In the nature of a substitute.

1. Replaces the bill's text with a full substitute

   Replaces the full textEverything after the enacting clause

   In H.R. 980 · Placed on Calendar Senate

   SECTION 1. SHORT TITLE.

   This Act may be cited as the "Public Safety Employer-Employee Cooperation Act of [struck: 2007][inserted: 2008]".

   SEC. 2. [struck: FINDINGS AND ]DECLARATION OF PURPOSE[inserted: AND POLICY].

   Struck: Congress finds the following:

   Inserted: The Congress declares that the following is the policy of the United States:

   (1) Labor-management relationships and partnerships are based on trust, mutual respect, open communication, bilateral consensual problem solving, and shared accountability. [inserted: Labor-management cooperation fully utilizes the strengths of both parties to best serve the interests of the public, operating as a team, to carry out the public safety mission in a quality work environment. ]In many public safety agencies it is the union that provides the institutional stability as elected leaders and appointees come and go.

   (2) State and local public safety officers play an essential role in the efforts of the United States to detect, prevent, and respond to terrorist attacks, and to respond to natural disasters, hazardous materials, and other mass casualty incidents. [struck: As the first to arrive on scene, ]State and local public safety officers[struck: must be prepared to protect life and property and to preserve scarce and vital Federal resources, avoid substantial and debilitating interference with interstate and foreign commerce, ][inserted: , as first responders, are a component of our Nation's National Incident Management System, developed by the Department of Homeland Security to coordinate response to ]and [struck: to protect the national security of the United States][inserted: recovery from terrorism, major natural disasters, and other major emergencies]. Public safety employer-employee cooperation is essential in meeting these needs and is, therefore, in the National interest.

   Struck: (3) The health and safety of the Nation and the best interests of public safety employers and employees may be furthered by the settlement of issues through the processes of collective bargaining.

   ([struck: 4][inserted: 3]) The Federal Government [struck: is in the position ][inserted: needs ]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, and to make all reasonable efforts through negotiations to settle their differences by mutual agreement reached through collective bargaining or by such methods as may be provided for in any applicable agreement for the settlement of disputes.

   ([struck: 5][inserted: 4]) The [struck: potential ]absence of adequate cooperation between public safety employers and employees has implications for the security of employees[struck: , impacts ][inserted: and can affect interstate and intrastate commerce. The lack of such labor-management cooperation can detrimentally impact ]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[struck: , and ][inserted: . Additionally, these factors could have significant commercial repercussions. Moreover, providing minimal standards for collective bargaining negotiations in the public safety sector ]can [struck: affect interstate ][inserted: prevent industrial strife between labor ]and [struck: intrastate ][inserted: management that interferes with the normal flow of ]commerce.

   Struck: (6) Many States and localities already provide public safety officers with collective bargaining rights comparable to or greater than the rights and responsibilities set forth in this Act, and such State laws should be respected.

   SEC. 3. DEFINITIONS.

   In this Act:

   (1) [inserted: Authority.--]The term "Authority" means the Federal Labor Relations Authority.

   Struck: (2) The term "public safety officer"--

   Struck: (A) means an employee of a public safety agency who is a law enforcement officer, a firefighter, or emergency medical services personnel;

   Inserted: (2) Emergency medical services personnel.--The term "emergency medical services personnel" means an individual who provides out-of-hospital emergency medical care, including an emergency medical technician, paramedic, or first responder.

   Inserted: (3) Employer; public safety agency.--The terms "employer" and "public safety agency" mean any State, or political subdivision of a State, that employs public safety officers.

   Inserted: (4) Firefighter.--The term "firefighter" has the meaning given the term "employee engaged in fire protection activities" in section 3(y) of the Fair Labor Standards Act of 1938 (29 U.S.C. 203(y)).

   Inserted: (5) Labor organization.--The term "labor organization" means an organization composed in whole or in part of employees, in which employees participate, and which represents such employees before public safety agencies concerning grievances, conditions of employment, and related matters.

   Inserted: (6) Law enforcement officer.--The term "law enforcement officer" has the meaning given such term in section 1204 of the Omnibus Crime Control and Safe Streets Act of 1968 (42 U.S.C. 3796b).

