Federally Mandated Collective Bargaining for Public Safety Employees

1. Federally Mandated Collective Bargaining for Public Safety Employees Presented by: Fred P. Baggett fred.baggett@smithmoorelaw.com Smith Moore Leatherwood LLP 434 Fayetteville Street, Suite 2800 Raleigh, North Carolina 27601 T: (919) 755-8700 F: (919) 755-8800 July 15, 2010 To ask a question during the presentation, click the Q&A menu at the top of this window, type your question in the Q&A text box, and then click “Ask.” After you click Ask, the button name will change to “Edit.” Questions will be queued and most will be answered at the end of the meeting as time allows.

2. Likelihood That This Mandate Will Become Law • Already passed House on July 1 (239-182). • Senate leadership is committed to it. • President Obama supports it (no veto).

3. Basic Elements • Federal mandatory collective bargaining for police, fire, and EMS employees. • “Employee-Employer Cooperation Act” (currently contained in H.R. 4899). • Creates fundamental rights and responsibilities concerning covered groups. • Right of covered employees to organize and be recognized as exclusive bargaining unit • Employer must bargain over “hours, wages, terms and conditions of employment” • Written collective bargaining agreements

4. Existing State Legislation Covering Public Safety Collective Bargaining • 14 States have no comprehensive law covering police and fire collective bargaining. • 5 States have fire-only collective bargaining laws. • 31 States Plus the District of Columbia have laws covering both police and fire. • Numerous local jurisdictions in some states have passed collective bargaining ordinances.

5. States’ Legislative Option • The Federal Labor Relations Authority (“FLRA”) must decide whether a state has “substantially provided” for a series of employee rights and employer collective bargaining responsibilities. • If state statute passes muster, FLRA will abstain from directly regulating state.

6. What Are The State Law “Minimum Standards?” • Right of public safety officers to form and join a labor organization, which may exclude management and supervisory employees. • Obligation to recognize and bargain with the employees’ labor organization; and commit any agreements to writing in a contract or memorandum of understanding. • Obligation to bargain over hours, wages, and terms and conditions of employment.

7. What Are The State Law “Minimum Standards?” (cont.) • Provide for some type of interest impasse resolution mechanism, such as fact-finding, mediation, arbitration, or comparable procedures. • Accessibility to state courts to enforce (a) all rights, responsibilities, and protections provided by state collective bargaining law; and (b) any written contract or memorandum of understanding entered into between the employer and union.

8. Who Is Covered? • State and Local: • Law Enforcement Officers (adopts definition from Omnibus Crime Act of 1968) • Firefighters (adopts FLSA definition) • Emergency Medical Services Personnel (emergency medical technicians, paramedics, or first responders)

9. Definitions of “Public Safety Officer” • “Firefighter” “Employee in fire protection activities” means an employee, including a firefighter, paramedic, emergency medical technician, reserve worker, ambulance personnel, or hazardous materials worker, who – (1) is trained in fire suppression, has the legal authority and responsibility to engage in fire suppression, and who is employed by a fire department or a municipality, county, fire district, or state, and

10. Definitions of “Public Safety Officer” (cont.) (2) is engaged in the prevention, control, and extinguishment of fires or response to emergency situations where life, property, or the environment is at risk. 29 U.S.C. 203(y). • “Law Enforcement Officer” Law Enforcement Officer means an individual involved in crime and juvenile delinquency control or reduction, or enforcement of the criminal laws, including, but not limited to, police, corrections, probation, parole, and judicial officers. 42 U.S.C. 3796b.

11. Definitions of “Public Safety Officer” (cont.) • “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. Section 3. (3) of federal bill.

12. What Happens if State Law Fails to Comply with “Minimum Standards” • Direct regulatory enforcement by the FLRA within two years, including responsibility for: • Union elections • Determining appropriate scope of bargaining units • Resolving unfair labor practice charges • Establishing dispute resolution procedures • Resolving exceptions to arbitrator awards

13. Timeline • 180 Days After Enactment, FLRA must make determination whether 50 states have “substantially provided” for the rights and responsibilities in the Act. • One Year After Enactment, must promulgate regulations. • Two Years After Enactment, direct regulation by FLRA will become effective if state fails to substantially comply.

14. Other Provisions • Strikes and lockouts are prohibited. • States would retain right to enforce “right-to-work” laws. • States can exempt political subdivisions under 5,000 citizens or that employ fewer than 25 full-time employees.

15. Life in a Collective Bargaining World • Engage in “good faith bargaining “ over hours, wages, and “terms and conditions of employment” for first and/or successor collective bargaining agreements. • Defend against potential unfair labor practice charges alleging bad faith bargaining or discrimination based on union status. • Participate in whatever bargaining impasse procedures that are established by the FLRA or state law. • After the execution of a collective bargaining agreement, defend against (and possibly arbitrate) grievances filed by unions and/or individual employees.

16. “Terms and Conditions of Employment” • Terms and conditions of employment may include: • discipline and discharge grounds/procedures • seniority versus merit promotion • health insurance • equipment • residency requirements • position classifications

17. “Terms and Conditions of Employment” (cont.) • work schedules • change in job duties • contracting out • layoffs • staffing • definition of grievance

18. “Terms and Conditions of Employment” (cont.) • outside employment policies • drug testing • surveillance cameras • computer use/email policy • smoking policy • sick leave • others

19. If the Bill Passes, What Can States and Their Political Subdivisions Expect? • Fight over state legislation. • Union lobbying of state legislatures and local public entities. • Grapple with union organizing campaigns. • Media scrutiny.

20. Political Effects • State and local pressure to require recognition and collective bargaining with other employee groups/unions. • Union political activity and influence in state and local elections.

21. State Law Changes Needed • Allowed by federal bill: • exempt small jurisdictions of less than 5,000 population or 25 employees • exempt pensions from collective bargaining (maybe) • right to work laws • definitions of “supervisory,” “management,” and “confidential” employees ineligible to be members of bargaining unit 2. To effectively implement collective bargaining: • open meetings/public records

22. Preparing the Workplace for the New Law • Audit your workplace for problems that unions will exploit to organize. • Review your policies and procedures: compensation, FLSA and overtime polices, leave policies, holidays, insurance and other benefits, recruitment, selection and promotional procedures.

23. Preparing the Workplace (cont.) • Document existing practices that may not be written – how shifts are assigned, work schedules, meal breaks, vacation scheduling, application of length of service or “seniority.” • Review job descriptions – define who is a supervisor and structure the operations to exclude supervisors and confidential employees from the bargaining unit.

24. Preparing the Workplace (cont.) • Establish proactive and progressive employment policies that makes unionization less desirable. • Determine your elected officials’ approach toward possible unionization. • Know election and certification procedures and rules.

25. Prepare • Educate elected officials and management about the law and collective bargaining basics. • Monitor developments concerning implementation and regulations of FLRA and state legislature. • Prepare the workplace environment for collective bargaining.

26. Fred P. Baggettfred.baggett@smithmoorelaw.comSmith Moore Leatherwood LLP434 Fayetteville Street, Suite 2800Raleigh, North Carolina 27601T: (919) 755-8700F: (919) 755-8800