Bruce Barsook is a partner in the law firm of Liebert Cassidy Whitmore and can be reached at bbarsook@LCWlegal.com. Danielle Eanet is an associate in Liebert Cassidy Whitmore and can be reached at deanet@LCWlegal.com. The firm represents public agency management in labor and employment law.

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The House of Representatives is considering a bill titled the Public Safety Employer-Employee Cooperation Act of 2009 (HR 413). If this legislation passes, it would establish minimum collective bargaining standards for public safety employees in all 50 states.

The potential impact of HR 413 on collective bargaining in California would be limited, because California already provides extensive bargaining rights to public safety employees. This is clear when one considers the following three things, which are laid out in this article:

1. An overview of the bill;
2. The history of California’s local agency public safety employee’s collective bargaining rights; and
3. An analysis of HR 413’s impact on California’s local agency public safety bargaining laws.

An Overview of HR 413

HR 413 would require all state and local governments to collectively bargain with public safety officers, which includes any employee of a public safety agency who is a police officer, firefighter or emergency medical services personnel (excluding permanent supervisory or management employees). HR 413 would apply to any state, political subdivision of a state or any territory or possession of the United States that employs public safety officers.¹

The bill’s stated aim is to:

• Foster greater cooperation between public safety employees and their employers;
• Uphold national interests, such as preventing, detecting and responding to terrorist attacks, natural disasters and other mass casualty incidents; and
• Protect life and property, preserve natural resources and protect national security.²

HR 413 empowers the Federal Labor Relations Authority (FLRA) ³ with authority to enforce the act by creating and enforcing collective bargaining regulations that provide state and local agency public safety employees with collective bargaining rights.⁴ The act requires the FLRA to consider whether each state’s laws provide public safety employees with certain rights and responsibilities.⁵

Under HR 413, section 4(b), every state’s laws must at a minimum provide the following bargaining rights to public safety employees:

1. Grant public safety officers the right to form and join a labor organization that is or seeks to be recognized as the exclusive bargaining representative of the employees, excluding management and supervisory employees;
2. Require public safety employers to recognize the employees’ labor organization that has been chosen freely by a majority of employees and agree to bargain with the union and memorialize any agreements by putting them in a written contract or memorandum of understanding (MOU);
3. Provide for bargaining over hours, wages and terms and  conditions of employment;
4. Make available an interest-impasse resolution mechanism, such as fact-finding, mediation, arbitration or comparable procedures; and
5. Require enforcement through state courts of all rights,  responsibilities and protections provided by state law and those enumerated in HR 413, including enforcing any written contract or memorandum of understanding.⁶

If the FLRA determines that a state does not “substantially provide” the bargaining rights expressly provided for in HR 413, section 4(b), the FLRA will manage labor relations in the public safety sector arena within the state.⁷ Within one year of HR 413’s enactment, the FLRA must promulgate regulations establishing procedures for implementing the section 4(b) rights for public safety employees in states where the FLRA has determined they do not exist.⁸

HR 413 specifically provides the FLRA with the authority to:

1. Determine whether a bargaining unit is appropriate;
2. Supervise and 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 such activity;
7. Order any state that is not in compliance with the FLRA’s regulations promulgated to enforce this act to comply with HR 413;
8. Take other actions which are necessary to administer HR 413, including issuing subpoenas, administering oaths, taking or ordering depositions, ordering responses to interrogatories and receiving and examining witnesses.⁹

HR 413 prohibits public safety employers, employees and labor organizations from engaging in lockouts or strikes.¹⁰ Under the bill existing collective bargaining units and agreements are not invalidated.¹¹

History and Overview of California Public Sector Bargaining Laws Covering Local Agency Public Safety Employees

Presently under federal law public safety employees do not have the right to collectively bargain with their employers. However, 34 states,¹² including California, have passed laws that allow police officers, firefighters and emergency medical services personnel to participate in collective bargaining.

Prior to the 1960s, California public safety employees had very few organizing or bargaining rights. Although Congress enacted the National Labor Relations Act in 1935 to protect the rights of employees and employers and encourage collective bargaining, the act did not apply to public sector employees.¹³ While interfering with a firefighters’ right to join a labor organization was prohibited in 1959, firefighters did not have the right to collectively bargain.¹⁴ Instead, firefighters were permitted to present and discuss grievances and recommendations regarding wages, salaries, hours and working conditions to the governing body.¹⁵ In 1959, firefighters were statutorily prohibited from striking, which remains the law today.¹⁶

In 1961, California passed the George Brown Act, which was the state’s first public sector bargaining law.¹⁷ Under the act, labor organizations had the right to meet and confer but the act failed to identify the scope of bargaining or provide for bargaining units, recognition, impasse procedures or labor agreements.