   Inserted: (7) Management employee.--The term "management employee" has the meaning given such term under applicable State law in effect on the date of enactment of this Act. If no such State law is in effect, the term means an individual employed by a public safety employer in a position that requires or authorizes the individual to formulate, determine, or influence the policies of the employer.

   Inserted: (8) Person.--The term "person" means an individual or a labor organization.

   Inserted: (9) Public safety officer.--The term "public safety officer"--

   Inserted: (A) means an employee of a public safety agency who is a law enforcement officer, a firefighter, or an emergency medical services personnel;

   (B) includes an individual who is temporarily transferred to a supervisory or management position; and

   (C) does not include a permanent supervisory or management employee.

   Struck: (3) The term "firefighter" has 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)).

   Struck: (4) The term "emergency medical services personnel" means an individual who provides out-of-hospital emergency medical care, including an emergency medical technician, paramedic, or first responder.

   Struck: (5) The term "law enforcement officer" has the same meaning given such term in section 1204(5) of the Omnibus Crime Control and Safe Streets Act of 1968 (42 U.S.C. 3796b(5)).

   Struck: (6) The term "supervisory employee" has the meaning given such term, or a substantially equivalent term, under applicable State law on the date of enactment of this Act. In the absence of such State law on the date of enactment of this Act, the term means an individual, employed by a public safety employer, who--

   Inserted: (10) State.--The term "State" means each of the several States of the United States, the District of Columbia, and any territory or possession of the United States.

   Inserted: (11) Substantially provides.--The term "substantially provides" means compliance with the essential requirements of this Act, specifically, the right to form and join a labor organization, the right to bargain over wages, hours, and conditions of employment, the right to sign an enforceable contract, and availability of some form of mechanism to break an impasse, such as arbitration, mediation, or fact-finding.

   Inserted: (12) Supervisory employee.--The term "supervisory employee" has the meaning given such term under applicable State law in effect on the date of enactment of this Act. If no such State law is in effect, the term means an individual, employed by a public safety employer, who--

   (A) has the authority in the interest of the employer to hire, direct, assign, promote, reward, transfer, furlough, lay off, recall, suspend, discipline, or remove public safety officers, to adjust their grievances, or to effectively recommend such action, if the exercise of the authority is not merely routine or clerical in nature but requires the consistent exercise of independent judgment; and

   (B) devotes a [struck: preponderance][inserted: majority] of [struck: employment ]time [inserted: at work ]exercising such authority.

   Struck: (7) The term "management employee" has the meaning given such term, or a substantially equivalent term, under applicable State law in effect on the date of enactment of this Act. If no such State law is in effect, the term means an individual employed by a public safety employer in a position that requires or authorizes the individual to formulate, determine, or influence the policies of the employer.

   Struck: (8) The terms "employer" and "public safety agency" mean 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.

   Struck: (9) The term "labor organization" means an organization composed in whole or in part of employees, in which employees participate, and the purpose of which is to represent such employees before public safety agencies concerning grievances, conditions of employment and related matters.

   Struck: (10) The term "substantially provides" means substantial compliance with the rights and responsibilities described in section 4(b).

   SEC. 4. DETERMINATION OF RIGHTS AND RESPONSIBILITIES.

   (a) Determination.--

   (1) In general.--Not later than 180 days after the date of enactment of this Act, the Authority shall make a determination as to whether a State substantially provides for the rights and responsibilities described in subsection (b). In making such determinations, the Authority shall consider [struck: the opinion of affected employers ]and [struck: labor organizations. Where the Authority is notified by an employer and an affected labor organization that both parties agree that the law applicable to such employer and labor organization substantially provides for the rights and responsibilities described in subsection (b), the Authority shall ]give [struck: such agreement ]weight[inserted: ,] to the maximum extent practicable[struck: in making its determination under this subsection][inserted: , to the opinion of affected parties].

   Inserted: (2) Subsequent determinations.--

   ([struck: 2][inserted: A]) [struck: Subsequent determinations][inserted: In general].--[struck: (]A[struck: ) A ][inserted: ]determination made pursuant to paragraph (1) shall remain in effect unless and until the Authority issues a subsequent determination, in accordance with the procedures set forth in subparagraph (B).

