Collective bargaining ruling raises big questions

JEFFERSON CITY, Mo. -- Now playing: "Collective Bargaining," the latest release from the Missouri Supreme Court. Already available online. Coming soon to a community near you.

Pundits, critics and experts agree: There will be change.

How much so?

"Monumental," declares a leading lawmaker. "Very radical," proclaims a longtime labor law professor. "Profound," asserts a top education group.

One labor union president calls it "an awesome win for the public sector."

An incumbent governor demurs: "A terrible ruling" and "reckless decision."

Can this latest court ruling live up to the hype? Will it stand up at all?

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A five-year-old dispute among the Indepedence School District and several employee associations served as the basis last week for the state Supreme Supreme Court to overturn 60 years of legal precedent governing union powers for public employees.

The old interpretation prohibited government workers, including teachers and police officers, from engaging in collective bargaining over salaries, fringe benefits and workplace rights.

The new interpretation, decision, declares that public employees have a constitutional right to bargain collectively, just like their private-sector counterparts.

That change is fueling some high-octane adjectives.

To quote just one of the experts cited in the movie-style review above: "It's obviously a very radical change in what the law has been," said John Dunsford, a St. Louis University law professor whose school biography touts him as "one of the nation's foremost arbitrators and labor law scholars."

But exactly how things will change is unclear.

Although they previously did not have a specific constitutional right to collective bargaining, some public employee groups have engaged for decades in work-condition negotiations with their government employers.

They have done so under a "meet and confer" standard, in which government administrators are under no obligation to try to reach an agreement with the bargaining employees. That falls short of traditional benchmarks for "collective bargaining," in which there are repercussions if one side does not negotiate in good faith to try to reach a resolution.

The Supreme Court's latest ruling seems to champion something in between. Writing for the majority, Chief Justice Michael Wolff says public entities must bargain with the delegates chosen by a group of public employees. Public entities are not bound to reach an agreement with them. But any agreement they do reach is binding.

That raises several questions, said Neil Bernstein, professor emeritus at Washington University law school in St. Louis, who specialized in labor and employment law.

Perhaps the biggest question is: What does it mean to "bargain" with public employees?

"Does it mean they have to hear what the employees have to say and then say, `No thanks, we're not interested?' Or do they have to demonstrate something more than that?" Bernstein asked.

And there are other questions. How does an administrator know with whom to negotiate? In the private sector, employees hold an election on whether to join a union, and that union chooses its negotiators. But since teachers and police did not previously have collective bargaining rights, there is no state law specifically governing their procedures.

Bernstein also wonders: Since governments ultimately are run by elected officials, can a school superintendent or city administrator sign a negotiated union agreement that would take effect only if approved by the school board or city council?

"I think the Supreme Court has opened up a can of worms, if you will," Bernstein said. "They have created many more questions than they have answered."

Those answers will have to be worked out by the legislature through new laws or the courts through new lawsuits, Bernstein said.

But that assumes the Supreme Court's ruling will stand.

House and Senate leaders are vowing not to flush out the details, but rather to try to reverse the court's decision.

Senate President Pro Tem Michael Gibbons, R-Kirkwood, and House Speaker Pro Tem Carl Bearden, R-St. Charles, both said they would support a constitutional amendment next year to limit the right of collective bargaining to private-sector employees.

Gibbons said the best reaction to the court's ruling is to "clarify what we thought the law was already -- that there is not collective bargaining for public employees."

If the Republican-led legislature passes such an amendment, it would go before voters on the 2008 statewide ballot.

That would give the public the ultimate review of the Supreme Court's ruling. And it's a good bet those powerful adjectives -- "reckless," "radical," "monumental," "profound" -- would be back. This time, through campaign ads on your big-screen television.