81R10247 SLB-F

By: Gallegos S.B. No. 1894

A BILL TO BE ENTITLED

AN ACT

relating to The Fire Fighter Labor Relations Act.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1. Subtitle C, Title 5, Local Government Code, is amended by adding Chapter 179 to read as follows:

CHAPTER 179. THE FIRE FIGHTER LABOR RELATIONS ACT

SUBCHAPTER A. GENERAL PROVISIONS

Sec. 179.001. SHORT TITLE. This chapter may be cited as The Fire Fighter Labor Relations Act.

Sec. 179.002. POLICY. (a) The policy of this state is that a political subdivision shall provide its fire fighters with wages and working conditions that are substantially the same as wages and working conditions prevailing in comparable private sector employment.

(b) The policy of this state is that fire fighters, like employees in the private sector, should have the right to organize for collective bargaining, as collective bargaining is a fair and practical method for determining wages and other working conditions. Denying fire fighters the right to organize and bargain collectively would lead to strife and unrest, consequently injuring the health, safety, and welfare of the public.

(c) The health, safety, and welfare of the public demands that strikes, lockouts, and work stoppages and slowdowns of fire fighters be prohibited, and therefore it is the state's duty to make available reasonable alternatives to strikes by fire fighters.

(d) Because of the essential and emergency nature of the public service performed by fire fighters, a reasonable alternative to strikes is a system of arbitration conducted under adequate legislative standards.

(e) With the right to strike prohibited, to maintain the high morale of fire fighters and the efficient operation of the departments in which they serve, alternative procedures must be expeditious, effective, and binding.

(f) The general purpose of this chapter is to provide for the execution of the policies of the federal Labor Management Relations Act, 1947 (29 U.S.C. Section 141 et seq.). Mandatory subjects of bargaining under this chapter are the same as mandatory subjects of bargaining under that act, and the duty to bargain, including the duty to engage in midterm bargaining, is co-extensive with that of private employers under that act.

Sec. 179.003. DEFINITIONS. In this chapter:

(1) "Association" means any type of organization, including an agency or employee representation committee or plan, in which fire fighters participate and that exists, wholly or partly, to deal with one or more public or private employers concerning grievances, labor disputes, or conditions of employment affecting fire fighters.

(2) "Bargaining agent" means an association recognized by the public employer as provided by Sections 179.101 and 179.102 as the sole and exclusive bargaining agent for the fire fighters of a fire department.

(3) "Fire fighter" means an employee of a fire department whose position requires substantial knowledge of fire fighting and who has met the requirements for certification by the Texas Commission on Fire Protection under Chapter 419, Government Code. The term:

(A) includes an employee who performs:

(i) fire suppression;

(ii) fire prevention;

(iii) fire training;

(iv) fire safety education;

(v) fire maintenance;

(vi) fire communications;

(vii) fire medical emergency technology;

(viii) fire photography;

(ix) fire administration; or

(x) fire arson investigation; and

(B) does not include:

(i) the chief of the department;

(ii) a volunteer fire fighter;

(iii) a secretary;

(iv) a clerk;

(v) a budget analyst;

(vi) a custodial employee; or

(vii) a clerical employee.

(4) "Political subdivision" includes a municipality, county, municipal utility district, emergency services district, airport district, navigation district, water district, or any other division of this state established by the legislature or by interlocal agreement between two or more political subdivisions.

(5) "Public employer" includes a political subdivision and any official or group of officials of a political subdivision whose duty is to establish the compensation, hours, and other conditions of employment of fire fighters, and may include the mayor, city manager, town manager, town administrator, municipal governing body, director of personnel, personnel board, commissioners, or another official or combination of those persons.

(6) "State civil service provision" includes all provisions in Title 5 applicable to fire fighters.

Sec. 179.004. LIBERAL CONSTRUCTION. This chapter shall be liberally construed.

Sec. 179.005. PREEMPTION OF OTHER LAW. (a) Except as provided by Section 179.006(a), this chapter preempts all contrary statutes, legislation, ordinances, executive orders, or rules adopted by the state, a political subdivision, or an agent of the state or political subdivision.

(b) In a political subdivision that previously has adopted Chapter 142 or 174 for its fire fighters, except as otherwise specifically provided by this chapter, this chapter governs to the extent of any conflict.

Sec. 179.006. EFFECT ON CIVIL SERVICE PROVISIONS. (a) A state or local civil service provision prevails over a collective bargaining agreement under this chapter unless the collective bargaining contract specifically provides otherwise.