   (B) [struck: An employer or a labor organization may submit a written request for a subsequent determination, on the basis of ][inserted: Procedures for subsequent determinations.--Upon establishing that a material change in State law or its interpretation has occurred, an employer or ]a [struck: material change in State law or its interpretation. If the Authority determines ][inserted: labor organization may submit a written request for a subsequent determination. If satisfied ]that a material change in State law or its interpretation has occurred, the Authority shall issue a subsequent determination not later than 30 days after receipt of such request.

   (3) Judicial review.--Any person [inserted: or employer ]aggrieved by a determination of the Authority under this section may, during the 60-day period beginning on the date on which the determination was made, petition any United States Court of Appeals in the circuit in which the person [inserted: or employer ]resides or transacts business or in [inserted: the ]District of Columbia circuit, for judicial review. In any judicial review of a determination by the Authority, the procedures contained in [struck: section 7123][inserted: subsections ](c) [inserted: and (d) ]of [inserted: section 7123 of ]title 5, United States Code, shall be followed.

   (b) Rights and Responsibilities.--In making a determination described in subsection (a), the Authority shall consider [struck: a State's][inserted: whether State] law [struck: to provide adequate ][inserted: provides ]rights and responsibilities [struck: unless such law fails to substantially provide rights and responsibilities ]comparable to or greater than [struck: each of ]the following:

   (1) Granting public safety officers the right to form and join a labor organization, which may exclude management [inserted: employees ]and supervisory 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) [struck: Providing for ][inserted: Permitting ]bargaining 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 through State courts of--

   (A) all rights, responsibilities, and protections provided by State law and enumerated in this [struck: subsection][inserted: section]; and

   (B) any written contract or memorandum of understanding.

   (c) Failure To Meet Requirements.--

   (1) In general.--If the Authority determines, acting pursuant to its authority under subsection (a), that a State does not substantially provide for the rights and responsibilities described in subsection (b), such State shall be subject to the regulations and procedures described in section 5.

   Struck: (2) Effective date.--Paragraph (1) shall apply in each State on the later of--

   ([struck: A][inserted: 2]) [inserted: Effective date.--Paragraph (1) shall take effect on the date that is ]2 years after the date of enactment of this Act[struck: ; or][inserted: .]

   Struck: (B) 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.

   SEC. 5. ROLE OF [struck: THE ][inserted: FEDERAL LABOR RELATIONS ]AUTHORITY.

   (a) In General.--Not later than 1 year after the date of [struck: the ]enactment of this Act, the Authority shall issue regulations [struck: establishing procedures which provide ][inserted: in accordance with ]the rights and responsibilities described in section 4(b) [struck: for public safety ][inserted: establishing collective bargaining procedures for ]employers and [inserted: public safety ]officers in States which the Authority has determined, acting pursuant to [struck: its authority under ]section 4(a), do not substantially provide for such rights and responsibilities.

   (b) Role of the Federal Labor Relations Authority.--The Authority, to the extent provided in this Act and in accordance with regulations prescribed by the Authority, shall--

   (1) determine the appropriateness of units for labor organization representation;

   (2) supervise [struck: and][inserted: or] 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;

   (3) resolve issues relating to the duty to bargain in good faith;

   (4) conduct hearings and resolve complaints of unfair labor practices;

   (5) resolve exceptions to the awards of arbitrators;

   (6) protect the right of each employee to form, join, or assist any labor organization, or to refrain from any such activity, freely and without fear of penalty or reprisal, and protect each employee in the exercise of such right;[inserted: and]

   Struck: (7) if the Authority finds that any State is not in compliance with the regulations prescribed under subsection (a), direct compliance by such State by order; and

   ([struck: 8][inserted: 7]) take such other actions as are necessary and appropriate to effectively administer this Act, including issuing subpoenas requiring the attendance and testimony of witnesses and the production of documentary or other evidence from any place in the United States, and administering oaths, taking or ordering the taking of depositions, ordering responses to written interrogatories, and receiving and examining witnesses.

