BEFORE THE

SUBCOMMITTEE ON EMPLOYER-EMPLOYEE RELATIONS

OF THE

COMMITTEE ON EDUCATION AND

THE WORKFORCE

HOUSE OF REPRESENTATIVES

ONE HUNDRED SIXTH CONGRESS

SECOND SESSION

HEARING HELD IN WASHINGTON, DC, MAY 9, 2000

Printed for the use of the Committee on Education

and the Workforce

 OPENING STATEMENT OF CHAIRMAN JOHN BOEHNER, SUBCOMMITTEE ON EMPLOYER-EMPLOYEE RELATIONS, COMMITTEE ON EDUCATION AND THE WORKFORCE *

OPENING STATEMENT OF RANKING MINORITY MEMBER ROB ANDREWS, SUBCOMMITTEE ON EMPLOYER-EMPLOYEE RELATIONS, COMMITTEE ON EDUCATION AND THE WORKFORCE *

STATEMENT OF THE HONORABLE DALE KILDEE, 9^TH DISTRICT OF MICHIGAN, U.S. HOUSE OF REPRESENTATIVES, WASHINGTON, D.C. *

STATEMENT OF DR. FREDERICK H. NESBITT, DIRECTOR OF GOVERNMENTAL AFFAIRS, INTERNATIONAL ASSOCIATION OF FIRE FIGHTERS, WASHINGTON, D.C. *

STATEMENT OF GILBERT G. GALLEGOS, NATIONAL PRESIDENT, GRAND LODGE, FRATERNAL ORDER OF POLICE, WASHINGTON, D.C. *

STATEMENT OF R. THEODORE CLARK, JR., ESQ., PARTNER, SEYFARTH, SHAW, FAIRWEATHER & GERALDSON, CHICAGO, ILLINOIS, TESTIFYING ON BEHALF OF NATIONAL PUBLIC EMPLOYER LABOR RELATIONS ASSOCIATION (NPELRA), WASHINGTON, D.C. *

STATEMENT OF MAYOR GENE KINSEY, CITY OF GRAND JUNCTION, GRAND JUNCTION, COLORADO *

STATEMENT OF GEORGE COSTELLO, LEGISLATIVE ATTORNEY, AMERICAN LAW DIVISION, CONGRESSIONAL RESEARCH SERVICE, WASHINGTON, D.C. *

APPENDIX A – WRITTEN OPENING STATEMENT OF CHAIRMAN JOHN BOEHNER, SUBCOMMITTEE ON EMPLOYER-EMPLOYEE RELATIONS, COMMITTEE ON EDUCATION AND THE WORKFORCE *

APPENDIX B - SUBMITTED FOR THE RECORD, NATIONAL SURVEY OF STATE COLLECTIVE BARGAINING LAWS, APPLICABLE TO STATE AND LOCAL LAW ENFORCEMENT OFFICERS, THE RESEARCH AND EDUCATION PROJECT, INC., AN AFFILIATE OF THE NATIONAL ASSOCIATION OF POLICE ORGANIZATIONS, INC., WASHINGTON, D.C., 1999 *

APPENDIX C - SUBMITTED FOR THE RECORD, STATEMENT OF INTERNATIONAL UNION OF POLICE ASSOCIATIONS AFL-CIO, ALEXANDRIA, VA *

The Subcommittee met, pursuant to call, at 10:30 a.m., in Room 2175, Rayburn House Office Building, Hon. John A. Boehner, Chairman of the Subcommittee presiding.

Present: Representatives Boehner, Petri, Roukema, Ballenger, McKeon, Fletcher, DeMint, Andrews, Kildee, McCarthy, Wu and Holt.

Also Present: Representative Ney.

Staff Present: Ben Peltier, Professional Staff Member; Amy Cloud, Staff Assistant; Rob Green, Workforce Policy Coordinator; Peter Gunas, Workforce Policy Counsel; Patrick Lyden, Professional Staff Member, Deborah Samantar, Office Manager; Peter Rutledge, Senior Legislative Associate/Labor; Maria Cuprill, Legislative Associate/Labor; and Brian Compagnone, Staff Assistant/Labor.

Chairman Boehner. A quorum being present, the Subcommittee on Employer-Employee Relations will come to order.

We are meeting here today to hear testimony on the Public Safety Employer-Employee Cooperation Act. Under Committee rule 12(b), opening statements are limited to the Chairman and Ranking Minority Member of the Subcommittee. If other Members have opening statements, they may be included in the hearing record.

With that, I ask unanimous consent to allow 14 days for all Members to submit statements, witnesses' written testimony and other materials for the record.

Without objection, so ordered.

We are here today to discuss the Public Safety Employer-Employee Cooperation Act, H.R. 1093, introduced by our Subcommittee colleague, Representative Dale Kildee of Michigan, and by Representative Bob Ney of Ohio. The bill is also supported by many Members of this Committee and Subcommittee, and I especially want to note the efforts of Congressman Ernie Fletcher from Kentucky, who pushed to make sure that we had this hearing today.

All of these Members should be applauded for their work on behalf of public safety personnel throughout the country. Their dedication to enhancing public safety is commendable.

I will admit that this is somewhat of an unusual hearing because, as most of my colleagues and the witnesses know, I have serious doubts about this piece of legislation. Ordinarily when the Chairman has these kinds of doubts, there is not a hearing on the bill. But while I have these doubts, I have the utmost respect for its authors and the associations who have pushed strongly for this legislation. I believe it is vitally important that we strive to protect the rights of public safety workers while ensuring the most effective and efficient operation of public services in our States, our cities, villages and townships.

I believe that by having an open hearing on this measure, Members on both sides may gain a more complete understanding of the issues facing public safety personnel in our country today.

I believe you would be hard pressed to find a Member of Congress who does not have significant respect for public safety officers. We have all visited a fire hall or ridden along with an officer in a "ride-along" program, seen paramedics at work, and a vast array of other opportunities in which Members have worked with public safety personnel. These true public servants are literally the last line of defense against disaster for our constituents, and when one of them falls in the line of duty, it is truly a national tragedy.

A little more than a year ago, one such tragedy occurred very close to home, when a lone gunman took the lives of two brave men sworn to protect the Capitol and its visitors. It is our responsibility to do all we can to protect those men and women who protect us and ensure that they are rewarded for their selfless work.

The question is how do we best accomplish this? While many proposals have been offered that address a vast array of issues, we are here today to discuss a proposal that would expand collective bargaining rights.

The Public Safety Employer-Employee Cooperation Act requires each State to pass a statute that among other things, grants public safety officers the right to form and join a labor organization that is or seeks to be recognized as the exclusive bargaining agent for those officers. It requires public employers to recognize the labor organization and agree to a contract with that organization. It allows the contract to include provisions on hours, wages, and terms and conditions of employment, and prohibits the contract from covering issues, which are traditional, and customary management functions, allowing enforcement of the law through State courts.

Supporters of this legislation argue that, by each State enacting a law with the above provisions, communities will realize more efficient and cost-effective public services.

The legislation also has its detractors, including, significantly, organizations representing State and local lawmakers.

I will admit that I have got some serious concerns about the legislation. I am not convinced that the provisions required are modest requirements, which most States already meet. I am somewhat uncomfortable with the concept of expanding the authority of Federal agencies at the expense of local lawmakers. I am concerned that the legislation fails to ensure basic rights to individual union members and employees such as the right to join a union or not to join a union, and protections for workers to make sure that the democratic principles and protections against fraud and abuse that exist for workers in the private sector are in fact met.

I am sure my colleagues on the Subcommittee also have questions and concerns, and that is why we are here today.

Fire fighters, police officers and emergency medical service personnel fill an important role in our society. Americans count on the comfort and security of knowing that they and their loved ones are being served and protected by the most effective and efficient public safety system in the world.

Chairman Boehner. I would like to yield now to my colleague and good friend, the Ranking Member of the Committee, Rob Andrews.

Mr. Andrews. I thank you, Mr. Chairman. I look forward to hearing from the panel this morning.

I am proud to stand with over 240 of my colleagues, including over 50 Members of the Republican Party, as a cosponsor of this legislation. I am a believer in collective bargaining. I think it works in every aspect of our economy, and it should work here.

I am also a believer in the incredible public commitment that those who ride in our police cars and serve on our fire apparatus and serve as EMTs and serve as corrections officers and other law enforcement officers give us. No one does any of those jobs because they want an easy life, or to make a whole lot of money, because neither of those two things is true. There is an element of public commitment in each of those.

I note for the record that some of our corrections officers who I believe would be protected and would benefit from this bill are present with us. I would just ask if some of the corrections officers that are in attendance with us this morning would stand and be acknowledged for a moment. We welcome them to the hearing.

I want to yield at this time to one of the two principal officers of this legislation, my very good friend and a real leader not only on our Committee but in the caucus, the gentleman from the State of Michigan, Dale Kildee. I yield him the balance of my time

Mr. Kildee. I thank the gentleman for yielding, and I thank the Chairman for holding this hearing today.

This Public Safety Employer-Employee Act would enable public safety employees the ability to discuss work conditions with their employers. I sponsored this legislation because I feel that public safety officers who risk their lives to protect us deserve a say in decisions that affect their lives and their livelihood. I have lost several friends who gave their lives.

I want to thank the various organizations that worked with me on this legislation, including the International Association of Fire Fighters, the Fraternal Order of Police, International Brotherhood of Police Officers, International Union of Police Officers, and National Association of Police Organizations. I would like to thank the National Association of Police Organizations for conducting this survey. I commend all of you to look at this as a very good service to everybody in this country, including the Members of this Congress.

When I was in the State legislature in Michigan, during my very first term I was cosponsor and helped pass the legislation back in 1965 which grants all public employees the right to bargain collectively as well as the legislation that implemented compulsory and binding arbitration for all police and fire fighters. In Michigan, these laws have led to a working environment that effectively protects the public that both employers and employees can be proud of. Studies have duly found that cooperation between public safety employers and employees reduces fatalities, improves public safety services and saves the taxpayers money.

While I feel that the Michigan law is an example of how employer-employees can work together, I did not want to impose that structure on all States. I recognized that States might have different methods that are effective for them. Under this modest legislation, the Federal Government merely sets up a minimum standard that States have the flexibility to implement, regulate and enforce as they see fit. Many States have laws in place that go far beyond this law, and those States would not be affected by this legislation.

Additionally, I want to make it clear that this legislation does not allow strikes or lockouts of any sort and preserves all management rights. Fire fighters and police officers are very serious about their commitment to public safety. They deserve this basic right to sit down with their employers and discuss their work conditions.

