Not just any bargaining law will do

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.

 

The Missouri legislature has attempted several times to pass a collective bargaining statute that included teachers, so far without any success.  However, not all of the bills proposed would provide educators with all of the rights they deserve.  Two of the bills filed in 2008, 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 provided a mechanism whereby employees could choose an exclusive bargaining representative to negotiate with the employer regarding terms and conditions of employment.

 

Bills filed the same year by Rep. Kevin Wilson and Sen. Robert Mayer, however, were 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, would have created 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 would 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 would 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.

by Jacquie Shipma
MNEA director of legal services
 

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