By: Gallegos S.B. No. 1576
Line and page numbers may not match official copy.
Bill not drafted by TLC or Senate E&E.
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the Fire Fighters Employee Relations Act in certain
1-3 municipalities.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Section 176, Local Government Code, is amended by
1-6 adding the following:
1-7 SUBCHAPTER A. GENERAL PROVISIONS
1-8 Sec. 176.001. Short Title.
1-9 This chapter may be cited as The Fire Fighters Employee
1-10 Relations Act.
1-11 Sec. 176.002. Policy.
1-12 (a) The policy of this state is that a political
1-13 subdivision, with a population of 1.6 million or more, shall
1-14 provide its fire fighters with compensation and other conditions of
1-15 employment that are substantially the same as compensation and
1-16 conditions of employment prevailing in comparable private sector
1-17 employment.
1-18 (b) The policy of this state is that fire fighters, in a
1-19 political subdivision with a population of 1.6 million or more,
1-20 like employees in the private sector, should have the right to
1-21 organize for collective bargaining, as collective bargaining is a
1-22 fair and practical method for determining compensation and other
1-23 conditions of employment. Denying fire fighters the right to
2-1 organize and bargain collectively would lead to strife and unrest,
2-2 consequently injuring the health, safety, and welfare of the
2-3 public.
2-4 (c) The health, safety, and welfare of the public demands
2-5 that strikes, lockouts, and work stoppages and slowdowns of fire
2-6 fighters be prohibited, and therefore it is the state's duty to
2-7 make available reasonable alternatives to strikes by fire fighters.
2-8 (d) Because of the essential and emergency nature of the
2-9 public service performed by fire fighters, a reasonable alternative
2-10 to strikes is a system of arbitration conducted under adequate
2-11 legislative standards. Another reasonable alternative, if the
2-12 parties fail to agree to arbitrate, is judicial enforcement of the
2-13 requirements of this chapter regarding compensation and conditions
2-14 of employment applicable to fire fighters.
2-15 (e) With the right to strike prohibited, to maintain the
2-16 high morale of fire fighters and the efficient operation of the
2-17 departments in which they serve, alternative procedures must be
2-18 expeditious, effective, and binding.
2-19 Sec. 176.003. Definitions.
2-20 In this chapter:
2-21 (1) "Association" means any type of organization,
2-22 including an agency or employee representation committee or plan,
2-23 in which fire fighters participate and that exists, in whole or in
2-24 part, to deal with one or more public or private employers
2-25 concerning grievances, labor disputes, or conditions of employment
2-26 affecting fire fighters.
3-1 (2) "Fire fighter" means a permanent, paid employee of
3-2 the fire department of a political subdivision, with a population
3-3 of 1.6 million or more. The term does not include:
3-4 (A) the chief of the department; or
3-5 (B) a volunteer fire fighter.
3-6 (4) "Political subdivision" includes a municipality,
3-7 with a population of 1.6 million or more.
3-8 (5) "Public employer" means the official or group of
3-9 officials of a political subdivision, with a population of 1.6
3-10 million or more, whose duty is to establish the compensation,
3-11 hours, and other conditions of employment of fire fighters and may
3-12 include the mayor, city manager, town manager, town administrator,
3-13 city council, director of personnel, personnel board,
3-14 commissioners, or another official or combination of those persons.
3-15 Sec. 176.004. Liberal Construction.
3-16 This chapter shall be liberally construed.
3-17 Sec. 176.005. Preemption of Other Law.
3-18 (a) This chapter preempts all contrary local ordinances,
3-19 executive orders, legislation, or rules adopted by the state or by
3-20 a political subdivision or agent of the state, including a
3-21 personnel board, civil service commission, or home-rule
3-22 municipality.
3-23 (b) This chapter preempts Local Government Code Chapter 174
3-24 as it pertains to fire fighters in cities which previously have
3-25 adopted Chapter 174 for fire fighters by local referendum conducted
3-26 for that purpose.