The reasonableness of this legislation is demonstrated by the wide bipartisan support it has from its 241 cosponsors. That is an enormous number of cosponsors inasmuch as it takes only 218 to pass a bill.

I urge my colleagues to join me in moving this legislation through the House. Again, I want to thank Chairman Boehner for his willingness to have this hearing today. I yield back the balance of my time.

Mr. Andrews. If I could do one other thing, I want to submit for the record four statements. One from the International Union of Police Associations, one from the International Brotherhood of Police Officers, one from the National Association of Police Organizations, and one from the American Federation of State, County and Municipal Employees, all in support of the bill.

Chairman Boehner. I want to thank my colleagues for their opening statements and begin to introduce our witnesses.

Today's first witness will be Dr. Frederick Nesbitt. Dr. Nesbitt is the Director of Governmental Affairs for the International Association of Fire Fighters. We want to welcome you and thank you for your tireless work on behalf of this bill. Our second witness will be Mr. Gilbert Gallegos. Mr. Gallegos is the National President of the Grand Lodge of the Fraternal Order of Police. Welcome.

We will then hear from Mr. Theodore Clark. Mr. Clark is here today from Chicago, Illinois, where he is a partner at the law firm of Seyfarth, Shaw, Fairweather & Geraldson. Our fourth witness will be the Honorable Gene Kinsey. Mr. Kinsey is the Mayor of Grand Junction, Colorado. Our final witness today will be Mr. George Costello. Mr. Costello is a Legislative Attorney, American Law Division, for the Congressional Research Service.

I would like to remind Members that we will ask questions after we hear testimony from all of our witnesses. We let the witnesses know that the clock in front of you will be green for 4 minutes, it will turn yellow for 1 minute, and then at 5 minutes it will turn red. We are not very strict about the clock in our Committee because the last year and a half we have not had any problems. If you have a little more you want to say, don't be inhibited by the clock.

With that, Dr. Nesbitt, you may begin.

Dr. Nesbitt. Good morning, Mr. Chairman. I certainly appreciate you holding this hearing.

I am the Director of Governmental Affairs for the International Association of Fire Fighters, a union that represents over 97 percent of our Nation's professional fire fighters and emergency medical personnel. I appear before you today in support of H.R. 1093, the Public Safety Employer-Employee Cooperation Act.

I am aware of no legitimate voice on the American political scene today that questions the basic right of employees to join together for the purposes of expressing their workplace concerns to their employers. Collective bargaining is overwhelmingly used as a mechanism to enable labor and management to work together for their mutual benefit. Collective bargaining has become the tool by which labor and management resolve differences. But collective bargaining is not just about legal protections and working conditions. It is about dignity and justice. The ability of workers to have a voice in their job is as important to many as the right of citizens to have a voice in their Nation.

Collective bargaining is a common practice in the public sector, and studies have consistently found that it improves public services. Fire fighters' concerns are unique because their jobs are different. No other occupation combines such danger with such dedication to public service.

Every year, more than one-third of our 230,000 members are injured on the job, and nearly 100 lose their lives. H.R. 1093 is based on the premise that all fire fighters and police officers deserve the basic right to discuss their working conditions with their employer. Rather than imposing a Federal labor relation law on the States, the goal of this legislation is really to have 50 State laws that are administered by State agencies, enforced by State courts. Basically, the legislation lists the minimum rights, which are the right to join and form a union, the right to bargain over working conditions, and the right to sign legally enforceable contracts.

Any State law that contains these basic rights, as most State laws do, including your State of Ohio, Mr. Chairman, would automatically be exempt from this Federal oversight. Those States that do not meet these requirements would be given a year to enact conforming legislation.

Those States that decline this opportunity to administer their own collective bargaining laws would come under the jurisdiction of the Federal Labor Relations Authority, which will issue regulations that will function as labor laws in these States, and the FLRA would serve as the Labor Board for public safety employers and employees.

H.R. 1093 does not require binding arbitration and expressly prohibits the right to strike. Despite the profound impact that H.R. 1093 would have on the lives of fire fighters and other public safety officers, the impact on State and local governments would be negligible in most cases. We believe there are only two States where there would be a major impact, and that is North Carolina and Virginia. These two States expressly outlaw public sector unions, they forbid collective bargaining, and they bar public agencies from entering into any sort of agreement with their employees.

Mr. Chairman, we make no apologies for requiring these outdated laws to be modernized. H.R. 1093 has the potential to enormously benefit the lives of public safety officers and their families. I would like to take a couple of minutes this morning to introduce you to two very brave fire fighters whose rights would be protected by H.R. 1093.

Mr. Chairman, I want you to meet Matt Mosley, behind me. Thank you. I have a photograph of Matt Mosley for the Subcommittee. America watched on live television as Matt Mosley was lowered from a helicopter by a cable to rescue a worker trapped on the roof of a burning building in Atlanta, Georgia. What those cameras failed to capture were the dire conditions in the Atlanta Fire Department, which was operating without adequate staffing. Fire fighters like Matt Mosley were forced to use defective breathing apparatus, and were underpaid compared to police officers. The problem was that the city government refused for the last 6 years to meet with the fire fighters' local union to discuss workplace concerns.

This young man, after this rescue, bluntly told the Mayor about the many problems and expressed his strong objections to the Mayor's refusal to meet with the union. Under the glare of national attention, the Mayor quickly announced a resolution of all the problems and committed to working with the union.

The day after Matt mostly risked his life to save the life of a fellow citizen, he risked his job to protect his own life. Mr. Chairman, this is wrong, it must be changed, and you have the power to change this.

I also want you to meet Michael Regan. We have a picture of him. He is a member of the FEMA urban search and rescue team, part of the Fairfax County Fire Department. This is part of our Nation's response to disasters at home and abroad. In the past decade, he has been sent by the Federal Government to respond to disasters from Tokyo to California and to respond to terrorist attacks from Nairobi, Kenya, to Oklahoma City. Here is a picture of him in Turkey doing an urban search and rescue mission.

He is sent to the most dangerous locations possible. Yet when he returns home to Virginia, he is denied the right to discuss his own safety with his employer. This is wrong, this must be changed, and, again, Mr. Chairman, you have the power to change this.

These are just two of the countless examples that illustrate what happens when fire fighters do not have the right to discuss workplace issues with their employer. The clear solution is to create a mechanism for employers and employees to work out their differences in a cooperative fashion, and this is the goal of H.R. 1093.

The primary argument against H.R. 1093 is that it violates States' rights. Proponents of this argument often claim to fully agree that public safety officers should have bargaining rights, but they believe the issue should be left to the States.

H.R. 1093 defers to State collective bargaining laws. The only States that would find themselves under Federal jurisdiction are those that choose to invite the Federal Government into their State by declining to even adopt a State statute providing these bare minimum rights to public safety officers. H.R. 1093 allows the States wide latitude in crafting collective bargaining laws.

Congress has repeatedly protected the rights of public employees along with their private sector counterparts. H.R. 1093 is consistent with a long list of such laws enacted by Congress, which are not deemed to be an infringement on States' rights. Those who use this argument in opposition to H.R. 1093 are simply using federalism as a convenient smoke screen.

Some argue that Congress should not pass H.R. 1093 because it will be ruled unconstitutional. This line of reasoning is either wishful thinking or a misreading of recent Supreme Court cases. The Supreme Court continues to reaffirm the right of the Federal Government to protect State and local government workers. The Garcia decision is still the law of the land, even after last week's Supreme Court decision on FLSA compensatory time. Mr. Chairman, I would ask that a copy of a legal memorandum entitled the Constitutionality of the Public Safety Employer-Employee Cooperation Act of 1999 be entered into the record.

The right of fire fighters to bargain with their employer is about much more than the specifics of workplace issues. It is about dignity, and it is about respect. Ultimately, the issue of collective bargaining comes down to whether we truly want to protect the health and safety of America's public safety officers like Matt Mosley and Michael Regan, who put their lives on the line day in and day out to protect the rest of us and who deserve no less than the right to protect their own lives. No fire fighter should have to put his job on the line to protect his own life.

I hope you will agree there is simply no compelling argument to dissuade Congress from enacting H.R. 1093. Mr. Chairman, I urge you to mark-up and report out this bill immediately.

I thank you for your consideration of our views. I will be happy to answer any questions you may have.

Chairman Boehner. Dr. Nesbitt, thank you for your testimony.

Before Mr. Gallegos begins, let me introduce the other cosponsor of this legislation, Representative Bob Ney of Ohio, who does not sit on the Committee but has joined us today. Welcome, Bob.

With that, Mr. Gallegos, you may begin.

Mr. Gallegos. Good morning, Mr. Chairman, and distinguished Members of the House Subcommittee on Employer-Employee Relations. My name is Gilbert G. Gallegos. I am the National President of the Fraternal Order of Police.

I am pleased to be here today to testify on behalf of the members of the FOP, but also on behalf of Sam Cabral, President of the International Union of Police Associations; Tom Scotto, President of the National Association of Police Organizations; and Ken Lyons, President of the International Brotherhood of Police Officers. Collectively, we represent in excess of 500,000 professional law enforcement officers in every region of the country. These other organizations have submitted written testimony, as you noted in your statement, Mr. Chairman.

Let me start with the Republican Contract with America, which had, as the first principle, a requirement that all laws that apply to the rest of the country also apply equally to Congress. So the 104th Congress adopted the Congressional Accountability Act, which granted Congressional employees the right to organize. This Act, which many of you here supported, recognized the right of the U.S. Capitol Police, which the FOP represents, to bargain collectively. So, for the first time, Capitol police officers have a voice in matters related to their livelihood. Within 1 year a contract was negotiated and in a timely fashion, without any disruption of law enforcement services. As a result of the contract, the U.S. Capitol police are a more effective and more professional police agency today.

Regrettably, not all law enforcement officers have the bargaining rights enjoyed by the U.S. Capitol Police. With the adoption of the Congressional Accountability Act, public safety officers are virtually the only workers in America who are denied this right. The legislation I am here to support, H.R. 1093, the Public Safety Employer-Employee Cooperation Act, is a much more modest proposal than the Congressional Accountability Act, but it is no less important and no less deserving of passage.

Collective bargaining is a critical tool to resolve differences, not create them. The success of law enforcement missions depends on an open dialogue that is absent in far too many of our police departments in this country. This legislation affords the opportunity to public safety employees to form and join a union, giving the rank and file officer a voice in the workplace, and provides management with needed feedback.

