Public Safety Employer - Employee Cooperation Act Of 2009: Does The Federal Government Really Know What Is Best For Local Governments?

By: Leonard J. Dietzen, III

11.12.09

 
The 111st Congress introduced House Resolution 413 Public Safety Employer – Employee Cooperation Act of 2009 (PSEEC) January 9, 2009.  While this Act was unsuccessful in numerous previous Congressional attempts, this year the Act has the support of a Democratic President and both the Democratically controlled House and Senate.  Furthermore, it is this author’s opinion that the complete mayhem caused by the reintroduction of the Employee Free Choice Act may allow the PSEEC to fly under the radar.
 
Introduction
 
The goal of PSEEC is to provide collective bargaining rights for public safety officers employed by states or their political subdivisions.  In the bill’s Findings and Declaration of Purpose one can gleam the Union’s influence on this legislation.  In Section 2 at the Act, Congress finds the following:
 
In many public safety agencies it is the union that provides the institutional stability as elected leaders and appointees come and go.  The health and safety of the Nation and the best interest of public safety employers and employees may be furthered by the settlement of issues through the process of collective bargaining.  Finally, the bill finds that the Federal Government is in the best position to encourage conciliation, mediation, and voluntary arbitration to aid and encourage employers and the representatives of their employees to reach and maintain agreements concerning rates of pay, hours and working conditions.[1]
 
Who The Act Applies To
 
The Act defines a “public safety officer” as an employee of a public safety agency who is a law enforcement officer, a firefighter, or emergency medical services personnel.  The bill further defines emergency medical services personnel as an individual who provides out-of-hospital emergency medical care, including an emergency medical technician, paramedic, or first responder.  Firefighters definitions include the same meaning given the term “employee in fire protection activities” defined in Section 3 of the Fair Labor Standards Act (29 U.S.C. 203(y).  The term law enforcement officer has the same meaning as set forth in Section 1204(5) of the Omnibus Crime Control and Safe Streets Act of 1968 (42 U.S.C. 3796b(5)).  Employer and public safety agency are defined as any state, political subdivision of a State, the District of Columbia or any territory or possession of the United States that employs public safety officers.
 
Who Is Not Covered By The Act
 
Supervisors and management employees are excluded from the reach of this Act.  Both terms have the same meaning given such term, or substantially equivalent term, under applicable State law on the date of enactment of this Act.  In Florida, PERC allows supervisory employees to engage in collective bargaining.  Only managerial and confidential employees as defined by PERC statutes are prohibited from collective bargaining.[2]
 
  
What The Act Specifically Offers 
  • Empowers the Federal Labor Relation Authority to assure compliance. 
  • Provides the right of public safety officers to collectively bargain over wages, hours and conditions of employment (freely chosen by a majority of the employees). 
  • Prohibits strikes. 
  • Protects existing certifications, elections, recognitions and collective bargaining agreements. 
  • Requires enforcement through State courts. 
  • Requires a dispute resolution mechanism, such as binding arbitration.
 
State Law Analysis
 
The Act grants the Authority 180 days from the enactment of the Act to determine whether a State substantially provides for the rights and responsibilities granted in the Act.  The bill allows the Authority to consider the opinions of the particular employers and unions when making its determination.  Accordingly, should this bill become law, when in agreement, Employers and Unions should notify the Authority that their State law is sufficient and there is no need to impose any term of this Federal law.
 
Partial Exemption
 
The Act allows a State to exempt from its State law, or from the requirements under this Act, a political subdivision of the State that has a population of less than 5,000 or that employs fewer than 25 full time employees.  For purposes of this provision the term “employees” include each individual employed by the political subdivision except any individual elected by popular vote or appointed to serve on a board or commission.  (emphasis added)
 
Conclusion
 
While Florida has a comprehensive collective bargaining statutory scheme as set forth in Chapter 447.201 et. seq., Florida Statutes, it is uncertain at this time whether the Federal Labor Relation Authority will determine whether any additional protections are needed.  By requiring all matters to end up in Court, this may be one area that the Authority examines when reviewing Florida’s statutory bargaining scheme as set forth in Chapter 447.201 et. seq., Florida StatutesCurrently in Florida, most bargaining disputes are processed by PERC and can only be appealed to the District Court of Appeals.
 
It is this author’s opinion that this law was designed to impose collective bargaining on numerous states that do not allow collective bargaining rights for Public Safety Officers.  Instead of letting States decide this issue, this Federal bill is designed to allow Unions to expand in previously banned areas.  Until the bill is signed into law, States with bargaining rights can sit back and view on the sidelines.  Those States without bargaining rights must get involved in the political arena now, before it is too late.
 
About The Author
 
Leonard J. Dietzen, III, Esquire is a partner at the law firm of Rumberger, Kirk and Caldwell.  He represents management in the public and private sectors in employment and labor disputes including collective bargaining throughout the State of Florida.  He can be reached at ldietzen@rumberger.com.
 

 
 
 
© Rumberger Kirk & Caldwell Attorneys At Law Web site hosted on the FirmWise platform