Washington D.C. Employment Law Update : Washington D.C. Employment Lawyer & Attorney : Littler Mendelson Law Firm : Virginia, Tyson's Corner

The minimum collective bargaining rights established by this bill include the following:

• The right to form and join a labor organization, which may exclude management employees, supervisory employees, and confidential employees;
• The requirement that public safety employers recognize and agree to bargain with the employees’ labor organization;
• The right to bargain over hours, wages, and terms and conditions of employment;
• The availability of a dispute resolution mechanism, such as fact-finding, mediation, arbitration, or comparable procedures.
• The FLRA would have the authority to determine whether a state’s collective bargaining arrangements meet the above standards. In addition, the FLRA would have the power to, among other things, determine the appropriateness of the bargaining units, conduct hearings to resolve disputes involving unfair labor practices, and supervise and conduct elections.

The PSEECA would not prohibit a state from enforcing right-to-work laws, exempting from coverage political subdivisions of the state with populations of less than 5,000, or exempting from coverage individuals employed by the sheriff’s office.

Earlier versions of this measure were introduced as standalone bills on three previous occasions during the 111th Congress (H.R. 413; S. 1611, 3194). Additionally, in July, the Senate rejected a supplemental appropriations bill that contained the PSEECA. The measure was likely placed in the larger spending bill to increase its chances of passage.

Sen. Reid has indicated that he may move on this bill during the lame duck session of Congress.

Photo credit: MargoJH

will guarantee collective bargaining rights for first responders employed by states and localities. States would administer and enforce their own labor laws, while the [FLRA] would only step in where such laws do not exist or do not meet minimum standards. The language prohibits public safety officers from engaging in a lockout, sickout, work slowdown, strike, or any other organized job action that will disrupt the delivery of emergency services.

A recent Congressional Research Service report, however, questioned the Constitutional basis for enacting such a law.  Although this measure had been introduced in both the House and Senate as stand-alone bills (H.R. 413; S. 1611, 3194), it is likely that it was added to the larger spending measure in order to facilitate passage. It was approved by a narrow 239-182 margin. It remains to be seen how the Senate will react to this bill when it returns from the July 4 recess. In May, Sen. Majority Leader Harry Reid (D-NV), who introduced the stand-alone bill in the Senate, had also introduced the PSEECA as an amendment to the supplemental appropriations bill when it was considered in the Senate, but withdrew it days later.

This measure would provide firefighters, police officers, and emergency medical personnel with collective bargaining rights in states and localities that do not currently provide them. Additionally, the bill would establish minimum standards for collective bargaining rights for public safety officers, and give the Federal Labor Relations Authority (FLRA) the power to regulate and enforce these rights.

The minimum collective bargaining rights established by this bill include the following:

• The right to form and join a labor organization, which may exclude management employees, supervisory employees, and confidential employees;
• The requirement that public safety employers recognize and agree to bargain with the employees’ labor organization;
• The right to bargain over hours, wages, and terms and conditions of employment;
• The availability of a dispute resolution mechanism, such as fact-finding, mediation, arbitration, or comparable procedures.
• The FLRA would have the authority to determine whether a state’s collective bargaining arrangements meet the above standards. In addition, the FLRA would have the power to, among other things, determine the appropriateness of the bargaining units, conduct hearings to resolve disputes involving unfair labor practices, and supervise and conduct elections.

Among the justifications for introducing the PSEECA, the House bill states:

The potential absence of adequate cooperation between public safety employers and employees has implications for the security of employees, impacts the upgrading of police and fire services of local communities, the health and well-being of public safety officers, and the morale of the fire and police departments, and can affect interstate and intrastate commerce.

Similarly, the Senate versions assert that “providing minimal standards for collective bargaining negotiations in the public safety sector can prevent industrial strife between labor and management that interferes with the normal flow of commerce.”

The CRS report issued on June 21, 2010 – The Public Safety Employer-Employee Cooperation Act – challenges this rationale. Specifically, the report notes:

Whether the Commerce Clause provides sufficient authority to support the PSEECA . . . may not be entirely certain. Although the U.S. Supreme Court has found that the Fair Labor Standards Act, a statute enacted pursuant to Congress’s authority under the Commerce Clause, can be applied to employees of a public mass-transit authority, more recent decisions involving the Commerce Clause suggest that the regulation of labor-management relations for public safety officers may not be sufficiently related to commerce and may be invalidated, if challenged.

The cases examined in the report include United States v. Lopez, a 1995 case in which the Supreme Court held that Congress had exceeded its authority in enacting the Gun-Free School Zones Act of 1990, as the possession of a gun in a local school zone did not have a substantial impact on interstate commerce. The CRS report also cites United States v. Morrison, in which the Court noted that the regulation and punishment of intrastate violence that is “not directed at the instrumentalities, channels, or goods involved in interstate commerce has [sic] always been the province of the States.” In contrast, the Court in Gonzales v. Raich upheld Congress’s ability to enact the Controlled Substances Act on intrastate commerce grounds, as the manufacture and possession of marijuana for medical purposes was deemed an economic activity. Considering these cases together, the CRS acknowledges criticism that “police work, firefighting, and emergency medical services are not economic enterprises or activities related to commercial transactions. Rather, such duties are public services provided by state and localities to their citizens.”

Should the PSEECA advance in Congress, expect similar challenges to the bill’s legality to surface.