Judge rejects public employee unions’ appeal of unfair labor practices

2013-05-03T01:15:00Z Judge rejects public employee unions’ appeal of unfair labor practicesBy Charles S. Johnson of The Standard State Bureau Montana Standard

HELENA — Public employee unions have failed in their attempt to have the 2011 Legislature found to be engaging in unfair labor practices by rejecting a pay raise plan they negotiated with the governor.

On Thursday, District Judge Jeffrey Sherlock of Helena denied the unions’ petition for him to review and overturn the ruling by the state Board of Personnel Appeals.

“Ultimately, it is up to the electorate to decide whether they agree or disagree with the Legislature’s state employee pay freeze, and it is beyond the authority of this court to rule otherwise based on the record presented,” Sherlock said.

The judge said it’s clear that state collective bargaining laws require the involvement of both the executive and legislative branches, but only the executive branch can be held to the “good faith standard” under state law.

“It is not the purview of the board or the courts to determine how much debate a bill should be afforded, when a bill must be acted on or whether a bill should be passed or approved,” Sherlock wrote. “The court is bound to respect the power of the Legislature expressly delegated to it by the constitution and the statutes set forth above.

“Otherwise, we would create a quagmire from which there is no escape.”

Then-Gov. Brian Schweitzer and three unions—MEA-MFT, Montana Public Employees Association and American Federation of State, County and Municipal Employees Council 9—negotiated a pay deal in November 2010. If approved by the 2011 Legislature, it would have provided pay raises for state employees of 1 percent in the first year and 3 percent the next year.

The 2011 Legislature failed to pass the raises, resulting in a freeze in base pay for many state workers for four years. In 2009, the unions had agreed to a pay freeze because of the recession, although those making less than $45,000 received a one-time payment of $450.

However, about half of executive branch workers saw pay increases under the separate broadband pay plan in fiscal 2012 under the Schweitzer administration.

After the defeat of the pay bill in 2011, the unions in May 2011 filed an unfair labor complaint against the legislative and executive branches.

An investigator for the Board of Personnel Appeals found in June 2011 that there was probably merit in the complaint because the executive and legislative branches are a single entity for the purpose of collective bargaining.

Three months later, however, a hearing officer for the Department of Labor and Industry recommended dismissal of the complaint because the unions didn’t assert that any part of state government except for the Legislature had committed an unfair labor practice.

Since the Legislature had no duty to bargain collectively in good faith, the hearing officer said the case should be dismissed.

The Board of Personnel Appeals agreed and dismissed the unions’ complaint in May 2012 by a 3-2 vote.

The unions appealed that decision to District Court.

In denying their request, Judge Sherlock cited the Montana Constitution’s separation of powers among the executive, legislative and judicial branches.

“The separation of powers provision supports this court’s conclusion,” Sherlock said. “For example, adopting the unions’ position would suggest that the Legislature had no say in whether or not to accept an agreement negotiated between the governor and the unions. Certainly, that cannot be the case.”

MEA-MFT President Eric Feaver had no immediate comment on the ruling, saying he wanted time to read Sherlock’s decision.

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