Not just any bargaining law will do
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What
should a bargaining law look like?
MNEA
believes a bargaining law should contain three key elements:
Exclusive
representation
Exclusive representation is how collective
bargaining is done in Missouri and the best way to select
an employee representative to serve all employees fairly.
It already is the law of the land for private sector
employees and for the roughly 330,000 public sector
employees covered under the existing “meet and
confer” statute. Exclusive representation doesn’t
prevent employees from having a voice. In fact, it is
the best way to ensure that all employees, even those
not part of any organization, have competent representation.
All employees have equal say in who is selected as the
bargaining representative, and the elected representative
has an enforceable legal duty to fairly represent all
employees in the bargaining unit, not just those in
one organization. Failure to represent all employees
adequately is cause for the loss of status as bargaining
representative. Also, the employees of a bargaining
unit must take the initiative to sign petitions calling
for a representative election, or no bargaining representative
will be selected. Exclusive representation is also the
best way to create a calm, respectful and orderly bargaining
process. The school board will have one organization
to negotiate with, and that organization has a legal
obligation to represent all employees fairly.
Binding
agreements
Binding agreements are mandated by the court
ruling. No employer or bargaining representative is
obligated to agree with the other party, but when items
are agreed to, put down in writing, signed and ratified
by both parties, the resulting agreement is binding.
Language providing that the school board may “accept,
reject or modify” doesn’t produce a binding
agreement, since an agreement must be the same exact
language ratified by both parties. If the school board,
for instance, modifies the language and adopts it as
an order or policy, this is not an agreement, but merely
the property of the school board. This is analogous
to how the Senate and House must pass a bill in the
same exact form for it to be considered finally passed.
The law merely needs to clarify that any items agreed
to, signed and properly ratified by both parties shall
be binding on both parties for the duration of the agreement
and may only be changed prior to that by mutual consent.
Bargaining
in good faith and procedure for impasse
The purpose of bargaining is to reach an agreement.
To get the full benefit of local control that bargaining
offers, the law will need to specify that the parties
attempt to negotiate procedures for resolving impasse.
The law will need to specify a default process for resolving
impasse using mediation and, if necessary, third party
arbitration. Public employers and employees may use
the free mediation services provided by the Federal
Mediation Services (FMS). Because strikes are illegal,
a process for resolving impasse is critical. With such
a process, employees will have to agree to changes in
salaries and working conditions before they can become
effective. This will allow the state legislature to
loosen its grip on the details of many school employee
issues, such as salaries, tenure and so on. However,
this can only happen when employees have full bargaining
rights, including procedures for resolving impasse. |
On
May 29, 2007 the Missouri Supreme Court restored collective
bargaining rights to public employees in our state. Prior
to that decision, the language of Article I, Section 29, of
the Missouri State Constitution, which says that “employees
shall have the right to bargain collectively through representatives
of their own choosing,” had been interpreted to apply
only to private-sector employees. Under Missouri statutory
law, certain public sector employees had been given the right
to choose an exclusive bargaining representative and to engage
in a “meet and confer” process with their employers.
This statute, however, specifically excludes teachers. In
its decision in the Independence case, the Court said that
it is the job of the state legislature to enact a statutory
framework by which those employees excluded from the meet
and confer statute can exercise their constitutional right
to collective bargaining.
Currently
there are three bills pending before the state legislature
dealing with this issue. Two of those bills, House Bill 2030
filed by Representative Jeneé Lowe and Senate Bill
1115 filed by Senator Joan Bray are excellent examples of
a statutory framework designed to facilitate public employees
in exercising their constitutional right to collective bargaining.
Both of these bills provide a mechanism whereby employees
can choose an exclusive bargaining representative to negotiate
with the employer regarding terms and conditions of employment.
Bills
filed by Rep. Kevin Wilson and Sen. Robert Mayer, however,
are designed to frustrate the exercising of collective bargaining
rights by one group of public employees—teachers. These
bills, House Bill 2059 and Senate Bill 1158, create a divided
panel, rather than a unified voice, to speak on behalf of
teachers in negotiations with school districts. While purporting
to be inclusive of all teacher organizations, these bills
actually result in a system wherein no one organization will
represent the interests of all district teachers and thus
allowing the school board to avoid entering into binding agreement.
Finally, these bills do not give the employees represented
by the proportional panel the opportunity to ratify or reject
an agreement in the unlikely event an agreement would be forthcoming.
Ready
to make your move?
 Now
that public education employees have reclaimed
their right to bargain collectively, it's time
to organize. Call on the experts for advice on
what to do next.
The
Missouri NEA Bargaining Assessment Team
Call your MNEA UniServ director, or visit "MNEA.org
- Members Only" to complete a BAT request
form. |
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Collective
bargaining, by its very nature, requires exclusive representation.
The National Labor Relations Act, which serves as the statutory
framework for most employees in the private sector, contains
language identical to that in the Missouri Constitution, guaranteeing
employees the right to “bargain collectively through
representatives of their own choosing.” Under that law,
collective bargaining is carried out through exclusive representatives,
not proportional panels. In addition, under the current statutory
framework in Missouri, public employees covered by the meet
and confer law are granted the ability to choose an exclusive
representative. Rep. Wilson’s bill would treat teachers
differently than all other employees, both public and private,
who are afforded a mechanism for choosing a single representative
group to speak with a unified voice in negotiating terms and
conditions of employment.
House
Bill 2030 and Senate Bill 1115 are inclusive of all public
employees and are supported by a coalition of public labor
unions. Each of these bills ensures that employees have an
opportunity to elect a representative preferred by the majority.
In addition, each of these bills would allow employees the
further opportunity to vote to ratify or reject any agreement
negotiated by the exclusive bargaining representative.
Choosing
one representative to speak on behalf of a group of people
is part of the fabric of the American system. Make sure the
senators and representatives elected to represent you know
that you believe all public employees should be allowed to
effectively exercise their right to collective bargaining
by selecting an exclusive representative and by being given
the opportunity to ratify or reject agreements reached by
that exclusive representative.
by Jacquie
Shipma
MNEA director of legal services
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