The latest on our pay plan ULP

November 29, 2012 / Comments (0)


Above: MEA-MFT President Eric Feaver addresses the May 25, 2011 news conference announcing the filing of the Unfair Labor Practice charge (ULP). The ULP charges that the 2011 Legislature failed to bargain in good faith on the state pay plan.

Nov. 9, 2012 – Unions (“petitioners”) file District Court reply brief.


Aug. 2012 – MEA-MFT and our fellow unions appeal ULP case to District Court. Our opening brief.


Aug 24, 2012 – Legislature’s motion to intervene. 


Aug. 14, 2012 – Legislature’s brief in support of motion to intervene.


April 13, 2012 – Legislature claims it is not a public employer and thus by definition cannot itself bargain in bad faith. Read here.


March 29, 2012  – unions file appellant brief on remand. Read it here.


March 12, 2012 – BOPA hearing officer Terry Spear issued a proposed order finding that BOPA should dismiss the unions’ ULP and finding that the appropriate forum in which to challenge the Legislature’s failure to pass the pay plan is in the upcoming elections.


Hearing officer’s proposed order.


Unions file notice to appeal the remand.


“Despite Spear’s disappointing decision, we will march back to BOPA once again and state our case,” said MEA-MFT President Eric Feaver. 


“But if nothing else in Spear’s decision provokes us, his conclusion must.  We – all of us – must indeed elect a different legislature, a legislature that cares about the folks who do the work that matters, come what may. If not, then what is left of prebudget pay plan collective bargaining?”


Jan. 24 – Two briefs filed in the case of MEA-MFT’s Unfair Labor Practice (ULP) complaint.


Unions’ brief.

Legislature’s brief.


The briefs follow a Dec. 15 decision by  the Board of Personnel Appeals (BOPA), after a hearing on our ULP. 


BOPA members took no action after the Dec. 15 hearing. Instead, BOPA members voted to kick the issue back to the hearings officer on a technical question.


“Right now, it appears that a definitive decision will not be decided for a long, long time, maybe not before Christmas next year,” said MEA-MFT President Eric Feaver.


“BOPA remanded the issue to the same hearing office who concluded the legislature could do anything it wanted (including nothing at all) and asked that the officer answer the question:  ‘Is the legislature a public employer as defined in law?’


“Once the hearing officer reaches a conclusion, he will send his recommendation back to the board for yet more discussion, perhaps around the even larger question:  ‘Does the Board of Personnel Appeals have the authority to review the legislature’s failure to participate in good faith bargaining with state employees (who may or may not be employees of the legislature) or not?'”



ULP background: MEA-MFT and our fellow unions, MPEA and AFSCME, filed the ULP in May. It charges that the state failed to bargain in good faith when the 2011 Legislature delayed action on HB 13, the state pay plan, until the very end of the legislative session, leaving no time for the unions to negotiate a new proposal to submit.


On the next-to-last day of the session, the legislature chose to kill the bill. The 2011 Legislature chose not to pass the HB 13 even though the state had the money (now over $420 million) for the pay plan’s modest salary increase.


The BOPA hearing officer concluded September 27 that by statute, once a deal is negotiated, ratification is up to the legislature, and there can’t be a charge of failure to bargain in good faith.


The unions disagreed and appealed.


The filings
Below are the documents filed with BOPA in this case.


May 25, 2011 – Unions’ file unfair labor practice (ULP) charge.


June 22 – Following an investigation, BOPA investigator John Andrew reports “there is probable merit to the unfair abor practice charge.” Andrew’s report.


July 6 – Executive Branch (Schweitzer Administration) responds to our ULP, saying the State of Montana negotiated in good faith. 

July 7 – Legislature responds to our ULP, saying the complaint should be dismissed. 

August  2 – The Legislature moves to divide (“sever”) the defendent (State of Montana) into two separate defendents: the Legislature Branch and the Executive Branch. 

August 10 – The unions respond to the Legislature’s motion to sever, asking that the motion be denied because there is only one defendent, and there is no authority for dividing that defendent into two parts. However, the unions agree that each branch may have separate counsel.


August 12 – The Executive Branch responds to the Legislature’s motion to sever, asking that it be denied, saying that nothing will be gained by severing the two branches.


August 18 – The Legislature repeats its request that the Executive Branch and Legislative Branch be treated as two separate defendants. 

August 26 –  the Legislature files a Motion for Summary Judgment arguing that the unions cannot question any action on the part of the Legislature. 


August 29 – A hearing officer with the Board of Personnel Appeals denies the Legislature’s motion to sever.


September 29 – Hearing officer issues a statement saying the ULP should be dismissed and cancels hearing.


