II 117th CONGRESS 1st Session S. 2178 IN THE SENATE OF THE UNITED STATES June 22, 2021 Mr. Hickenlooper (for himself and Ms. Hassan ) introduced the following bill; which was read twice and referred to the Committee on Health, Education, Labor, and Pensions A BILL To provide collective bargaining rights for fire fighters and emergency medical services personnel employed by States or their political subdivisions, and for other purposes.

1. Short title This Act may be cited as the Fire Fighters and EMS Employer-Employee Cooperation Act . 2. Purpose and policy It is the sense of Congress that the following is the policy of the United States: (1) Labor-management relationships and partnerships are based on trust, mutual respect, open communication, bilateral consensual problem solving, and shared accountability. Labor-management cooperation fully utilizes the strengths of both parties to best serve the interests of the public, operating as a team, to carry out the fire and EMS mission in a quality work environment. In many fire and EMS agencies, it is the labor organization that provides the institutional stability as elected leaders and appointees come and go. (2) State and local fire and EMS personnel play an essential role in the efforts of the United States to detect, prevent, and respond to terrorist attacks, and to respond to natural disasters, hazardous materials, and other mass casualty incidents. State and local fire and EMS personnel, as first responders, are a component of the National Incident Management System, developed by the Department of Homeland Security to coordinate response to and recovery from terrorism, major natural disasters, and other major emergencies. Fire and EMS employer-employee cooperation is essential in meeting these needs and is, therefore, in the National interest. (3) The Federal Government needs to encourage conciliation, mediation, and arbitration to aid and encourage employers and the representatives of their employees to reach and maintain agreements concerning rates of pay, hours, and working conditions, and to make all reasonable efforts through negotiations to settle their differences by mutual agreement reached through collective bargaining or by such methods as may be provided for in any applicable agreement for the settlement of disputes. (4) The absence of adequate cooperation between fire and EMS employers and employees has implications for the security of employees and can affect interstate and intrastate commerce. The lack of such labor-management cooperation can detrimentally impact the upgrading of fire and emergency medical services of local communities, the health and well-being of fire and EMS personnel, and the morale of fire and EMS departments. Additionally, these factors could have significant commercial repercussions. Moreover, providing minimal standards for collective bargaining negotiations in the fire and EMS sector can prevent industrial strife between labor and management that interferes with the normal flow of commerce. (5) Many States and localities already provide fire and EMS personnel with collective bargaining rights comparable to or greater than the rights and responsibilities set forth in this Act, and such State and local laws should be respected. 3. Definitions In this Act: (1) Authority The term Authority means the Federal Labor Relations Authority. (2) Confidential employee The term confidential employee has the meaning given such term under applicable State law on the date of enactment of this Act. If no such State law is in effect, the term means an individual, employed by a fire and EMS employer, who— (A) is designated as confidential; and (B) is an individual who routinely assists, in a confidential capacity, supervisory employees and management employees. (3) Emergency medical services personnel The term emergency medical services personnel means an individual who provides out-of-hospital emergency medical care, including an emergency medical technician, paramedic, or first responder. (4) Employer; fire and ems agency; fire and ems employer The terms employer , fire and EMS agency , and fire and EMS employer mean any State, or political subdivision of a State, that employs fire and EMS personnel. (5) Fire and EMS Personnel The term fire and EMS personnel — (A) means an employee of a fire and EMS agency who is— (i) a firefighter; (ii) an emergency medical services personnel; or (iii) an individual trained as a firefighter who provides out-of-hospital emergency medical care; (B) includes an individual who is temporarily transferred to a supervisory or management position; and (C) does not include a permanent supervisory, management, or confidential employee. (6) Firefighter The term firefighter has the meaning given the term employee in fire protection activities in section 3(y) of the Fair Labor Standards Act of 1938 ( 29 U.S.C. 203(y) ). (7) Labor organization The term labor organization means an organization of any kind, in which employees participate and which exists for the purpose, in whole or in part, of dealing with employers concerning grievances, conditions of employment, and related matters. (8) Management employee The term management employee has the meaning given such term under applicable State law in effect on the date of enactment of this Act. If no such State law is in effect, the term means an individual employed by a fire and EMS employer in a position that requires or authorizes the individual to formulate, determine, or influence the policies of the employer. (9) Person The term person means an individual or a labor organization. (10) State The term State means each of the several States of the United States, the District of Columbia, and any territory or possession of the United States. (11) Substantially provides The term substantially provides , when used with respect to the rights and responsibilities described in section 4(b), means providing rights and responsibilities that are comparable to or greater than each right and responsibility described in such section. (12) Supervisory employee The term supervisory employee has the meaning given such term under applicable State law in effect on the date of enactment of this Act. If no such State law is in effect, the term means an individual, employed by a fire and EMS employer, who— (A) has the authority in the interest of the employer to hire, direct, assign, promote, reward, transfer, furlough, lay off, recall, suspend, discipline, or remove fire and EMS personnel, to adjust their grievances, or to effectively recommend such action, if the exercise of the authority is not merely routine or clerical in nature but requires the consistent exercise of independent judgment; and (B) devotes a majority of time at work to exercising such authority. 