Texas 2009 - 81st Regular

Texas House Bill HB3686 Compare Versions

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1	1	81R22155 JSC-F
2	2	By: McClendon, Gutierrez H.B. No. 3686
3	3	Substitute the following for H.B. No. 3686:
4	4	By: Pierson C.S.H.B. No. 3686
5	5
6	6
7	7	A BILL TO BE ENTITLED
8	8	AN ACT
9	9	relating to the right of certain municipalities to maintain local
10	10	control over wages, hours, and other terms and conditions of
11	11	employment.
12	12	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
13	13	SECTION 1. Subtitle A, Title 5, Local Government Code, is
14	14	amended by adding Chapter 148 to read as follows:
15	15	CHAPTER 148. LOCAL CONTROL OF MUNICIPAL EMPLOYMENT MATTERS IN
16	16	CERTAIN MUNICIPALITIES
17	17	Sec. 148.001. APPLICABILITY. (a) This chapter applies
18	18	only to a municipality with a population of more than one million
19	19	that:
20	20	(1) has adopted Chapter 174; and
21	21	(2) is not covered by Chapter 146 or 147.
22	22	(b) This chapter does not apply to:
23	23	(1) firefighters or police officers who are covered by
24	24	Subchapter B of Chapter 142, Subchapter H, I, or J of Chapter 143,
25	25	or Chapter 174;
26	26	(2) an employee association in which employees
27	27	described by Subdivision (1) participate; or
28	28	(3) employees of a municipally owned utility or other
29	29	board or political subdivision whose wages, salaries, rates of pay,
30	30	hours, working conditions, or other terms and conditions of
31	31	employment are established and governed by an appointed board
32	32	independent from the municipal governing body.
33	33	Sec. 148.002. DEFINITIONS. In this chapter:
34	34	(1) "Confidential employee" means an employee:
35	35	(A) who has access to confidential or
36	36	discretionary information regarding the formulation of the
37	37	municipality's policies or procedures;
38	38	(B) whose functional responsibilities or
39	39	knowledge concerning employee relations make the employee's
40	40	membership in an employee organization incompatible with the
41	41	employee's duties; or
42	42	(C) who is the executive secretary of the chief
43	43	administrator or executive officer of a municipal department.
44	44	(2) "Covered employee" means an employee of a
45	45	municipality, other than an employee who is not covered by the
46	46	classified municipal civil service, a confidential employee, a
47	47	firefighter or police officer who is covered by Subchapter H, I, or
48	48	J of Chapter 143 or by Chapter 174, or a peace officer covered by
49	49	Chapter 142.
50	50	(3) "Employee association" means an organization in
51	51	which municipal employees participate, that exists for the purpose,
52	52	wholly or partly, of dealing with one or more employers, whether
53	53	public or private, concerning grievances, labor disputes, wages,
54	54	rates of pay, hours of employment, or conditions of work affecting
55	55	covered employees, and whose members pay dues by means of an
56	56	automatic payroll deduction.
57	57	(4) "Public employer" means any municipality that is
58	58	required to establish the wages, salaries, rates of pay, hours,
59	59	working conditions, and other terms and conditions of employment of
60	60	public employees. The term may include, under appropriate
61	61	circumstances, a mayor, manager, administrator of a municipality,
62	62	municipal governing body, director of personnel, or personnel
63	63	board, or one or more other officials regardless of the name by
64	64	which they are designated.
65	65	Sec. 148.003. GENERAL PROVISIONS RELATING TO AGREEMENTS AND
66	66	RECOGNITION. (a) A municipality may not be denied local control
67	67	over wages, salaries, rates of pay, hours of work, other terms and
68	68	conditions of employment, or other state-mandated personnel
69	69	issues. A public employer may enter into a mutual agreement
70	70	governing these issues with an employee association recognized
71	71	under this chapter as the sole and exclusive bargaining agent for
72	72	all covered employees that does not advocate the illegal right to
73	73	strike by municipal employees. The applicable statutes, local
74	74	ordinances, and civil service rules govern a term or condition of
75	75	employment on which the public employer and the association do not
76	76	agree.
77	77	(b) An agreement under this chapter must be written.
78	78	(c) This chapter does not require the public employer and
79	79	the recognized employee association to meet and confer on any issue
80	80	or reach an agreement on any issue.
81	81	(d) This chapter does not authorize an agreement regarding
82	82	pension or pension-related matters governed by statute.