4-1 Sec. 176.006. Effect on Civil Service Provisions.
4-2 (a) A state or local civil service provision prevails over a
4-3 collective bargaining contract under this chapter unless the
4-4 collective bargaining contract specifically provides otherwise.
4-5 (b) A civil service provision may not be repealed or
4-6 modified by arbitration or judicial action but may be interpreted
4-7 or enforced by an arbitrator or court.
4-8 (c) This chapter does not limit the authority of a municipal
4-9 fire chief under Chapter 143 except as modified by the parties
4-10 through collective bargaining.
4-11 Sec. 176.007. Effect on Existing Benefits.
4-12 This chapter may not be construed as repealing any existing
4-13 benefit provided by statute or ordinance concerning fire fighters'
4-14 compensation, pensions, retirement plans, hours of work, conditions
4-15 of employment, or other emoluments. This chapter is in addition to
4-16 the benefits provided by existing statutes and ordinances.
4-17 SUBCHAPTER B. CONDITIONS OF EMPLOYMENT AND RIGHT TO ORGANIZE
4-18 Sec. 176.021. Pevailing Wage and Working Conditions Required.
4-19 A political subdivision that employs fire fighters shall
4-20 provide those employees with compensation and other conditions of
4-21 employment that are:
4-22 (1) substantially equal to compensation and other
4-23 conditions of employment that prevail in comparable employment in
4-24 the private sector; and
4-25 (2) based on prevailing private sector compensation
4-26 and conditions of employment in the labor market area in other jobs
5-1 that require the same or similar skills, ability, and training and
5-2 may be performed under the same or similar conditions.
5-3 Sec. 176.022. Certain Public Employers Considered to be in
5-4 Compliance.
5-5 (a) A public employer that has reached an agreement with an
5-6 association on compensation or other conditions of employment as
5-7 provided by this chapter is considered to be in compliance with the
5-8 requirements of Section 176.021 as to the conditions of employment
5-9 for the duration of the agreement.
5-10 (b) If an arbitration award is rendered as provided by
5-11 Subchapter E, the public employer involved is considered to be in
5-12 compliance with the requirements of Section 176.021 as to the
5-13 conditions of employment provided by the award for the duration of
5-14 the collective bargaining period to which the award applies.
5-15 Sec. 176.023. Right to Organize and Bargain Collectively.
5-16 On the effective date of this chapter fire fighters employed
5-17 by a municipality with a population of 1.6 million or more are
5-18 entitled to organize and bargain collectively with their public
5-19 employer regarding compensation, hours, and other conditions of
5-20 employment.
5-21 SUBCHAPTER C. COLLECTIVE BARGAINING
5-22 Sec. 176.101. Recognition of Bargaining Agent for Fire Fighters.
5-23 A public employer shall recognize an association selected by
5-24 a majority of the fire fighters of the fire department of a
5-25 political subdivision as the exclusive bargaining agent for the
5-26 fire fighters of that department unless a majority of the fire
6-1 fighters withdraw the recognition.
6-2 Sec. 176.102. Question Regarding Representation.
6-3 (a) A question of whether an association is the majority
6-4 representative of the employees of a department under Sections
6-5 176.101-176.103 shall be resolved by a fair election conducted
6-6 according to procedures agreed on by the parties.
6-7 (b) If the parties are unable to agree on election
6-8 procedures under Subsection (a), either party may request the
6-9 American Arbitration Association to conduct the election and
6-10 certify the results. Certification of the results of an election
6-11 under this section shall resolve the question regarding
6-12 representation. The public employer shall pay the expenses of the
6-13 election, except that if two or more associations seek recognition
6-14 as the bargaining agent, the associations shall pay the costs of
6-15 the election equally.
6-16 Sec. 176.103. Duty to Bargain Collectively in Good Faith.
