Monarch Fire District Trapped In Perpetuity By Evergreen Clause

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The Monarch Fire Protection District (District) is seemingly locked into a collective bargaining agreement forever with the Fire Fighters of Eastern Missouri. Being locked into an agreement forever (by a so-called Evergreen Clause) takes away management prerogatives and prevents the District from changing provisions in the agreement that are not working after a certain time. As we shall see, getting out of agreement will not be an easy task.

The agreement provided that it would continue “…in full force and effect for a period of approximately three (3) years to and including December 31, 2013.” This provision, as interpreted by the Missouri Court of Appeals, was overridden by another provision in the agreement that provided it would “…remain in effect during good faith negotiations and shall continue so long as the parties are engaged in good faith negotiations and shall continue to remain in full force and effect until such time as a new Agreement is agreed upon.” The Court of Appeals held that the agreement was not for an indefinite term because if one of the parties did not engage in good faith negotiations the agreement could be terminated. There’s the rub.

The Missouri Constitution granting public employees the right to engage in collective bargaining requires “good faith” negotiations by the parties. In essence, the opinion by the court required one of the parties to violate its constitutional duty to bargain in “good faith” subjecting itself to sanctions by a court for failing to negotiate in good faith. The District is now locked into an agreement that will seemingly continue forever unless the District is willing to engage in bad faith negotiations. Presumably one of the parties would have to complain about the lack of good faith bargaining by the other party. Why would the union complain about bad faith negotiations if it liked the current agreement? This raises a question of how to show bad faith negotiations and who can raise this issue.   The court’s interpretation is preposterous because it requires one of the parties to violate its constitutional duty to engage in good faith negotiations.

We will have to wait to see if anybody is able to resolve the issues between the union and the Monarch Fire District. This case realizes one of the worst fears of local government attorneys, which is  being bested by union negotiators who are well versed in the meaning of language in collective bargaining agreements. In the meantime, local governmental officials should always insert a clearly defined end date into the agreement and language that states that the end date as stated overrules “any other provision in the agreement to the contrary,” thereby avoiding a conflict with other provisions of the agreement.

You will find a more detailed analysis of the Monarch case in my August 2016 Missouri Municipal Attorneys Newsletter by clicking here. You may find the following Posts of interest with respect to public sector collective bargaining.

Howard Wright© 2016

Non-members-of-union-do-not-have-a-right-to-vote-on-collective-bargaining agreement 

Right-of-free-speech-and-association-trump-fair-share-obligation-to-pay-union-dues.

Trilogy-of-cases-change-missouri-public-sector-labor-law

Discussion of Ledbetter and Chesterfield and University City cases dealing with “good faith” bargaining.

Courts will not read terms into collective bargaining agreement. 

Right of public employees to bargain collectively in Missouri. 

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