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.