By Bernsen S.B. No. 1635
77R5430 KSD-F
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to firefighter employee relations in certain political
1-3 subdivisions; providing penalties.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Subtitle C, Title 5, Local Government Code, is
1-6 amended by adding Chapter 176 to read as follows:
1-7 CHAPTER 176. FIREFIGHTER EMPLOYEE RELATIONS
1-8 SUBCHAPTER A. GENERAL PROVISIONS
1-9 Sec. 176.001. SHORT TITLE. This chapter may be cited as the
1-10 Firefighters Employee Relations Act.
1-11 Sec. 176.002. POLICY. (a) The policy of this state is that
1-12 a political subdivision shall provide its firefighters with
1-13 compensation and other conditions of employment that are
1-14 substantially the same as the compensation and conditions of
1-15 employment prevailing in comparable private sector employment.
1-16 (b) The policy of this state is that firefighters, like
1-17 employees in the private sector, should have the right to organize
1-18 for collective bargaining, as collective bargaining is a fair and
1-19 practical method for determining compensation and other conditions
1-20 of employment. Denying firefighters the right to organize and
1-21 bargain collectively would lead to strife and unrest, consequently
1-22 injuring the health, safety, and welfare of the public.
1-23 (c) The health, safety, and welfare of the public demands
1-24 that strikes, lockouts, and work stoppages and slowdowns of
2-1 firefighters be prohibited, and therefore it is the state's duty to
2-2 make available reasonable alternatives to strikes by firefighters.
2-3 (d) Because of the essential and emergency nature of the
2-4 public service performed by firefighters, a reasonable alternative
2-5 to strikes is a system of arbitration conducted under adequate
2-6 legislative standards. Another reasonable alternative, if the
2-7 parties fail to agree to arbitrate, is judicial enforcement of the
2-8 requirements of this chapter regarding compensation and conditions
2-9 of employment applicable to firefighters.
2-10 (e) With the right to strike prohibited, to maintain the
2-11 high morale of firefighters and the efficient operation of the
2-12 departments in which they serve, alternative procedures must be
2-13 expeditious, effective, and binding.
2-14 Sec. 176.003. DEFINITIONS. In this chapter:
2-15 (1) "Association" means any type of organization,
2-16 including an agency or employee representation committee or a plan
2-17 in which firefighters participate and that exists, in whole or in
2-18 part, to deal with one or more public or private employers
2-19 concerning grievances, labor disputes, or conditions of employment
2-20 affecting firefighters.
2-21 (2) "Firefighter" means a permanent, paid employee of
2-22 the fire department of a political subdivision. The term does not
2-23 include:
2-24 (A) the chief of the department; or
2-25 (B) a volunteer firefighter.
2-26 (3) "Political subdivision" includes a municipality.
2-27 (4) "Public employer" means the official or group of
3-1 officials of a political subdivision whose duty is to establish the
3-2 compensation, hours, and other conditions of employment of
3-3 firefighters. The term includes the mayor, city manager, town
3-4 manager, town administrator, city council, director of personnel,
3-5 personnel board, commissioner, or another official or combination
3-6 of those persons.
3-7 Sec. 176.004. LIBERAL CONSTRUCTION. This chapter shall be
3-8 liberally construed.
3-9 Sec. 176.005. PREEMPTION OF OTHER LAW. This chapter
3-10 preempts all contrary local ordinances, executive orders, statutes,
3-11 or rules adopted by the state or by a political subdivision or
3-12 agency of the state, including a personnel board, civil service
3-13 commission, or home-rule municipality.
3-14 Sec. 176.006. EFFECT ON CIVIL SERVICE PROVISIONS. (a) A
3-15 state or local civil service provision prevails over a collective
3-16 bargaining contract under this chapter unless the collective
3-17 bargaining contract specifically provides otherwise.
3-18 (b) A civil service provision may not be repealed or
3-19 modified by arbitration or judicial action but may be interpreted
3-20 or enforced by an arbitrator or court.
