Broader Powers for the Federal Labor Relations Authority: Will State and Local Police and Fire Employees Come Under its Jurisdiction?

Now that we have an Obama Administration, the author asks if Democratic congressional initiatives will get new legs. One, in particular, establishes a right to collective bargaining for state public safety employees and puts the FLRA in charge.

Now that there’s an Obama Administration, Democratic initiatives may get some traction. A very interesting one is the Public Safety Employer-Employee Cooperation Act. Sponsored by 260 Congressmen and 36 Senators in 2007, the proposed act affords collective bargaining rights to state and local public safety employees. The House bill is H.R. 980, the Senate Bill is S.R. 2123. Specifically, the Act provides the following rights:

“(1) Granting public safety officers the right to form and join a labor organization, which may exclude management 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) Providing for 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 subsection; and

(B) any written contract or memorandum of understanding.”

Even more interesting, is the role of the Federal Labor Relations Authority (FLRA). Under both Bills, FLRA will administer the statute. To quote the Senate Bill,


(a) In General- Not later than 1 year after the date of enactment of this Act, the Authority shall issue regulations in accordance with the rights and responsibilities described in section 4(b) establishing collective bargaining procedures for employers and public safety officers in States which the Authority has determined, acting pursuant to 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 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; and

(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) AUTHORITY TO PETITION COURT- The Authority may petition any United States Court of Appeals with jurisdiction over the parties, or the United States Court of Appeals for the District of Columbia Circuit, 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 subsections (c) and (d) of section 7123 of title 5, United States Code.

(2) PRIVATE RIGHT OF ACTION- Unless the Authority has filed a petition for enforcement as provided in paragraph (1), any party has the right to file suit in a State court of competent jurisdiction to enforce compliance with the regulations issued by the Authority pursuant to subsection (b), and to enforce compliance with any order issued by the Authority pursuant to this section. The right provided by this 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.”

The House Bill is slightly but significantly different. It adds to section (a) the following:

“(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;”

In addition, the House bill adds to section (c)(1),

“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.”

Anyone who reads court decisions and this column knows that the FLRA has a history of overstepping its bounds. It has routinely been slapped down by the courts including the Supreme Court in most of Federal sector labor cases the high court has heard. So, were this bill to become law, it would seemingly reward the FLRA for that behavior and encourage more.

While I have absolutely no objection to collective bargaining for state and local public safety folks, my concern is whether the FLRA is the best administrator of such an arrangement. The Congress obviously didn’t thing the older and more experienced National Labor Relations Board was the right Agency on which to confer jurisdiction, but FLRA, come on!

The law further provides that:

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 the opinion of affected employers and 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 such agreement weight to the maximum extent practicable in making its determination under this subsection.

This means, for example, that the Pennsylvania Labor Relations Board which has been around since 1937 and covering public employees for almost 40 years could be tanked if FLRA thinks it isn’t cutting it. That’s a little nuts, don’tcha think?

As someone who has spent half a life in the north and the other half in the south, I’m aware of why the civil war was fought. In some places, who won is still somewhat hotly contested. The state of Virginia, for example, has a Supreme Court decision finding bargaining with public employees to violate its constitution. A Federal entity overseeing state labor relations may send politicians and others back to the barricades. Putting FLRA in charge would certainly send this old man looking for a uniform.

 So who should run state labor relations? Probably not the Feds. In particular, not the FLRA. Federal Agencies rarely, if ever, seek to get smaller, less funded or less powerful. So while my mother didn’t raise a son to question the collective wisdom of the Congress, I hope the Hill dwellers rework this thing before reintroducing it.

As always, any opinion expressed is mine and mine alone.

About the Author

Bob Gilson is a consultant with a specialty in working with and training Federal agencies to resolve employee problems at all levels. A retired agency labor and employee relations director, Bob has authored or co-authored a number of books dealing with Federal issues and also conducts training seminars.