   (c) Enforcement.--

   (1) [struck: Petition by authority][inserted: Authority to petition court].--[struck: If a State fails to comply with a final order issued by the ][inserted: The ]Authority[struck: , the Authority shall ][inserted: may ]petition any United States Court of Appeals with jurisdiction over the parties[inserted: ,] or the United States Court of Appeals for the District of Columbia Circuit[inserted: ,] to enforce any final orders under this section, and for appropriate temporary relief or a restraining order. Any petition under this section shall be conducted in accordance with [struck: section 7123][inserted: subsections ](c) and (d) of [inserted: section 7123 of ]title 5, United States Code[struck: , except that any final order of the Authority with respect to questions of fact shall be found to be conclusive unless the court determines that the Authority's decision was arbitrary and capricious].

   (2) [struck: Right ][inserted: Private right ]of action.--Unless the Authority has filed a petition for enforcement as provided in paragraph (1), any [struck: interested ]party [struck: shall have ][inserted: has ]the right to file suit [struck: against any political subdivision of ][inserted: in ]a State[struck: , or, if the State has waived its sovereign immunity, against the State itself, in any district ][inserted: ]court of [struck: the United States of ]competent jurisdiction to enforce compliance with the regulations issued by the Authority pursuant to subsection (b), [inserted: and ]to enforce compliance with any order issued by the Authority pursuant to this section[struck: , or to enforce section 6 of this Act]. The right provided by this [struck: paragraph][inserted: subsection] to bring a suit to enforce compliance with any order issued by the Authority pursuant to this section shall terminate upon the filing of a petition seeking the same relief by the Authority[struck: under paragraph (1)].

   SEC. 6. STRIKES AND LOCKOUTS PROHIBITED.

   Struck: Notwithstanding any rights or responsibilities provided under State law or under regulations issued by the Authority under section 5--

   Struck: (1) a public safety employer may not engage in a lockout of public safety officers;

   Struck: (2) public safety officers may not engage in a strike against such public safety employer; and

   Struck: (3) a labor organization may not call for a strike by public safety officers against their public safety employer.

   Inserted: (a) Prohibition.--An employer, public safety officer, or labor organization may not engage in a lockout, sickout, work slowdown, strike, or any other action that will measurably disrupt the delivery of emergency services and is designed to compel an employer, public safety officer, or labor organization to agree to the terms of a proposed contract.

   Inserted: (b) Mandatory Terms and Conditions.--It shall not be a violation of subsection (a) for a public safety officer or labor organization to refuse to carry out services that are not required under the mandatory terms and conditions of employment applicable to the public safety officer or labor organization.

   SEC. 7. EXISTING COLLECTIVE BARGAINING UNITS AND AGREEMENTS.

   [struck: This Act and the regulations issued under this Act shall not be construed to invalidate a ][inserted: A ]certification, recognition, [inserted: election-held, ]collective bargaining agreement[struck: ,] or memorandum of understanding which has been issued, approved, or ratified by any public employee relations board or commission or by any State or political subdivision or its agents (management officials) [inserted: and is ]in effect on the day before the date of enactment of this Act[struck: , or the results of any election held before ][inserted: shall not be invalidated by ]the [struck: date of ]enactment of this Act.

   SEC. 8. CONSTRUCTION[struck: , COMPLIANCE, ][inserted: ]AND [struck: ENFORCEMENT][inserted: COMPLIANCE].

   (a) Construction.--Nothing in this Act [struck: or the regulations issued under this Act ]shall be construed--

   (1) to preempt or limit the remedies, rights, and procedures of any law of any State or political subdivision of any State or jurisdiction that [struck: substantially ]provides greater or comparable rights and responsibilities [inserted: than the rights and responsibilities ]described in section 4(b);

   (2) to prevent a State from enforcing a [struck: State][inserted: right-to-work] law [struck: which][inserted: that] prohibits employers and labor organizations from negotiating provisions in a labor agreement that require union membership or payment of union fees as a condition of employment;

   (3) to preempt [inserted: or limit ]any State law in effect on the date of enactment of this Act that [struck: substantially ]provides for the rights and responsibilities described in section 4(b) solely because[struck: --][inserted: such State law permits an employee to appear on the employee's own behalf with respect to the employee's employment relations with the public safety agency involved;]

   Struck: (A) such State law permits an employee to appear in his or her own behalf with respect to his or her employment relations with the public safety agency involved;