4. Determination of rights and responsibilities (a) Determination (1) In general Not later than 180 days after the date of enactment of this Act, the Authority shall make a determination as to whether a State substantially provides for the rights and responsibilities described in subsection (b). (2) Consideration of additional opinions In making the determination described in paragraph (1), the Authority shall consider the opinions of affected employers and labor organizations. In the case where the Authority is notified by an affected employer and labor organization that both parties agree that the law applicable to such employer and labor organization substantially provides for the rights and responsibilities described in subsection (b), the Authority shall give such agreement weight to the maximum extent practicable in making the Authority’s determination under this subsection. (3) Limited criteria In making the determination described in paragraph (1), the Authority shall be limited to the application of the criteria described in subsection (b) and shall not require any additional criteria. (4) Subsequent determinations (A) In general A determination made pursuant to paragraph (1) shall remain in effect unless and until the Authority issues a subsequent determination, in accordance with the procedures set forth in subparagraph (B). (B) Procedures for subsequent determinations Upon establishing that a material change in State law or its interpretation has occurred, an employer or a labor organization may submit a written request for a subsequent determination. If satisfied that a material change in State law or its interpretation has occurred, the Authority shall issue a subsequent determination not later than 30 days after receipt of such request. (5) Judicial review Any person or employer aggrieved by a determination of the Authority under this section may, during the 60-day period beginning on the date on which the determination was made, petition any United States Court of Appeals in the circuit in which the person or employer resides or transacts business or in the District of Columbia Circuit for judicial review. (b) Rights and responsibilities In making a determination described in subsection (a), the Authority shall consider a State’s law to substantially provide the required rights and responsibilities unless such law fails to provide rights and responsibilities comparable to or greater than the following: (1) Granting fire and EMS personnel the right to form and join a labor organization, which may exclude management employees, supervisory employees, and confidential employees, that is, or seeks to be, recognized as the exclusive bargaining representative of such employees. (2) Requiring fire and EMS employers to recognize the employees’ labor organization (freely chosen by a majority of the employees), to agree to bargain with the labor organization, and to commit any agreements to writing in a contract or memorandum of understanding. (3) Providing for the right to bargain over hours, wages, and terms and conditions of employment. (4) Making available an interest impasse resolution mechanism, such as fact-finding, mediation, arbitration, or comparable procedures. (5) Requiring enforcement of all rights, responsibilities, and protections enumerated in this section, and of any written contract or memorandum of understanding between a labor organization and a fire and EMS employer, through— (A) a State administrative agency, if the State so chooses; or (B) any court of competent jurisdiction. (c) Compliance with requirements If the Authority determines, acting pursuant to its authority under subsection (a), that a State substantially provides rights and responsibilities described in subsection (b), then this Act shall not preempt State law. (d) Failure to meet requirements (1) In general If the Authority determines, acting pursuant to its authority under subsection (a), that a State does not substantially provide for the rights and responsibilities described in subsection (b), then such State shall be subject to the regulations and procedures described in section 5 beginning on the later of— (A) the date that is 2 years after the date of enactment of this Act; or (B) (i) in the case of a State receiving an initial determination under subsection (a)(1), the date that is the last day of the first regular session of the legislature of the State that begins after the date the Authority makes the determination under such subsection; or (ii) in the case of a State receiving a subsequent determination under subsection (a)(4), the date that is the last day of the first regular session of the legislature of the State that begins after the date the Authority makes the determination under such subsection. (2) Partial failure If the Authority makes a determination that a State does not substantially provide for the rights and responsibilities described in subsection (b) solely because the State law substantially provides for such rights and responsibilities for certain categories of fire and EMS personnel covered by this Act but not others, the Authority shall identify those categories of fire and EMS personnel that shall be subject to the regulations and procedures described in section 5, pursuant to section 8(b)(3) and beginning on the appropriate date described in paragraph (1), and those categories of fire and EMS personnel that shall remain solely subject to State law with respect to the rights and responsibilities described in subsection (b). 