We know that crime fighting is successful and effective if conducted by a team working together with open dialogue and a process, which addresses disputes and differences of opinion. To illustrate that, let me draw again on the experience of the U.S. Capitol Police. In the Contract, they have a joint Labor-Management Relations Committee to review police practices and procedures, and another to review equipment issues and officer safety. Since the bargaining agreement has been in place, the U.S. Capitol Police have increased the acquisition and distribution of soft body armor and updated their sidearms to 40 caliber. The views of the rank and file officers have resulted in more efficient manning of fixed posts within the complex, making it a safer place to work and visit.

By guaranteeing the right to bargain collectively, H.R. 1093 will enable other law enforcement agencies to improve their own public safety performance and professionalism, just as the U.S. Capitol Police have done.

Unlike past initiatives involving public sector collective bargaining, the Public Safety Employer-Employee Cooperation Act does not seek to impose a Federal law on States or involve the Federal bureaucracy in State affairs. It merely establishes a framework for collective bargaining, and sets out the rules. Our ultimate game is to have 50 State laws in 50 States that are administered by State authorities and enforced by the State courts. Ideally, H.R. 1093 will require no more Federal involvement in State labor relations than currently exists. Thus, our bill is modest, but crucial. In fact, this legislation ultimately requires only one thing: recognition that public safety officers have a right to sit down and talk with their employer about the problems that exist within that department.

Less than a week from now, on May 15th, we will stand at the west front of the Capitol with the President and numerous Members of Congress to commemorate Peace Officers Memorial Day. This ceremony will honor the memories of 139 law enforcement officers killed in the line of duty in 1999. The surviving family members who attend this solemn event know better than anyone here what the ultimate sacrifice means. During this event and other police week activities, elected officials from throughout the country and community, and national leaders will recognize in all their speeches the sacrifices that officers make and how they give their lives in the line of duty. And the fact is that police officers are still on the front lines today.

I suspect that next week the Congress will consider many law-enforcement related proposals. I am asking, Mr. Chairman, that this bill be one of those being considered. Few pending bills are as crucial or needed to improve the safety of the officers and the public, as is H.R. 1093.

I have heard over my 35 years in law enforcement many speeches about how important law enforcement really is. Now law enforcement is asking for action. I believe that we should honor our fallen heroes, and those that stand ready to give their lives in the line of duty should be given due respect. I believe the Members of this Subcommittee do respect those heroes in uniform, and I believe that the underlying motivation of H.R. 1093 is about respecting law enforcement officers, their views about the workplace, about their own safety, and their commitment to public safety. It is all about mutual respect, Mr. Chairman, and creating a positive ability to have sound public safety missions accomplished. So I urge you to pass this bill.

I want to thank Congressman Dale Kildee of Michigan and Congressman Bob Ney of Ohio. They have worked tirelessly on this legislation. We appreciate it.

I want to also reiterate my thanks to the other presidents of the other organizations. They have worked diligently on this legislation, and they deserve no less recognition.

In conclusion, Mr. Chairman, I want to thank you for holding this hearing. I know that this bill is something that you may not agree with. On the other hand, it shows your fairness to us, the law enforcement officers across this country, and we appreciate that. On behalf of the 22,000 FOP members in Ohio, we also send you our thanks and gratitude for this.

Chairman Boehner. Thank you for your testimony.

Mr. Clark.

Mr. Clark. Thank you, Mr. Chairman, and Members. It is an honor to be here today to testify with respect to H.R. 1093.

While I am formally testifying on behalf of the National Public Employer Labor Relations Association, my testimony is supported and endorsed by the International Personnel Management Association, the United States Conference of Mayors, the National League of Cities, and the National Association of Counties.

At the outset, let me say that I am a proponent of collective bargaining for public employees where a majority of those employees opt to be represented for the purposes of collective bargaining. I have authored an article in Illinois urging the Illinois General Assembly to adopt a law, which it ultimately did; and since the 1960s I have literally negotiated several hundred collective bargaining agreements, a majority of which cover police and/or fire fighters. So I am pro collective bargaining.

Let me turn now to the issue at hand, namely H.R. 1093. Both the Supreme Court and constitutional scholars alike agree that all three branches of government have the same obligation to uphold the Constitution and the principles upon which it is based. One of those principles is the recognition of the essential and unique role that States and units of local government play in our Federal system. One of the unquestioned and essential core functions of States and units of local government is the provision of fire and police services.

It is the position of all of the public sector employer organizations on whose behalf I speak today that Congress should not enact Federal legislation mandating collective bargaining for fire fighters and police officers at the State and local level. This is an area that is clearly best left to the judgment and discretion of the States and their political subdivisions.

If, however, Congress were to enact H.R. 1093, the final arbiter of its constitutionality would be the Supreme Court. And on that score, it is absolutely clear, as I reviewed in some detail in my written statement, that the current Supreme Court would hold it unconstitutional as applied to the States and that it would in all likelihood reach the same conclusion as applied to units of local government.

But aside from the compelling constitutional issues, there are equally compelling legal and practical arguments against enacting H.R. 1093. While the apparent assumption is that the States with collective bargaining laws would not have to worry, and we have heard some assurance of that from the first two speakers, because H.R. 1093 is a minimum standards bill, a review of that bill and the history of Federal management agencies not ceding jurisdiction to States reveals the fallacy of that assumption.

As a long-time Chairman of the New York City Office of Collective Bargaining, Arvin Anderson, noted when he testified on proposed public sector collective bargaining legislation back in 1972, and I quote, "The experience of the administration of the Labor-Management Relations Act by the National Labor Relations Board throughout its entire history demonstrates conclusively that a Federal administrative agency will, if left to its own discretion, refuse to cede to any competent State authority administration over any phase of its statute." .

Apart from that very real concern is the fact that most if not all of the State laws that presently exist would not meet H.R. 1093s "substantially provides" test. Let me give you but one example from my home State of Illinois.

The Illinois act exempts from coverage units of local government employing less than 35 employees. This so-called small employer exemption was the result of a determination, locally made, that the costs and burdens associated with collective bargaining for small units of local government, typically those with less than 5,000 population, were sufficiently great enough to justify excluding them from coverage.

While this was the considered judgment of the Illinois General Assembly, the FLRA would probably find under this act that the Illinois act did not meet the "substantially provides" test.

Time does not permit me this morning to review a myriad of other examples, but it would be a major mistake to underestimate the tremendous adverse ramifications that enactment of a federally mandated, one-size-fits-all approach to collective bargaining would have on States and units of local government.

That Federal legislation is not needed, as a practical matter is clear from what the States have already done in this area. By my count, 38 States have enacted collective- bargaining laws covering both fire fighters and/or police officers, and most of those laws go far beyond the much more limited provisions of the Civil Service Reform Act of 1978 that covers fire fighters and police officers employed by the Federal Government.

Even in those States that do not have such laws, in most of them collective bargaining is legally permissible; and in many of those States public employers have negotiated contracts covering police and/or fire fighters.

Not surprisingly, the statistics on union membership among fire fighters and police officers are overwhelming, especially when you contrast it with the less than 10 percent of all private sector employees who are union members. Over 70 percent of all fire fighters and over 65 percent of all police officers are union members.

In summary, Mr. Chairman and Members of the Committee, H.R. 1093 is constitutionally, legally and practically a suspect solution in search of a problem that does not exist.

Thank you for the opportunity to testify this morning.

Chairman Boehner. Thank you, Mr. Clark. Mr. Kinsey.

Mayor Kinsey. Mr. Chairman and Representatives, thank you for the opportunity to be here today and to speak with you.

On February 1st of the year 2000, the City of Grand Junction held a special election to decide a very similar issue. That question was the focus of much discussion and debate in the community of Grand Junction, Colorado. As a regional hub, Grand Junction is home to three local television stations, numerous radio stations and a daily newspaper. The election issues were well covered preceding the election, and I am pleased to be able to offer to the Committee the experience and the debate and the outcome of that election in a real community of voters, in a small community and a local community.

Just a bit of background. The City of Grand Junction is the largest city in western Colorado. It has a current population of about 45,000 and is surrounded by an unincorporated area with a population of approximately 110,000. As the central city, Grand Junction provides services usually associated with much larger areas. It provides fire and emergency medical services to outlying areas, it provides a police laboratory, it provides a countywide 911 call center, and medical services. We have a college. We are home to many Federal, and State agencies. It is a very diverse community, a community that contains manufacturing, agriculture, and a very diverse population.

As a matter of fact, Grand Junction is often a test market for the introduction of new products in the United States. I am not sure why that is, but it is one of the small claims to fame we have in Grand Junction.

The ballot question that the voters were asked was whether or not to amend the charter of the City of Grand Junction to mandate collective bargaining for police and fire employees. This was a well-discussed issue. Starting in March of 1999, the City Council elections were held, and candidates were asked that very question. So the process began a year before the election, the discussion of that issue.

Questions were asked of the city, as to why should the people of Grand Junction be concerned about employee relation problems? The answer is that the community is the employer. Members of the police and fire department are their employees, and it is taxpayer money that pays the salaries, pays for the equipment and funds the operation.

Under our present charter, the community is the ultimate boss. The Grand Junction charter gives decision-making authority to citizens through elected civilian representatives, the City Council. If voters do not agree with council policies, council members can be removed and replaced. Elections are held every other year. The City Council is charged with balancing the needs of the whole diverse community. The focus of the Council is not and should not be on a single department or a single employee group.

One of the considerations that is always on top of our list is that local governments in the State of Colorado and the State of Colorado itself have very small budgets, and we are required by law to have a balanced budget every year. We can't go past that.

In examining the issue, opponents of the charter amendment brought up four points: One is that collective bargaining with police and fire employees, often resulted in divided loyalties, whether they are loyal to the union or loyal to the citizens they serve. Both the proposed amendment in the City of Grand Junction and the current proposed bill forbid strikes, but neither of those pieces of legislation imposed any penalties. A prohibition without penalty is not effective.

Collective bargaining almost always results in increased costs. Although it has been said that in some areas the presence of departments that operate with collective bargaining operate with smaller budgets than in areas that do not, I could not find any example of a community where a budget was reduced after the imposition of collective bargaining.

We were also concerned about reduced community services because of the necessity of balancing our budget. As I mentioned, these issues were discussed, written about, talked about, debated in forums, on TV and the radio and newspapers, for almost a full year before the election. The election was held on February 1st in the year 2000. There was an outstanding turnout. Fifty-four percent of the registered voters cast a ballot, the highest in recorded history in Grand Junction.