3-21 (c) This chapter does not limit the authority of a municipal
3-22 fire chief under Chapter 143, except as modified by the parties
3-23 through collective bargaining.
3-24 Sec. 176.007. EFFECT ON EXISTING BENEFITS. This chapter may
3-25 not be construed as repealing any existing benefit provided by
3-26 statute or ordinance concerning firefighters' compensation,
3-27 pensions, retirement plans, hours of work, conditions of
4-1 employment, or other emoluments. This chapter is in addition to
4-2 the benefits provided by existing statutes and ordinances.
4-3 (Sections 176.008-176.020 reserved for expansion
4-4 SUBCHAPTER B. CONDITIONS OF EMPLOYMENT AND RIGHT TO ORGANIZE
4-5 Sec. 176.021. PREVAILING WAGE AND WORKING CONDITIONS
4-6 REQUIRED. A political subdivision that employs firefighters shall
4-7 provide those employees with compensation and other conditions of
4-8 employment that are:
4-9 (1) substantially equal to the compensation and other
4-10 conditions of employment that prevail in comparable employment in
4-11 the private sector; and
4-12 (2) based on prevailing private sector compensation
4-13 and conditions of employment in the labor market area in other jobs
4-14 that require the same or similar skills, ability, and training and
4-15 that may be performed under the same or similar conditions.
4-16 Sec. 176.022. CERTAIN PUBLIC EMPLOYERS CONSIDERED TO BE IN
4-17 COMPLIANCE. (a) A public employer that has reached an agreement
4-18 with an association on compensation or other conditions of
4-19 employment as provided by this chapter is considered to be in
4-20 compliance with the requirements of Section 176.021 as to the
4-21 conditions of employment for the duration of the agreement.
4-22 (b) If an arbitration award is rendered as provided by
4-23 Subchapter D, the public employer involved is considered to be in
4-24 compliance with the requirements of Section 176.021 as to the
4-25 conditions of employment provided by the award for the duration of
4-26 the collective bargaining period to which the award applies.
4-27 Sec. 176.023. RIGHT TO ORGANIZE AND BARGAIN COLLECTIVELY.
5-1 Firefighters employed by a political subdivision with a population
5-2 of 10,000 or more are entitled to organize and bargain collectively
5-3 with their public employer regarding compensation, hours, and other
5-4 conditions of employment.
5-5 (Sections 176.024-176.100 reserved for expansion
5-6 SUBCHAPTER C. COLLECTIVE BARGAINING
5-7 Sec. 176.101. RECOGNITION OF BARGAINING AGENT FOR
5-8 FIREFIGHTERS. A public employer shall recognize an association
5-9 selected by a majority of the firefighters of the fire department
5-10 of a political subdivision as the exclusive bargaining agent for
5-11 the firefighters of that department unless a majority of the
5-12 firefighters withdraw the recognition.
5-13 Sec. 176.102. QUESTION REGARDING REPRESENTATION. (a) A
5-14 question of whether an association is the majority representative
5-15 of the employees of a department under this section and Sections
5-16 176.101 and 176.103 shall be resolved by a fair election conducted
5-17 according to procedures agreed on by the parties.
5-18 (b) If the parties are unable to agree on election
5-19 procedures under Subsection (a), either party may request the
5-20 American Arbitration Association to conduct the election and
5-21 certify the results. Certification of the results of an election
5-22 under this section shall resolve the question regarding
5-23 representation. The public employer shall pay the expenses of the
5-24 election, except that if two or more associations seek recognition
5-25 as the bargaining agent, the associations shall pay the costs of
5-26 the election equally.
5-27 Sec. 176.103. DUTY TO BARGAIN COLLECTIVELY IN GOOD FAITH.
6-1 (a) If the firefighters of a political subdivision are represented
6-2 by an association as provided by this section and Sections 176.101,
6-3 176.102, and 176.104, the public employer and the association shall
6-4 bargain collectively.