(b) Except as provided by Subsection (a), a state or local civil service provision may not be repealed or modified by arbitration or judicial action but may be interpreted or enforced by an arbitrator or court.

(c) This chapter does not limit the authority of a municipal fire chief under Chapter 143 except as modified by the parties through collective bargaining.

Sec. 179.007. EFFECT ON EXISTING BENEFITS. This chapter may not be construed as repealing any existing benefit provided by statute or ordinance concerning fire fighters' compensation, pensions, retirement plans, hours of work, conditions of employment, or other emoluments. This chapter is in addition to the benefits provided by existing statutes and ordinances.

Sec. 179.008. WAIVER OF IMMUNITY. This chapter is binding and enforceable against the employing public employer, and sovereign or governmental immunity from suit and liability is waived only to the extent necessary to enforce this chapter against that employer.

[Sections 179.009-179.020 reserved for expansion]

SUBCHAPTER B. CONDITIONS OF EMPLOYMENT AND RIGHT TO ORGANIZE

Sec. 179.021. PREVAILING WAGES AND WORKING CONDITIONS REQUIRED. (a) A political subdivision that employs fire fighters shall provide those fire fighters with no less than the prevailing wages and working conditions. To meet this standard, the wages and working conditions must meet or exceed each of the following standards:

(1) be substantially equal to wages and working conditions that prevail in comparable private sector employment, as determined by other jobs in the labor market area that require the same or similar skills, ability, and training and may be performed under the same or similar conditions; and

(2) be substantially equal to wages and working conditions in fire departments within the labor market area that are located in political subdivisions of the same type and have similar population, staffing, and demographics.

(b) The standard stated in Subsection (a)(2) does not apply to a political subdivision that has previously adopted Chapter 174, unless the political subdivision held a successful repeal election under that chapter.

Sec. 179.022. CERTAIN PUBLIC EMPLOYERS CONSIDERED TO BE IN COMPLIANCE. (a) A public employer that has reached an agreement with a bargaining agent on wages and working conditions as provided by this chapter is considered to be in compliance with the requirements of Section 179.021 as to wages and working conditions for the duration of the agreement.

(b) If an arbitration award is rendered as provided by Subchapter D, the involved public employer is considered to be in compliance with the requirements of Section 179.021 as to the wages and working conditions provided by the award for the duration of the collective bargaining period to which the award applies.

Sec. 179.023. RIGHT TO ORGANIZE AND BARGAIN COLLECTIVELY. All fire fighters employed by a political subdivision to which this chapter applies are entitled to organize and bargain collectively with their public employer regarding wages and other working conditions.

[Sections 179.024-179.100 reserved for expansion]

SUBCHAPTER C. COLLECTIVE BARGAINING

Sec. 179.101. RECOGNITION OF BARGAINING AGENT FOR FIRE FIGHTERS. A public employer shall recognize an association selected by a majority of the fire fighters of the fire department of a political subdivision as the sole and exclusive bargaining agent for the fire fighters of that department unless a majority of the fire fighters withdraw the recognition.

Sec. 179.102. QUESTION REGARDING REPRESENTATION. (a) A question of whether an association is the majority representative of the employees of a department under Section 179.101 shall be resolved by a fair election conducted according to procedures agreed on by the parties.

(b) If the parties are unable to agree on election procedures under Subsection (a), either party may request the American Arbitration Association to conduct the election and certify the results. Certification of the results of an election under this section shall resolve the question regarding representation. The public employer shall pay the expenses of the election, except that if two or more associations seek recognition as the bargaining agent, the associations shall pay the costs of the election equally.

Sec. 179.103. DUTY TO BARGAIN COLLECTIVELY IN GOOD FAITH. (a) If the fire fighters of a political subdivision are represented by a bargaining agent as provided by Section 179.101, the public employer and the bargaining agent shall bargain collectively.

(b) For purposes of this section, the duty to bargain collectively means a public employer and a bargaining agent shall:

(1) meet at reasonable times;

(2) confer in good faith regarding wages and other working conditions or the negotiation of an agreement or a question arising under an agreement; and

(3) execute a written contract incorporating any agreement reached.

(c) This section does not require a public employer or a bargaining agent to:

(1) agree to a proposal; or

(2) make a concession.

Sec. 179.104. DESIGNATION OF NEGOTIATION TEAM; FIRST BARGAINING SESSION. (a) A public employer or a bargaining agent may designate one or more persons to negotiate or bargain on its behalf.

