81R10247 SLB-F
By: Alonzo H.B. No. 4123
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.