In 1969, the California Legislature enacted the Meyers-Milias-Brown Act (MMBA).¹⁸ The MMBA provides public agency employees — including firefighters, police officers and emergency medical personnel employed by cities, counties, districts and other political subdivisions of the state — with substantial bargaining rights. The MMBA’s purpose is to promote full communication between public sector employers and employees by providing a reasonable method of resolving disputes regarding wages, hours and other terms and conditions of employment.¹⁹ Employers must meet and confer in good faith regarding wages, hours and other terms and conditions of employment.²⁰ The MMBA also includes procedures for unit determinations and elections of employee organizations.²¹

Under the MMBA public safety employees have the right to form, join and participate in an employee organization’s activities or abstain. Employers are prohibited from interfering with, intimidating, restraining, coercing or discriminating against public safety employees because they exercise their rights.²² Similarly, representatives of employee bargaining units are protected from punitive action or threats of punitive action as a result of exercising their rights.²³

The MMBA provides local government agencies with the authority to enact rules governing labor relations.²⁴ Most cities and counties have enacted local rules to implement the MMBA that provide, for example, procedures for determining bargaining units, recognition and impasse resolution.²⁵

The MMBA specifically entitles police officers to a bargaining unit composed only of other “peace officers” as defined by the Penal Code.²⁶ However, police officers must request such a unit and without making this request can be grouped with other non-sworn employees. Even if police officers request a separate bargaining unit under the MMBA, the local agency may require separate units for management and non-management employees.²⁷

The Public Employment Relations Board (PERB) has exclusive jurisdiction to administer and enforce these laws as they apply to firefighters and emergency medical personnel but does not have jurisdiction over most peace officers, management employees, the majority of transit district employees and Los Angeles City and County employees.²⁸ Judicial review of PERB decisions can be sought by filing a writ petition in the district court of appeal.²⁹

Labor relations disputes between involving peace officers, as defined by Penal Code section 830.1, are adjudicated solely through the judicial system (that is to say, the claim will be filed first in superior court).

The scope of bargaining under the MMBA is similar to that under the National Labor Relations Act, the law the regulates collective bargaining in the private sector.³⁰

HR 413’s Impact on California’s Local Agency Public Safety Sector Bargaining Law

On its face the MMBA seems to substantially provide for the rights and responsibilities described in HR 413, section 4(b). However, there are a few areas of uncertainty that make it premature to conclude that the MMBA substantially complies with the legislation. The first two areas seem minor but the third area may be more problematic. The two minor areas of uncertainty are as follows: First, the very concept of “substantially comply,” as set forth in section 4 of HR 413, is uncertain. The term “substantially comply” is defined by use of the term “substantial compliance.” Second, section 4(b)(5) requires enforcement through the state courts. Using PERB for enforcement of rights and obligations under the law, followed by a right to appeal through the courts, would seem to comply with the proposed legislation; however, one cannot be sure.

More significant, however, is the third area of uncertainty. It is unclear whether the MMBA “[makes] available an interest impasse resolution mechanism, such as fact-finding, mediation, arbitration, or comparable procedures” required under section 4(b)(4) of the act.³¹

The bill does not define the term “making available” in subsection (b)(4). Thus, it is unclear whether the legislation simply means a city must provide the possibility of fact-finding, mediation, arbitration or comparable procedures or whether it means that there must be an interest-impasse resolution process in which a neutral party facilitates dispute resolution. (An interest-impasse resolution process involves the procedure to be used to resolve a bargaining dispute — that is to say, a point has been reached in bargaining where the parties cannot overcome their differences to reach a collective bargaining agreement — as opposed to the process used to resolve a dispute regarding the interpretation of a collective bargaining agreement.)

In addition, the bill’s language does not clarify whether the legislation’s requirement of an “interest-impasse resolution mechanism” requires some type of hearing mechanism, such as interest arbitration or fact finding, or whether it requires the involvement of a neutral in the impasse resolution process. For example, section 5 of the bill refers to the FLRA’s authority to “resolve exceptions to the awards of arbitrators,” which suggests that a hearing by an arbitrator may be a required component of the impasse resolution process. An alternative view, of course, is that the legislation is simply authorizing the FLRA to review arbitrator’s decisions where arbitration is part of the process.

The MMBA authorizes but does not require the parties to select a mutually agreed-upon mediator to resolve bargaining disputes.³² A mediator does not conduct a hearing or make public recommendations. The MMBA also authorizes the use of interest arbitration to resolve bargaining disputes on economic issues involving certain law enforcement officers and firefighters.³³ However, this process has been declared unconstitutional by the courts.³⁴ The MMBA does not provide any other impasse resolution procedures.

Many city Employer-Employee Relations Resolutions/Ordinances do not require the involvement of a neutral because they do not require mediation, fact finding or interest arbitration. As a consequence, unless the legislation is interpreted as simply requiring that there be a possibility of mediation, fact finding, etc., there is a risk that if this legislation were to become law, the FLRA could find that because the MMBA does not mandate the use of a neutral to resolve impasses, the MMBA does not substantially comply with the requirements of section 4(b) of the law. While such an outcome is unwarranted and should be resisted, cities could find themselves subjected to the FLRA’s authority and regulations. If that’s the case, then cities may find themselves faced with regulatory and judicial scrutiny by the courts, PERB and/or the FLRA, depending on the nature of the dispute and the classification of employees involved. Clearly, such a result would result in needless expenditure of additional time and resources to operate under this new law and would undoubtedly increase the likelihood of confusion caused by the need to work with and comply with overlapping laws and adjudicatory bodies.