(b) A bargaining agent desiring to negotiate a collective bargaining agreement with the public employer must provide to the public employer a written request for bargaining. Not later than the 30th day after the date the public employer receives the written bargaining request, the parties shall designate negotiation teams and notify the other members on their respective teams. Not later than the 45th day after the date the public employer receives the written bargaining request, the parties' designated negotiation teams must conduct their first bargaining session.

Sec. 179.105. NOTICE TO PUBLIC EMPLOYER REGARDING CERTAIN ISSUES. If a bargaining agent desires to bargain under this chapter concerning wages or other matters that require an appropriation of money by the governing body, the bargaining agent shall serve on the public employer a written notice of its request for bargaining at least 120 days before the date on which the public employer's current fiscal operating budget ends.

Sec. 179.106. OPEN DELIBERATIONS. A collective bargaining meeting between the bargaining representatives or teams of the public employer and bargaining agent shall be open to the public and comply with state law. However, collective bargaining meetings are not otherwise subject to the requirements of Chapter 551, Government Code, unless those participating in the meeting constitute a quorum of a governmental body, as that term is defined by Section 551.001, Government Code.

Sec. 179.107. EFFECT OF AGREEMENT. An agreement under this chapter is binding and enforceable against a public employer and a bargaining agent covered by the agreement.

[Sections 179.108-179.150 reserved for expansion]

SUBCHAPTER D. MEDIATION; ARBITRATION

Sec. 179.151. MEDIATION. (a) A public employer and a bargaining agent may use mediation to assist the parties in reaching an agreement.

(b) The parties may select a mediator by agreement or may obtain the services of a mediator provided by an appropriate state or federal agency.

(c) A mediator may:

(1) hold separate or joint conferences with the bargaining representatives or teams, as the mediator considers expedient, to settle issues voluntarily, amicably, and expeditiously; and

(2) except as prohibited by Subsection (d), recommend or suggest to the parties any proposal or procedure that in the mediator's judgment might lead to settlement.

(d) A mediator may not:

(1) make a public recommendation on any negotiation issue in connection with the mediator's service; or

(2) make a public statement or report that evaluates the relative merits of the parties' positions.

(e) The failure of the parties to use a mediator during negotiations does not affect the right of the parties to arbitrate a collective bargaining impasse.

Sec. 179.152. TENTATIVE AGREEMENT; FURTHER NEGOTIATION. (a) If the negotiation teams for the parties reach tentative agreement on all issues in dispute, the resulting collective bargaining agreement shall be reduced to writing not later than the 14th day after the date the final agreement is reached and presented to the public employer's governing body and the association's membership for approval.

(b) The public employer's governing body shall vote to approve or not approve the tentative collective bargaining agreement at the first regularly scheduled meeting that occurs after the date the tentative agreement is reduced to writing.

(c) The association's membership shall take steps in accordance with the association's practice and bylaws to approve or not approve the tentative collective bargaining agreement not later than the 21st day after the date the tentative agreement is reduced to writing.

(d) If either the public employer or the association fails to approve the tentative agreement, the negotiation teams shall meet as soon as practicable to negotiate further to reach agreement on a new collective bargaining agreement. Extended negotiations under this subsection may not extend beyond the 30th day after the date the tentative collective bargaining agreement was rejected by the public employer or association. The period of extended negotiations may not be extended by agreement.

Sec. 179.153. IMPASSE. (a) For purposes of this subchapter, a collective bargaining impasse occurs if the parties do not settle each issue in dispute by the later of:

(1) the 60th day after the date on which the first collective bargaining session occurred; or

(2) the end of the extended negotiation period authorized under Section 179.152(d).

(b) The period specified in Subsection (a)(1) may be extended by written agreement of the parties. Each extension must be for a definite period not to exceed 30 days.

Sec. 179.154. REQUEST FOR ARBITRATION; AGREEMENT TO ARBITRATE. (a) A public employer or a bargaining agent may request the appointment of an arbitration board if:

(1) the parties reach a collective bargaining impasse;

(2) the parties made every reasonable effort to settle the dispute through good faith collective bargaining; and

(3) the public employer or bargaining agent gives written notice to the other party, specifying the issue in dispute.

(b) A request for arbitration must be made not later than the 10th day after the date a collective bargaining impasse is reached.

(c) A party may not request arbitration more than once in a fiscal year.

Sec. 179.155. ARBITRATION BOARD. (a) Not later than the fifth day after the date a request to arbitrate is made, each party shall:

(1) select one arbitrator to represent the party; and

(2) immediately notify the other party in writing of the name and address of the arbitrator selected.