September 30 – Unions file Notice of Appeal and Objections to Board Agent’s Recommended Order 


October 14 – Unions file Appellant Brief to BOPA


Nov. 14 – Appellants’ Reply Brief.


Jan. 24, 2012 – Unions’ Brief


Jan. 24, 2012 – Legislature’s Brief


March 12, 2012 – Hearing officer’s proposed order on remand


March 19, 2012 – Unions file appeal of remand.


March 29, 2012 – Unions file appellant brief on remand.


April 13, 2012 – Legislature’s Brief


Aug. 2012 – MEA-MFT and our fellow unions appeal ULP case to District Court. Our opening brief.


Aug 24, 2012 – Legislature’s motion to intervene. 


Aug. 14, 2012 – Legislature’s brief in support of motion to intervene.


Nov. 9, 2012 – Unions (“petitioners”) file District Court reply brief.


More on our ULP

“The legislative majority left us with no other option but legal action,” said MEA-MFT President Eric Feaver, speaking at a May 25 news conference where the unions announced the filing of the ULP.


“We will not stand by and allow them to throw Montana’s state employees under the bus.”


The state pay plan, containing a modest salary increase of 1% in 2012 and 3% in 2013, was negotiated by the unions’ bargaining team (MEA-MFT, MPEA, and AFSCME) and Governor Schweitzer’s administration in November 2010, as required by state law.


Rank-and-file members of all three unions voted in November to ratify the pay plan agreement. The pay plan then went to the 2011 Legislature for ratification, as required by state law.


Delay of game: In December 2010, the pay plan was submitted to the legislature as HB 13.


HB 13 was referred to the House Appropriations Committee, which waited until the last day of January to hold a hearing on HB 13.


Then, inexplicably, the committee took no action on HB 13 until March 23, when it tabled the bill.


“This was an unprecedented delay in acting upon legislation enacting a negotiated state pay plan,” the ULP explains. In previous legislatures, the pay plan passed both houses of the legislature and was signed into law in February or March.


But in the 2011 session, the House Appropriations Committee sat on HB 13 until the last 10 days of the session, when it finally passed the bill out of committee. The bill then died in the House of Representatives on April 26, just two days before the legislature adjourned. See which House members voted no.


The ULP states, “Because of the unprecedented delay in moving the bill, even if the House had approved the pay plan, the Senate would have been required to suspend their operating rules to receive the bill so late in the session. Suspending the rules requires a supermajority of legislators.” 


It continues, “The failure of the legislature to address HB 13 in a timely fashion and the resultant late-session defeat of HB 13, occurring when there was no time left for the exclusive bargaining agents (the unions) to negotiate a new proposal to submit to the legislature, constituted a failure of the State, acting through the legislature, to bargain in good faith with the exclusive representatives of its employees….”


What “good faith” means: The ULP goes on to say that the duty to bargain in good faith requires that all parties involved in the process deal with each other with an open and fair mind, with “a sincere desire to reach an agreement in a spirit of amity and cooperation. The manner in which the legislature handled HB 13 utterly failed to meet this standard.”


Montana state employees voluntarily agreed to a two-year pay freeze in 2009 to help balance the state budget when the Great Recession hit Montana.


“They carried their weight, and they continued to provide quality services with no pay increase for the past two years,” said Quint Nyman, executive director of the Montana Public Employees Association, speaking at the May 25 news conference. “Demanding that they do it again while state revenues continue to increase daily is not reasonable.”


Nyman continued, “Funding this pay plan agreement was never the issue – the money was always there. The legislative majority said they didn’t want to give state employees a modest increase because private sector employees weren’t getting raises. But that’s just not true. According to the Dept. of Labor Statistics, private sector employees are seeing pay increases — both nationally and in Montana.”


Timm Twardoski, executive director of AFSCME, said, “The legislative majority has failed each and every state employee.  They have proven they have no respect for the important work state employees do every day for the people and economy of Montana. It’s unimaginable to ask anyone to take a pay freeze for five calendar years with no explanation.”


“We’re not done with the state pay plan yet,” said Feaver. “We’re fighting for our state employee members, who got a raw deal from the Republican-dominated legislature.” 


Read & view news stories from our May 25 news conference:

Great Falls Tribune: Unions file labor practice complaint against Montana


KFBB NewsChannel 5: Unions File Unfair Labor Practice Against Legislature


NBC Montana: State Employee Unions Challenge Legislative Decision


KXLH Helena News: Unions file labor complaint against State of Montana


AP: State employee unions file unfair labor practice charge against state


Montana Watchdog: Unions file complaint over pay raise struck down by lawmakers


Lee Newspapers: Unions file complaint over pay raise defeat



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