6-5 (b) For purposes of this section, the duty to bargain
6-6 collectively means a public employer and an association shall:
6-7 (1) meet at reasonable times;
6-8 (2) confer in good faith regarding compensation,
6-9 hours, and other conditions of employment or the negotiation of an
6-10 agreement or a question arising under an agreement; and
6-11 (3) execute a written contract incorporating any
6-12 agreement reached if either party requests a written contract.
6-13 (c) This section does not require a public employer or an
6-14 association to:
6-15 (1) agree to a proposal; or
6-16 (2) make a concession.
6-17 Sec. 176.104. DESIGNATION OF NEGOTIATOR. A public employer
6-18 or an association may designate one or more persons to negotiate or
6-19 bargain on its behalf.
6-20 Sec. 176.105. NOTICE TO PUBLIC EMPLOYER REGARDING CERTAIN
6-21 ISSUES. If compensation or another matter that requires an
6-22 appropriation of money by any governing body is the subject of
6-23 collective bargaining under this chapter, an association must serve
6-24 on the public employer written notice of its request for collective
6-25 bargaining at least 120 days before the date on which the public
6-26 employer's current fiscal operating budget ends.
6-27 Sec. 176.106. OPEN DELIBERATIONS. A deliberation relating
7-1 to collective bargaining between a public employer and an
7-2 association, a deliberation by a quorum of an association
7-3 authorized to bargain collectively, or a deliberation by a member
7-4 of a public employer authorized to bargain collectively must be
7-5 open to the public and comply with state law.
7-6 Sec. 176.107. EFFECT OF AGREEMENT. An agreement under this
7-7 chapter is binding and enforceable against a public employer, an
7-8 association, and a firefighter covered by the agreement.
7-9 (Sections 176.108-176.150 reserved for expansion
7-10 SUBCHAPTER D. MEDIATION; ARBITRATION
7-11 Sec. 176.151. MEDIATION. (a) A public employer and an
7-12 association that is a bargaining agent may use mediation to assist
7-13 them in reaching an agreement.
7-14 (b) If a mediator is used, the mediator may be appointed by
7-15 agreement of the parties or by an appropriate state agency.
7-16 (c) A mediator may:
7-17 (1) hold separate or joint conferences as the mediator
7-18 considers expedient to settle issues voluntarily, amicably, and
7-19 expeditiously; and
7-20 (2) notwithstanding Subsection (d), recommend or
7-21 suggest to the parties any proposal or procedure that in the
7-22 mediator's judgment might lead to settlement.
7-23 (d) A mediator may not:
7-24 (1) make a public recommendation on any negotiation
7-25 issue in connection with the mediator's service; or
7-26 (2) make a public statement or report that evaluates
7-27 the relative merits of the parties' positions.
8-1 Sec. 176.152. IMPASSE. (a) For purposes of this
8-2 subchapter, an impasse in the collective bargaining process is
8-3 considered to have occurred if the parties do not settle in writing
8-4 each issue in dispute before the 61st day after the date on which
8-5 the collective bargaining process begins.
8-6 (b) The period specified in Subsection (a) may be extended
8-7 by written agreement of the parties. An extension must be for a
8-8 definite period not to exceed 15 days.
8-9 Sec. 176.153. REQUEST FOR ARBITRATION; AGREEMENT TO
8-10 ARBITRATE. (a) A public employer or an association that is a
8-11 bargaining agent may request the appointment of an arbitration
8-12 board if:
8-13 (1) the parties:
8-14 (A) reach an impasse in collective bargaining;
8-15 or
8-16 (B) are unable to settle after the appropriate
8-17 lawmaking body fails to approve a contract reached through
8-18 collective bargaining;
8-19 (2) the parties made every reasonable effort,
8-20 including mediation, to settle the dispute through good-faith
8-21 collective bargaining; and
8-22 (3) the public employer or association gives written
8-23 notice to the other party specifying the issue in dispute.
8-24 (b) A request for arbitration must be made not later than
8-25 the fifth day after:
8-26 (1) the date an impasse was reached under Section
8-27 176.152; or
9-1 (2) the expiration of an extension period under
9-2 Section 176.152.