6-17 (a) If the fire fighters of a political subdivision are
6-18 represented by an association as provided by Sections
6-19 176.101-176.104, the public employer and the association shall
6-20 bargain collectively.
6-21 (b) For purposes of this section, the duty to bargain
6-22 collectively means a public employer and an association shall:
6-23 (1) meet at reasonable times;
6-24 (2) confer in good faith regarding compensation,
6-25 hours, and other conditions of employment or the negotiation of an
6-26 agreement or a question arising under an agreement; and
7-1 (3) execute a written contract incorporating any
7-2 agreement reached, if either party requests a written contract.
7-3 (c) "Conditions of employment" as used in Subsection (b) has
7-4 the same meaning as "terms and conditions of employment" as used in
7-5 29 U.S.C. Section 158(d), and judicial and administrative case law
7-6 interpreting the duty to bargain in good faith under the National
7-7 Labor Relations Act (29 U.S.C. Section 151 et seq.) shall guide
7-8 interpretation of the duty to bargain in good faith under this
7-9 Section.
7-10 (d) This section does not require a public employer or an
7-11 association to:
7-12 (1) agree to a proposal; or
7-13 (2) make a concession.
7-14 Sec. 176.104. Designation of Negotiator.
7-15 A public employer or an association may designate one or more
7-16 persons to negotiate or bargain on its behalf.
7-17 Sec. 176.105. Notice to Public Employer Regarding Certain Issues.
7-18 If compensation or another matter that requires an
7-19 appropriation of money by any governing body is included for
7-20 collective bargaining under this chapter, an association shall
7-21 serve on the public employer a written notice of its request for
7-22 collective bargaining at least 120 days before the date on which
7-23 the public employer's current fiscal operating budget ends.
7-24 Sec. 176.106. Open Deliberations.
7-25 A deliberation relating to collective bargaining between a
7-26 public employer and an association, a deliberation by a quorum of
8-1 an association authorized to bargain collectively, or a
8-2 deliberation by a member of a public employer authorized to bargain
8-3 collectively shall be open to the public and comply with state law.
8-4 Sec. 176.107. Effect of Agreement.
8-5 An agreement under this chapter is binding and enforceable
8-6 against a public employer, an association, and a fire fighter
8-7 covered by the agreement.
8-8 SUBCHAPTER D. MEDIATION; ARBITRATION
8-9 Sec. 176.151. Mediation.
8-10 (a) A public employer and an association that is a
8-11 bargaining agent may use mediation to assist them in reaching an
8-12 agreement.
8-13 (b) If a mediator is used, then a mediator may be appointed
8-14 by agreement of the parties or by an appropriate state agency.
8-15 (c) A mediator may:
8-16 (1) hold separate or joint conferences as the mediator
8-17 considers expedient to settle issues voluntarily, amicably, and
8-18 expeditiously; and
8-19 (2) notwithstanding Subsection (d), recommend or
8-20 suggest to the parties any proposal or procedure that in the
8-21 mediator's judgment might lead to settlement.
8-22 (d) A mediator may not:
8-23 (1) make a public recommendation on any negotiation
8-24 issue in connection with the mediator's service; or
8-25 (2) make a public statement or report that evaluates
8-26 the relative merits of the parties' positions.
9-1 Sec. 176.152. Impasse.
9-2 (a) For purposes of this subchapter, an impasse in the
9-3 collective bargaining process is considered to have occurred if the
9-4 parties do not settle in writing each issue in dispute before the
9-5 61st day after the date on which the collective bargaining process
9-6 begins.
9-7 (b) The period specified in Subsection (a) may be extended
9-8 by written agreement of the parties. An extension must be for a
9-9 definite period not to exceed 15 days.
9-10 Sec. 176.153. Request for Arbitration; Agreement to Arbitrate.
