MISSISSIPPI LEGISLATURE

1999 Regular Session

To: Fees and Salaries of Public Officers; Appropriations

By: Representative Blackmon

AN ACT TO PROVIDE PROCEDURES FOR NEGOTIATIONS BETWEEN PUBLIC EMPLOYEE ORGANIZATIONS AND PUBLIC EMPLOYERS; TO CREATE AND EMPOWER A PUBLIC EMPLOYEE RELATIONS COMMISSION TO SUPERVISE NEGOTIATING ACTIVITIES; TO DEFINE UNLAWFUL ACTS; TO CREATE REMEDIES FOR VIOLATIONS OF THE ACT; TO REPEAL SECTIONS 25-1-105 AND 37-9-75, MISSISSIPPI CODE OF 1972, WHICH PROHIBIT STRIKES BY PUBLIC EMPLOYEES AND TEACHERS; AND FOR RELATED PURPOSES.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:

SECTION 1. This act may be cited as the "Public Employees Negotiations Act."

SECTION 2. As used in this act, the following words and phrases shall have the meanings ascribed in this section unless the context clearly indicates otherwise:

(a) "Public employee" means any person holding a position by employment, contract or appointment with a public employer.

(b) "Public employer" means any governmental entity in this state whose employees are paid in whole or in part by funds appropriated or otherwise provided by the state.

(c) "Person" means one or more individuals, organizations, associations or their representatives.

(d) "Public employees' organization" means any organization with membership open to public employees, as defined in this act, in which employees participate and which exists for the purpose in whole or in part of dealing with public employers concerning, but not limited to, grievances, wages, hours of employment or conditions of work.

(e) "Negotiations" means that process by which the public employer or such representatives as it may designate and representatives of a recognized public employees' organization meet and confer, consult, discuss, exchange information, opinions and proposals in good faith endeavor to reach agreement on matters within the scope of discussions, and incorporate such agreements into a written agreement. "Negotiator" means that person or persons selected by the public employees' organization or the public employer to do their negotiating. The public employer may select any member of its governing board or its executive director or any full-time systemwide employee as a negotiator, who shall be designated as "management personnel."

(f) "Memorandum of agreement" means a written memorandum of understanding arrived at by the representatives of the public employer and the recognized public employees' organization, which shall be presented to the public employer and to the membership of such organization for ratification or rejection.

(g) "Mediation" means that process by which an impartial third party assists in reconciling a dispute regarding compensation, benefits, duties and other terms and conditions of employment and service between representatives of the board of trustees and the recognized professional employees' organization through interpretation, suggestion and advice.

(h) "Fact-finding" means investigation of an existing dispute by an individual, panel or board with the fact finder submitting a report to the parties describing the issues involved. The report may contain recommendations for settlement and may be made public after the parties to the dispute have had an opportunity to study it.

(i) "Arbitration" means the process of determination of disputed matters by submission to private unofficial persons selected for a purpose and in a manner consistent with this act.

(j) "Negotiating unit" means all those public employees as defined in this act, excluding those persons specifically named as management personnel.

(k) "Management personnel" means those public employees certified by the governing board of a public employer to represent it in the negotiating process.

(l) "Strike" means a concerted failure to report for duty, a willful absence from one's position, the stoppage of work, a deliberate slowing down of work, or the withholding, in whole or in part, of the full, faithful and proper performance of the duties of employment, for the purpose of inducing, influencing or coercing a change in the conditions, compensation, rights, privileges or obligations of public employment; however, nothing in this act shall limit or impair the right of any public employee to express or communicate a complaint or opinion on any matter related to the conditions of public employment so long as the same is not designed and does not interfere with the full, faithful and proper performance of the duties of employment.

(m) "Representative" means any person or group of persons, organization or associations, who is designated and authorized by the respective negotiating unit or public employer to negotiate and act for it under this act.

(n) "Commission" means the Public Employee Relations Commission created by this act to promulgate rules and oversee the implementation of this act.

SECTION 3. (1) There is created the "Public Employee Relations Commission." The commission shall consist of five (5) members. Before September 1, 1999, without reference to political party, the Governor shall appoint one (1) member who is a member of the governing board of any public employer, two (2) members who are public employees as defined in this act, and one (1) member who is a publicly elected full-time local officeholder. One (1) additional member shall be appointed by the Governor to serve as chairman who is not in any of the above categories.