9-3 (c) An election by both parties to arbitrate must:
9-4 (1) be made not later than the fifth day after the
9-5 date arbitration is requested; and
9-6 (2) be a written agreement to arbitrate.
9-7 (d) A party may not request arbitration more than once in a
9-8 fiscal year.
9-9 Sec. 176.154. ARBITRATION BOARD. (a) Not later than the
9-10 fifth day after the date an agreement to arbitrate is executed,
9-11 each party shall:
9-12 (1) select one arbitrator; and
9-13 (2) immediately notify the other party in writing of
9-14 the name and address of the arbitrator selected.
9-15 (b) Not later than the 10th day after the date an agreement
9-16 to arbitrate is executed, the arbitrators named under Subsection
9-17 (a) shall attempt to select a neutral third arbitrator. If the
9-18 arbitrators are unable to agree on a third arbitrator, either party
9-19 may request the American Arbitration Association to select the
9-20 third arbitrator, and the American Arbitration Association may
9-21 appoint the third arbitrator according to its fair and regular
9-22 procedures. Unless both parties consent, the third arbitrator may
9-23 not be the same individual who served as a mediator under Section
9-24 176.151.
9-25 (c) The arbitrator selected under Subsection (b) presides
9-26 over the arbitration board.
9-27 Sec. 176.155. ARBITRATION HEARING. (a) A presiding
10-1 arbitrator shall:
10-2 (1) call a hearing to be held not later than the 10th
10-3 day after the date on which the presiding arbitrator is appointed;
10-4 and
10-5 (2) notify the other arbitrators, the public employer,
10-6 and the association in writing of the time and place of the
10-7 hearing, not later than the eighth day before the date of the
10-8 hearing.
10-9 (b) An arbitration hearing must end not later than the 20th
10-10 day after the date the hearing begins.
10-11 (c) An arbitration hearing must be informal.
10-12 Sec. 176.156. SCOPE OF ARBITRATION. (a) The issues to be
10-13 arbitrated are all matters that the parties are unable to resolve
10-14 through collective bargaining and mediation procedures required by
10-15 this chapter.
10-16 (b) An arbitration board shall render an award in accordance
10-17 with the requirements of Section 176.021. In settling disputes
10-18 relating to compensation, hours, and other conditions of
10-19 employment, the board shall consider:
10-20 (1) hazards of employment;
10-21 (2) physical qualifications;
10-22 (3) educational qualifications;
10-23 (4) mental qualifications;
10-24 (5) job training;
10-25 (6) skills; and
10-26 (7) other factors.
10-27 Sec. 176.157. EVIDENCE; OATH; SUBPOENA. (a) The rules of
11-1 evidence applicable to judicial proceedings are not binding in an
11-2 arbitration hearing.
11-3 (b) An arbitration board may:
11-4 (1) receive in evidence any documentary evidence or
11-5 other information the board considers relevant;
11-6 (2) administer oaths; and
11-7 (3) issue subpoenas to require:
11-8 (A) the attendance and testimony of witnesses;
11-9 and
11-10 (B) the production of books, records, and other
11-11 evidence relevant to an issue presented to the board for
11-12 determination.
11-13 Sec. 176.158. ARBITRATION AWARD. (a) Not later than the
11-14 10th day after the date the hearing ends, an arbitration board
11-15 shall:
11-16 (1) make written findings; and
11-17 (2) render a written award on the issues presented to
11-18 the board.
11-19 (b) A copy of the findings and award shall be mailed or
11-20 delivered to the public employer and the association.
11-21 (c) An increase in compensation awarded by an arbitration
11-22 board under this subchapter may take effect only at the beginning
11-23 of the next fiscal year after the date of the award.
11-24 (d) If a new fiscal year begins after the initiation of
11-25 arbitration procedures under this subchapter, Subsection (c) does
11-26 not apply and an increase in compensation may be retroactive to the
11-27 beginning of the fiscal year.
12-1 Sec. 176.159. EFFECT OF AWARD. If a majority decision of an
12-2 arbitration board is supported by competent, material, and
12-3 substantial evidence on the whole record, the decision:
12-4 (1) is final and binding on the parties; and
12-5 (2) may be enforced by either party or by the
12-6 arbitration board in a district court for the judicial district in
12-7 which a majority of the affected employees reside.
