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Montana's Collective Bargaining Act

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Collective Bargaining Process in Montana State Government

Who represents the Governor and state managers in collective bargaining? 
The chief of the State Office of Labor Relations is designated through statute and Executive Order 40-2008 to represent all agencies of the executive branch in collective bargaining with representatives of certified collective bargaining units (Attorney General's Opinion 37, Vol. 38).  State Office of Labor Relations staff, agency human resource officers, and state managers form the management teams that negotiate bargaining agreements with individual collective bargaining units.

What issues do the state and its employee unions bargain?
The state is obligated under Montana law to bargain over questions of wages, hours, fringe benefits, and other working conditions.  Although many of the benefits state employees receive are established by law (e.g., sick and annual leave), many others must be negotiated.  Examples include premium, differential, or holiday pay, and allowances for tools or uniforms.  It's a little trickier identifying what constitutes a mandatory subject of bargaining under the catch-all of "other working conditions."  We typically consider issues such as work rules, training, uniforms, and workload as "working conditions."

State managers are wise to consult with their agency personnel officers or labor negotiator from the State Office of Labor Relations when considering any change in employment policy that may constitute a unilateral change in a mandatory subject of bargaining. Unilateral implementation of policy changes could result in the bargaining agent filing charges of unfair labor practices against the employer.

How are state employees' pay and benefits negotiated? 
The State Office of Labor Relations and state employee unions engage in two phases of bargaining - "economic negotiations" and "contract negotiations."  Any negotiated pay increases for employees are included in House Bill 13 and are subject to approval of the Montana Legislature. The parties meet in economic negotiations biennially to bargain pay and benefits with the goal of reaching agreement before the executive budget is finalized. 

Most of the state's 64 collective bargaining agreements expire in the June following the legislative session. Representatives from the State Office of Labor Relations, agency managers, union representatives, and bargaining unit employees negotiate successor agreements around this time. These contract negotiations typically focus on matters such as additional pay adjustments, seniority, scheduling, clothing allowances, and recruitment and selection procedures.

Union Campaigns in State Government

How do state employees form a union? 
The process for electing and certifying an exclusive bargaining agent is prescribed under 39-31-202, MCA, and ARM 24.26.612. In short, the union must file a petition with the Montana Board of Personnel Appeals. The union must show the board, through authorization cards, that 30 percent of the employees in the proposed unit have indicated a desire to be represented for collective bargaining purposes by the petitioning union.

Once a union has filed the petition and produced the required authorization cards, the board will notify the employer of the petition and will provide a description of the unit proposed by the petitioning union. The employer can file a counter petition if it believes the proposed unit is inappropriate.

The Board of Personnel Appeals schedules an election once the parties resolve any issue pertaining to the appropriateness of the unit. The election may be conducted on site or through mail ballots. The election determines whether a union exists in the work environment or not.

The State Office of Labor Relations will represent the State of Montana as the employer in the election and certification process.  Supervisors and managers with specific questions about union campaigns can contact any of the negotiators.  Employees with specific questions about this matter should contact the Board of Personnel Appeals at 444-0032.

What if employees in our office decide they no longer want union representation?  Can they get out of the bargaining unit? 
If a majority of employees in a collective bargaining unit wants out, they have a legal right to file a decertification petition and go through an election process similar to the initial union election. Once any type of election takes place, regardless of the outcome, no new election can be held for at least 12 months.  When the union wins an election and negotiates a contract with the employer, no subsequent election can take place sooner than 90 days prior to the expiration of the contract. All labor agreements in state government's executive branch currently have two-year terms.

If employees in your office are part of a larger collective bargaining unit, they cannot be excluded from the unit unless the union agrees to exclude their positions by changing the contract language. Composition of the bargaining unit is a permissive subject of bargaining, with neither the union nor the employer being required to negotiate over the issue. The Board of Personnel Appeals does not allow for partial decertification of a bargaining unit.

The process for decertifying a union is prescribed under ARM 24.26.643.  The State Office of Labor Relations will represent the State of Montana as the employer in any decertification process. Supervisors and managers with more specific questions about the decertification process can contact any of the negotiators at the State Office of Labor Relations. Employees with more specific questions about decertifying a union should contact the Montana Board of Personnel Appeals at 444-0032.

How are union elections determined? 
Union elections are decided by the majority of employees who actually cast ballots - not by a majority of employees who are eligible to vote. Eligible employees who do not vote will be bound by the choice of the majority of employees who do vote. 

Someone gave me a card to sign asking for union representation and a union election.  If I don't sign, will I still have the right to vote in a union election?
Yes, assuming your position is in the proposed collective bargaining unit the union seeks to represent.  A union may petition the Board of Personnel Appeals to hold an election when the union has signed authorization cards from at least 30 percent of the employees in the proposed collective bargaining unit. If an election is held, all employees in the proposed bargaining unit have a right to vote - not just those who signed cards.

If the union wins the election, will employees have to pay union dues?
The union and the state will negotiate a collective bargaining agreement if the union wins the election.  Unit employees would only be obligated to pay union dues or representation fees if required in the collective bargaining agreement.