The one (1) member representing public employers shall be a person serving on a governing board of a public employer on the effective date of House Bill No. _____, 1999 Regular Session, and having three (3) or more years of experience as a member of such board. Such member shall serve an initial term of three (3) years, which shall expire on September 1, 2002, and thereafter shall be subject to unlimited reappointments to full three-year terms so long as he is a member of the governing board of any public employer.

The one (1) member from a local government shall be chosen for an initial term of two (2) years, which shall expire on September 1, 2001. The person chosen shall be currently serving full-time as an elected local government official and shall be eligible for reappointment so long as that person holds an elected local government office.

The two (2) public employee representatives chosen shall: (a) be persons employed as a public employee, as defined in this act, on the effective date of House Bill No. _____, 1999 Regular Session; (b) have had three (3) or more years of work experience in such position; and (c) be from a separate Supreme Court district from the other employee member. At the first meeting of the commission, the public employee members shall draw lots for an initial term of one (1) year, which shall expire on September 1, 2000, or three (3) years, which shall expire on September 1, 2002, and thereafter shall be subject to unlimited reappointments to full three-year terms so long as their "public employee" status is retained.

The initial person appointed as chairman shall serve for a term of two (2) years. The chairman shall qualify for unlimited reappointments so long as he serves as a qualified member of the commission.

Following the initial appointment to the commission, all appointments or reappointments shall be for three-year terms. In the event of the vacancy, the Governor shall appoint a person to fill the unexpired term when the vacancy occurs.

(2) The Governor's Office shall make available the necessary supportive staff and services to assist the commission in carrying out its duties.

(3) The members of the commission shall serve without compensation, but shall be paid expenses pursuant to Section 25-3-41.

(4) The commission shall meet upon call of the chairman or upon petition of three (3) of the members. Three (3) members shall constitute a quorum and the affirmative vote of three (3) members shall be required for action. In the event the chairman is absent from a duly called meeting, the members may elect a chairman pro tempore from its membership to perform all the duties of the chairman for the meeting.

(5) The commission may appoint mediators, arbitrators and members of fact-finding boards from representatives of public employee organizations and such members from the governing boards of public employers to serve as technical advisers, as it may deem necessary, for the performance of its functions. The commission shall prescribe their duties, fix their compensation and provide for reimbursement of their expenses within the amounts made available therefor. Mediators, arbitrators, fact finders and other technical advisers shall not be full-time employees of the commission.

(6) The function of this commission shall be limited to: (a) maintaining a roster of those organizations which are certified as recognized organizations; (b) establishing policies to determine the appropriate negotiating unit as provided in this act; (c) assisting in negotiating activities when the parties have reached an impasse; (d) conducting hearings and rendering decisions on unlawful acts; and (e) carrying out such other duties as may be necessary to implement this act.

(7) In carrying out these functions and duties the commission shall:

(a) Establish procedures for the prevention of unlawful acts;

(b) Establish, after consultation with representatives of the recognized public employees' organizations and the public employers, separate panels of qualified persons to be available to serve as mediators, arbitrators or members of fact-finding boards, with no person qualified to serve in more than one (1) capacity;

(c) Hold such hearings and make such inquiries as are required by law to carry out properly its functions and powers;

(d) Administer oaths and affirmations, examine witnesses and documents, take testimony and receive evidence, compel attendance of witnesses and the production of documents by the issuance of subpoenas, and delegate such power to any member of the commission or any person appointed by the commission for the performance of its functions; and

(e) Promulgate such rules and regulations and exercise such other powers as necessary to effectuate this act.

SECTION 4. (1) Upon the submission of a written request for recognition by the representatives of one or more public employees' organizations to a public employer, an election shall be held in accordance with this section. Such written request for recognition shall be notarized and shall contain a statement that the public organization has in its possession petition cards signed by more than thirty percent (30%) of the public employees within such public employment. The public employer and the requesting employees' organization shall appoint persons to serve on a special election committee for the purpose of conducting an election as prescribed in this section.