Recommendation

Cities and their legislative advocates need to work with their Congressional representatives to ensure that if federal legislation is passed regarding collective bargaining rights for public safety employees, California is assured that its seminal collective bargaining law, the MMBA, insulates California’s cities from coverage under this act. Otherwise, if HR 413 is enacted as is, cities will risk scrutiny and potentially a loss of some authority over employer-employee relations to the FLRA.

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Footnotes:

[1] H.R. 413, Sections 3(2) & 3(8). H.R. 413 was introduced to the 111th Congress on January 9, 2009 by Dale Kildee, a U.S. Representative from Michigan’s 5th District and referred to the House Committee on Education and Labor.[i] H.R. 413 currently has 73 co-sponsors. This bill was previously introduced in the 110th Congress as H.R. 980 by Representative Kildee on February 12, 2007. On July 17, 2007, H.R. 980 passed the House by a vote of 314-97. On October 1, 2007, Senators Judd Gregg and Edward Kennedy introduced S. 2123, a Senate companion bill to H.R. 980, to the Senate. S. 2123 was referred to the Senate Health, Education, Labor and Pensions Committee. On December 7, 2007, S. 2123 was offered as an amendment to H.R. 2419, the Farm, Nutrition and Bioengery Act of 2007. On December 12, 2007 the amendment was withdrawn due to the threat of a filibuster.

[2] H.R. 413, Section 2(2).

[3] The FLRA is an independent administrative federal agency created by Title VII of the Civil Service Reform Act of 1978. (5 U.S.C. § 7101 et seq.) The Statute allows specified federal employees to organize, bargain collectively, and to participate in labor organizations. Under the statute, the FLRA is responsible for: (1) resolving complaints of unfair labor practices, (2) determining the appropriateness of units for labor organization representation, (3) adjudicating exceptions to arbitrator’s awards, (4) adjudicating legal issues relating to duty to bargain/negotiability, and (5) resolving impasses during negotiations.

[4] H.R. 413, Section 5(a).

[5] H.R. 413, Section 4(a)(1).

[6] H.R. 413, Section 8(a)(1), H.R. 413, Section 4(b).

[7] H.R. 413, Section 5(a).

[8] Id.

[9] H.R. 413, Section 5(b).

[10] H.R. 413, Section 6 (1), (2), (3).

[11] H.R. 413, Section 7.

[12] Alaska, California, Connecticut, Delaware, Florida, Hawaii, Illinois, Indiana, Iowa, Kansas, Kentucky, Maine, Maryland, Massachusetts, Michigan, Minnesota, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Jersey, New York, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Dakota, Texas, Vermont, Washington and Wisconsin have enacted public sector collective bargaining laws. The majority of these state laws include both police officers and firefighters who are employed at both state and local level. However, some states, such as Nevada only include police officers and firefighters employed by local government and exclude employees of the state. R. Theodore Clark, Jr. Partner, Seyfarth Shaw, LLP, “Testimony Before the Committee on Education and Labor, U.S. House of Representatives,” June 5, 2007, available at ttp://edlabor.house.gov/testimony/060507RTheodoreClarkTestimony.pdf.

[13] 29 U.S.C. §§ 151-169.

[14] Labor Code Section 1960 et seq.

[15] Labor Code Section 1962.

[16] Id.

[17] CPER’s Pocket Guide to the Meyers-Milias-Brown Act, by Bonnie G. Bogue, Marla Taylor and Carol Vendrillo (Berkeley, CA: CPER, University of California, 2006).

[18] Gov’t. Code § 3500 et seq.

[19] Gov’t. Code § 3500.

[20] Gov’t. Code § 3504.

[21] Gov’t. Code § 3507.1.

[22] Gov’t. Code § 3506.

[23] Gov’t. Code § 3502.1.

[24] Gov’t. Code § 3507.

[25] CPER’s Pocket Guide to the Meyers-Milias-Brown Act, by Bonnie G. Bogue, Marla Taylor and Carol Vendrillo (Berkeley, CA: CPER, University of California, 2006).

[26] Gov’t. Code § 3508.

[27] Organization of Deputy Sheriffs of San Mateo County v. San Mateo County (1975) 48 Cal.App.3d 331.

[28] Gov’t. Code § 3511.

[29] Gov’t. Code § 3509.5.

[30] Firefighters Union Local 1186 IAFF v. City of Vallejo (1974) 12 Cal.3d 608.

[31] See H.R. 413, Sec. 4(b)(4).

[32] Gov’t. Code § 3505.2.

[33] Code of Civil Procedure § 1299 et seq.

[34] County of Riverside v. Superior Court (2003) 30 Cal.4th 278. County of Sonoma v. Superior Court (April 24, 2009, A122450)____Cal.App. 1 Dist.____ [2009 WL 1100909].

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This article appears in the August 2009 issue of Western City
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