83	83	Sec. 148.004. PETITION FOR RECOGNITION: ELECTION OR ACTION
84	84	BY GOVERNING BODY. (a) Not later than the 30th day after the date
85	85	the governing body of a municipality receives from an employee
86	86	association a petition signed by the majority of all covered
87	87	employees that requests recognition of the association as the sole
88	88	and exclusive bargaining agent for all the covered employees, the
89	89	governing body shall:
90	90	(1) grant recognition of the association as requested
91	91	in the petition and find that a public employer may meet and confer
92	92	under this chapter without conducting an election by the voters in
93	93	the municipality under Section 148.006;
94	94	(2) defer granting recognition of the association and
95	95	order an election by the voters in the municipality under Section
96	96	148.006 regarding whether a public employer may meet and confer
97	97	under this chapter; or
98	98	(3) order a certification election under Section
99	99	148.005 to determine whether the association represents a majority
100	100	of the covered employees.
101	101	(b) If the governing body of a municipality orders a
102	102	certification election under Subsection (a)(3) and the association
103	103	named in the petition is certified to represent a majority of the
104	104	covered employees, the governing body shall, not later than the
105	105	30th day after the date that results of that election are certified:
106	106	(1) grant recognition of the association as requested
107	107	in the petition for recognition and find that a public employer may
108	108	meet and confer under this chapter without conducting an election
109	109	by the voters in the municipality under Section 148.006; or
110	110	(2) defer granting recognition of the association and
111	111	order an election by the voters in the municipality under Section
112	112	148.006 regarding whether a public employer may meet and confer
113	113	under this chapter.
114	114	Sec. 148.005. CERTIFICATION ELECTION. (a) Except as
115	115	provided by Subsection (b), a certification election ordered under
116	116	Section 148.004(a)(3) to determine whether an employee association
117	117	represents a majority of the covered employees shall be conducted
118	118	according to procedures agreeable to the parties.
119	119	(b) If the parties are unable to agree on procedures for the
120	120	certification election, either party may request the American
121	121	Arbitration Association to conduct the election and to certify the
122	122	results of the election.
123	123	(c) The results of an election shall be certified if the
124	124	employee association receives a majority of the valid votes cast in
125	125	the election.
126	126	(d) Certification of the results of an election under this
127	127	section resolves the question concerning representation.
128	128	(e) The association is liable for the expenses of the
129	129	certification election, except that if two or more associations
130	130	seeking recognition as the sole and exclusive bargaining agent
131	131	submit a petition signed by at least 30 percent of the employees
132	132	eligible to sign the petition for recognition, all the associations
133	133	named in any petition shall share equally the costs of the election.
134	134	Sec. 148.006. ELECTION TO AUTHORIZE OPERATING UNDER THIS
135	135	CHAPTER. (a) The governing body of a municipality that receives a
136	136	petition for recognition under Section 148.004 may order an
137	137	election to determine whether a public employer may meet and confer
138	138	under this chapter.
139	139	(b) An election ordered under this section must be held as
140	140	part of the next regularly scheduled general election for municipal
141	141	officials that is held after the date the governing body of the
142	142	municipality orders the election and that allows sufficient time to
143	143	prepare the ballot in compliance with other requirements of law.
144	144	(c) The ballot for an election ordered under this section
145	145	shall be printed to permit voting for or against the proposition:
146	146	"Authorizing __________ (name of the municipality) to operate under
147	147	the state law allowing a municipality to meet and confer and make
148	148	agreements with the association representing municipal employees
149	149	as provided by state law, preserving the prohibition against
150	150	strikes and organized work stoppages, and providing penalties for
151	151	strikes and organized work stoppages."
152	152	(d) An election called under this section must be held and
153	153	the returns prepared and canvassed in conformity with the Election
154	154	Code.
155	155	(e) If an election authorized under this section is held,
156	156	the municipality may operate under the other provisions of this
157	157	chapter only if a majority of the votes cast at the election favor
158	158	the proposition.
159	159	(f) If an election authorized under this section is held, an
160	160	association may not submit a petition for recognition to the
161	161	governing body of the municipality under Section 148.004 before the
162	162	second anniversary of the date of the election.
163	163	Sec. 148.007. CHANGE OR MODIFICATION OF RECOGNITION. (a)
164	164	Covered employees may modify, change, or withdraw the recognition
165	165	of the employee association granted under this chapter by filing
166	166	with the governing body of the municipality a petition signed by a
167	167	majority of all covered employees.
168	168	(b) The governing body of the municipality may:
169	169	(1) recognize the modification, change, or withdrawal
170	170	as provided by the petition; or
171	171	(2) order a certification election in accordance with
172	172	Section 148.005 regarding whether to do so.