(2) In the event one or more public employees' organizations submit a request for recognition as provided in subsection (1) of this section, a special secret ballot election shall be conducted among the eligible professional employees to determine which requesting organization, if any, shall represent such employees. The special election committee as authorized in subsection (1) of this section shall be formulated to set the date, establish the time and places, establish procedure and supervise the election process, supervise the counting of ballots and file the results with the public employer and the requesting public employees' organization. The election committee shall be composed of one (1) person selected by each public employees' organization which has filed for recognition as provided in subsection (1) of this section plus an equal number of persons selected by the public employer. The requesting public employees' organizations and the public employer shall select the persons to serve on this election committee and shall notify the other parties of such selection within thirty (30) days of the filing of the request. These persons so selected shall select an additional person to serve as chairman. In the event any party has not named such election committee persons or a majority agreement cannot be reached upon the person to serve as chairman within the period of thirty (30) days, upon request of any of the selected persons to serve on this committee, the commission shall name, within five (5) calendar days, those persons which otherwise should have been named. The election committee, upon majority approval, may appoint other persons to assist in conducting the election. Motions before the election committee shall require a majority vote of the membership of the full committee. The election committee person or persons appointed to assist in conducting elections pursuant to this section shall not be compensated for this service. Voting places and times selected by the election committee shall be convenient and accessible for all eligible professional employees. A majority vote of those voting shall be required to secure representation by a public employees' organization. Such secret ballot shall provide for a person to vote for no representation by a public employees' organization. If a majority vote is not secured, a second election shall be held between those organizations or nonorganizations receiving the first and second largest number of votes. The secret ballot election shall be held and the results transmitted to the public employer, respective public employees' organizations and the commission before January 1 of the subsequent year. Challenges to the election must be submitted in writing within fourteen (14) days following the official submission of the results of the election to the public employer, public employees' organization and the commission. If no challenge to the election is submitted within fourteen (14) days, the election committee is officially dissolved. Those persons or organizations initiating the election shall be assessed the costs necessitated in conducting the election by the election committee chairman. The public employees' organization receiving a majority vote shall be designated as exclusive representative effective January 1 of the subsequent year for a period of twenty-four (24) months.

(3) The initial recognition will be for twenty-four (24) months and will be automatically extended for additional twenty-four-month periods unless between October 1 and October 15 of the second twelve (12) months of any recognition period another public employees' organization files application for recognition as provided for in subsection (1) of this section. In such event, an election between the competing organizations will be held according to the provisions of subsection (2) of this section.

(4) When a public employees' organization has met the requirements of recognition in this section as the exclusively recognized organization, the public employer and such organization shall, in good faith, enter into negotiations, and if an agreement is reached, enter into a memorandum of agreement based upon such negotiations and comply with such agreement according to this act.

SECTION 5. A public employees' organization recognized by a public employer shall be the exclusive representative of all the public employees employed by such employer for the purpose of negotiating.

SECTION 6. (1) During the first month following the initial recognition of a public employees' organization and thereafter during the first two (2) months of each fiscal year, management employees of the public employer shall be allowed to retain membership in the recognized public employees' organization but shall not be considered to be a part of the negotiating unit. Upon request, the designated management personnel shall represent the public employer in all negotiation activities. Management personnel shall not be eligible to represent the recognized public employees' organization, to vote on whether to accept or reject items to be negotiated or items that have been negotiated, or to derive benefits from the negotiation efforts except those benefits which go to all public employees of the employer. Management personnel must be designated by majority vote of the governing board of the public employer from those employees who devote a majority of their time to the systemwide area or areas of professional personnel management, fiscal affairs or general management.

(2) All management personnel must be certified to the commission within the first two (2) months of the fiscal year. Those certified as management personnel shall be so classified through the current fiscal year only, but are subject to being recertified by the public employer for subsequent years. In the event a certified management person terminates employment or is transferred to a position which disqualifies him, the public employer shall have thirty (30) days following the filling of the vacated position to name and certify a replacement. Public employers may name and certify management personnel not to exceed a reasonable number which shall be determined by the commission.

SECTION 7. Public employees shall have the right to self-organization, to form, join or be assisted by organizations, to negotiate through representatives of their own choosing and to engage in other concerted activities for the purpose of public negotiations or other mutual aid or protection. Public employees also shall have the right to refrain from any or all such activities.

