Constitutional Basis for Enacting Bill Granting Public Safety Employees Bargaining Rights Not Sound, Says CRS Report

A recent report published by the Congressional Research Service (CRS) has called into question lawmakers’ claims that the Constitution’s commerce clause provides legislators the authority to enact the Public Safety Employer-Employee Cooperation Act (PSEECA) (H.R. 413; S. 1611, 3194). This bill, which was first introduced in 1995, has been reintroduced in the 111th Congress in the House by Rep. Dale Kildee (D-MI) and in the Senate by Sen. Judd Gregg (R-NH) in 2009, and by Sen. Harry Reid (D-NV) in 2010. In addition, a proposed amendment (pdf) to the 2010 Supplemental Appropriations Bill incorporates the PSEECA into the broader spending measure, which the House is expected to vote on this week.

This measure would provide firefighters, police officers, and emergency medical personnel with collective bargaining rights in states and localities that do not currently provide them. Additionally, the bill would establish minimum standards for collective bargaining rights for public safety officers, and give the Federal Labor Relations Authority (FLRA) the power to regulate and enforce these rights.

The minimum collective bargaining rights established by this bill include the following:

  • The right to form and join a labor organization, which may exclude management employees, supervisory employees, and confidential employees;
  • The requirement that public safety employers recognize and agree to bargain with the employees’ labor organization;
  • The right to bargain over hours, wages, and terms and conditions of employment;
  • The availability of a dispute resolution mechanism, such as fact-finding, mediation, arbitration, or comparable procedures.
  • The FLRA would have the authority to determine whether a state’s collective bargaining arrangements meet the above standards. In addition, the FLRA would have the power to, among other things, determine the appropriateness of the bargaining units, conduct hearings to resolve disputes involving unfair labor practices, and supervise and conduct elections.

Among the justifications for introducing the PSEECA, the House bill states:

The potential absence of adequate cooperation between public safety employers and employees has implications for the security of employees, impacts the upgrading of police and fire services of local communities, the health and well-being of public safety officers, and the morale of the fire and police departments, and can affect interstate and intrastate commerce.

Similarly, the Senate versions assert that “providing minimal standards for collective bargaining negotiations in the public safety sector can prevent industrial strife between labor and management that interferes with the normal flow of commerce.”

The CRS report issued on June 21, 2010 – The Public Safety Employer-Employee Cooperation Act – challenges this rationale. Specifically, the report notes:

Whether the Commerce Clause provides sufficient authority to support the PSEECA . . . may not be entirely certain. Although the U.S. Supreme Court has found that the Fair Labor Standards Act, a statute enacted pursuant to Congress’s authority under the Commerce Clause, can be applied to employees of a public mass-transit authority, more recent decisions involving the Commerce Clause suggest that the regulation of labor-management relations for public safety officers may not be sufficiently related to commerce and may be invalidated, if challenged.

The cases examined in the report include United States v. Lopez, a 1995 case in which the Supreme Court held that Congress had exceeded its authority in enacting the Gun-Free School Zones Act of 1990, as the possession of a gun in a local school zone did not have a substantial impact on interstate commerce. The CRS report also cites United States v. Morrison, in which the Court noted that the regulation and punishment of intrastate violence that is “not directed at the instrumentalities, channels, or goods involved in interstate commerce has [sic] always been the province of the States.” In contrast, the Court in Gonzales v. Raich upheld Congress’s ability to enact the Controlled Substances Act on intrastate commerce grounds, as the manufacture and possession of marijuana for medical purposes was deemed an economic activity. Considering these cases together, the CRS acknowledges criticism that “police work, firefighting, and emergency medical services are not economic enterprises or activities related to commercial transactions. Rather, such duties are public services provided by state and localities to their citizens.”

Should the PSEECA advance in Congress, expect similar challenges to the bill’s legality to surface.
 

Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.