9-11 (a) A public employer or an association that is a bargaining
9-12 agent may request the appointment of an arbitration board if:
9-13 (1) the parties:
9-14 (A) reach an impasse in collective bargaining;
9-15 or
9-16 (B) are unable to settle after the appropriate
9-17 lawmaking body fails to approve a contract reached through
9-18 collective bargaining;
9-19 (2) the parties made every reasonable effort,
9-20 including mediation, to settle the dispute through good-faith
9-21 collective bargaining; and
9-22 (3) the public employer or association gives written
9-23 notice to the other party, specifying the issue in dispute.
9-24 (b) A request for arbitration must be made not later than
9-25 the fifth day after:
9-26 (1) the date an impasse was reached under Section
10-1 176.152; or
10-2 (2) the expiration of an extension period under
10-3 Section 176.152.
10-4 (c) An election by both parties to arbitrate must:
10-5 (1) be made not later than the fifth day after the
10-6 date arbitration is requested; and
10-7 (2) be a written agreement to arbitrate.
10-8 (d) A party may not request arbitration more than once in a
10-9 fiscal year.
10-10 Sec. 176.154. Arbitration Board.
10-11 (a) Not later than the fifth day after the date an agreement
10-12 to arbitrate is executed, each party shall:
10-13 (1) select one arbitrator; and
10-14 (2) immediately notify the other party in writing of
10-15 the name and address of the arbitrator selected.
10-16 (b) Not later than the 10th day after the date an agreement
10-17 to arbitrate is executed, the arbitrators named under Subsection
10-18 (a) shall attempt to select a third (neutral) arbitrator. If the
10-19 arbitrators are unable to agree on a third arbitrator, either party
10-20 may request the American Arbitration Association to select the
10-21 third arbitrator, and the American Arbitration Association may
10-22 appoint the third arbitrator according to its fair and regular
10-23 procedures. Unless both parties consent, the third arbitrator may
10-24 not be the same individual who served as a mediator under Section
10-25 176.151.
10-26 (c) The arbitrator selected under Subsection (b) presides
11-1 over the arbitration board.
11-2 Sec. 176.155. Arbitration Hearing.
11-3 (a) A presiding arbitrator shall:
11-4 (1) call a hearing to be held not later than the 10th
11-5 day after the date on which the presiding arbitrator is appointed;
11-6 and
11-7 (2) notify the other arbitrators, the public employer,
11-8 and the association in writing of the time and place of the
11-9 hearing, not later than the eighth day before the hearing.
11-10 (b) An arbitration hearing shall end not later than the 20th
11-11 day after the date the hearing begins.
11-12 (c) An arbitration hearing shall be informal.
11-13 Sec. 176.156. Scope of Arbitration.
11-14 (a) The issues to be arbitrated are all matters the parties
11-15 are unable to resolve through collective bargaining and mediation
11-16 procedures required by this chapter.
11-17 (b) An arbitration board shall render an award in accordance
11-18 with the requirements of Section 176.021. In settling disputes
11-19 relating to compensation, hours, and other conditions of
11-20 employment, the board shall consider:
11-21 (1) hazards of employment;
11-22 (2) physical qualifications;
11-23 (3) educational qualifications;
11-24 (4) mental qualifications;
11-25 (5) job training;
11-26 (6) skills; and
12-1 (7) other factors.
12-2 Sec. 176.157. Evidence; Oath; Subpoena.
12-3 (a) The rules of evidence applicable to judicial proceedings
12-4 are not binding in an arbitration hearing.
12-5 (b) An arbitration board may:
12-6 (1) receive in evidence any documentary evidence or
12-7 other information the board considers relevant;
12-8 (2) administer oaths; and
12-9 (3) issue subpoenas to require:
12-10 (A) the attendance and testimony of witnesses;
12-11 and
12-12 (B) the production of books, records, and other
12-13 evidence relevant to an issue presented to the board for
12-14 determination.
12-15 Sec. 176.158. Arbitration Award.
12-16 (a) Not later than the 10th day after the end of the
12-17 hearing, an arbitration board shall:
12-18 (1) make written findings; and
12-19 (2) render a written award on the issues presented to
12-20 the board.
