The Police Chief - January 2011 - (Page 12)
C H I E F ’ S
C O U N S E L
Federal Collective Bargaining Legislation for State and Municipal Public Safety Personnel
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
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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.
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?
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. The legislation prohibits public safety employers, employees, and labor organizations from engaging in lockouts or strikes.
What about Strikes and Lockouts?
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.
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?
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
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).
Table of Contents for the Digital Edition of The Police Chief - January 2011
The Police Chief - January 2011
President’s Message: Introducing IACP’s Conference Rotation Plan
Legislative Alert: Mandatory Collective Bargaining Legislation Sidelined Again
IACP Foundation: Fourth Annual Foundation Fundraiser Flies High in Orlando
Chief's Counsel: Federal Collective Bargaining Legislation for State and Municipal Public Safety Personnel
Advances & Applications
Updating Ethics Training-Policing Privacy Series: Taking Race out of the Perception Equation
Understanding the Psychology of Police Misconduct
Psychological Factors after Officer-Involved Shootings: Addressing Officer Needs and Agency Responsibilities
War on Terror or Policing Terrorism? Radicalization and Expansion of the Threats
2010 IACP Awards
Index to Advertisers
Highway Safety Initiatives
The Police Chief - January 2011