The Public Safety Employer-Employee Cooperation Act

Contents

• The Public Safety Employer-Employee Cooperation Act and the Commerce Clause
• Possible Impact of the Public Safety Employer-Employee Cooperation Act

Summary

Since 1995, legislation that would guarantee collective bargaining rights for state and local public safety officers has been introduced in Congress. The Public Safety Employer-Employee Cooperation Act (PSEECA)—introduced in the 111^th Congress as H.R. 413 by Representative Dale E. Kildee, S. 1611 by Senator Judd Gregg, and S. 3194 and S. 3991 by Senator Harry Reid—would recognize such rights by requiring compliance with federal regulations and procedures if these rights are not provided under state law. Supporters of the measure maintain that strong partnerships between public safety officers and the cities and states they serve are not only vital to public safety, but are built on bargaining relationships. Opponents argue, however, that the bill infringes on an area that has traditionally been within state control. This report reviews the PSEECA and discusses the possible impact of the legislation. The report also identifies existing state laws that recognize collective bargaining rights for public safety employees, and considers the constitutional concerns raised by the measure.

---

The Public Safety Employer-Employee Cooperation Act

Since 1995, legislation that would guarantee collective bargaining rights for state and local public safety officers has been introduced in Congress.¹ The Public Safety Employer-Employee Cooperation Act (PSEECA)—introduced in the 111^th Congress as H.R. 413 by Representative Dale E. Kildee, S. 1611 by Senator Judd Gregg, and S. 3194 and S. 3991 by Senator Harry Reid—would recognize such rights by requiring compliance with federal regulations and procedures if these rights are not provided under state law.² Supporters of the measure maintain that strong partnerships between public safety officers and the cities and states they serve are not only vital to public safety, but are built on bargaining relationships.³ Opponents argue, however, that the bill infringes on an area that has traditionally been within state control. This report reviews the PSEECA and discusses the possible impact of the legislation. The report also identifies existing state laws that recognize collective bargaining rights for public safety employees, and considers the constitutional concerns raised by the measure.

Under the PSEECA, the Federal Labor Relations Authority (FLRA) would be required to determine whether a state substantially provides for specified labor-management rights within 180 days of the measures enactment.⁴ If the FLRA determines that a state does not substantially provide for such rights, the state would be subject to regulations and procedures prescribed by the FLRA. The FLRAs regulations and procedures would be consistent with the labor-management rights identified in the PSEECA. These rights include

• granting 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 such employees;
• 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;
• providing for bargaining over hours, wages, and terms and conditions of employment;
• making available an interest impasse resolution mechanism, such as fact-finding, mediation, arbitration, or comparable procedures; and
• requiring the enforcement of all rights, responsibilities, and protections provided by state law and any written contract or memorandum of understanding in state courts.⁵

The FLRA would have one year from the date of enactment of the PSEECA to issue regulations that establish these rights for public safety officers in states that do not substantially provide them.⁶ The new regulations would become applicable in noncomplying states either two years after the date of enactment of the PSEECA or on the date of the end of the first regular session of the states legislature that begins after the date of enactment of the PSEECA, whichever is later.⁷

The PSEECA defines the term public safety officer to include law enforcement officers, firefighters, and emergency medical services personnel.⁸ An employer, for purposes of the act, includes any state, political subdivision of a state, the District of Columbia, and any territory or possession of the United States that employs public safety officers.⁹ A political subdivision of a state that has a population of less than 5,000 or that employs fewer than 25 full time employees, however, may be exempted from the acts requirements.¹⁰

The Public Safety Employer-Employee Cooperation Act and the Commerce Clause

The sponsors of the PSEECA appear to rely on the Commerce Clause of the U.S. Constitution for the authority to enact the measure.¹¹ Section 2(5) of the PSEECA states,

The potential absence of adequate cooperation between public safety employers and employees has implications for the security of employees, impacts 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, and can affect interstate and intrastate commerce.