Most of the labor agreements in the executive branch of state government contain requirements for "agency shop" provisions.  An agency shop provision requires employees pay either union membership dues or a "representative fee," in an amount determined by the union. Under most agency shop provisions, the employer is required to discharge employees who fail to pay the dues or representative fee.

I heard we will be guaranteed flexible work hours, job security, a classification upgrade, higher pay, and a union pension if the union wins the election.  Is that true?
No.  The only guaranteed employee benefits are those provided by law for all employees, union or not.  Pay and other conditions of employment, such as flexible work schedule, are subjects of bargaining.  While both parties must negotiate in good faith, terms regarding those issues are subject to mutual agreement and the state is not required to fulfill promises union organizers make to their constituents.  Pay is a mandatory subject of bargaining, which means that the parties cannot refuse to negotiate issues regarding pay.  However, agencies are limited by the Legislature's appropriation of funds for pay.

I supervise a work unit that's voting on representation.  Can I state my opinions on unions to workers during an organizational or decertification campaign?
It is an unfair labor practice for a public employer, which includes supervisors and managers, to "interfere with, restrain, or coerce employees" in the exercise of their protected rights.  While stating your opinion is not an unfair labor practice, it is important that you be cautious about what you say and do during an organizational or decertification campaign.  To be on the safe side, you should maintain a position of neutrality.  Do not offer opinions or show favoritism.  Stay clear of matters involving internal union affairs.

Can a union representative or a fellow employee solicit other employees' support during work time?
Oral solicitation by union representatives and employees is allowed during non-work time. Distribution of union literature and campaign materials is allowed in non-working areas during non-working time. Non-working areas include parking lots, cafeterias, lobbies, and rooms used for coffee breaks. If coffee or lunch breaks are taken at the work site, the work site becomes a non-working area during non-working time. Solicitation of authorization cards is considered oral solicitation.

What are the employer's rights if solicitation is interfering with work?
Employers have a right to ensure that union solicitation and distribution does not disturb ongoing work.  Employers should prohibit distribution both during working time and in working areas. Employers may prohibit oral solicitation during work time, and may also prohibit union representatives and employees from using state telephones, copy machines, computers, and other equipment or property to further a union cause.  If employees do not comply, supervisors have the right to counsel or discipline them for those actions.

May an employer restrict the union from posting literature on state-owned bulletin boards?
The question of whether unions may post literature on state-owned bulletin boards is answered on a case-by-case basis.  Policy, past practice, collective bargaining agreements, and the locations of the bulletin boards are all factors that must be considered.  Your agency human resources officer and the State Office of Labor Relations staff can help you find an answer.

How should employers handle disciplinary matters during an organizational campaign?
Employers have the right to continue to counsel or discipline employees for job-related reasons.

State Bargaining Units - Who's In and Who's Out?

What employees, or positions, can be in the union?
Montana's collective bargaining act for public employees covers any person employed by a public employer in any capacity except supervisors and managers, along with a handful of other specific positions identified under 39-31-103(9)(b), MCA.  In state government, positions are most often excluded because of their supervisory authority.

 "Supervisory employees" are defined under 39-31-103(11)(a), MCA, as "an individual having the authority on a regular, recurring basis while acting in the interest of the employer to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees or to effectively recommend the above actions if, in connection with the foregoing, the exercise of the authority is not of a merely routine or clerical nature but requires the use of independent judgment."

The Montana Board of Personnel Appeals is charged with resolving disputes involving exclusions under the Montana Collective Bargaining Act.

State Bargaining Units - Who's Represented and By Whom?

How many Montana state employees are represented by unions?
Roughly 61 percent of state government employees, or 7,217 employees, were represented by unions as of January 2014. 

How many different unions represent state employees?
Sixteen different labor organizations represented state employees as of January 2014. 

How many different bargaining units have been certified in state government?
Sixty-two different bargaining units have been certified in state government as as of January 2014.

What are the largest state employee unions?
As of January 2014, the Montana Public Employees Association (MPEA)  represented the largest number of state employees with 3,270. MEA-MFT ranked second, representing a total of 1,979 state employees. The American Federation of State, County and Municipal Employees (AFSCME) ranked third with 833 employees.

For more information about state bargaining units and unions, see the 2014 Employee Profile.

Bargaining Alternative Pay Plans

Bargaining Broadband Pay Rules 
Managers exploring broadband pay adjustments for their employees should be aware of the role and rights of unions in negotiating pay. Most of us are familiar with some common collective bargaining procedures, such as contract negotiations or a grievance.  But some managers have been surprised by the fact we have to negotiate broadband pay plans with unions prior to implementation.

As more agencies pursue broadband pay plans, more managers are raising good questions about union involvement. Taking the time now to address these questions could prevent complications or frustrations down the line.

Why do we negotiate with unions over broadband pay rules?

The collective bargaining laws require public employers to bargain with union representatives over pay, hour, and certain other conditions of work.  An agency's broadband pay rules govern how that agency will set pay within the agency.  The union representatives must negotiate with agency representatives about those rules to either adopt them or make changes to them for their bargaining unit, since those rules will determine how pay is set for the term of the collective bargaining agreement.