The yes vote to amend the charter and mandate collective bargaining was about 30 percent. The no vote was 68 percent. The community hearing the arguments and discussing the matter overwhelmingly voted not to amend our charter and not to mandate collective bargaining.

I think that I would like to make two points about that. There was no call for an opposite amendment to our charter. There was no call to prohibit collective bargaining. There was only the mandate from the voters not to require it. They left the option open for the future so that we may at some time choose to do so, which leads me just to my final point of the importance of local government and local decision making.

I think that the framers of our Constitution were well aware of both the dangers and the limitations of a central government. The limitations come from the fact that one of the great strengths of the great American experiment in self-government is the diversity of political thought, its culture in thousands of local communities. When we speak about diversity, what is truly important is diversity of thought. The fact that each local government can debate, discuss and develop solutions to the problems of free individuals living together in communities is the foundation of good government.

There are probably more than 16,000 cities in the United States as well as villages, and townships. Each community is a laboratory of political thought where new and better practices are developed and shared throughout the Nation.

The language, the philosophy and the practical nature of the tenth amendment of the United States Constitution I think is very clear, especially the practical nature of it. Listening to some of the comments this morning about the fact that the proposed legislation would allow States some variety in their response but would result in the imposition of a statewide rule is no consolation to local governments. We believe that each local government should have the opportunity to experiment, to create, and to develop solutions that are unique to each individual community.

Thank you.

Chairman Boehner. Thank you, Mayor.

Mr. Costello.

Mr. Costello. Thank you, Mr. Chairman, Members of the Committee.

My name is George Costello. I am an attorney with the American Law Division of the Congressional Research Service. The Subcommittee has invited me to testify with respect to constitutional issues raised by H.R. 1093 and addressed in a memorandum I prepared for this Subcommittee in February of this year. I don't have background or expertise in labor law, and the Committee understands, I would like to confine my testimony to constitutional law issues.

As you know, the Congressional Research Service has a statutory responsibility to provide Congress with objective and nonpartisan analysis. Consistent with that policy I am not here today to support or oppose passage of H.R. 1093.

My written statement addresses three issues.

First, the commerce power tenth amendment issue and the Garcia case; second, possible validity of H.R. 1093 under the fourteenth amendment enforcement power; and, third, H.R. 1093's enforcement provision and its consistency with the Supreme Court's recent sovereign immunity decisions.

In order to limit this opening statement to 5 minutes, however, I will address only the first issue now. I believe that the bill's constitutionality would stand or fall with the Supreme Court's 1985 decision in Garcia versus San Antonio Metropolitan Transit Authority. Let me explain.

H.R. 1093 would require States to bargain collectively with public safety officers defined to include policemen, firemen and rescue workers. In Garcia, the court upheld application of minimum wage and overtime provisions of the Fair Labor Standards Act to State and local employees. Garcia thus stands for the proposition that Congress may regulate the terms and conditions of State employment, and that is basically what H.R. 1093 does.

Garcia overruled National League of Cities versus Usery, a 1976 decision decided by a 5 to 4 vote of the Court, in which the Court had held that application of the Fair Labor Standards Act to State employees exceeded the commerce power by infringing on State sovereignty. According to the National League of Cities' court, application of the Fair Labor Standards Act to the terms of State employment displaced the State's freedom to structure operations in areas of traditional governmental functions.

In Garcia, the Court again by a 5 to 4 vote with Justice Blackmun having changed his mind, held that the National League of Cities had proved unsound in principle and unworkable in practice. The Court suggested that in most instances States would have to find redress for federalism-based grievances in Congress rather than in the courts.

Now, the Court abandoned this unusual disavowal of judicial review in 1992 in New York versus United States, although Garcia's holding was not at issue and was left undisturbed.

What does this mean about Garcia's status now? Is Garcia still good law? Yes, it has not been overruled. Garcia is, however, a shaky precedent. Will Garcia be overruled? I can't tell you, and I don't think anyone else can, other than the Justices themselves.

In my prepared statement I have listed several reasons why the Court might overrule Garcia and several reasons why the Court might choose not to. Let me summarize briefly.

As for reasons why the Court might overrule Garcia, I have already mentioned that the Court has abandoned the rationale that States must seek redress from federalism complaints in Congress and not in the courts.

A second reason is in Justice Rehnquist's unusual dissent in Garcia, in which he said there was no reason to spell out dissenting views at length because he was confident the dissent would, in time, command a majority vote of the Court.

The third reason is that there is now a solid five-justice majority that has imposed federalism constraints on assertions of Federal power believed to infringe State sovereignty.

In my own memo and my prepared statement I have tried to spell out the contours of this trend. Sooner or later, this majority may wish to reconsider Garcia, whether by closing the circle on federalism or by providing guidance as to Garcia's scope.

There are several reasons why the Court might exercise restraint. First, the five-member majority may not be able to agree on a workable principle that gives promise of being more enduring than the National League of Cities' test for traditional governmental functions.

Second, the Court has refused to review each time it has been asked to overrule Garcia. We have identified five such cases, four of which are listed in my prepared statement and the fifth of which is West versus Anne Arundel County, a 1998 decision.

With the Lopez decision, the anti-commandeering decisions and the eleventh amendment sovereign immunity decisions out of the way, will the Court soon be ready to take on Garcia? I don't know.

Finally, there is the principle of stare decisis and the unseemliness of flip-flopping on the very same issue three times in 25 years, while the National League of Cities had overruled Maryland versus Wirtz and, in turn, was overruled by Garcia. All it takes, therefore, is for one justice out of the five-justice federalism majority to have misgivings about this unseemliness, and Garcia would survive in one form or another.

This concludes my opening statement, but I would be happy to try to answer any questions the Committee may have.

Chairman Boehner. Mr. Costello, thank you for coming and thank you for your testimony. I want to thank all of the witnesses for their excellent testimony this morning.

Clearly this constitutional issue has been referred to on more than one occasion this morning. Mr. Clark, on the issue of whether H.R. 1093 is constitutional or not, can you explain in laymen's terms what the commerce clause and the enforcement clause are and what power Congress does or does not have under them as relates to public sector bargaining?

Mr. Clark. That is a pretty broad question, but I will try.

The commerce clause gives Congress rather broad authority to regulate with respect to interstate commerce. However, the Supreme Court in the Lopez case that Mr. Costello alluded to, a 5-4 decision, said that there are some limits on the scope of how far Congress can go under the commerce clause in terms of enacting legislation. In particular, it held that the legislation at issue must substantially affect interstate commerce in order to be constitutional under the commerce clause.

Now, there is the remaining issue, as Mr. Costello outlined, between National League of Cities and Garcia, and there is a real question as to whether or not the current majority or the Supreme Court would, if properly presented, decide Garcia the same way it was decided. I think there is a more than likely chance it would revert to the National League of Cities' rationale.

There is one other facet of commerce clause jurisprudence that should be noted. A five-member majority of the Supreme Court has clearly held that the commerce clause cannot be used by Congress to abrogate the eleventh amendment immunity of States. That does not apply to units of local government but the eleventh amendment immunity of States.

As a result, in the Kimmel decision issued on January 9th of this year, the Supreme Court held that the ADEA, the Age Discrimination in Employment Act, was unconstitutional as applied to States.

With respect to the fourteenth amendment, Congress does have the authority under section 5, the enforcement clause, to enact legislation to secure rights that are constitutionally protected. The Supreme Court held in terms of the Civil Rights Act of 1964, for example, that Congress did have the authority to adopt the Civil Rights Act. But there have been four or five fairly recent decisions in which the Supreme Court has clearly said that it, and not Congress, has the right to determine the contours of constitutional protections, and when Congress seeks to enact legislation that would enhance constitutional protections, the Court will review it in terms of whether it is congruent and proportional to the relief being legislated on.

In a series of cases it has held that Congress did not have that authority. As applied to the issue here in terms of collective bargaining, the courts have uniformly held that the right to engage in collective bargaining is not a constitutional right. The Supreme Court in the Arkansas highway case's unanimous decision held that there is no constitutionally protected right to engage in bargaining. A right oh join the union, yes, but not the right to engage in collective bargaining.

So I think it is rather clear that, as applied to a collective bargaining bill, the Court would find that Congress does not have the authority under section 5, the enforcement clause, to adopt it under the fourteenth amendment.

Chairman Boehner. I would like to give Dr. Nesbitt and Mr. Gallegos an opportunity to respond on the constitutional question, if you would like.

Dr. Nesbitt. First of all, Mr. Chairman, I can give you a layman's explanation, because I am not a constitutional lawyer.

Chairman Boehner. Thank you. I appreciate that. I am not a lawyer in any case.

Dr. Nesbitt. Then we will understand one another this morning.

We think the constitutionality comes from a number of arguments.

First of all, fire fighters deal with interstate transportation. We deal with terrorist issues. We send, for example, as I mentioned earlier, the teams across the United States, across the world, in terms of responding to natural disasters. We respond to terrorist attacks. So I think there is a legitimate constitutional right of the Congress, and Congress has over the years dealt with employee issues.

They granted collective bargaining rights to private sector employees through the National Labor Relations Act. They expanded that to Federal employees. They expanded it to transport workers who work for public transportation companies. They have expanded it to congressional employees. So the only people that are left are State and local government employees who have not had these rights extended to them. So we think that it is constitutionally sound under both the commerce clause and based on the practices of what Congress has done over the years.

Chairman Boehner. Mr. Gallegos.

Mr. Gallegos. Mr. Chairman, thank you.

I guess one of the real intrusions of Congress is the minimum wage provision of the Federal law. It operates from Microsoft all the way to McDonald's. This Congress has passed legislation for years, and I am not saying rightly or wrongly, that mandates there be a minimum wage for even your "mom and pop" type of operations. So is there a constitutional question?

This Congress also passed the Lautenberg Act, which deals with firearm convictions or convictions regarding domestic violence all the way to the misdemeanor level. The Supreme Court has upheld that.

OSHA regulations apply all the way to your "mom and pop" businesses in every community in this country.

The Crime Bill of 1994 creates a pattern and practice provision that applies to every Police Department in this country. What provisions under the Constitution require that? I think that really comes into question when you are trying to deal with the constitutional issues of what you can do and what you cannot do.

So I am saying that this Congress has the pattern and practice of passing mandates that impact every locale in this country. The mayor from Grand Junction, Colorado, mentioned that they don't want a State mandate for local government dictating what they should do, or whether they should bargain or not and so forth. I don't know what it is about fire fighters but every State that I know of in this country regarding law enforcement, mandates strict certification requirements, training requirements, and re-training requirements for firearm qualifications, for virtually every Police Department in this country. How do they do that? The State has the power to govern the people within their boundaries.