SECTION 8. (1) It shall be unlawful for a public employer or its designated representative:

(a) To impose or threaten to impose reprisals on public employees, or to discriminate against public employees by reason of their exercise of rights guaranteed by this act;

(b) To interfere with, restrain or coerce employees in the exercise of the rights guaranteed in this act;

(c) To refuse or fail to negotiate in good faith or to execute a written memorandum incorporating any agreements reached with representatives of a recognized public employees' organization as provided in this act;

(d) To refuse to permit a public employees' organization to have access at reasonable times to areas in which public employees work, to use institutional bulletin boards, mail boxes, or other communication media, subject to reasonable regulation, or to exercise the rights guaranteed by this act. If a representative has been selected or designated pursuant this act, a public employer may deny such access or usage to any public employees' organization other than the representative until such time as a lawful challenge to the majority status of the representative is raised pursuant to the act;

(e) To encourage or discourage membership in any organization by discrimination in hiring or other terms or conditions of employment. The public employer or its designated representative may express any views, arguments or opinion on the subject of employer-employee relations, provided such expression contains no threat of reprimand, discharge or promise of benefits;

(f) To discharge or discriminate against an employee because he has filed an affidavit, petition or complaint or given any information or testimony under this act;

(g) To interfere in the administration of any public employee organization; or

(h) To refuse in good faith to mediate, arbitrate or participate in fact-finding efforts pursuant to this act.

(2) It shall be unlawful for a recognized public employees' organization or its representative:

(a) To cause or attempt to cause a public employer to engage in conduct violative of this act. This paragraph shall not be construed to impair the right of a public employees' organization to prescribe its own rules with respect to operation involving the acquisition or retention of membership;

(b) To refuse or fail to negotiate in good faith with a public employer, or to execute a written contract incorporating any agreement reached;

(c) To interfere with, restrain or coerce public employees or a public employer in the exercise of rights granted in this act;

(d) To refuse in good faith to mediate, arbitrate or participate in fact-finding efforts pursuant to this act;

(e) To engage in a strike;

(f) To urge, coerce or encourage others to engage in unlawful acts as defined in this act; or

(g) To enter onto the work place for the purpose of contacting public employees in such a manner and at such times as will interfere with the normal operations of the public employer's agency, except that agreement may be reached in any memorandum of agreement for grievance investigations and process by the recognized public employees' organization. This would not prohibit the negotiating of items considered necessary for the normal operation of the recognized employees' organization.

(3) A complaint of an unlawful act, as defined in this act, must be filed with the commission in writing within sixty (60) calendar days of the violation or such complaint is barred.

SECTION 9. (1) Any controversy concerning unlawful acts as described in Section 8 of this act must be submitted to the commission. Whenever a complaint is filed with the commission that any party has engaged in or is engaging in any unlawful act, the commission shall cause to be served upon such party a written notice stating the charges and the rights of the party charged. The party charged shall have seven (7) calendar days within which to serve a written answer to such charges. The commission shall hold a hearing not less than ten (10) days after the written answer has been served on the commission. At such hearing, the party shall be permitted to be represented by counsel and to summon witnesses on his or her behalf. Compliance with the technical rules of evidence shall not be required. The commission may use its rule-making power as provided in this act to make any procedural rule deemed necessary to carry out this function.

(2) If upon the preponderance of the testimony at the hearing the commission is of the opinion that any party named in a complaint has engaged in or is engaging in any unlawful act, the commission or either party shall state its findings of fact and shall issue and cause to be served on such party an order directing cessation of such practice. Such order shall include such affirmative action as is necessary to effectuate the stated policies of this act. If upon the preponderance of the testimony taken, the commission is not of the opinion that the party named in the complaint has engaged in or is engaging in any unlawful act, then the commission shall state its findings of fact and shall issue an order dismissing the complaint. The commission shall have power to petition a circuit or chancery court to enforce the orders of the commission. Upon the filing of such petition, the court will have jurisdiction of the proceedings and of the questions determined therein, and shall have power to grant such temporary relief as the court deems just and proper, and to make and enter a decree enforcing, modifying and enforcing as so modified, or setting aside in whole or in part the order of the commission. Any objection that has not been heard before the commission shall not be considered by the court, unless the failure or neglect to urge such objection shall be excused because of extraordinary circumstances. The findings of the commission with respect to questions of fact if supported by substantial evidence on the record considered as a whole shall be conclusive. If either party shall apply to the court for leave to introduce additional evidence and shall show to the court that such additional evidence is material and that there were extraordinary circumstances for the failure to introduce such evidence in the hearing before the commission, the court may order such additional evidence to be taken before the commission and to be made a part of the record. The commission may modify its findings as to the facts, or make new findings, by reason of any such additional evidence so taken and filed.