12-21 (b) A copy of the findings and award shall be mailed or
12-22 delivered to the public employer and the association.
12-23 (c) An increase in compensation awarded by an arbitration
12-24 board under this subchapter may take effect only at the beginning
12-25 of the next fiscal year after the date of the award.
12-26 (d) If a new fiscal year begins after the initiation of
13-1 arbitration procedures under this subchapter, Subsection (c) does
13-2 not apply and an increase in compensation may be retroactive to the
13-3 beginning of the fiscal year.
13-4 Sec. 176.159. Effect of Award.
13-5 If a majority decision of an arbitration board is supported
13-6 by competent, material, and substantial evidence on the whole
13-7 record, the decision:
13-8 (1) is final and binding on the parties; and
13-9 (2) may be enforced by either party or the arbitration
13-10 board in a district court for the judicial district in which a
13-11 majority of the affected employees reside.
13-12 Sec. 176.160. Amendment of Award.
13-13 The parties to an arbitration award may amend the award by
13-14 written agreement at any time.
13-15 Sec. 176.161. Beginning of New Fiscal Year.
13-16 If a new fiscal year begins after the initiation of
13-17 arbitration procedures under this subchapter but before an award is
13-18 rendered or enforced:
13-19 (1) the dispute is not moot;
13-20 (2) the jurisdiction of the arbitration board is not
13-21 impaired; and
13-22 (3) the arbitration award is not impaired.
13-23 Sec. 176.162. Extension of Period.
13-24 A period specified by Section 176.155 or 176.158 may be
13-25 extended:
13-26 (1) by the written agreement of the parties for a
14-1 reasonable period; or
14-2 (2) by the arbitration board for good cause for one or
14-3 more periods that in the aggregate do not exceed 20 days.
14-4 Sec. 176.163. Compulsory Arbitration Not Required.
14-5 This chapter does not require compulsory arbitration.
14-6 Sec. 176.164. Compensation of Arbitrators; Expenses of
14-7 Arbitration.
14-8 (a) The compensation of an arbitrator selected by a public
14-9 employer shall be paid by the public employer.
14-10 (b) The compensation, if any, of an arbitrator selected by
14-11 fire fighters shall be paid by the association representing the
14-12 employees.
14-13 (c) The public employer and the association representing the
14-14 employees shall jointly pay in even proportions:
14-15 (1) the compensation of the neutral arbitrator; and
14-16 (2) the stenographic and other expenses incurred by
14-17 the arbitration board in connection with the arbitration
14-18 proceedings.
14-19 (d) If a party to arbitration requires a transcript of the
14-20 arbitration proceedings, the party shall pay the cost of the
14-21 transcript.
14-22 SUBCHAPTER E. STRIKES; LOCKOUTS
14-23 Sec. 176.201. Definition.
14-24 In this subchapter, "strike" means failing to report for duty
14-25 in concerted action with others, wilfully being absent from one's
14-26 position, stopping work, abstaining from the full, faithful, and
15-1 proper performance of the duties of employment, or interfering with
15-2 the operation of a municipality in any manner, to induce,
15-3 influence, or coerce a change in the conditions, compensation,
15-4 rights, privileges, or obligations of employment.
15-5 Sec. 176.202. Strikes, Slowdowns, and Lockouts Prohibited.
15-6 (a) A fire fighter may not engage in a strike or slowdown.
15-7 (b) A lockout of fire fighters is prohibited.
15-8 Sec. 176.203. Lockout by Municipality; Injunction; Penalty.
15-9 If a municipality or its designated agent or a department or
15-10 agency head engages in a lockout of fire fighters, a court shall:
15-11 (1) prohibit the lockout;
15-12 (2) impose a fine not to exceed $2,000 on any
15-13 individual violator; or
15-14 (3) both prohibit the lockout and impose the fine.