5. Role of federal labor relations authority (a) In general Not later than 1 year after the date of enactment of this Act, the Authority shall issue regulations, in accordance with the rights and responsibilities described in section 4(b), establishing collective bargaining procedures for employers and fire and EMS personnel in States that the Authority has determined under section 4(a) do not substantially provide for such rights and responsibilities. (b) Role of the federal labor relations authority The Authority, to the extent provided in this Act and in accordance with regulations prescribed by the Authority, shall— (1) determine the appropriateness of units for labor organization representation; (2) supervise or conduct elections to determine whether a labor organization has been selected as an exclusive representative by a voting majority of the employees in an appropriate unit; (3) resolve issues relating to the duty to bargain in good faith; (4) conduct hearings and resolve complaints of unfair labor practices; (5) resolve exceptions to the awards of arbitrators; (6) protect the right of each employee to form, join, or assist any labor organization, or to refrain from any such activity, freely and without fear of penalty or reprisal, and protect each employee in the exercise of such right; and (7) take such other actions as are necessary and appropriate to effectively administer this Act, including issuing subpoenas, requiring the attendance and testimony of witnesses and the production of documentary or other evidence from any place in the United States, and administering oaths, taking or ordering the taking of depositions, ordering responses to written interrogatories, and receiving and examining witnesses. (c) Enforcement (1) Authority to petition court The Authority may petition any United States Court of Appeals with jurisdiction over the parties, or the United States Court of Appeals for the District of Columbia Circuit, to enforce any final orders under this section, and for appropriate temporary relief or a restraining order. (2) Private right of action (A) In general Except as provided in subparagraph (B) and unless the Authority has filed a petition for enforcement as provided in paragraph (1), any party has the right to file suit in any appropriate district court of the United States to enforce compliance with the regulations issued by the Authority pursuant to this section, or to enforce compliance with any order issued by the Authority pursuant to this section. The right provided by this subparagraph to bring a suit to enforce compliance with any order issued by the Authority pursuant to this section shall terminate upon the filing of a petition seeking the same relief by the Authority. (B) Exclusive enforcement In the case a State has not waived its sovereign immunity, the Authority shall have the exclusive power to enforce the provisions of this Act against such State as an employer. 6. Strikes and lockouts prohibited (a) In general Subject to subsection (b), an employer, fire and EMS personnel, or labor organization may not engage in a lockout, sickout, work slowdown, strike, or any other organized job action that will measurably disrupt the delivery of emergency services and is designed to compel an employer, fire and EMS personnel, or labor organization to agree to the terms of a proposed contract. (b) No preemption Nothing in this section shall be construed to preempt any law of any State or political subdivision of any State with respect to strikes by fire and EMS personnel. 7. Existing collective bargaining units and agreements A certification, recognition, election-held, collective bargaining agreement, or memorandum of understanding that has been issued, approved, or ratified by any public employee relations board or commission or by any State or political subdivision or its agents and is in effect on the day before the date of enactment of this Act shall not be invalidated by the enactment of this Act. 8. Construction and compliance (a) Construction Nothing in this Act shall be construed— (1) to preempt or limit the remedies, rights, and procedures of any law of any State or political subdivision of any State that provides comparable or greater rights and responsibilities than the rights and responsibilities described in section 4(b); (2) to prevent a State from enforcing a right-to-work law that prohibits employers and labor organizations from negotiating provisions in a labor agreement that require labor organization membership or payment of labor organization fees as a condition of employment; (3) to preempt or limit any State law in effect on the date of enactment of this Act that provides for the rights and responsibilities described in section 4(b) solely because such State law permits an employee to appear on the employee’s own behalf with respect to the employee’s employment relations with the fire and EMS agency involved; (4) to prohibit a State from exempting from coverage under this Act a political subdivision of the State that has a population of less than 5,000 or that employs less than 25 full-time employees, including each individual employed by the political subdivision, except not including any individual elected by popular vote or appointed to serve on a board or commission; or (5) to preempt or limit the laws or ordinances of any State or political subdivision of a State that provide for the rights and responsibilities described in section 4(b) solely because such law or ordinance does not require bargaining with respect to pension or retirement. (b) Compliance (1) Actions of states Nothing in this Act or the regulations promulgated under this Act shall be construed to require a State to rescind or preempt the laws or ordinances of any of the State’s political subdivisions if such laws provide rights and responsibilities for fire and EMS personnel that are comparable to or greater than the rights and responsibilities described in section 4(b). (2) Actions of the authority Nothing in this Act or the regulations promulgated under this Act shall be construed to preempt— (A) the laws or ordinances of any State or political subdivision of a State, if such laws provide collective bargaining rights for fire and EMS personnel that are comparable to or greater than the rights enumerated in section 4(b); (B) the laws or ordinances of any State or political subdivision of a State that provide for the rights and responsibilities described in section 4(b) with respect to certain categories of fire and EMS personnel covered by this Act solely because such rights and responsibilities have not been extended to other categories of fire and EMS personnel covered by this Act; or (C) the laws or ordinances of any State or political subdivision of a State that provide for the rights and responsibilities described in section 4(b), solely because such laws or ordinances provide that a contract or memorandum of understanding between a fire and EMS employer and a labor organization must be presented to a legislative body as part of the process for approving such contract or memorandum of understanding. (3) Limited enforcement power In the case of a law or ordinance described in paragraph (2)(B), the Authority shall only exercise the powers provided in section 5 with respect to those categories of fire and EMS personnel who have not been afforded the rights and responsibilities described in section 4(b). 9. Authorization of appropriations There are authorized to be appropriated such sums as may be necessary to carry out the provisions of this Act.