So I don't think the constitutional question should even be at issue. If we want to bring it up to issue, let's pass the legislation and let us see what happens.

Chairman Boehner. My time has expired, but I will be back for a second round of questions, and we will go into the more practical aspects of this bill.

Mr. Andrews.

Mr. Andrews. Thank you, Mr. Chairman, and I thank the panelists for outstanding testimony in all respects. It is very much appreciated.

One of the responsibilities of Congress as a coequal branch of government is to effectuate our own interpretation of the meaning of the Constitution. Part of the reason for this hearing today is to examine that question. I want to ask Dr. Nesbitt and Mr. Gallegos some questions about activities that their members are engaged in that might substantially affect interstate commerce.

Dr. Nesbitt, does your union represent fire fighters in the State of New York?

Dr. Nesbitt. Yes, we do.

Mr. Andrews. Did they respond to the bombing incidents at the World Trade Center a few years ago?

Dr. Nesbitt. They were the first responders, yes.

Mr. Andrews. Mr. Gallegos, do you represent police officers in New York City?

Mr. Gallegos. The PBA does, and they are affiliated with the National Association of Police Organizations. They do, in fact, represent police officers. They certainly did respond to that incident.

Mr. Andrews. My understanding is, and correct me if I am wrong, there are hundreds if not thousands of business enterprises located in that building, is that correct?

Dr. Nesbitt. That is correct.

Mr. Andrews. Were the activities of those businesses adversely affected by the bombing attack on the building, either of you?

Dr. Nesbitt. Absolutely.

Mr. Andrews. Was business shut down for a sustained period of time?

Dr. Nesbitt. Yes.

Mr. Andrews. I would assume you don't know the specific answers, but it is a reasonable conclusion, isn't it, that contractual relationships and economic relationships among the people in the building and their customers all over the country and world were affected, is that correct?

Dr. Nesbitt. That is a reasonable assumption, yes.

Mr. Andrews. Mr. Gallegos, do the officers that you represent engage in investigating and prosecuting Internet crimes?

Mr. Gallegos. Absolutely. Cyber-crime is one of the emerging crime problems. They certainly do have a role.

Mr. Andrews. Do they engage in investigating and prosecuting crimes that involve the use of long distance telephone, U.S. mail, Federal Express and UPS and other package services?

Mr. Gallegos. Absolutely. I have personal experiences with that.

Mr. Andrews. Do police officers commonly interact with officers from other States and jurisdictions to investigate crimes?

Mr. Gallegos. Daily.

Mr. Andrews. Dr. Nesbitt, is the same true with fire fighters with respect to arson investigations and follow-up from a fire?

Dr. Nesbitt. Absolutely, yes.

Mr. Andrews. I think the report is clear there is a very credible argument, that the activities of police officers, fire fighters, EMS personnel, corrections officers, daily have an effect on interstate commerce. It is my view it is a substantial effect on interstate commerce.

I fully understand, Mr. Clark, that whether the Supreme Court would find it to be a substantial effect is an open question, and I appreciate your legal analysis, but I think that your statement of confidence is unusual in predicting what five members of the Supreme Court would do. I guess, in the same spirit, I would ask you to submit to the Committee your forecast of tonight's "Powerball" lottery drawing, because I sometimes think they would be equally decipherable in advance.

Mr. Clark, let me ask you something. Under usual interpretation of the Court decisions, if a State legislature decided in order to close a shortfall in the State budget that they wanted to take the entire balance of police and fire pension funds and spend the money to plug a hole in the State budget and replace those pension funds when they got around to it, without interest, do you think we have the constitutional authority to enact a statute that would preclude them from doing that?

Mr. Clark. I would suspect under the Constitution and precedents in every State of the Union pensions are viewed as vested rights. It would be probably viewed in terms of a contract clause analysis, and a State legislature I don't think would have the authority to do that, absent extremely exigent circumstances.

Mr. Andrews. Let me give you a case I am specifically familiar with. In New Jersey, those pensions are not vested rights under State statute and a long line of court decisions. Given the fact they are not vested rights, would we have the authority to pass a statute that would preclude New Jersey and others from doing that?

Mr. Clark. I think some of the same analysis of the constitutionality of proposed Federal legislation would apply to that.

An argument could be made that might not be as intrusive as collective bargaining legislation. Frankly, I haven't looked at that issue that closely in terms of pensions and what authority Congress would have in that area. I do know that, like OSHA and ERISA, it does not apply to State and local government. It only applies at the private sector.

Mr. Andrews. It does imply, when you said the issue is whether it is as intrusive as collective bargaining, that there is a factual inquiry that has to take place as to the degree of intrusiveness. We are engaging in that factual inquiry, and I assume so would the Court. Because I think the Court is as unpredictable as it is and I think because that factual inquiry has not taken place yet, I would respectfully disagree with the strengths of your conclusion that this is unconstitutional. I believe it is, and I think there is a very strong argument that it is. I don't think that our very reasonable disagreement should preclude us from moving forward with the legislation.

I yield back.

Mr. Fletcher. [Presiding.]

I certainly want to thank Chairman Boehner for holding this hearing and for coming to Lexington and actually meeting with several of our firefighters.

Let me recognize Bruce Roberts, Mike Fitzpatrick, and Mike "Howdy" Kurtsinger, three firefighters from Kentucky. If you all would stand up for a minute, we are glad to have you here with us and certainly appreciate your participation in this very important issue.

On May 17th, in Lexington, we are going to have a memorial service. I will not be able to be there, but certainly I am very concerned about our police, and firefighters in Kentucky. The service dedicates a memorial we have in downtown Lexington to our law enforcement officers that have lost their lives over the years.

I think this is about safety. I am very concerned about that and have been a strong proponent for local community rights, States rights. Maybe there is some adjustment in the bills that can address some of the concerns, but I think it is important that we as Congress realize that the people entrusted the Republicans to lead this Nation in Congress, and when they did, we passed a law. Mr. Gallegos, I believe, pointed out that we ought to abide by the laws that we pass.

I see some local officials and know some examples, even with my own community, where previous local officials or mayors were not very responsive to the safety needs of firefighters and some of our police officers.

So I am glad to hear what you have to say and certainly appreciate the testimony.

One of the concerns is about cost. I believe, Dr. Nesbitt, in your testimony on page 18, you talked about some theoretical concerns, and a study conducted in 1997 showed that there really hasn't been an increase in cost, and further that fire departments and States that have collective bargaining have lower budgets on a per capita basis than fire departments in non-bargaining States. If you could address that, and maybe, Mr. Gallegos, if you have similar experience with police and law enforcement, we would like to hear about that, too.

Dr. Nesbitt. Yes, Mr. Fletcher. When we went to work with Congressman Kildee and Congressman Ney to put this bill together and craft a bill that, as you well pointed out, focuses on workplace health and safety, this is what this bill is really about. We were concerned that one of the first accusations would be that this is nothing more than about pay and about money, and this is going to cost the States and the local governments a lot of money if we enact this bill.

We discounted, first of all, the cost to administer the law, because all States have some kind of State labor relations board; a Department of Labor that administers this. We are not talking about additional bureaucracy.

We then took a look at the collective-bargaining States and the non-collective-bargaining States. We collected from the International Association of Firefighters a lot of data on the contracts. We collect data on city budgets. We take a look at all of the numbers. We took a look at the collective-bargaining States as one group and the non-collective-bargaining States as another group. We found what our members basically told us was true. First of all, when we took a look at the wages of firefighters in collective-bargaining States versus non-collective bargaining States, and you control for the cost of living, obviously there are communities in Kentucky where the cost of living is slightly less than New York City, perhaps. When you control for the cost of living, we found that the differences in wages between collective-bargaining States and non-collective-bargaining States was less than $1 per hour.

Then we took a look at the department budgets on a per capita basis, the only way to compare it, and what we did find was the fire department budgets in collective-bargaining States were lower on a per capita basis than those in non-collective-bargaining States. We don't have any empirical data to say why. We have some conclusions. One of the conclusions we would have to reach is that because in collective bargaining departments you have a spirit of cooperation, and people working together, the firefighters have the opportunity to make recommendations. They have the opportunity to be part of the process, to make recommendations on better ways to function, on better protective clothing and equipment, on streamlining the department, and so on and so forth. Those recommendations would be reflected in a more efficient, cooperative, and better working fire department.

Mr. Fletcher. Thank you.

Mr. Gallegos.

Mr. Gallegos. Mr. Chairman, I don't have a study except by hard knocks and negotiating contracts since the early 1970s, and I would agree with Dr. Nesbitt that really the beauty of collective bargaining is that the city or the county and its employees can sit across the table. If there are financial hard times, they can hammer out a contract that serves the best interests of everybody, specifically the citizens of that community. I think that is the beauty of the collective bargaining process, and if it is done equitably, you can solve the budget problems by sitting down and talking about it.

I would say in actuality the budget could be reduced because the employees understand what the financial problems of the city are, for example.

Mr. Fletcher. Thank you. I am going to ask one quick question that is very important to me, and then I have to leave. I will still Chair until Mr. Boehner comes back.

Let me ask Mr. Clark a question. Say you have a private security agency. Employees carry weapons and provide security. They are at risk, and they operate locally. They are a private entity. What rights do they have right now according to the National Labor Relations Act?

Mr. Clark. As private sector employees, they would have protection under the National Labor Relations Act. They could petition for an election. If there were a sufficient showing of interest in an appropriate unit, an election would be directed. If a majority voted for representation, both parties would then be under an obligation to bargain in good faith over wages, hours, and other terms and conditions of employment.

Mr. Fletcher. Right now, let's say the same community and a majority of police officers came together and held an election. What rights would they have?

Mr. Clark. First of all, there would be a big difference in terms of the constitutional rights. Police officers and firefighters employed by public entities do not have the constitutional right to join and form a union and to engage in union activities. Private sector employees do have a constitutional right to engage in those activities.

Whether they would have the further right to engage in collective bargaining would be dependent upon the laws and court precedent in that jurisdiction.

Mr. Fletcher. Then the distinction is that if you were in the private market, then these security officers would have the right to collectively bargain under the national law, but the police officers would not. They could participate in union activities, but not have the right to collectively bargain unless the States granted that.

Mr. Clark. It would depend. For example, in Kentucky, there is legislation that provides firefighters employed by cities of the first class, that is, I assume, primarily Louisville, the right to engage in collective bargaining.