15-15 Sec. 176.204. Strike; Penalty Against Association.
15-16 (a) A district court for the judicial district in which a
15-17 municipality is located that finds that an association has called,
15-18 ordered, aided, or abetted a strike by fire fighters shall:
15-19 (1) impose a fine on the association for each day of
15-20 the strike equal to 1/26 of the total of the association's annual
15-21 membership dues, but not less than $2,500 nor more than $20,000;
15-22 and
15-23 (2) order the forfeiture of any membership dues
15-24 checkoff for a specified period not to exceed 12 months.
15-25 (b) If the court finds that the municipality or its
15-26 representative engaged in acts of extreme provocation that detract
16-1 substantially from the association's responsibility for the strike,
16-2 the court may reduce the amount of the fine.
16-3 (c) An association that appeals a fine under Subsection (b)
16-4 is not required to pay the fine until the appeal is finally
16-5 determined.
16-6 Sec. 176.205. Strike; Penalty Against Individual.
16-7 If a fire fighter engages in a strike, interferes with the
16-8 municipality, prevents the municipality from engaging in its duty,
16-9 directs any employee of the municipality to decline to work or to
16-10 stop or slow down work, causes another to fail or refuse to deliver
16-11 goods or services to the municipality, pickets for any of those
16-12 unlawful acts, or conspires to perform any of those acts:
16-13 (1) the fire fighter's compensation in any form may
16-14 not increase in any manner until after the first anniversary of the
16-15 date the individual resumes normal working duties; and
16-16 (2) the fire fighter shall be on probation for two
16-17 years regarding civil service status, tenure of employment, or
16-18 contract of employment to which the individual was previously
16-19 entitled.
16-20 SUBCHAPTER F. JUDICIAL ENFORCEMENT AND REVIEW
16-21 Sec. 176.251. Judicial Enforcement Generally.
16-22 A district court for the judicial district in which a
16-23 municipality is located, on the application of a party aggrieved by
16-24 an act or omission of the other party that relates to the rights or
16-25 duties under this chapter, may issue a restraining order, temporary
16-26 or permanent injunction, contempt order, or other writ, order, or
17-1 process appropriate to enforce this chapter.
17-2 Sec. 176.252. Judicial Enforcement When Public Employer Declines
17-3 Arbitration.
17-4 (a) If an association requests arbitration as provided by
17-5 Subchapter D and a public employer refuses to engage in
17-6 arbitration, on the application of the association, a district
17-7 court for the judicial district in which a majority of affected
17-8 employees reside may enforce the requirements of Section 176.021 as
17-9 to any unsettled issue relating to compensation or other conditions
17-10 of employment of fire fighters.
17-11 (b) If the court finds that the public employer has violated
17-12 Section 176.021, the court shall:
17-13 (1) order the public employer to make the affected
17-14 employees whole as to the employees' past losses;
17-15 (2) declare the compensation or other conditions of
17-16 employment required by Section 176.021 for the period, not to
17-17 exceed one year, as to which the parties are bargaining; and
17-18 (3) award the association reasonable attorney's fees.
17-19 (c) The court costs of an action under this section,
17-20 including costs for a master if one is appointed, shall be taxed to
17-21 the public employer.
17-22 Sec. 176.253. Judicial Review of Arbitration Award.
17-23 (a) An award of an arbitration board may be reviewed by a
17-24 district court for the judicial district in which the municipality
17-25 is located only on the grounds that:
17-26 (1) the arbitration board was without jurisdiction;
18-1 (2) the arbitration board exceeded its jurisdiction;
18-2 (3) the order is not supported by competent, material,
18-3 and substantial evidence on the whole record; or
18-4 (4) the order was obtained by fraud, collusion, or
18-5 similar unlawful means.
18-6 (b) The pendency of a review proceeding does not
18-7 automatically stay enforcement of the arbitration board's order.
18-8 SECTION 2. This Act takes effect September 1, 2001.