During the 110^th Congress, the House Committee on Education and Labor further observed that there is "little question that public safety employees [sic] and their role in homeland security affects interstate commerce.... The economic impact of terrorism and natural disasters is not limited to the locality where these events occur. Rather, such events have regional and economic impacts for which the federal government must be responsive."¹²

Whether the Commerce Clause provides sufficient authority to support the PSEECA, however, may not be entirely certain. Although the U.S. Supreme Court has found that the Fair Labor Standards Act, a statute enacted pursuant to Congresss authority under the Commerce Clause, can be applied to employees of a public mass-transit authority,¹³ more recent decisions involving the Commerce Clause suggest that the regulation of labor-management relations for public safety officers may not be sufficiently related to commerce and may be invalidated, if challenged.

In United States v. Lopez, a 1995 case involving the Gun-Free School Zones Act of 1990 and Congresss authority under the Commerce Clause, the Court identified three broad categories of activity that Congress may regulate pursuant to its commerce power:

First, Congress may regulate the use of channels of interstate commerce.... Second, Congress is empowered to regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities.... Finally, Congress commerce authority includes the power to regulate those activities having a substantial relation to interstate commerce ... i.e., those activities that substantially affect interstate commerce.¹⁴

The Lopez Court concluded that the act, which prohibited any individual from possessing a firearm at a place the individual knew or had reasonable cause to believe was a school zone, exceeded Congresss authority under the Commerce Clause because the possession of a gun in a local school zone did not have a substantial effect on interstate commerce. The Court maintained that upholding the act would require the Court to "pile inference upon inference in a manner that would bid fair to convert congressional authority under the Commerce Clause to a general police power of the sort retained by the States."¹⁵

Similarly, in United States v. Morrison, a 2000 case involving Congresss commerce power and a section of the Violence Against Women Act, the Court found that Congress exceeded its authority because gender-motivated crimes of violence occurring within a state have no substantial effect on interstate commerce.¹⁶ The Court maintained that its cases upholding federal regulation of intrastate activity all involve activity that reflects some form of economic endeavor.¹⁷ The Court noted that the regulation and punishment of intrastate violence that is "not directed at the instrumentalities, channels, or goods involved in interstate commerce has [sic] always been the province of the States."¹⁸

Most recently, in Gonzales v. Raich, the Court upheld the Controlled Substances Act (CSA) as a valid exercise of Congresss commerce authority.¹⁹ The CSA was challenged by two users of medical marijuana that was locally grown and prescribed in accordance with California law. They argued that Congress lacked the authority to prohibit the intrastate manufacture and possession of marijuana for medical purposes.

Citing its decision in Wickard v. Filburn, a 1942 case that recognized Congresss authority under the Commerce Clause to regulate intrastate activities, the Court reiterated that even if an activity is "local and ... may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce."²⁰ The Court maintained that the production of a commodity has a substantial effect on supply and demand in the national market for that commodity, and observed that there was a likelihood that the high demand in the interstate market would draw marijuana grown for home consumption into that market.²¹

The Court distinguished Raich from Lopez and Morrison by noting that the CSA, unlike the Gun-Free School Zones Act and the Violence Against Women Act, regulates activities that are "quintessentially economic."²² The Court indicated that "[t]he CSA is a statute that regulates the production, distribution, and consumption of commodities for which there is an established, and lucrative, interstate market. Prohibiting the interstate possession or manufacture of an article of commerce is a rational (and commonly utilized) means of regulating commerce in that product."²³

While the PSEECA would not seem to regulate the channels or instrumentalities of interstate commerce, it has been argued that it would regulate an activity that substantially affects interstate commerce. By "improving the cohesiveness and effectiveness of public safety employers and their employees," it is believed that the PSEECA would minimize the costs associated with terrorism and natural disasters.²⁴ During the 110^th Congress, the House Committee on Education and Labor noted, "The economic impact of terrorism and natural disasters is not limited to the locality where these events occur. Rather, such events have regional and national economic impacts for which the federal government must be responsive."²⁵