173	173	Sec. 148.008. STRIKES PROHIBITED. (a) A municipal
174	174	employee may not engage in a strike or organized work stoppage
175	175	against this state or the municipality.
176	176	(b) A municipal employee who participates in a strike
177	177	forfeits any civil service rights, reemployment rights, and other
178	178	rights, benefits, or privileges the employee may have as a result of
179	179	the employee's employment or prior employment with the
180	180	municipality.
181	181	(c) This section does not affect the right of a person to
182	182	cease work if the person is not acting in concert with others in an
183	183	organized work stoppage.
184	184	Sec. 148.009. RECOGNITION OF EMPLOYEE ASSOCIATION. (a) A
185	185	public employer in a municipality that chooses to meet and confer
186	186	under this chapter shall recognize an association that is
187	187	recognized under Section 148.004 or 148.005 as the sole and
188	188	exclusive bargaining agent for the covered employees.
189	189	(b) The public employer shall recognize the employee
190	190	association until recognition of the association is withdrawn, in
191	191	accordance with Section 148.007, by a majority of the covered
192	192	employees eligible to sign a petition for recognition.
193	193	Sec. 148.010. SELECTION OF BARGAINING AGENT; BARGAINING
194	194	UNIT. (a) The public employer's chief executive officer or the
195	195	chief executive officer's designee shall select one or more persons
196	196	to represent the public employer as its sole and exclusive
197	197	bargaining agent to meet and confer on issues related to the wages,
198	198	hours of employment, and other terms and conditions of employment
199	199	of covered employees.
200	200	(b) An employee association may designate one or more
201	201	persons to negotiate or bargain on the association's behalf.
202	202	(c) A municipality's bargaining unit is composed of all the
203	203	covered employees.
204	204	Sec. 148.011. PROTECTED RIGHTS OF EMPLOYEES. A meet and
205	205	confer agreement ratified under this chapter may not interfere with
206	206	the right of a covered employee to pursue allegations of
207	207	discrimination based on race, creed, color, national origin,
208	208	religion, age, sex, or disability with the Texas Workforce
209	209	Commission civil rights division or the federal Equal Employment
210	210	Opportunity Commission or to pursue affirmative action litigation.
211	211	Sec. 148.012. OPEN RECORDS. (a) A proposed meet and confer
212	212	agreement and a document prepared and used by the municipality,
213	213	including a public employer, in connection with the proposed
214	214	agreement are available to the public under Chapter 552, Government
215	215	Code, only after the agreement is ready to be ratified by the
216	216	governing body of the municipality.
217	217	(b) This section does not affect the application of
218	218	Subchapter C, Chapter 552, Government Code, to a document prepared
219	219	and used in connection with the agreement.
220	220	Sec. 148.013. OPEN DELIBERATIONS. (a) Deliberations
221	221	relating to a meet and confer agreement or proposed agreement under
222	222	this chapter between representatives of the public employer and
223	223	representatives of the employee association recognized under this
224	224	chapter as the sole and exclusive bargaining agent for the covered
225	225	employees must be open to the public and comply with state law.
226	226	(b) Subsection (a) may not be construed to prohibit the
227	227	representatives of the public employer or the representatives of
228	228	the recognized employee association from conducting private
229	229	caucuses that are not open to the public during meet and confer
230	230	negotiations.
231	231	Sec. 148.014. RATIFICATION AND ENFORCEABILITY OF
232	232	AGREEMENT. (a) An agreement under this chapter is enforceable and
233	233	binding on the public employer, the recognized employee
234	234	association, and the employees covered by the meet and confer
235	235	agreement only if:
236	236	(1) the governing body of the municipality ratified
237	237	the agreement by a majority vote; and
238	238	(2) the recognized employee association ratified the
239	239	agreement by conducting a secret ballot election at which the
240	240	majority of the covered employees who voted in the election favored
241	241	ratifying the agreement.
242	242	(b) A meet and confer agreement ratified as described by
243	243	Subsection (a) may establish a procedure by which the parties agree
244	244	to resolve disputes related to a right, duty, or obligation
245	245	provided by the agreement, including binding arbitration on a
246	246	question involving interpretation of the agreement.
247	247	(c) A state district court of a judicial district in which
248	248	the municipality is located has jurisdiction to hear and resolve a
249	249	dispute under the ratified meet and confer agreement on the
250	250	application of a party to the agreement aggrieved by an action or
251	251	omission of the other party when the action or omission is related
252	252	to a right, duty, or obligation provided by the agreement. The
253	253	court may issue proper restraining orders, temporary and permanent
254	254	injunctions, or any other writ, order, or process, including
255	255	contempt orders, that are appropriate to enforcing the agreement.
