Today we are engaged in a vitriolic debate over the rights of public employees to bargain collectively. How will this play out in Missouri? Do Missouri public employees have the right to join a union, bargain collectively and enter into collective bargaining agreements? Could contracts with public unions be voided by the legislature, or could some areas simply be declared off-limits for negotiations like what is being proposed in Wisconsin?
You might be surprised to learn that the right of public employees to bargain collectively and join a union is a fundamental right preserved in the Missouri Constitution as part of the Bill of Rights. This provision was added to the 1945 Missouri Constitution, although it was not recognized as applying to public employees until 2007.
Having recognized the right of public employees to join unions and bargain collectively the Missouri Supreme Court held that the Independence School District could not unilaterally abrogate an existing contract. Missouri cases hold that the right to join a union and to collectively bargain is a personal right belonging to the employee. The right to belong to a union and engage in collective bargaining is self-executing and cannot be changed except through a constitutional amendment. Unilateral action by a legislative body to declare a collective bargaining agreement void violates Missouri law.
What is the scope or meaning of collective bargaining as that term is used in the Missouri Constitution? The Missouri Supreme Court answered this question in the Independence School District case by concluding collective bargaining means negotiation for the settlement of terms of a collective bargaining agreement between an employer and a union and includes conditions of employment such as wages, hours, discipline and fringe benefits. As a consequence, a legislature body cannot unilaterally declare that everything but wages is off the table for negotiations like what is being proposed in Wisconsin.
Cases interpreting the constitutional right to join a union and collectively bargain protect employees from coercive action by the employer, including threats of discharge or changes in compensation, hours of work and other working conditions, which denies employees the right to organize and choose collective bargaining representatives. There is, however, nothing in the Independence School District case, the Missouri Constitution or the Missouri Public Sector Labor Law requiring a public entity to agree to a proposal by a union. All that is required is for the parties to meet and consider proposals by the union. In this respect, Missouri public sector labor negotiations are focused on a process – meet and confer – that does not dictate an outcome by requiring binding arbitration.
The idea that public employers will not meet with representatives of public employees to discuss the full range of terms and conditions of employment as it impacts the workplace environment seems to run counter to everything we have learned in recent years about good management. Is it a top down or bottom up management style? Do we involve the workers in finding solutions to problems by negotiating or are employees shut out from these discussions?
I have been involved in many labor matters involving the representatives of public employees and it seemed to me that there was always something to be learned by listening and trying to find a mutually agreeable solution to a problem. That does not mean that we always found solutions or agreed but at a minimum we listened to union proposals and responded.
There is no doubt that America is in a fiscal crisis and it will be necessary to deal with budgets at all levels of government as well as trade deficits. This will require the nation as a whole to come together to find solutions. Unions have shown that they are willing to make concessions to help solve the budget deficit. Disenfranchising a large part of the working population from the collective bargaining process, and excluding them from discussions to solve problems is counter-productive and will not work in the long run.