American Bar Association Annual Meeting Chicago, Illinois THE IMPACT OF TERRORISM ON PUBLIC SECTOR LABOR RELATIONS

Transcription

1 American Bar Association Annual Meeting Chicago, Illinois August 8, 2005 THE IMPACT OF TERRORISM ON PUBLIC SECTOR LABOR RELATIONS By James C. Franczek, Jr. Franczek Sullivan P.C. and Tom Sonneborn, Legal Director Illinois FOP Labor Council [T]hose firefighters struggling up the stairs of the World Trade Center were union employees. No one checked with their bargaining agent before going up those stairs. Senator Jack Reed (D R.I.) during the Senate debates on the Homeland Security Act of 2002 Introduction: Public Sector Collective Bargaining

2 In A Post-September 11th World Almost four years after the September 11th tragedy, terrorism remains a real threat against the citizens of this country and the public safety workers assigned to protect them. As a result, terrorism continues to have a profound impact on the working conditions and the responsibilities of, in particular, the employees of our nation s fire and police departments. The quotation from Senator Reed at the beginning of this article suggests that, when an act of terrorism is at hand, the bargained-for rights of employers and employees become irrelevant. However, terrorism remains a real issue at the bargaining table that continues to influence the terms and conditions of employment for police and fire personnel, and the rights of their supervisors. Certainly the rhetoric of bargaining changed immediately after September 11th. In New York, in the wake of the recovery efforts at the World Trade Center, thousands of police officers and firefighters packed Times Square in August of 2002 to demonstrate their new found bargaining power. They chanted slogans such as too much praise, too little raise, zeros for heroes, and They say, never forget. We say, already forgotten. In October of 2002, New York firefighters rejected a proposed labor contract that included an 11.5% raise over 30 months. Also in New York, after the police union received a wage award significantly lower than it had hoped, union leaders planned to ask state legislators to create a Safe Streets, Anti-Terror tax surcharge to fund a pay raise for emergency workers. In Chicago, a 2002 website petition calling for a new fire contract stated, One would think that since the terrorist violence last year, the Chicago Fire Department would take measures to improve the safety of its members and the safety of the citizens of 2

3 Chicago; in fact, the mayor and the top brass of the Fire Department are pushing for a REDUCTION of firefighters on every fire engine from 5 to 4 members. Bargaining through the media has become an especially important tactic in light of increased public awareness of our nation s firefighters and police officers following September 11th. And, as a further result of this public awareness, police and fire unions have a greater influence on political elections and in lobbying efforts for legislation that concerns them. On the public employer side of the coin, terrorism concerns have perhaps given employers a stronger bargaining position with respect to certain issues, including: 1. The need for efficiency in operations to prevent and react to threats posed by terrorism; 2. The need for security and the lowered expectation in privacy for employees and the public; and 3. The impact on the economy of the September 11th attacks, with resulting changes in funding levels to various public bodies, layoffs for certain public employers and increased staffing for others. These are, of course, legitimate concerns that necessarily influence bargaining between public employers and unions since September 11th. The issue is the extent to which these concerns can be raised as a reason for changing various terms and conditions of employment for employees. The issues above will likely still be around in the next round of negotiations as well. In addition, there are several other more specific issues that confront public sector 3

4 employers and their unions at the bargaining table as a result of the need to prevent and react to the threat of terrorism. These issues are summarized below. Eight Labor Issues That Are Influenced By Terrorism Concerns 1. Bioterrorism Inoculations Not only did the federal government make efforts to inoculate U.S. Soldiers along with health care workers and other first responders for anthrax and smallpox, inoculations have been the subject of police and fire negotiations as well. Bargaining over this issue must consider various issues including the limited availability of certain vaccines, concerns about health hazards caused by the inoculations themselves, and whether the inoculations are even effective to combat bioterrorism. 2. Compensation And Training For Special Response Teams Due to the unique threats posed by terrorism, new training is necessary, new skills are needed for employees, and higher compensation may be requested at the bargaining table. 3. Mutual Aid Agreements The potential magnitude of terrorist threats and the inability of some cities and towns to fully protect themselves due to insufficient resources creates a need for assistance across jurisdictional lines. As a result, police and fire departments may need to deploy assistance to remote locations, and mutual aid agreements often provide for such a procedure. 4. USERRA and Military Leave 4

5 After the Gulf War in 1994, Congress passed the Uniformed Services Employment and Reemployment Rights Act ( USERRA ), which addressed employment rights for individuals serving in the armed forces. USERRA sets forth antidiscrimination protections, leave rights, reemployment rights, and protections for continued health insurance, pension, and other employment benefits. USERRA applies to all public and private employers regardless of size, and protects all employees except temporary employees who are engaged in uniformed services. Given the increased involvement of employees in the armed forces following September 11th, including employees with part-time duty in the National Guard, USERRA is especially important today. In addition, public sector employers may see some bargaining proposals on behalf of National Guard members designed to build upon the requirements of USERRA. The extent to which military leave will be paid or unpaid is also an important issue. Paid leave may depend on whether an employee is deployed to a combat zone, or whether the employee is engaged in some other sort of military service. 5. Benefits During An Act Of War Public sector employers may be faced with bargaining proposals to eliminate the act of war exclusions that usually permit an employer to deny or limit health and welfare insurance benefits. 6. Minimum Staffing Levels Due to increased risks of terrorism in certain areas and at certain times, governments may require minimum staffing levels for police officers and firefighters. 5

6 These staffing level requirements can have an influence on pay for on-call time, vacations, and other bargaining issues. 7. Security Issues Terrorism concerns may justify additional security measures for public sector employers such as more rigorous policies concerning checking in and checking out, and policies regarding visitors. In addition, where employees may have had an expectation of privacy in the past, that expectation may no longer be reasonable in situations where investigations or other security measures are necessary. 8. Federal Public Sector Employers Under the Federal Service Labor-Management Relations Statute ( FSLMRS ), the President is granted the authority to exempt parts of agencies or even entire agencies within the federal government from collective bargaining on national security grounds. This provision came into play with the formation of the Department of Homeland Security, where 48,000 employees out of the Department s 170,000 employees previously enjoyed bargaining rights in predecessor agencies. The President s power under the FSLMRS has affected other federal agencies as well, including the Transportation Security Administration. Debate over the extent of federal employees bargaining rights continues. Conclusion It is likely that continued legislation at both the federal and state level will continue to change the legal landscape even further. Even with the absence of any major attacks since September 11th, it is unlikely that the security, efficiency, and economic concerns created by that tragedy will disappear, or that collective bargaining and labor 6

7 relations will return to what they were before September 11th especially in large metropolitan areas and more visible cities such as New York, Los Angeles, Washington D.C., and Chicago. After all, prevention of, and the ability to react to new threats remains a prime concern for the government, and neither public sector employers nor the unions that represent their employees want to be caught asleep at the wheel whether they are patrolling the streets or bargaining a labor contract. 7