   ([struck: B][inserted: 4]) [inserted: to preempt or limit any State law in effect on the date of enactment of this Act that provides for the rights and responsibilities described in section 4(b) solely because ]such State law excludes from its coverage employees of a [struck: state][inserted: State] militia or national guard;

   Struck: (C) such rights and responsibilities have not been extended to other categories of employees covered by this Act, in which case the Authority shall only exercise the powers provided in section 5 of this Act with respect to those categories of employees who have not been afforded the rights and responsibilities described in section 4(b); or

   Struck: (D) 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;

   ([struck: 4][inserted: 5]) to permit parties [inserted: in States ]subject to the [struck: National Labor Relations Act (29 U.S.C. 151 et seq.) ][inserted: regulations ]and [struck: the regulations under such Act][inserted: procedures described in section 5] to negotiate provisions that would prohibit an employee from engaging in part-time employment or volunteer activities during off-duty hours;

   Inserted: (6) to prohibit a State from exempting from coverage under this Act a political subdivision of the State that has a population of less than 5,000 or that employs less than 25 full-time employees; or

   ([struck: 5][inserted: 7]) to [struck: require a State to rescind ][inserted: preempt ]or [struck: preempt ][inserted: limit the ]laws or ordinances of any [struck: of its][inserted: State or] political [struck: subdivisions if such laws substantially][inserted: subdivision of a State that] provide [inserted: for the ]rights and responsibilities [struck: for public safety officers that are comparable to or greater than the rights and responsibilities enumerated in section 4(b) of this Act; or][inserted: described in section 4(b) solely because such law does not require bargaining with respect to pension, retirement, or health benefits.]

   Struck: (6) preempt any State law that substantially provides for the rights and responsibilities described in section 4(b) solely because such law does not require bargaining with respect to pension and retirement benefits.

   [struck: (b) Partial Exemption.--A State may exempt from its State law, or from the requirements established 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 [struck: this subsection][inserted: paragraph (6)], the term "[struck: employees][inserted: employee]" includes each [inserted: and every ]individual employed by the political subdivision except any individual elected by popular vote or appointed to serve on a board or commission.

   Struck: (c) Enforcement.--Notwithstanding any other provision of the Act, and in the absence of a waiver of a State's sovereign immunity, the Authority shall have the exclusive power to enforce the provisions of this Act with respect to public safety officers employed by a State.

   Inserted: (b) Compliance.--

   Inserted: (1) Actions of states.--Nothing in this Act or the regulations promulgated under this Act shall be construed to require a State to rescind or preempt the laws or ordinances of any of its political subdivisions if such laws provide rights and responsibilities for public safety officers that are comparable to or greater than the rights and responsibilities described in section 4(b).

   Inserted: (2) Actions of the authority.--Nothing in this Act or the regulations promulgated under this Act shall be construed to preempt--

   Inserted: (A) the laws or ordinances of any State or political subdivision of a State, if such laws provide collective bargaining rights for public safety officers that are comparable to or greater than the rights enumerated in section 4(b);

   Inserted: (B) the laws or ordinance of any State or political subdivision of a State that provide for the rights and responsibilities described in section 4(b) with respect to certain categories of public safety officers covered by this Act solely because such rights and responsibilities have not been extended to other categories of public safety officers covered by this Act; or

   Inserted: (C) the laws or ordinances of any State or political subdivision of a State that provides for the rights and responsibilities described in section 4(b), solely because 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.

   Inserted: (3) Limited enforcement power.--In the case of a law described in paragraph (2)(B), the Authority shall only exercise the powers provided in section 5 with respect to those categories of public safety officers who have not been afforded the rights and responsibilities described in section 4(b).

   Inserted: (4) Exclusive enforcement provision.--Notwithstanding any other provision of the Act, and in the absence of a waiver of a State's sovereign immunity, the Authority shall have the exclusive power to enforce the provisions of this Act with respect to employees of a State or political subdivision of a State.

   SEC. 9. AUTHORIZATION OF APPROPRIATIONS.

   There are authorized to be appropriated such sums as may be necessary to carry out the provisions of this Act.[inserted: F_____]

   Struck: Passed the House of Representatives July 17, 2007.

   Original wording

   Strike all after the enacting clause and insert the following:

Read automatically from the Congressional Record. Check the original before relying on it.

As printed