(b) Not later than the 10th day after the date a request to arbitrate is made, the arbitrators selected by the parties shall attempt to select a third, neutral arbitrator. If the party arbitrators are unable to agree on a neutral arbitrator, the party requesting arbitration may request a list of seven qualified neutral arbitrators from the American Arbitration Association or the Federal Mediation and Conciliation Service, or their successors in function. The party arbitrators may agree on one of the seven arbitrators on the list to serve as the neutral arbitrator. If the party arbitrators do not agree within five working days after the date they receive the list, the party arbitrators shall alternately strike names from the list. The party that requested arbitration must make the first strike. The name remaining on the list following the parties' strikes shall serve as the neutral arbitrator.

(c) The arbitrator selected under Subsection (b) shall serve as the presiding arbitrator and shall preside over the three-member arbitration board.

Sec. 179.156. ARBITRATION HEARING. (a) A presiding arbitrator shall:

(1) after conferring with the party arbitrators, call a hearing to be held not later than the 10th day after the date on which the presiding arbitrator is appointed; and

(2) notify the other arbitrators, the public employer, and the association in writing of the time and place of the hearing, not later than the eighth day before the date of the hearing.

(b) An arbitration hearing shall end not later than the 20th day after the date the hearing begins.

(c) An arbitration hearing shall be informal.

Sec. 179.157. SCOPE OF ARBITRATION. (a) Not later than the first day of the arbitration hearing, the parties' representatives shall meet to determine:

(1) the issues that were raised in collective bargaining regarding which there is no dispute; and

(2) the issues that were raised in collective bargaining that remain in dispute and require a decision by the arbitration board.

(b) Agreed contract language regarding all issues identified by the parties under Subsection (a)(1) as undisputed must be included in the final collective bargaining agreement without need for further action by the arbitration board.

(c) The issues to be decided by the arbitration board are limited to those matters identified by the parties under Subsection (a)(2) as disputed. Neither party may identify as a disputed item for decision by the arbitration board an issue that was not raised during collective bargaining negotiations.

(d) As to all disputed issues, the arbitration board shall render an award establishing wages and working conditions in accordance with the requirements of Section 179.021. In settling disputes between the parties relating to what constitutes prevailing wages and working conditions, the board shall consider:

(1) hazards of employment;

(2) physical qualifications;

(3) educational qualifications;

(4) mental qualifications;

(5) job training;

(6) skills; and

(7) other factors determined by the arbitration board to be relevant to the standard prescribed by Section 179.021.

Sec. 179.158. EVIDENCE; OATH; SUBPOENA. (a) The rules of evidence applicable to judicial proceedings are not binding in an arbitration hearing.

(b) An arbitration board may:

(1) receive in evidence any documentary evidence or other information the board considers relevant;

(2) administer oaths; and

(3) issue subpoenas to require:

(A) the attendance and testimony of witnesses; and

(B) the production of books, records, and other evidence relevant to an issue presented to the board for determination.

Sec. 179.159. ARBITRATION AWARD. (a) Not later than the 10th day after the date the hearing ends, an arbitration board shall:

(1) make written findings; and

(2) render a written award on the disputed issues presented to the board for determination under Section 179.157(a)(2).

(b) A copy of the findings and award shall be mailed or delivered to the public employer and the bargaining agent.

(c) An increase in compensation awarded by an arbitration board under this subchapter may take effect only at the beginning of the next fiscal year after the date of the award.

(d) If a new fiscal year begins after the initiation of arbitration procedures under this subchapter but before an award is rendered, Subsection (c) does not apply and an increase in compensation may be made retroactive to the beginning of the fiscal year.

Sec. 179.160. EFFECT OF AWARD. (a) A majority decision of an arbitration board:

(1) is final and binding on the parties; and

(2) may be enforced by either party in a district court for the judicial district in which a majority of the affected employees reside, or in which the political subdivision is located.

(b) The collective bargaining agreement resulting from the arbitration award will consist of:

(1) agreed contract language identified in accordance with Section 179.157(a)(1); and

(2) contract language identified for inclusion in the agreement by the arbitration award.

Sec. 179.161. AMENDMENT OF AWARD. The parties to an arbitration award may amend the award by written agreement at any time.

Sec. 179.162. BEGINNING OF NEW FISCAL YEAR. If a new fiscal year begins after the initiation of arbitration procedures under this subchapter but before an award is rendered or enforced:

(1) the dispute is not moot;

(2) the jurisdiction of the arbitration board is not impaired; and

(3) the arbitration award is not impaired.

Sec. 179.163. EXTENSION OF PERIOD. A period specified by Section 179.155, 179.156, or 179.159 may be extended:

(1) by the written agreement of the parties for a reasonable period; or

(2) by the arbitration board for good cause for one or more periods that in the aggregate do not exceed 30 days.