Some maintain, however, that public safety employment is not an economic activity that may be regulated pursuant to Congresss commerce authority. In light of the Courts decisions in Lopez, Morrison, and Raich, it has been argued that police work, firefighting, and emergency medical services are not economic enterprises or activities related to commercial transactions.²⁶ Rather, such duties are public services provided by states and localities to their citizens.²⁷ Moreover, the PSEECA would not be regulating the production, distribution, or consumption of a commodity for which there is an interstate market by requiring collective bargaining rights for public safety officers.²⁸

While the PSEECA would seem to raise questions involving Congresss authority under the Commerce Clause, it does not appear to present concerns over the commandeering of state or local regulatory processes in violation of the Tenth Amendment.²⁹ In New York v. United States, a 1992 case involving a federal requirement that gave states a choice between taking title to radioactive waste or regulating in accordance with congressional directives, the Court indicated that "Congress may not simply 'commandee[r] the legislative processes of the States by directly compelling them to enact and enforce a federal regulatory program.'"³⁰

Unlike the provision at issue in New York, the PSEECA would not seem to direct states to legislate collective bargaining for public safety officers. Instead, states would be given the option of either enacting legislation that satisfies the federal standards or becoming subject to the FLRAs regulations. One might also contend that the measure does not appear to require state or local governments to implement a federal regulatory program. Rather, a federal collective bargaining scheme for public safety officers would be implemented by the FLRA only if a state chose not to enact a program of its own.³¹

Possible Impact of the Public Safety Employer-Employee Cooperation Act

The PSEECA has generated strong reactions from both the business and organized labor communities, with the former generally opposing the measure and the latter supporting it. Critics of the act emphasize the administrative and personnel costs that would likely be expended to comply with the measure. Because of the difficulty in predicting how many workers may organize or what terms and conditions would be negotiated, the cost of the measure for state and local governments was not estimated by the Congressional Budget Office (CBO) when earlier versions of the legislation were considered.

CBO did estimate, however, that the FLRA would need to spend an additional $3 million to develop regulations, to determine whether states were in compliance with the law, and to respond to judicial review of its determinations.³² Indeed, some have maintained that the PSEECA could increase demands on the FLRA, either by stretching its resources or requiring new staff.³³ Although subsequent costs are difficult to predict because states may respond differently and, once given the right, public safety officers may or may not unionize, CBO estimated that the FLRA would spend about $10 million annually to administer the act.³⁴

Opponents of the PSEECA have also argued that the measure could raise the cost of public safety because of potentially higher wages and benefits, as well as the cost of negotiating and administering collective bargaining agreements.³⁵

Supporters of the PSEECA contend that the measure would give many public safety workers the right to organize and bargain collectively—rights that they may not currently have. The arguments in support of the act are generally based on what proponents maintain are the benefits of collective bargaining. For example, collective bargaining may improve the hours, pay, benefits, and working conditions of public safety workers. Higher pay and better working conditions may reduce turnover. Arguably, lower turnover could reduce the cost of hiring and training new workers.

Supporters also argue that the PSEECA would give workers a "voice" in the workplace. They maintain that unions provide workers an additional way to communicate with management. Instead of expressing their dissatisfaction by quitting, workers can use formal procedures to resolve issues relating to working conditions or other matters.³⁶ Thus, according to supporters, the PSEECA would give labor and management a way to work together to resolve differences. Therefore, supporters further maintain that, by improving labor-management relations, the measure would improve public safety.³⁷