256	256	Sec. 148.015. ACTION OR ELECTION TO REPEAL AUTHORIZATION TO
257	257	OPERATE UNDER THIS CHAPTER. (a) The governing body of a
258	258	municipality that granted recognition of an employee association
259	259	under Section 148.004 without conducting an election under Section
260	260	148.006 may withdraw recognition of the association by providing to
261	261	the association not less than 90 days' written notice that:
262	262	(1) the governing body is withdrawing recognition of
263	263	the association; and
264	264	(2) any agreement between the governing body and the
265	265	association will not be renewed.
266	266	(b) The governing body of a municipality that granted
267	267	recognition of an employee association after conducting an election
268	268	under Section 148.006 may order an election to determine whether a
269	269	public employer may continue to meet and confer under this chapter.
270	270	The governing body may not order an election under this subsection
271	271	until the second anniversary of the date of the election under
272	272	Section 148.006.
273	273	(c) An election ordered under Subsection (b) must be held as
274	274	part of the next regularly scheduled general election for municipal
275	275	officers that occurs after the date the governing body of the
276	276	municipality orders the election and that allows sufficient time to
277	277	prepare the ballot in compliance with other requirements of law.
278	278	(d) The ballot for an election ordered under Subsection (b)
279	279	shall be printed to permit voting for or against the proposition:
280	280	"Authorizing __________ (name of the municipality) to continue to
281	281	operate under the state law allowing a municipality to meet and
282	282	confer and make agreements with the association representing
283	283	municipal employees as provided by state law, preserving the
284	284	prohibition against strikes and organized work stoppages, and
285	285	providing penalties for strikes and organized work stoppages."
286	286	(e) An election ordered under Subsection (b) must be held
287	287	and the returns prepared and canvassed in conformity with the
288	288	Election Code.
289	289	(f) If an election ordered under Subsection (b) is held, the
290	290	municipality may continue to operate under this chapter only if a
291	291	majority of the votes cast at the election favor the proposition.
292	292	(g) If an election ordered under Subsection (b) is held, an
293	293	association may not submit a petition for recognition to the
294	294	governing body of the municipality under Section 148.004 before the
295	295	second anniversary of the date of the election.
296	296	Sec. 148.016. ELECTION TO REPEAL AGREEMENT. (a) Not later
297	297	than the 45th day after the date a meet and confer agreement is
298	298	ratified by the governing body of the municipality and the
299	299	recognized employee association, a petition calling for the repeal
300	300	of the agreement signed by at least 10 percent of the qualified
301	301	voters residing in the municipality may be presented to the person
302	302	charged with ordering an election under Section 3.004, Election
303	303	Code.
304	304	(b) If a petition is presented under Subsection (a), the
305	305	governing body of the municipality shall:
306	306	(1) repeal the meet and confer agreement; or
307	307	(2) certify that it is not repealing the agreement and
308	308	call an election to determine whether to repeal the agreement.
309	309	(c) An election called under Subsection (b)(2) may be held
310	310	as part of the next regularly scheduled general election for the
311	311	municipality or at a special election called by the governing body
312	312	for that purpose. The ballot shall be printed to permit voting for
313	313	or against the proposition: "Repeal the meet and confer agreement
314	314	ratified on _____ (date agreement was ratified) by the __________
315	315	(name of the governing body of the municipality) and the _____ (name
316	316	of the recognized municipal employee association) concerning
317	317	wages, salaries, rates of pay, hours of work, and other terms of
318	318	employment."
319	319	(d) If a majority of the votes cast at the election favor the
320	320	repeal of the agreement, the agreement is void.
321	321	Sec. 148.017. AGREEMENT SUPERSEDES CONFLICTING PROVISIONS.
322	322	A written meet and confer agreement ratified under this chapter
323	323	preempts, during the term of the agreement and to the extent of any
324	324	conflict, all contrary state statutes, local ordinances, executive
325	325	orders, civil service provisions, or rules adopted by this state or
326	326	a political subdivision or agent of this state, including a
327	327	personnel board, civil service commission, or home-rule
328	328	municipality, other than a statute, ordinance, executive order,
329	329	civil service provision, or rule regarding pensions or
330	330	pension-related matters.
331	331	SECTION 2. This Act takes effect September 1, 2009.