If union agents are employees' bargaining representatives, who is management's representative?

Management's spokesperson for collective bargaining is the chief of the State Office of Labor Relations in the Department of Administration (39-31-301, MCA and Governor's Executive Order No. 40-2008).  Office negotiators serve as an extension to your agency's human resource functions to help achieve your management goals and objectives in a collective bargaining environment.

How do we begin the appropriate discussions with the union about broadband pay?

At the point you're interested in proposing or exploring new pay options in a unionized workplace, your agency should contact your representative in the State Office of Labor Relations.  We will work with your human resource professionals and managers to help develop a management proposal and a bargaining plan.  Labor Relations staff will contact the union representative at the appropriate time and help coordinate the necessary labor-management communications.

What if we hire an outside consultant to help develop competencies and broadband pay components - is the process any different?

The process is the same.  Contact the State Office of Labor Relations at the point management starts developing pay proposals in a unionized work environment.  Consultants can help agencies identify employee competencies and improve performance appraisal tools, but they can't negotiate with unions.  An agency can't implement a broadband pay plan until the state bargains the subject with union officials.  The State Office of Labor Relations is the only authorized bargaining agent for state management.

What aspects of "broadband pay" are negotiable in a unionized workplace? 

All aspects of pay are negotiable, meaning they are mandatory subjects of bargaining under state law.  Pay ranges for each job, including market rates, minimum rates, and maximum rates must be addressed through collective bargaining.  Either labor or management can propose a market rate, and both sides are obligated to consider counter-proposals in good faith.  The selection and application of all pay components available in the broadband system are negotiable (e.g., market-based pay, competency-based pay, results-based pay, situational pay, strategic pay, etc.).

Are performance appraisal tools subject to bargaining?  

If management wants to link pay to performance, be prepared to bargain the appraisal tool and procedure.  Traditionally management could revise the performance appraisal tool without unions showing much interest, because the appraisal did not affect pay.  But performance standards that determine pay could very well constitute the type of pay standards and criteria that would be deemed "mandatory subjects of bargaining."  Refusing to bargain a mandatory subject constitutes an illegal unfair labor practice (ULP).  It could trigger a ULP charge, investigation, hearing, and order from the Department of Labor and Industry to "cease and desist" from the action that triggered the charge.  It's best to avoid such lengthy, costly, and disruptive disputes.  Bargaining the performance appraisal tool and procedure doesn't mean management must build the tool by negotiating it step-by-step with the union.  It simply means we must be prepared to present the tool at the bargaining table and consider any feedback or counter-proposals the union might submit in response.  Failure to reach agreement on the tool, however, could preclude management from paying employees for competencies or performance.

Do unions categorically oppose pay that's tied to employee performance or other types of pay? 

Some unions have been supportive of competency-based efforts and other types of broadband pay.  The majority of actual pay results achieved under broadband to date, including competency-based pay, have occurred in unionized workplaces.  Unions base their positions on the desire of each bargaining unit.  If a majority of unit members are reluctant to pursue certain pay changes, the union's position on pay issues for that unit is likely to reflect the majority sentiment.

Are we unique or unusual in the fact we have to bargain broadband pay plans with unions? 

No.  All of Montana's public employers are subject to the same requirements.  Moreover, private-sector employers nationwide have virtually the same bargaining obligations with unions under federal law that public employers have under state law.  The American Compensation Association (ACA) calls the presence or absence of a union one of the most important factors in planning for broadband pay.  In a national journal the ACA advises employers:  "Management must carefully design reward systems that are likely to be acceptable to a union.  Understanding how union members view alternative rewards and how collective bargaining laws operate is necessary to design, administer, and use alternative reward strategies to improve organizational effectiveness."  

How do union members view broadband rewards? 

There is no universal union "position" on broadband pay, but some concerns seem to recur throughout our pay explorations in state government.  Two questions seem almost inevitable before labor and management will agree on a new pay plan.  First, labor will want to know whether management can guarantee that all employees in the "new" pay plan will receive, at a minimum, the same raises that other employees in the "old" plan stand to receive.  Second, labor will want to know how employees can appeal or grieve a pay decision in the new plan.  The more management can give on the first issue, the more the union will probably give on the second issue.  Proposals are much more palatable for unions and employees when they have less to lose by exploring new pay.  Your labor negotiator in the State Office of Labor Relations will provide some options for proposals to exempt individual pay decisions from the union contract's final and binding arbitration provision. 

Aside from the legal duty to bargain, is there any benefit from union involvement in the development of a broadband pay plan?

Most experts agree that a new pay system works best when employees have a substantial role in its development.  They view the benefits of employee buy-in and ownership in the new system as highly desirable.  In a unionized environment, employee involvement eventually takes the form of a union bargaining team and management bargaining team sitting down together to negotiate the details of a broadband pay system.  Union involvement is indeed "the law", but it's also a good idea if the reality is you are in a work place that has already organized a union.  Employees and unions are more likely to accept new ideas for broadband pay if they have a role in developing them.