Mr. Fletcher. I think you made the point well. It is a fact that we have folks in the private market that have substantially more rights to bargain than folks in communities throughout. I think we are trying to address that. Certainly we appreciate your testimony.

My time has expired.

Mr. Clark. Could I make one brief comment? One of the ironies is that the Civil Service Reform Act to which the Congressional Accountability Act is attached in terms of bargaining for Capitol Hill Police excludes negotiations over pensions, wages and its merit principle, all topics that I think under H.R. 1093 would be negotiable. So what you are talking about for States and local governments would go far beyond what Congress rightly, in my mind, has done vis-a-vis its own employees in terms of what rights they should have.

Mr. Fletcher. Thank you.

I recognize Mr. Kildee.

Mr. Andrews. If the gentleman would yield, I want to apologize to our witness, Mr. Gallegos. Excuse me for mispronouncing your name. I apologize for that.

Mr. Kildee. Thank you very much, Rob. You are a gentleman.

About a year ago in Michigan, the Ford power plant nearly blew up, and the Dearborn and neighboring police and fire departments responded very, very quickly and contained the damage, which could have really closed the whole plant down had they not done so. The manufacturing continued. I am speaking as a non-attorney here, but it seems to me that a stable fire and police department is really a very important component of interstate commerce. Ford was able to ship cars all over the country because we had an effective, stable police and fire department in Michigan because of the Act, which I cosponsored back in 1965.

Here we are 35 years later trying to get some minimal requirements throughout the country. That was a pretty strong Act. I know, as an attorney, you probably have some responses to that.

Let me go to an attorney here. Mr. Costello, would Congress be acting rashly if it assumed that Garcia still prevailed?

Mr. Costello. Not at all. It is still the law, because it has not been overruled. I don't think so.

Mr. Kildee. We wouldn't be acting imprudently or irrationally, saying, don't bother about those guys across the street at the Supreme Court building?

Mr. Costello. Mr. Clark suggested that Congress also has the opportunity and the responsibility perhaps to consider the constitutionality on its own in formulating legislation. That does not seem to me to be rash.

Mr. Kildee. We are not acting rashly at all. We would be acting prudently if we assumed Garcia still prevailed.

Mr. Costello. I don't think there is any disagreement about Garcia still prevailing in the sense of being the current law.

Mr. Kildee. Very good. I know when Dr. Nesbitt and his attorneys were working on this, we used Garcia as a very prominent part of our thinking and rationale. I have been working on it with Fred for how many years now, Fred, about 4?

Dr. Nesbitt. About 4 or 5 years, yes.

Mr. Kildee. So I don't think we could be called rash or imprudent if we assumed that Garcia, which is a pretty good basis for this bill, still prevails.

Fred, let me ask you a question. We have heard from a local elected official today, the Mayor of Grand Junction, in opposition to the bill. Have you spoken to local government officials, and what generally have they told you?

Dr. Nesbitt. One thing we did, we looked at the positions of the local government organizations to see if they have an official position on H.R. 1093, and we didn't find any organization that had taken a formal position in opposition to H.R. 1093.

I also have with me, and I will not submit it for the record, but I am willing to make available to you, letters from over 300 public officials, from mayors to State legislators, supporting H.R. 1093, and many of them come from the point of view of non-collective-bargaining States. They make the argument for the need for cooperation and the ability for firefighters and police officers to enhance public safety by sitting down with their employer and talking about the workplace issues.

Mr. Kildee. I think Mr. Clark mentioned that in certain States there is an exemption for municipalities or townships, and local units of government that have a certain number of employees, and therefore he felt this would be applicable in more States than what we have envisioned. FLRA would assume authority in maybe all 50 States. Would you care to comment on that?

Dr. Nesbitt. We believe that is a very, very strict interpretation that the FLRA would have to make in terms of applying this law. This is clearly not our intention as we work with you and Congressman Ney on this provision. As we look at the law, we would anticipate that somewhere between 32 and 36 State laws, such as Michigan, and Ohio, would be in compliance with H.R. 1093. If there is a construction problem, we certainly would be willing to work with you and Chairman Boehner to draft language that makes this very clear, statutory language, because that is our intention.

Our intention is basically to give firefighters and police officers in States that have no rights at all to sit down with their employer, the opportunity to go to the table, sit down and talk about workplace issues. It certainly is not to overturn State laws that are clearly in existence and in compliance.

Mr. Kildee. I think you make a good comment there, because I think Bob Ney and yourself and I and the attorneys we worked with, we didn't claim this was written on Mount Sinai. It was written here on Capitol Hill. We can do some minor tweaking if we have to maybe take care of some of these things.

Dr. Nesbitt. We would not envision the Federal Labor Relations Authority doing this. Whatever protections we would need to put in the bill, we would be certainly willing to work with you and Chairman Boehner to do that. That is our intention.

Mr. Kildee. Thank you very much.

Chairman Boehner. [Presiding.] Mr. Ballenger.

Mr. Ballenger. Thank you, Mr. Chairman.

Dr. Nesbitt, let me ask you a question. Does the constitution of the IFF still say that advocating, encouraging or requiring membership in a volunteer fire department is misconduct subject to reprimand, fine, suspension from office or membership and expulsion from the union? Is that still in the constitution?

Dr. Nesbitt. I am not an expert on the IFF constitution.

Mr. Ballenger. I wouldn't have asked the question if it wasn't there. Let's put it this way. Given that threat, doesn't this legislation bode ill for volunteer fire departments? I have in my area of North Carolina, substantial numbers of volunteer fire departments, and members of the union obviously, are not allowed to work in a volunteer fire department, so substantial numbers of volunteer firemen will disappear. There are 28,000 volunteer fire departments in the country today, and I am not saying they are not shorthanded already, but this will make it that much worse; will it not?

Dr. Nesbitt. H.R. 1093? No, I don't see the connection, Mr. Ballenger.

Mr. Ballenger. Well, the constitution of the international fire department, wouldn't that apply to this group if the constitution says it is illegal?

Dr. Nesbitt. I have the general president of the International Association of Firefighters with me now, if you would allow, who could answer that question about the constitution. I can't answer the question.

Mr. Ballenger. Well, I am pretty sure I wouldn't have asked the question if it wasn’t there.

Dr. Nesbitt. Can we submit the answer for the record?

Mr. Ballenger. I would appreciate it.

Chairman Boehner. If the gentleman will yield, Dr. Nesbitt, maybe you can address this in your written response, but if, in fact, this language is in the constitution of the firefighters union, I would certainly like to know why. I am somewhat confused as to why one group of firefighters would have as part of their constitution, if it were there, language that would clearly discriminate against other types of firefighters. But anyway, you can answer that.

Mr. Ballenger. Just from past experience, I think that is true.

Let me ask you another question. How many States would have to change their bargaining laws if this were to become law?

Dr. Nesbitt. We estimate, Mr. Ballenger, approximately 18 States to some degree. There are some States, for example, like Missouri, that has collective bargaining, but the one facet it doesn't have is that the employer can unilaterally void the contracts. If it is a 4-year contract, the union must abide by the contract for 4 years. But if the mayor changes the next year, he can come in and say, I don't like the contract, and I am going to void it.

Other places where there is collective bargaining, for, say, a large city or by local option, would not be impacted, but the rest of the State would have to come into compliance. There are 2 States that I mentioned earlier that would be most directly affected, one of which is your home State.

Mr. Ballenger. Another Subcommittee of this full Committee called the Oversight and Investigations Subcommittee has been conducting lots of hearings in the last several years, and there is substantial fraud and mismanagement that has been found. We won't mention the unions, but they have made news media all over the country. The Landrum-Griffin Act, is the only Federal law right now that would protect the workers and members of a labor organization to ensure democratic procedures exist within the unions, and protect union members from fraud, and financial mismanagement on the part of the union leaders. Would you support an amendment to this legislation expanding the Landrum-Griffin protections to this?

Dr. Nesbitt. We have no problem with that. We would certainly sit down and talk with you about this possibility, if you think that is a problem.

Mr. Ballenger. In recognizing that North Carolina is a problem for you, would you support an amendment that would affirm the right of people to not join the union?

Dr. Nesbitt. As you know, Mr. Ballenger, in the construction of H.R. 1093, it is silent on that issue.

Mr. Ballenger. I am trying to open it up so it would be allowed.

Dr. Nesbitt. As we see it, you know, what we would be saying to North Carolina is you enact a State collective bargaining law for firefighters and police officers, ensuring the minimum rights that we have detailed in the bill, and if you, the State of North Carolina, decides you want a right to work provision in that State collective bargaining law, then that is something you could put in that State collective bargaining law. H.R. 1093 is silent on the issue.

Mr. Ballenger. How many States have the right to work law at the present time?

Mr. Clark. Approximately 19.

Mr. Ballenger. That would be available to all 19 States. Why not put it in ahead of time?

Dr. Nesbitt. You mean mandate it?

Mr. Ballenger. You are mandating with this bill. Why not mandate that?

Dr. Nesbitt. What we are mandating are the rights of public safety officers to sit down with their employers and talk about workplace issues. We are not mandating to any State is how you have to do this or the regulations or the procedures. A State would have the option of deciding how it is to be done, how the appropriate bargaining unit is determined, and how a union is selected as the exclusive bargaining agent. I think, Mr. Ballenger, if we put all of that into our bill, you would be the first one to say this is the Federal Government dictating to the State of North Carolina exactly how you are going to conduct labor relations in the State of North Carolina. That is why we left it vague in that sense.

Mr. Ballenger. You are already saying we would have to change our laws to fit yours anyhow, so we are mandating something anyhow.

Dr. Nesbitt. We are saying to you North Carolina must change its law, because currently it is illegal to join a union, and collective bargaining is strictly prohibited.

Mr. Clark. It is not illegal. The courts have held there is a constitutional first amendment right to do so. There are North Carolina precedents on that point.

Mr. Ballenger. One last question. Mr. Kinsey, everybody talked around the story of costs and so forth. My understanding is you did a study as to the additional costs you would run into in Colorado?

Mr. Kinsey. Sir, no, I don't have a study, but just the experience of the city. I would say that two things are clear in this. One is that salary is always on the table in union negotiations. It is always on the table. It was the main feature of our election, even though our officers and firefighters are paid well above the State average.

The second is several times during this hearing, there has been mention of studies where there are communities that have collective bargaining, that pay less or have smaller budgets than communities that do not have collective bargaining. I think that is comparing apples to oranges, as they say. I do not and could not find one example of a community that experienced a decrease in budget or a decrease in salary after collective bargaining.

Mr. Ballenger. Thank you, Mr. Chairman.