Footnotes

1.	S. 3991, 111th Cong. (2010); S. 3194, 111th Cong. (2010); S. 1611, 111th Cong. (2009); H.R. 413, 111th Cong. (2009); H.R. 980, 110th Cong. (2007); S. 2123, 110th Cong. (2007); H.R. 1249, 109th Cong. (2005); S. 513, 109th Cong. (2005); H.R. 814, 108th Cong. (2003); S. 606, 108th Cong. (2003); H.R. 1475, 107th Cong. (2001); S. 952, 107th Cong. (2001); H.R. 1093, 106th Cong. (1999); S. 1016, 106th Cong. (1999); H.R. 1173, 105th Cong. (1997); H.R. 1484, 104th Cong. (1995).
2.	H.R. 413 was introduced on January 9, 2009, and was referred to the House Committee on Education and Labor. S. 1611 was introduced on August 6, 2009, and was referred to the Senate Committee on Health, Education, Labor, and Pensions. S. 3194 was introduced on April 12, 2010, and was placed on the Senate Legislative Calendar on April 13, 2010. On May 24, 2010, the Public Safety Employer-Employee Cooperation Act was offered as an amendment (S.Amdt. 4174) by Senator Reid to H.R. 4899, the Supplemental Appropriations Act, 2010. Senator Reid withdrew the amendment on May 27, 2010. S. 3991 was introduced on November 30, 2010, and was placed on the Senate Legislative Calendar under General Orders. S. 3991 includes a new provision that would allow a state to exempt individuals employed by the office of the sheriff from coverage under the measure. See S. 3991, 111th Cong. § 8(a)(7) (2010). On December 8, 2010, a vote to end debate and proceed to final action on S. 3991 failed by a vote of 55 yeas and 43 nays (where a three-fifths vote is needed for final action).
3.	See, e.g., 153 Cong. Rec. S12382 (daily ed. Oct. 1, 2007) (statement of Sen. Kennedy) (Studies show that cooperation between public safety employers and employees improves the quality of services communities receive and reduces worker fatalities.).
4.	S. 3991, 111th Cong. § 4(a)(1) (2010); S. 3194, 111th Cong. 4(a)(1) (2010); H.R. 413, 111th Cong. 4(a)(1) (2009); S. 1611, 111th Cong. 4(a)(1) (2009). See H.R. 413, 111th Cong. § 3(10) (2009) (defining the term "substantially provides" to mean "substantial compliance with the rights and responsibilities described in section 4(b) [of the Public Safety Employer-Employee Cooperation Act]."); S. 3991, 111th Cong. § 3(12) (2010), S. 3194, 111th Cong. 3(12) (2010), and S. 1611, 111th Cong. 3(12) (2009) (defining the term "substantially provides" to mean "compliance with each right and responsibility described in [section 4(b) of the Public Safety Employer-Employee Cooperation Act].").
5.	S. 3991, 111th Cong. § 4(b) (2010); S. 3194, 111th Cong. 4(b) (2010); H.R. 413, 111th Cong. 4(b) (2009); S. 1611, 111th Cong. 4(b) (2009).
6.	S. 3991, 111th Cong. § 5(a) (2010); S. 3194, 111th Cong. 5(a) (2010); H.R. 413, 111th Cong. 5(a) (2009); S. 1611, 111th Cong. 5(a) (2009).
7.	S. 3991, 111th Cong. § 4(d)(1) (2010); S. 3194, 111th Cong. 4(d)(1) (2010); H.R. 413, 111th Cong. 4(c)(2) (2009); S. 1611, 111th Cong. 4(d)(1) (2009). S. 3991, S. 3194, and S. 1611 further provide that a state receiving a subsequent determination of failing to substantially provide for the specified labor-management rights will become subject to the FLRA's regulations on the last day of the first regular session of the state's legislature that begins after the date of the FLRA's determination.
8.	S. 3991, 111th Cong. § 3(10) (2010); S. 3194, 111th Cong. 3(10) (2010); H.R. 413, 111th Cong. 3(2) (2009); S. 1611, 111th Cong. 3(10) (2009).
9.	S. 3991, 111th Cong. § 3(4) (2010); S. 3194, 111th Cong. 3(4), (11) (2010); H.R. 413, 111th Cong. 3(8) (2009); S. 1611, 111th Cong. 3(4), (11) (2009).
