Tuesday, May 25, 2010

Public Safety Employer-Employee Cooperation Act of 2009: What California Public Employers Need to Know

According to some reports, the Senate may be voting on S. 3194 as early as this week as part of a larger appropriations bill. S. 3194 is titled the “Public Safety Employer-Employee Cooperation Act of 2009” and would establish collective bargaining for state and local firefighters, police officers, and paramedics throughout the nation. Currently, state and local employees are excluded from the National Labor Relations Act (NLRA). Under S. 3194, state and local public safety employees would come under the jurisdiction of the Federal Labor Relations Authority (FLRA). Upon enactment, the FLRA would have 180 days to determine, “whether a State substantially provides for the rights and responsibilities” provided in S. 3194. If the FLRA finds that a state already provides the rights and responsibilities set forth in S. 3194, then the state would be exempted from the requirements of the new law.

Pursuant to S. 3194, a state would have to provide substantially the following rights and responsibilities in order to be exempted from the law:

(1) Granting public safety officers the right to form and join a labor organization, which may exclude management employees, supervisory employees, and confidential employees, that is, or seeks to be, recognized as the exclusive bargaining representative of such employees.

(2) Requiring public safety employers to recognize the employees' labor organization (freely chosen by a majority of the employees), to agree to bargain with the labor organization, and to commit any agreements to writing in a contract or memorandum of understanding.

(3) Providing for the right to bargain over hours, wages, and terms and conditions of employment.

(4) Making available an interest impasse resolution mechanism, such as fact-finding, mediation, arbitration, or comparable procedures.

(5) Requiring enforcement of all rights, responsibilities, and protections provided by State law and enumerated in this section, and of any written contract or memorandum of understanding between a labor organization and a public safety employer, through--

(A) a State administrative agency, if the State so chooses; and

(B) at the election of an aggrieved party, the State courts.
In California, state law (EERA, HEERA, MMBA, and the Dills Act) already provides all of these rights to public safety employees with one possible exception. Under S. 1394, a state would have to make available “an interest impasse resolution mechanism, such as fact-finding, mediation, arbitration, or comparable procedures.” I'm not sure what this means.  The term “interest” when used with “arbitration” has a very distinct meaning in labor relations.  In California, there is a statute providing for interest arbitration for police and firefighters. (See CCP, §1299.) However, that statute has been found unconstitutional by the courts and never enforced. So would S. 3194 require interest arbitration? It’s not clear. What’s confusing is that S. 3194 also allows for “fact-finding” and “mediation.” However, there really is no such thing as “interest fact-finding” or “interest mediation” in the labor relations world.  So it's really not clear from the statute what meaning is attached to the term "interest."  The fear would be that because of the ambiguity, the FLRA might promulgate regulations interpreting S. 3194 as requiring some form of interest arbitration. If so, that would definitely be a change for California public employers.

Regardless of whether S. 3194 requires interest arbitration, it certainly does require some type of “impasse resolution mechanism.” That may be an issue under the MMBA which does not require any form of mediation or anything similar upon impasse. However, the vast majority of local agencies have mediation or fact-finding as part of their local rules. So this particular requirement won’t affect the vast majority of local employers, but may affect a few.