the federal law; and
- take other actions that are necessary to administer the new law, including issuing subpoenas, administering oaths, taking or ordering depositions, ordering responses to interrogatories, and receiving and examining witnesses.
How Long Will States Have to Enact Complying Bargaining Legislation?
If the FLRA determines that a state does not “substantially provide” for the rights and responsibilities enumerated above, then that state has two years from the date of the law’s enactment or 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” to comply, or the FLRA will issue regulations that will provide for the aforementioned rights and responsibilities. This is according to H.R. 413, Public Safety Employer-Employee Cooperation Act of 2009 Section 4(c)(2)(B).
Any determination made by the FLRA will remain in effect until such time as a subsequent determination is made. An employer or labor organization may submit a request for a subsequent determination on the basis of a material change in state law or its interpretation. If the FLRA determines that such a material change has taken place, a subsequent determination will be made no more than 30 days after the request.
This bill and regulations issued by the FLRA under the authority of this legislation will not invalidate a certification, a recognition, a collective bargaining agreement, or a memorandum of understanding that has been issued, approved, or ratified by any public employee relations board, commission, or state or political subdivision or its agents (management officials) that is in effect on the day before the date of enactment, or the results of any election held before the date of enactment.
The bill would also not preempt any state law in effect on the date of enactment that substantially provides for the rights and responsibilities described above solely because
- such state law permits employees to appear on their own behalf with respect to their employment relations with the public safety agency involved;
- such state law excludes from its coverage employees of a state militia or national guard;
- such state law does not require bargaining with respect to pension and retirement benefits;
- such rights and responsibilities have not been extended to other categories of employees covered by this legislation, in which case the FLRA shall only exercise the authority granted it by this bill with respect to those categories of employees who have not been afforded the aforementioned rights and responsibilities; or
- 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.
Further, if a state provides collective bargaining rights for some, but not all, public safety employees described in the bill, the FLRA will be required to specify those categories of employees to eliminate any confusion over which groups of employees would come under the FLRA regulations.
In addition, the bill would not 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. Further, the bill would not permit these same parties to negotiate provisions that would 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 above.
Are Even Small Municipalities Included?
A state may exempt from its state law, or from the requirements established by this bill, a political subdivision of the state that has a population of fewer than 5,000 or that employs fewer than 25 full-time employees.
States without collective bargaining laws that are likely to satisfy the new federal standards should consider at least drafting a bill that will meet the minimum threshold. There are a number of protections that can be inserted into such laws that will preserve management rights and reduce the effect of the federal incursion into an area that such states have traditionally considered “states’ rights.” It appears that states may have up to two years to enact such laws, but the initial inspection by the FLRA may come much sooner, with a check on what each state has in place on the day before the new federal law takes place.
Strongly worded provisions on each of the following will be helpful:
- Management rights
- Performance evaluations
- Fitness for duty
- Impasse resolution
- No arbitration
- Mediation and fact-finding only
- Local legislative approval required
- Right to work: no “agency fee” requirement
- Drug and alcohol testing: no requirement for rehab
- Uniforms, equipment and similar determinations
- Polygraph testing
- Nonsupervisory bargaining units only
- No civilian employees in police units
- Full-time only
- Light duty at chief’s option
- Exclude discrimination or other statutory violations from grievance procedure: “one bite at the apple” only
- Define grievance arbitration limits
- Cannot override state or local laws, ordinances, rules, etc.
- Cannot second-guess discipline
- Review facts only, not level of discipline: limit “evergreen” clauses: assure right to terminate contract
- Define midterm bargaining
- Allow chief to handle discussions
- Limit duration to worthwhile good faith efforts to reach agreement
- Allow implementation on impasse ■
Please cite as:
John M. (Jack) Collins, "Federal Collective Bargaining Legislation for State and Municipal Public Safety Personnel," Chief's Counsel, The Police Chief 78 (January 2011): 12–13, http://www.nxtbook.com/nxtbooks/naylor/CPIM0111/#/12 (insert access date).