Chairman Boehner. Thank you.

Mrs. McCarthy.

Mrs. McCarthy. Thank you, Mr. Chairman.

Number one, let me say I do support 1093 very strongly. I come from New York. I represent New York State, and I think it is a great State, and we also do have collective bargaining. And, yes, I have to think our firefighters or our police officers should be getting decent pay. But I want to bring it down to something else, too, that I haven't heard much about, and those are the safety issues on the bargaining.

I lost a very close friend, a fireman, actually. It will be 18 years this June, and it was safety issues that the fire fighters brought up, and the city did not listen to it and used cheaper equipment. He died because of that issue.

So, to me, the men and women on the streets, are fighting for issues I happen to believe very strongly in that will possibly save their lives when they go in to try to save other people's lives. So that is one of the reasons I support this very strongly.

Let me ask both of you, because being that you both represent New York State, we are lucky to have you here. As a Representative, as I said, from a State that allows our public safety employees to organize, has collective bargaining been harmful in any way to the management of our police officers or our firefighters, in both of your views? Does collective bargaining inhibit effective law enforcement and firefighting, or does it serve to promote better law enforcement firefighting for us?

Mr. Gallegos. Mr. Chairman, Congresswoman McCarthy, I believe that collective bargaining does not take away from management's rights to do their job. I spent 25 years of my former life with the Albuquerque Police Department. I retired as a deputy chief. The bureau that I commanded, employed almost 400 employees, and I dealt with three unions. Out of all the disciplinary action that I undertook as bureau chief, there was only one termination, and it was not of a police officer, but a civilian employee, where we were overturned because the collective bargaining contract spelled out the rules.

That is the beauty of collective bargaining. Everybody understands the rules because it is in the contract. Also the police contracts, and it is important to every one that I have ever seen, outline what the management rights are and what they are responsible to do. Also on the opposite side, there are the responsibilities of the unions and what they are supposed to do, and whom they are supposed to represent and what their rights are. So it is not wide open to the unions to take over the police department.

As you see here with the U.S. Capitol Police, since they have had collective bargaining, they are able to sit down and work out some safety issues with their administrators. That has worked out very well. That is what we are promoting in law enforcement. I think that is a positive, because if you can save the life of one police officer that makes a tremendous financial impact on an agency, and an emotional impact as well. I think it makes a difference.

Dr. Nesbitt. Just the opposite is true. It has created a spirit of cooperation. It sets a framework when there are disagreements or difficulties or problems, a framework for resolving those problems amicably. All of the studies, the Secretary of Labor study I cited in our testimony, the more extensive testimony, show when you have good labor-management relations, you have a cooperative spirit, and it improves efficiency and the work of the department.

Most importantly, what the firefighters in New York have is the ability to do what the young man back here, Matt Mosley, didn't have the ability to do. They have the ability to talk to their employer about their own apparatus. Here is a young man and his department. For 6 years they didn't talk to the mayor. The mayor would not talk to them. Yet they were going into fires with defective breathing apparatus, and there was no way of resolving that issue except when the issue occurred and this young man had the courage to stand up to his mayor. In New York State the firefighters have the chance to talk to the mayor about what kind of breathing apparatus they need, whether it is defective or adequate, for the kind of fires they respond to.

Mrs. McCarthy. I think something else should be brought out, too. I have seen it in New York State especially, when our city has been in crisis, going back many years ago. It was our people that worked together to certainly keep costs down. I think people should remember that. But I think the bottom line that people should remember is that those in public safety put their lives on the line every single day, every single day. We should be doing everything we can possibly do to make sure they make a decent living, and that the safety issues out there. That, to me, is a role of Congress, to protect all of you. I thank you.

Dr. Nesbitt. May I make one other point regarding the question about loyalty to unions or loyalty to the city?

The thing that firefighters are loyal to and they are sworn to do is when there is an emergency, they respond. It has nothing to do with the union or the city. They may disagree with the city and be in very intense disagreement or very intense negotiations, but when the alarm rings, and a citizen's life is in danger, they are sworn to respond. There are no questions asked.

Mrs. McCarthy. I think people should remember the majority of our firemen and police officers do serve the communities where they live. They are paying their taxes, they are part of the community, and it is a big family. Thank you.

Chairman Boehner. Mr. DeMint.

Mr. DeMint. Thank you, Mr. Chairman. I want to thank all the panelists, the professional firefighters, and particularly those from South Carolina that joined us today. I appreciate what you do in the community and your willingness to come here to talk about the issues in ways that we can improve the work environment.

But recognizing that if there are needs and issues as the criteria for Federal intervention, we need to recognize here today that there is no area of our individual or family lives, there is no area of business or organizations or municipalities or States that the Federal Government could not see ways to improve things. And if we assume that the answers are here, that we are responsible and municipalities and State governments are not, I think we continued faulty assumptions that we have made here for years.

We have seen, as we looked in on education across this country, that there were severe problems, and certainly there still are. Yet our involvement has done very little, if anything, to improve education. In fact, today we provide about 7 percent of the funding, about 50 percent of the administrative costs, and since the Federal Government has expanded its role, the quality of education has continued to decline. We see that in many areas across this country.

Last week in my office some firefighters came to ask us to support $5 billion in Federal assistance over the next 5 years. I wish you had every penny of that. I know that you need it. But as they explained the reasons for the need for new money, it came down to us here in Washington, because they talked about the inflexible and cumbersome requirements on volunteers for training, that fewer and fewer volunteers had the time and the interest to go through that, and that our whole volunteer firefighter community is falling apart. Now the Federal Government is telling firefighters how to put out a kitchen fire and how many firefighters you need inside and outside, and taking away the flexibility to make good judgments back home. So the costs are rising and there are probably more risks to firefighters, because we can't afford to have the number of people we need when there are larger fires and bigger needs.

So now we see the Federal Government costing more money, and the firefighters asking for more money, and I think we are seeing the same things here today. There is no area we couldn't look in on and decide there are ways to improve it, and I agree with that.

I think, Dr. Nesbitt, you said there are two States that would be significantly affected by this, and some number of other States that would have to make some adjustment. If that is the case, why should we first consider a one-size-fits-all that spans this whole Nation and puts more Federal intervention into this situation, instead of lobbying and publicizing and collecting information and sharing information between States and fire departments so that we can benchmark as we do in industry and improve conditions, instead of inviting more Federal involvement, more Federal costs, and more Federal inflexibility into our local fire departments?

I would like to just ask a couple of clarifying questions that you have touched on just to make sure I understand. Is it true that you have no objection to firefighters in right-to-work States not joining the union? Is that true?

Dr. Nesbitt. The thrust of our bill, Mr. Chairman, is we are silent on that issue. In the case of South Carolina, that would be an option for South Carolina, to decide whether they wanted to make it right-to-work or not.

Mr. DeMint. Would you oppose some clarifications in the bill itself that made clear that firefighters had the option not to join?

Dr. Nesbitt. We would certainly be willing to work with you to look at language like that, yes.

Mr. DeMint. Okay. Also do I understand that volunteer firefighters are not allowed to join the union?

Dr. Nesbitt. The constitution of the International Association of Firefighters is that we represent full-time paid professional firefighters.

Mr. DeMint. So the flexibility of part-time firefighters, or volunteer firefighters does not fit into what we are talking about here today?

Dr. Nesbitt. That is correct, because as in any union or organization, we define the members whom we represent. Those are the people that we represent.

Mr. DeMint. Okay. Good.

Thank you, Mr. Chairman. I yield back.

Chairman Boehner. Mr. Holt.

Mr. Holt. Thank you, Mr. Chairman. Thank you for scheduling these hearings, because there is a great deal of interest here in the House, and I daresay a great deal of support, for H.R. 1093; bipartisan support, it appears.

Mr. Gallegos and Dr. Nesbitt, I think, have spoken eloquently about the advantages that come from sitting down and talking, and that collective bargaining really is of benefit to our society not only in establishing rules and a framework for resolving problems, as you say, but also for enhancing safety and, of course, for showing respect for those who put their lives on the line. It is also interesting, Dr. Nesbitt, that you point out that there may even be cost savings to society that come from that.

But I am troubled by the claims that this will not pass constitutional muster. I am not sure I understand. Of course, we have to be cautious about enacting legislation that might flagrantly violate the Constitution. Clearly this is not of that nature. It may be a judgment call, so it is a close call.

But I do understand, I believe, and let me direct these comments to Mr. Costello and Mr. Clark, that enactment of H.R. 1093 would be a constitutional exercise under the commerce clause. If H.R. 1093 did not preempt State laws, but still stifles State flexibility, then how can the Federal Government protect the ability of public safety employees to bargain collectively? Is there an avenue for protecting that?

Mr. Costello. Well, if we leave the commerce power to one side, there is always the spending power. Certainly you are able to attach conditions to Federal spending if you wanted to go at it that way. So I think in answer to your question, yes, there is another way if you were to consider the commerce power avenue foreclosed.

Mr. Holt. Mr. Clark?

Mr. Clark. With respect to the spending power, the Supreme Court has said if done in an appropriate area, Congress can take action under the spending clause in areas where it would not otherwise have the constitutional authority to do so. But in the College Savings Bank case, the Supreme Court cautioned that the financial inducement offered by Congress might be so coercive as to pass the point at which pressure turns into compulsion.

Chairman Boehner. We would never do that.

Mr. Clark. So there would have to be some reasonable relationship between the legislation and the strings that were attached to the legislation that were of a financial nature.

With respect to the commerce clause, and I think this point needs to be emphasized, there is a difference between this legislation as applied to States and this legislation as applied to units of local government. As applied to States, the Supreme Court has clearly held that under the commerce clause, Congress does not have, does not have, the authority to abrogate 11th amendment immunity. As a result, in a series of cases, the Supreme Court has held that Congress did not have the authority as applied to States to abrogate 11th amendment immunity with respect to the Age Discrimination and Employment Act, the Fair Labor Standards Act, several patent infringements acts, et cetera, et cetera.

Now, the 11th amendment does not apply to units of local government, so you have a different analysis that applies with respect to the units of local government. That is where you get into the debate, and reasonable people can disagree as to what the Supreme Court might or might not do. But it really falls between the boundaries of National League of Cities and Garcia, as well as the recent Supreme Court case in which they struck down the Gun-Free Zone Act, which everyone would say that was a laudable purpose, Congress ought to be doing something, guns are manufactured in interstate commerce, shipped in interstate commerce, et cetera. But the Supreme Court held that did not substantially affect interstate commerce, and, therefore, held that that was an unconstitutional exercise of authority by Congress.

