Collective Bargaining N.C. Association of Municipal Attorneys Summer Conference August 1, 2009 Fred P. Baggett Smith Moore Leatherwood LLP Collective Bargaining

Change You Can Believe In Federal Mandatory Collective Bargaining for Police, Fire, EMS Employees “Employee-Employer Cooperation Act” (HR 413) 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, Conditions Of Employment” Written Collective Bargaining Agreements

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 Have Passed Collective Bargaining Ordinances

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)

What Are The “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

Minimum Standards, Cont. Obligation to bargain over hours, wages, and terms and conditions of employment Provide for some type of interest impasse resolution mechanism, such as fact-finding, mediation, arbitration, or comparable procedures

Minimum Standards, Cont. 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.

State’s 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

Likelihood That H.R. 413 Will Become Law Prior Version Already Passed House With Little Opposition (314-97) Senate Already Voted Once to End Debate On Prior Version (69-29) Then Senator Obama Voted For Cloture On Last Session.

Commentary On HR 413 “This legislation is the top legislative priority for the more than 325,000 members of the Fraternal Order of Police.” (Chuck Canterbury, FOP Nat’l President, 5/18/08). “We will not rest until this legislation is passed and every fire fighter has collective bargaining.” (IAFF President Schaitberger, quoted in AFL-CIO Now Blog, 5/22/08. “Preparing for the Public Employer/Employee Cooperation Act. The FOP believes that H.R. 413 will be passed and signed into law during this session of Congress. This seminar outlines actions that the FOP at the Local and State levels should be taking to be reading for the enactment of H.R. 413.” From program of National Fraternal Order of Police Annual Conference, Long Beach, CA, August 17-19, 2009.

What Happens If State Law Fails To Comply With “Minimum Standards,” Or State Fails to Amend Law To Comply? 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

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

Other Provisions Of H.R. 413 Strikes and Lockouts Are Prohibited States Would Retain Right To Enforce “Right-to-Work” Laws States Can Exempt Political Subdivisons Under 5,000 Citizens Or That Employ Fewer Than 25 Full-Time Employees Existing State Laws May Pass Muster Even If They Exempt Bargaining Over Pension And Retirement Funds

Life In A Collective Bargaining World Engage In Good Faith Bargaining For A 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

If H. R. 413 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

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 policies, leave policies, holidays, insurance and other benefits, recruitment, selection and promotional procedures.

Preparing the Workplace 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.

Preparing the Workplace Establish pro-active and progressive employment policies that makes unionization less desirable. Determine your elected officials’ approach toward possible unionization. Know the election and certification procedures required of the unions.