Collective Bargaining in General
Montana's Collective Bargaining Act
What law gives state employees the right to bargain?
The Public Employees Collective Bargaining Act (39-31-100 through 39-31-409, MCA), patterned after the National Labor Relations Act, was enacted in 1973. The law encourages "the practice and procedure of collective bargaining to arrive at friendly adjustment of all disputes' between state government and its employees. It gives public employees the right of self-organization, "to form, join, or assist any labor organization, to bargain collectively through representatives of their own choosing on questions of wages, hours, fringe benefits, and other conditions of employment, and to engage in other concerted activities for the purpose of collective bargaining..."
What's the difference between a "union" and a "bargaining unit?"
The term "union" is synonymous with "labor organization." Labor organization under Montana law 39-31-103 (6) "means any organization or association of any kind in which employees participate and which exists for the primary purpose of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment, fringe benefits, or other conditions of employment." A "bargaining unit", or "appropriate unit", means a group of employees banded together for collective bargaining purposes. The Montana Board of Personnel Appeals is responsible for designating appropriate bargaining units and administering elections to certify labor organizations as exclusive agents of bargaining units. A majority of voting employees within a bargaining unit will determine which if any union represents them in collective bargaining matters. Unions typically represent several different bargaining units.
Collective Bargaining Process in Montana State Government
Who represents the governor and state managers in collective bargaining?
The chief of the labor relations bureau is designated through statute and Executive Order 1-93 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). Labor Relations Bureau staff, agency personnel officers, and state managers form the management teams that negotiate bargaining agreements with individual collective bargaining units. For a discussion on typical bargaining processes, see the article "Contract negotiations begin for 2001-02 term" in April 2001 Management View.
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 (i.e. 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 Labor Relations Bureau 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 Labor Relations Bureau and state employee unions engage in two phases of bargaining - "economic negotiations" and "contract negotiations". Any negotiated pay increases for employees covered by statutory pay schedules 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. The state and its employee unions have successfully negotiated pay raises for the last four biennia that were presented to the legislature and subsequently enacted into law.
Most of the state's 64 collective bargaining agreements expire in the June following the legislative session. Representatives from the state Labor Relations Bureau, agency managers, union representatives, and bargaining unit employees negotiate successor agreements around this time. These contract negotiations typically focus on matters such as seniority, scheduling, clothing allowances, and recruitment and selection procedures.
For more information about the state's bargaining process, see the article "Contract Negotiations Begin" in April 2001 Management View.
Union Campaigns in Montana 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 Labor Relations Bureau 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 one of the negotiators at 444-3871. Employees with specific questions about this matter should contact the Board of Personnel Appeals at 444-5600 or John Andrew, Chief of the Labor Standards Bureau, at joandrew@state.mt.us.
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 want 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 Labor Relations Bureau 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 call any of the negotiators at the Labor Relations Bureau at 444-3819. Employees with more specific questions about decertifying a union should contact the Montana Board of Personnel Appeals at 444-5600 or John Andrew, Chief of the Labor Standards Bureau, at joandrew@state.mt.us.
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 that 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. Any additional benefits are subjects of bargaining and require mutual agreement between the employer and the union. The state is required by law to bargaining in good faith with union representatives on wages, hours and other terms and conditions of employment. The state is not, however, required to fulfill the promises union organizers make to their constituents. Wages are a mandatory subject over bargaining, however, pay raises are determined by state law based on the legislature's authority to approve and fund the state pay plans.
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 to "interfere with, restrain, or coerce employees" in the exercise of their protected rights. While stating one's pinion 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.
For more information relating to communications with employees, see article "Communicating with Employees: What can you say?" in the July 2001 Management View.
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 personnel officer and the Labor Relations Bureau 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, managers, along with a handful of other specific positions identified under 39-31-103 (9) (b). In state government, positions are most often excluded because of their supervisory authority.
"Supervisory employees" are defined under 39-31-103 (11) as:
"any individual having authority in the interest of the employer to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, discipline other employees, having responsibility to direct them, to adjust their grievances, or effectively recommend such action, if in connection with the foregoing the exercise of such authority is not a merely routine or clerical nature but requires the use of independent judgment."
You can find more information on supervisory exclusions in the July 2001 Management View newsletter.
The Montana Board of Personnel Appeals is charged with resolving disputes involving exclusions under the Montana collective bargaining act.
State Bargaining Unit - Who's Represented, and by Whom?
How many Montana state employees are represented by unions?
Roughly 63 percent of state government employees, or 6,933, were represented by unions as of February 2002.
How many different unions represent state employees?
Nineteen different labor organizations represented state employees as of February 2002.
How many different bargaining units have been certified in state government?
There were 64 different bargaining units in state government as of February 2002.
What are the largest state employee unions?
As of February 2002, the Montana Public Employees Association (MPEA) represented the largest number of state employees with 3,340. MEA-MFT ranked second, representing a total of 1,814 state employees. The American Federation of State, County and Municipal Employees (AFSCME) ranked third with 793 employees.
For more information about state bargaining units and unions, see Labor Relations Status Report.
Bargaining Alternative Pay Plans
Managers exploring alternative pay 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 alternative pay plans with unions prior to implementation.
As more agencies pursue alternative 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 alternative pay plans?
The collective bargaining laws enacted by the Montana Legislature require public employers to bargain with union representatives over pay, hours and certain other conditions of work. These laws are administered and enforced by the Department of Labor and Industry. The fact that alternative pay plans are a significant deviation from the traditional classified pay plan triggers the obligation to bargain the proposed changes.
If union agents are employees' bargaining representatives, who is management's representative?
Management's spokesperson for collective bargaining is the chief of the Labor Relations Bureau in the Department of Administration (39-31-301 MCA and governor's Executive Order No. 1-93). Bureau 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 alternative 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 Labor Relations Bureau. 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 alternative pay components - is the process any different?
The process is the same - contact the Labor Relations Bureau 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 an alternative pay plan until the state bargains the subject with union officials. The Labor Relations Bureau is the only authorized bargaining agent for state management.
What aspects of "alternative 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 counterproposals 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 alternative pay?
Some unions have been supportive of competency-based efforts and other types of alternative pay. The majority of actual pay results achieved in the state's pilot projects, 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 alternative 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 Montana'spublic 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 alternative 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 alternative rewards?
There is no universal union "position" on alternative 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 Labor Relations Bureau 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 an alternative 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 an
alternative 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
alternative pay if they have a role in developing
them.
