Missouri Revolutionizes Public Sector Labor Law, Part One: Carve-Outs and the Representation Process

On May 17, 2018, the Missouri General Assembly adopted a comprehensive rewrite of Missouri public sector labor law in House Bill 1413 (HB 1413), which primarily concentrates on the public sector labor law provisions of Chapter 105 of the Missouri Code. HB 1413 is effective August 28, 2018, unless vetoed by the governor.

The first part of this three-part series devoted to a close examination of the legislation that will dramatically change public sector labor law in Missouri focuses on the bill’s carve-outs and provisions affecting the representation process.

Carve-Outs

Historical Carve-Outs

The only section of the prior statutory scheme that has remained intact carves the following public sector personnel out of the public sector labor law: police, deputy sheriffs, highway patrolmen, national guardsmen, and all public school teachers (including college and university professors) (Sec. 105.510).

New Carve-Outs

Public safety labor organizations and their members are newly exempt from the public sector labor law provisions of Chapter 105. Public safety labor organizations include labor organizations that primarily represent firefighters, ambulance personnel, dispatchers, registered nurses, physicians, police officers, and sheriffs and their deputies (Sec. 105.500(8)).

• Interestingly enough, public sector employees who are firefighters, ambulance personnel, dispatchers, registered nurses, and physicians, and their labor organizations, previously had Chapter 105 rights, but these rights have been repealed. Their Missouri constitutional rights to organize and to collective bargaining remain unimpaired.

The Missouri Department of Corrections and all of its employees are also exempt from the new provisions of Chapter 105 (Sec. 105.503.2(2)).

Private sector employers, employees, and unions (to the extent of their private sector functions) continue to be exempt from Missouri’s public sector labor laws.

The Representation Process

Voluntary Recognition

Voluntary recognition of a labor organization is unlawful (Sec. 105.575.1).

Initial Certification

As per prior procedure, a petition for representation filed with the State Board of Mediation (SBM) must be supported by cards from 30 percent of the bargaining unit (Sec. 105.575.1). Upon filing of a petition, the SBM will give the public employer 10 days to file a list of all bargaining unit employees (Sec. 105.575.2). Assuming the 30 percent threshold is satisfied, the SBM will consult with the labor organization and public employer to attempt to agree upon an election date and to resolve bargaining unit issues (Sec. 105.575.2). The secret ballot election must be conducted at least four, but not more than eight weeks after the SBM resolves bargaining unit issues (Sec. 105.575.2). In-person ballots and/or mail ballots, in the discretion of the chairman of the SBM will be used (Sec. 105.575.2). In order to be certified as the exclusive collective bargaining representative, the union must receive more than 50 percent of the votes of eligible voters (and not, per current practice, a majority of valid ballots cast) (Sec. 105.575.8).

Apparently, for a second labor organization to intervene in the proceeding, it must also have obtained cards from 30 percent of the bargaining unit (Sec. 105.575.7).

Decertification

The decertification process operates in the same manner as initial certification (Secs. 105.575.9 to 11). The labor organization will only be decertified if more than 50 percent of the eligible voters vote to terminate the labor organization’s exclusive bargaining status (Sec. 105.575.11).

Initial Recertification

Every certified labor organization must stand for an initial recertification election conducted by the SBM between August 28, 2018, and August 27, 2019 (Sec. 105.575.12). The initial recertification election will be held during the two-week period beginning on the anniversary date of the initial certification (Sec. 105.575.12). Votes will be cast online or by telephone, and not in person and/or by mail (Sec. 105.575.12). To be recertified, the labor organization must receive more 50 percent of the votes of eligible voters and failure to schedule the recertification election results in automatic decertification (Sec. 105.575.12).

Triennial Recertification

A recertification election must be held every three years following initial recertification (Sec. 105.575.12). While triennial recertification proceeds in a manner similar to initial recertification, the triennial recertification election apparently must be held during the two-week period beginning on the third anniversary of the initial recertification election (Sec. 105.575.12).

Election Fees

In order to offset the cost to the State of conducting these elections, labor organizations must pay a fee based upon the size of the bargaining unit, ranging from $200 for a unit of 100 or less up to $2000 for a unit of more than 3000 members (Sec. 105.575.15).

Supervisors

Supervisors cannot belong to the same bargaining unit as the public employees they supervise (Sec. 105.570.1). No labor organization can represent both supervisors and non-supervisors (Sec. 105.570.2). “Supervisor” is broadly defined to include anyone with the status of supervisor, manager, or confidential, as well as any status that would be a conflict of interest (Sec. 105.570.3).

Consequences of Decertification or Failure of Recertification

If a labor organization is decertified or fails the statutory recertification requirement, the public employer has the right to alter the terms and conditions of employment as it sees fit (Sec. 105.575.13).

Employee Free Speech

The right of employees to freely express their opinions about whether the labor organization should become the exclusive bargaining representative is codified (Sec. 105.575.4). Public employers and labor organizations are held to a higher standard.

Election Interference

Representatives and employees of labor organizations—as well as public bodies and their representatives—are prohibited from attempting to threaten, intimidate, coerce, or threaten an eligible voter in the free exercise of the ballot (Sec. 105.575.4).

Election Bar

The one-year election bar rule, which prohibits a second representation election within one year of a prior election, is now statutorily codified (Sec. 105.575.14).

Remedies

Most of the violations of the representation process are subject to suit by any citizen of the state who may seek injunctive relief, together with damages and attorney’s fees (Sec. 105.595).

Key Takeaways

Given the 50 percent of eligible voter requirement, it will be more difficult for labor organizations to win elections, other than decertification elections. Many labor organizations have held exclusive representational rights in many bargaining units for many years, with the result that huge numbers of employees have never had the ability to vote on whether to be represented by a union—the recertification features of HB 1413 will rectify this imbalance. Codification of the requirement that initial certification elections, as well as decertification elections, be held within the four-to-eight week window period following resolution of bargaining unit issues will prevent a future SBM from implementing “ambush” or “quickie” elections, as the National Labor Relations Board has done. This window period will make sure that employees have a full and fair opportunity to explore and understand the pros and cons of union representation.

The new carve-out of public safety labor organizations and their members will prevent SBM certification elections for public sector firefighters, ambulance personnel, dispatchers, registered nurses, physicians, police officers, and sheriffs and their deputies. Given the Missouri constitutional rights to organize and to collective bargaining, certain public sector employers will be faced with compliance challenges. Since SBM decertification elections will no longer be held for public sector firefighters, ambulance personnel, dispatchers, registered nurses, physicians, police officers, and sheriffs and their deputies, these public sector employees may face challenges in removing a union that has lost majority support.

Part two of this three-part series will examine HB 1413’s provisions related to collective bargaining in the public sector context.