10.	S. 3991, 111th Cong. § 8(a)(6) (2010); S. 3194, 111th Cong. 8(a)(6) (2010); H.R. 413, 111th Cong. 8(b) (2009); S. 1611, 111th Cong. 8(a)(6) (2009).
11.	U.S. Const. art. I, 8, cl. 3.
12.	H.Rept. 110-232, at 18-19 (2007).
13.	See Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528 (1985).
14.	514 U.S. 549, 558-59 (1995).
15.	Id. at 567.
16.	529 U.S. 598 (2000).
17.	Id. at 611.
18.	Id. at 618.
19.	545 U.S. 125 (2005).
20.	317 U.S. 111, 125 (1942).
21.	Raich, 545 U.S. at 19.
22.	Id. at 25.
23.	Id. at 26.
24.	H.Rept. 110-232, at 19 (2007).
25.	Id.
26.	See Kevin J. OBrien, Federal Regulation of State Employment Under the Commerce Clause and National Defense Powers: Constitutional Issues Presented by the Public Safety Employer-Employee Cooperation Act, 49 B.C. L. Rev. 1175 (2008).
27.	Id.
28.	Id.
29.	The Tenth Amendment of the U.S. Constitution states, The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
30.	505 U.S. 144, 161 (1992) (quoting Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., 452 U.S. 264, 288 (1981). See also Printz v. United States, 521 U.S. 898 (1997) (holding that Congress cannot circumvent New Yorks prohibition on compelling States to enact or enforce a federal regulatory program by conscripting State officers directly).
31.	See also H.Rept. 110-232, at 20 ("The Public Safety Employer-Employee Cooperation Act does not 'commandeer' state or local government by requiring that they enact or implement a federal regulatory program. The Act expressly places the onus on states that do not yet provide full collective bargaining rights for public sector employees to either provide the protections required in the Act, or to allow the FLRA to implement the Act."). But see Printz, 521 U.S. at 935 (1997) ("We held in New York that Congress cannot compel the States to enact or enforce a federal regulatory program ... The Federal Government may neither issue directives requiring the States to address particular problems, nor command the States' officers, or those of their political subdivisions, to administer or enforce a federal regulatory program."). A court would likely examine whether state or local officers were being required to administer or enforce a federal regulatory program if it were determined that the regulations promulgated by the Federal Labor Relations Authority established such a program for states without their own labor-management relations programs for public safety officers.
32.	Congressional Budget Office, S. 952, Public Safety Employer-Employee Cooperation Act of 2001, Sept. 24, 2001, at 2.
33.	Testimony of David M. Smith, in Senate, Committee on Health, Education, Labor, and Pensions, Public Safety Employer-Employee Cooperation Act of 1999, at 2.
34.	Congressional Budget Office, supra note 32 at 2.
35.	Public Service Research Council, H.R. 814/S. 606, "The Public Safety Employer-Employee Cooperation Act," May 2003, available at http://downloads.heartland.org/12523.pdf.
36.	Richard B. Freeman and James L. Medoff, "The Two Faces of Unionism," Public Interest, no. 57, Fall 1979, at 70-73; Richard B. Freeman, "The Exit-Voice Tradeoff in the Labor Market: Unionism, Job Tenure, Quits, and Separations," Quarterly Journal of Economics, vol. 94, Jun. 1980, at 644-45.
37.	Public Safety Employer-Employee Cooperation Act of 1999: Hearing Before the S. Comm. on Health, Educ., Lab., and Pensions, 106th Cong. 6-9 (2000) (statement of Frederick H. Nesbitt, Director of Governmental Affairs, Int'l Ass'n of Firefighters); Id. at 16-18 (statement of Sen. Kennedy, Member, Sen. Comm. on Health, Educ., Lab., and Pensions).