Sec. 179.164. COMPENSATION OF ARBITRATORS; EXPENSES OF ARBITRATION. (a) The compensation, if any, of an arbitrator selected by a public employer shall be paid by the public employer.

(b) The compensation, if any, of an arbitrator selected by the bargaining agent shall be paid by the bargaining agent.

(c) The public employer and the bargaining agent shall each pay 50 percent of:

(1) the compensation of the neutral arbitrator; and

(2) the stenographic and other expenses of the arbitration board in connection with the arbitration proceedings.

(d) If a party to the arbitration hearing makes a stenographic or other transcription of the arbitration proceedings not requested by the arbitration board, the party shall pay the cost of the transcript. A transcript described by this subsection may not be considered the official record of the proceedings unless agreed to by both parties.

[Sections 179.165-179.200 reserved for expansion]

SUBCHAPTER E. STRIKES; LOCKOUTS

Sec. 179.201. DEFINITION. In this subchapter, "strike" means failing to report for duty in concerted action with others, wilfully being absent from one's position, stopping work, abstaining from the full, faithful, and proper performance of the duties of employment, or interfering with the operation of a municipality in any manner, to induce, influence, or coerce a change in wages or other working conditions.

Sec. 179.202. STRIKES, SLOWDOWNS, AND LOCKOUTS PROHIBITED. (a) A fire fighter may not engage in a strike or slowdown.

(b) A lockout of fire fighters by the public employer is prohibited.

Sec. 179.203. LOCKOUT BY PUBLIC EMPLOYER; INJUNCTION; PENALTY. If a public employer engages in a lockout of fire fighters, a court shall:

(1) prohibit the lockout;

(2) impose a fine not to exceed $2,000 on any individual violator; or

(3) both prohibit the lockout and impose the fine.

Sec. 179.204. STRIKE; PENALTY AGAINST ASSOCIATION. (a) A district court for the judicial district in which a public employer is located that finds a bargaining agent has called, ordered, aided, or abetted a strike by fire fighters shall:

(1) impose a fine on the bargaining agent for each day of the strike equal to 1/26 of the total of the bargaining agent's annual membership dues, but not less than $2,500 nor more than $20,000; and

(2) order the forfeiture of any membership dues check-off for a specified period not to exceed 12 months.

(b) If the court finds that the public employer or its representative engaged in acts of extreme provocation that detract substantially from the bargaining agent's responsibility for the strike, the court may reduce the amount of the fine.

(c) A bargaining agent that appeals a fine under this section is not required to pay the fine until the appeal is finally determined.

Sec. 179.205. STRIKE; PENALTY AGAINST INDIVIDUAL. If a fire fighter engages in a strike, interferes with the political subdivision, prevents the political subdivision from engaging in its duty, directs any employee of the political subdivision to decline to work or to stop or slow down work, causes another to fail or refuse to deliver goods or services to the political subdivision, pickets for any of those unlawful acts, or conspires to perform any of those acts:

(1) the fire fighter's compensation in any form may not increase in any manner until after the first anniversary of the date the fire fighter resumes normal working duties; and

(2) the fire fighter shall be on probation for two years regarding civil service status, tenure of employment, or contract of employment to which the fire fighter was previously entitled.

[Sections 179.206-179.250 reserved for expansion]

SUBCHAPTER F. JUDICIAL ENFORCEMENT AND REVIEW

Sec. 179.251. JUDICIAL ENFORCEMENT GENERALLY. A district court for the judicial district in which a political subdivision is located, on the application of a party aggrieved by an act or omission of the other party that relates to the rights or duties under this chapter, may issue a restraining order, temporary or permanent injunction, contempt order, or other writ, order, or process appropriate to enforce this chapter.

Sec. 179.252. JUDICIAL REVIEW OF ARBITRATION AWARD. (a) An award of an arbitration board may be reviewed by a district court for the judicial district in which the political subdivision is located only on the grounds that:

(1) the arbitration board was without jurisdiction;

(2) the arbitration board exceeded its jurisdiction; or

(3) the order was obtained by fraud, collusion, or similar unlawful means.

(b) The pendency of a review proceeding does not automatically stay enforcement of the arbitration board's order.

SECTION 2. This Act takes effect immediately if it receives a vote of two-thirds of all the members elected to each house, as provided by Section 39, Article III, Texas Constitution. If this Act does not receive the vote necessary for immediate effect, this Act takes effect on the 91st day after the last day of the legislative session.