12-8 Sec. 176.160. AMENDMENT OF AWARD. The parties to an
12-9 arbitration award may amend the award by written agreement at any
12-10 time.
12-11 Sec. 176.161. BEGINNING OF NEW FISCAL YEAR. If a new fiscal
12-12 year begins after the initiation of arbitration procedures under
12-13 this subchapter but before an award is rendered or enforced:
12-14 (1) the dispute is not moot;
12-15 (2) the jurisdiction of the arbitration board is not
12-16 impaired; and
12-17 (3) the arbitration award is not impaired.
12-18 Sec. 176.162. EXTENSION OF PERIOD. A period specified by
12-19 Section 176.155 or 176.158 may be extended:
12-20 (1) by the written agreement of the parties for a
12-21 reasonable period; or
12-22 (2) by the arbitration board for good cause for one or
12-23 more periods that in the aggregate do not exceed 20 days.
12-24 Sec. 176.163. COMPULSORY ARBITRATION NOT REQUIRED. This
12-25 chapter does not require compulsory arbitration.
12-26 Sec. 176.164. COMPENSATION OF ARBITRATORS; EXPENSES OF
12-27 ARBITRATION. (a) The compensation of an arbitrator selected by a
13-1 public employer shall be paid by the public employer.
13-2 (b) The compensation, if any, of an arbitrator selected by
13-3 employees shall be paid by the association representing the
13-4 employees.
13-5 (c) The public employer and the association representing the
13-6 employees shall jointly pay in even proportions:
13-7 (1) the compensation of the neutral arbitrator; and
13-8 (2) the stenographic and other expenses incurred by
13-9 the arbitration board in connection with the arbitration
13-10 proceedings.
13-11 (d) If a party to arbitration requires a transcript of the
13-12 arbitration proceedings, the party shall pay the cost of the
13-13 transcript.
13-14 (Sections 176.165-176.200 reserved for expansion
13-15 SUBCHAPTER E. STRIKES AND LOCKOUTS
13-16 Sec. 176.201. DEFINITION. In this subchapter, "strike" means
13-17 failing to report for duty in concerted action with others,
13-18 wilfully being absent from one's position, stopping work,
13-19 abstaining from full, faithful, and proper performance of the
13-20 duties of employment, or interfering with the operation of a
13-21 political subdivision by an employee, in any manner, to induce,
13-22 influence, or coerce a change in the conditions, compensation,
13-23 rights, privileges, or obligations of employment.
13-24 Sec. 176.202. STRIKES, SLOWDOWNS, AND LOCKOUTS PROHIBITED.
13-25 (a) A firefighter may not engage in a strike or slowdown.
13-26 (b) A lockout of firefighters is prohibited.
13-27 Sec. 176.203. LOCKOUT BY POLITICAL SUBDIVISION; INJUNCTION;
14-1 PENALTY. If a political subdivision or its designated agent or a
14-2 department or agency head engages in a lockout of firefighters, a
14-3 court shall:
14-4 (1) prohibit the lockout;
14-5 (2) impose a fine not to exceed $2,000 on any
14-6 individual violator; or
14-7 (3) both prohibit the lockout and impose the fine.
14-8 Sec. 176.204. STRIKE; PENALTY AGAINST ASSOCIATION. (a) A
14-9 district court for the judicial district in which a political
14-10 subdivision is located that finds that an association has called,
14-11 ordered, aided, or abetted a strike by firefighters shall:
14-12 (1) impose a fine on the association for each day of
14-13 the strike equal to 1/26 of the total of the association's annual
14-14 membership dues, but not less than $2,500 or more than $20,000; and
14-15 (2) order the forfeiture of any membership dues
14-16 checkoff for a specified period not to exceed 12 months.
