Three state employee labor unions hoping to preserve the merit system for their members told the Missouri Supreme Court on Tuesday that a law passed in 2018 doesn’t alter existing contracts.
Under the law, most state employees lost protections that included grievance procedures to protest disciplinary actions and a requirement that the state have a good cause – such as unexcused absences or subpar performance – to fire someone.
Instead, workers who are not employed supervising prisoners or caring for residents of state institutions became at-will employees who can be fired at any time.
“At-will employment is the least protection you can have in Missouri,” assistant attorney general Maria Lanahan reminded the court.
The law is being challenged by the American Federation of State, County, and Municipal Employees, or AFSCME; the Communications Workers of America, or CWA; and the Service Employees International Union, or SEIU.
Each had contracts that required merit-system protections for the covered employees. Cole County Circuit Judge Jon Beetem ruled last year that the contracts remained in force until renegotiated.
Attorney Loretta Haggard, who represents the unions, told the court that because the law was silent on union contracts and because the state constitution prohibits laws that impair the obligation of contracts, the protections can be retained in new contracts.
“The state would have you believe that a ruling in favor of the unions would be an utter calamity,” Haggard said.
While the unions asked the court to uphold Beetem’s ruling, the state is asking for it to be reversed. The state cannot negotiate over something the legislature abolished, assistant attorney general Maria Lanahan argued.
“If provisions of the collective bargaining agreement have become contrary to law, the state has to go back to the table and renegotiate,” Lanahan said.
AFSCME represents employees of several agencies in two bargaining units — craft and maintenance positions and direct care. CWA represents employees in the Social Services and Health and Senior Services departments and the Office of Administration. SEIU represents probation and parole employees and patient care professionals in the Corrections and Mental Health departments and the Missouri Veterans Commission.
The law is one of two major bills passed in 2018 at the urging of then-Gov. Eric Greitens to limit the rights of public employees. One bill, which required some employee unions to receive annual approval to withhold dues from paychecks, was declared unconstitutional last year by the Missouri Supreme Court.
In his ruling, Beetem upheld the law as it applies to state workers not represented by existing contracts. But because the state acted as if it did alter those contracts – by refusing grievance hearings or termination protests – the state unconstitutionally violated the collective bargaining rights of represented workers, Beetem ruled.
Beetem also ordered agencies with employees represented by the unions to negotiate in good faith “without constraint” from the law over merit-like protections.
The federal civil service system, with examinations to determine job qualifications and protections against firing when executive power changes party hands, was launched in the 1880s. Similar protections were extended to state workers in penal and eleemosynary institutions – hospitals and residential care centers – and “other state employees as provided by law” in the 1945 Constitution.
The legislature in 1945 included most state employees, except those in the Department of Revenue and a handful of other agencies, in the merit system. The 2018 law withdrew the coverage from all employees except those constitutionally mandated for coverage and altered the system for hiring by eliminating the need for competitive examinations.
During the hearing, the judges tried to determine how far lawmakers could go, and what was negotiable, in labor contracts. Agreeing to negotiations means bargaining in good faith, Judge Mary Russell said, asking how that could occur without give-and-take.
“You can come to the table and go through the motions of negotiating, but how does that result in good-faith negotiations to resolve differences?” Russell asked Lananan.
In filings with the court, the state argued that keeping the requirement for merit system protections in place would be absurd.
“Grievance procedures are incompatible with mandatory at-will employment because when employees ‘may be discharged for no reason or any reason not prohibited by law,’ there is no basis on which a tribunal could review an employee’s grievance,” the brief stated.
In questioning to Haggard, Judge W. Brent Powell asked what kind of laws are acceptable restrictions on what can be included in an agreement.
“If we say the statute doesn’t affect collective bargaining, are we also saying the law against strikes is also subject to collective bargaining?” Judge W. Brent Powell asked.
Haggard said it would be wrong to inject hypotheticals into the decision, adding that a law against strikes, while limiting the scope of collective bargaining, is acceptable because it advances the state’s interest in public safety.
The court did not rule Tuesday. It is generally several weeks to several months after arguments before the court issues opinions.
This article by Rudi Keller is published by permission of The Missouri Independent.