So it is cases like that, the strong dissenting opinion of Chief Justice Rehnquist, the strong dissenting opinion of Justice O'Connor in the Garcia case, in this emerging line of 11th amendment cases, that gives some, myself included, reason to believe that the Supreme Court might return to the rationale of National League of Cities.

Mr. Holt. In closing, let me just say that given the uncertainty here and the reasonable argument that this is indeed constitutional, combined with, I think, the strong social benefit of collective bargaining, I would like to see this go forward. Thank you, Mr. Chairman.

Chairman Boehner. Thank you, Mr. Holt.

As I look at the piece of legislation before us, it is very prescriptive, Dr. Nesbitt, in terms of what the FLRA would have to enforce when they are looking at State law. As an example, in Ohio, our public employee law allows some supervisory employees to be covered under the collective bargaining agreement, and as I read 1093, it would grant public safety officers the right to form and join labor organizations. That does not include management and supervisory employees.

So we have a case where Ohio arguably has one of the toughest and most wide-ranging public employee laws, and we would be forcing the legislature to go in and make changes to our law.

Secondly, you heard Mr. Clark refer to the small city exemption in Illinois. As I read 1093, that would not be allowed under the prescriptive nature of 1093 as we see it today, would it?

Dr. Nesbitt. Well, our opinion is, yes, it would be. We were aware of, for example, the supervisory problem in Ohio. We are also aware that I believe the Ohio law, if I am not mistaken, Mr. Chairman, says that in cities with populations under 5,000, collective bargaining is not mandatory as it is for cities with populations over 5,000. We were aware of the Illinois exemption, and we think, again, the thrust of our bill is if a State has a collective bargaining law that substantially complies with the minimum rights ascribed in this bill, as far as we are concerned, it is in compliance. We are really looking for those States that exclude, prohibit, or do not extend this to the majority of the public safety officers within that particular State.

Chairman Boehner. Mr. Clark?

Mr. Clark. I have in front of me a copy of the Georgia firefighters collective bargaining law. As I read it, the State statute says in jurisdictions with a population of 20,000 or more, that would clearly cover Atlanta, firefighters shall have the right to bargain collectively with their respective corporate authorities; be represented by a labor organization in collective bargaining as to wages, rates of pay, hours of employment, et cetera. It provides for mediation, which is really advisory fact-finding, because it issues recommendations with respect to the resolution of any bargaining impasse.

Under what I hear is the wide latitude that the States would have, which is contrary to my reading of the law, the Georgia law would clearly pass muster.

Dr. Nesbitt. No, the Georgia law does not pass muster because it gives the local governments the option to opt out of these provisions, and a right. We are talking about the right of firefighters.

Chairman Boehner. How does the Georgia law give the local cities over 20,000 the option to opt out? Do you see that, Mr. Clark?

Mr. Clark. There is a provision in several of the State laws, including the one in Texas, before a municipality of 20,000 or more can come under this chapter, the governing authorities of the municipality must agree by ordinance that the municipality will be so covered. In Texas, it is up to the citizens in that jurisdiction to vote on whether or not they wish to have the State law apply.

Dr. Nesbitt. So it does not provide the right automatically. It says in the case of Georgia, you have a law, but nobody has collective bargaining rights.

Mr. Gallegos. Mr. Chairman, in the proposed legislation on page 5, it outlines what the supervisory employee is. I can speak for the police department, I don't know about the fire department, but in police departments there are just a limited number of people who would fall under that category, because in a police department, or any agency really, the only one that can fire or terminate a police officer is the chief of police. A sergeant, for example, would not have that authority, and neither would a corporal. So I think that is pretty well laid out in practice by law enforcement agencies as to really who has the authority to do certain things.

They may have bits and pieces of it, like command the crime scene or something like that, but that is not the same as managing the police department.

Chairman Boehner. All right. We have talked a little bit about the constitutional questions around this bill. We talked about what some would argue is the prescriptive nature of the bill. Dr. Nesbitt, you say it is your intention, that these rights that would be granted to all public safety employees, which would be enforced by the Federal Labor Relations Act, and would certainly be compatible with Ohio.

Now, there is an assumption that you are making that this Federal board is going to be as flexible as you and I think. I have watched the National Labor Relations Board for some period of time, and it is about as inflexible an organization that exists in this town. I have seen other examples during my 10 years here in Washington where the Federal Government, once it has its fingers and claws into an issue, wants to take full ownership. So I am not as trusting in granting such power to some agency.

Let me just cover one other area that I just think we have to talk about. That is the Federal Government in Washington stepping into the State of Georgia into the city of Atlanta and telling them what they will or will not do.

Now, Ohio has made a decision by its legislature, signed by the Governor, to have collective bargaining in Ohio. Public discussion went on for 20 years over this issue, and after a very long debate they made that decision. Many other States have made that decision, and decided to grant exceptions where their State wanted to do. You use the example of Georgia, where the legislature in its wisdom has decided to create such a law, but grant that because many cities have charters, State governments have a limited ability to tell a charter city what they may or may not do while trying to keep within their own constitution. Yet how practical is it for the well meaning and well intentioned? I support the objective of what you are trying to accomplish, but for Washington to tell every city in every State, this is what you will do and this is what you will not do, strikes me as a bit impractical as we enter the 21st century. I would be happy to let you respond.

Dr. Nesbitt. Let me make two points. First of all, that is what you do every day in almost every law you pass. You passed the Age Discrimination Employment Act, and the Americans with Disabilities Act. You pass civil rights legislation; you voted this year on minimum wage. You are going to vote on other legislation that tells States and localities basically what they should do. So there is Federal intervention. This is not inconsistent. Sometimes Congress decides, in certain cases we want to do it, and in other cases we don't.

I think, Mr. Chairman, the beauty of H.R. 1093 in the way it is crafted is it does not create a Federal labor relations authority to govern over the State of Georgia. What it does is state that the Congress of the United States says that public safety officers, who we know have no right to strike, we don't want the right to strike, have certain rights to protect themselves and have a say-so in their own workplace environment. They should have the right to sit down with their employer and talk about issues to determine whether they live or die the next time they respond to an alarm.

We are saying to the State of Georgia, you need to implement these rights. You can do it any way you want. You create the State labor relations board. You decide how it is going to be implemented, how it is going to be enforced, how it is going to be carried out, but there are certain basic fundamental rights that every public safety officer ought to have. We think those rights are so important that we are going to mandate these as minimum rights, across the country.

As to the State of Ohio, we say, job well done. You have already had the 20-year debate. You are guaranteeing these rights to the public safety officers, plus a lot more. Good job, Ohio. But we are saying to Georgia that you can no longer pretend and you no longer have the option of saying, well, firefighters have these rights, but the local government can opt out of them. We think these rights are so important, and we think there clearly is a Federal role and Federal responsibility.

But, again, our hope, Mr. Chairman, is once this bill becomes law, that 2 or 3 years down the road, the Federal labor relations authority would say, we are finished. We have no work to do. We have looked at the State laws, and these laws are clearly exempt. The others States have passed laws. We are out of the ballgame. So there is no longer a need for Federal intervention.

Chairman Boehner. Any other Members have questions?

Mr. Andrews. Just very briefly. Again, I want to thank the panel.

I did want the record to reflect one view that I hold strongly in relation to some things Mr. Ballenger said. In my 15 years in public office, I have been very privileged to have a long-standing relationship with the fire service, and I have interacted with career firefighters and volunteer firefighters, all of who are professional, in that time.

I have the privilege of serving as the Co-chairman of the Congressional Fire Services Caucus, which is the largest caucus in the House. It has been my experience that absent a few disagreements from time to time, the relationship between the career firefighters and the volunteer firefighters is a very positive and cooperative one. The IAFF and its members have a strong and constructive and positive relationship with volunteer firefighters around the country, and there are far more issues on which these two groups agree than disagree.

We were just together last week at the annual dinner of the Congressional Fire Services Institute at which Mr. Whitehead, who is in the audience, was honored for his career of outstanding service to the country, and that is a very dramatic illustration of the cooperation that exists. I don't want anything on the record that indicates there is an antagonistic relationship.

I, again, want to thank the panel. I look forward to further discussion of this issue. I thank the Chairman for his time today.

Chairman Boehner. Mr. Kildee.

Mr. Kildee. Mr. Chairman, just a final remark. I think, Mayor Kinsey mentioned that there might be a question of promoting divided loyalties. The opposite has been true in Michigan; there is no question, not even a close call.

Before we had what we call PERA, Public Employee Relations Act, we hade more problems. There is less tension in the police and fire departments now. There is less antagonism than there was before this Act was passed in 1965. So I find the opposite experience on that, that there is certainly no question of divided loyalties.

In the private sector, my dad went to work for Buick in 1916, and in 1936 was able to join a union, and the cars produced after 1936 were as good, if not better, than they were before 1936. My dad was very loyal to General Motors, very loyal. My dad had a great sense of loyalty, but he was also very grateful that he had bargaining rights and some collective bargaining rights. We are not even giving the police and firefighters what my dad had. My dad had the right to strike. But he was loyal to General Motors. My dad gave a full day's work for a full day's pay right to the day they carried him out of the plant.

My dad didn't take an oath. You find among police and firefighters, they are taking oaths. I am sure they take that oath very seriously. I admire the police and firefighters. I have two sons, captains in the Army, but you know, you are our line of defense here domestically, as my two sons are part of our defense in Bosnia.

We don't even give you what my dad had, the right to strike, and you take an oath, which I think is very, very important. So I don't find that there are divided loyalties. I find the opposite experience in Michigan.

Again, Mr. Chairman, I really want to thank you for having these hearings today.

Chairman Boehner. Thank you, Mr. Kildee.

Let me thank all of our witnesses for your excellent testimony, and your willingness to answer the questions of the Members. I thank all of my colleagues for their attendance at today's hearing.

Let me suggest to all of the parties who have an interest in this legislation that there are clearly some unresolved questions, whether they are constitutional questions, whether they are questions of scope, or whether they are issues of practicality in terms of how this bill, if enacted, would in fact, be implemented. I want to ask all of the interested parties to sit down and to discuss this and to try to work out some of the differences that are clearly there.

As we all know, a lot of the strife and differences in our society get sorted out right here in Washington every day, and to the extent we can encourage the interested parties to work out some of these differences, it certainly helps us do the job that we have sworn to do.

So, with that, I want to thank all of you and encourage the progress on your part, and the hearing stands adjourned.

Whereupon, at 12:30 p.m., the Subcommittee was adjourned.