14-17 (b) If the court finds on appeal by an association that the
14-18 political subdivision or its representative engaged in acts of
14-19 extreme provocation that detract substantially from the
14-20 association's responsibility for the strike, the court may reduce
14-21 the amount of the fine.
14-22 (c) An association that appeals a fine under Subsection (b)
14-23 is not required to pay the fine until the appeal is finally
14-24 determined.
14-25 Sec. 176.205. STRIKE; PENALTY AGAINST INDIVIDUAL. If a
14-26 firefighter engages in a strike, interferes with the political
14-27 subdivision, prevents the political subdivision from engaging in
15-1 its duty, directs any employee of the political subdivision to
15-2 decline to work or to stop or slow down work, causes another to
15-3 fail or refuse to deliver goods or services to the political
15-4 subdivision, pickets for any of those acts, or conspires to perform
15-5 any of those acts:
15-6 (1) the firefighter's compensation in any form may not
15-7 increase in any manner until after the first anniversary of the
15-8 date the individual resumes normal working duties; and
15-9 (2) the firefighter shall be placed on probation for
15-10 two years regarding civil service status, tenure of employment, or
15-11 contract of employment to which the individual was previously
15-12 entitled.
15-13 (Sections 176.206-176.250 reserved for expansion
15-14 SUBCHAPTER F. JUDICIAL ENFORCEMENT AND REVIEW
15-15 Sec. 176.251. JUDICIAL ENFORCEMENT GENERALLY. A district
15-16 court for the judicial district in which a political subdivision is
15-17 located, on the application of a party aggrieved by an act or
15-18 omission of the other party that relates to the rights or duties
15-19 under this chapter, may issue a restraining order, temporary or
15-20 permanent injunction, contempt order, or other writ, order, or
15-21 process appropriate to enforce this chapter.
15-22 Sec. 176.252. JUDICIAL ENFORCEMENT WHEN PUBLIC EMPLOYER
15-23 DECLINES ARBITRATION. (a) If an association requests arbitration
15-24 as provided by Subchapter D and a public employer refuses to engage
15-25 in arbitration, on the application of the association, a district
15-26 court for the judicial district in which a majority of affected
15-27 employees reside may enforce the requirements of Section 176.021 as
16-1 to any unsettled issue relating to compensation or other conditions
16-2 of employment of firefighters.
16-3 (b) If the court finds that the public employer has violated
16-4 Section 176.021, the court shall:
16-5 (1) order the public employer to make the affected
16-6 employees whole as to the employees' past losses;
16-7 (2) declare the compensation or other conditions of
16-8 employment required by Section 176.021 for the period, not to
16-9 exceed one year, as to which the parties are bargaining; and
16-10 (3) award the association reasonable attorney's fees.
16-11 (c) The court costs of an action under this section,
16-12 including costs for a master if one is appointed, shall be taxed to
16-13 the public employer.
16-14 Sec. 176.253. JUDICIAL REVIEW OF ARBITRATION AWARD. (a) An
16-15 award of an arbitration board may be reviewed by a district court
16-16 for the judicial district in which the political subdivision is
16-17 located only on the grounds that:
16-18 (1) the arbitration board was without jurisdiction;
16-19 (2) the arbitration board exceeded its jurisdiction;
16-20 (3) the order is not supported by competent, material,
16-21 and substantial evidence on the whole record; or
16-22 (4) the order was obtained by fraud, collusion, or
16-23 similar unlawful means.
16-24 (b) The pendency of a review proceeding does not
16-25 automatically stay enforcement of the arbitration board's order.
16-26 SECTION 2. (a) This Act takes effect September 1, 2001.
16-27 (b) The change in law made by this Act does not apply to a
17-1 municipality that operates under Subchapter H or I, Chapter 143,
17-2 Local Government Code, until after the expiration of the agreement
17-3 ratified by the municipality and the firefighters association under
17-4 Subchapter H or I, Chapter 143, Local Government Code.
17-5 (c) The change in law made by this Act does not apply to a
17-6 political subdivision that operates under Chapter 174, Local
17-7 Government Code, and that has not conducted a successful repeal
17-8 election on or after the effective date of this Act.