(3) Any party aggrieved by a final order of the commission granting or denying in whole or in part the relief sought may obtain a review of the commission's order in the chancery court.

SECTION 10. If a strike occurs, the public employer may petition the chancery court to enjoin such strike. The petition shall set forth the facts constituting the strike. If the court finds, after a hearing, that a strike has occurred, the court may enjoin the employees from participating in such strike.

SECTION 11. The public employer and the public employees' organization shall negotiate in good faith the following conditions of employment:

(a) Salaries, wages or compensation;

(b) Work schedules relating to assigned hours and day of week;

(c) Grievance procedures;

(d) Employment rights and transfers;

(e) Fringe benefits;

(f) Payroll deductions;

(g) Health and safety regulations;

(h) Standards for employment and evaluation; and

(i) Conditions of rendering public service.

Nothing shall prohibit the parties from agreeing to discuss other terms and conditions of employment in service, but it shall not constitute bad faith as set forth in this act to refuse to negotiate on any other terms and conditions. Either party may complain to the commission of any demands to meet on other terms and conditions and have an order of the commission requiring the other party to continue to meet in good faith on the required items of this section only.

SECTION 12. The scope of a memorandum of agreement shall extend to all matters negotiated between the public employer and the public employees' organization.

SECTION 13. When agreement is reached by the representatives of the public employer and the recognized public employees' organization, they shall prepare jointly a memorandum of understanding, and, within fourteen (14) calendar days, present it to their appropriate governing authorities for ratification or rejection. These governing authorities shall consider the memorandum and ratify or reject it within fourteen (14) calendar days. If either governing authority rejects or modifies any part of a proposed memorandum, the matter shall be returned to the parties for further deliberation. The public employer may enter into such memorandum for a period not in excess of three (3) years. Any items negotiated by a public employer and a public employees' organization which require funding shall not be considered binding until such time as the body empowered to appropriate the funds has approved such appropriations. In the event the amount of funds appropriated is less than the amount negotiated, the public employer or its representatives and the public employees' organization or its representatives shall renegotiate an agreement within the amount of funds appropriated.

SECTION 14. (1) Either the governing board of the public employer or the representative selected or designated pursuant to Section 5 of this act may declare that an impasse has been reached between the parties in negotiation over the terms and conditions of public service and other matters of mutual concern, and may request the Public Employee Relations Commission to so determine. If the commission determines that an impasse exists, the commission or the requesting party shall request the services of the federal mediation and conciliation service. If such service is not readily available, the commission shall appoint, within ten (10) calendar days from the original request, a mediator unless both parties have mutually agreed upon one. The mediator shall meet with the parties or their representatives, or both, either jointly or separately, and shall take such other steps as he may deem appropriate in order to persuade the parties to resolve their differences and effect a mutually acceptable agreement. The mediator shall not make, without the consent of both parties, findings of fact or recommend terms of settlement. The services of the mediator, including, if any, per diem expenses, and actual and necessary travel and subsistence expenses, shall be borne equally by the public employer and the public employees' organization.

(2) If the mediator is unable to bring the parties to agreement on any controversy within fifteen (15) calendar days after his appointment, either party, by written notification to the other, may request that their differences be submitted to advisory arbitration. Within five (5) calendar days, or at a future mutually agreed upon date, after receipt of the written request, the parties shall select a person to serve as arbitrator and obtain a commitment from that person to serve. If they are unable to agree upon an arbitrator or to obtain such commitment within that time, either party may request the Public Employee Relations Commission to designate an arbitrator. The commission shall designate, within five (5) days after receipt of such request, an arbitrator in accordance with rules and procedures for such designation prescribed by the commission. The arbitrator so designated shall not, without the consent of both parties, be the same person who was appointed mediator pursuant to subsection (1) of this section.

(3) The arbitrator shall meet, within ten (10) days after his appointment, with the parties or their representatives, or both, either jointly or separately, shall make inquiries and investigations, hold hearings, and shall take such other steps as he deems appropriate. For the purpose of such hearings, investigations and inquiries, the arbitrator shall have the power to issue subpoenas requiring the attendance and testimony of witnesses and the production of evidence. The several departments, commissions, divisions, authorities, boards, bureaus, agencies and officers of the state or any political subdivisions or agency thereof, including the public employer in arbitration, shall furnish the arbitrator, upon his request, all records, papers and information in their possession relating to any matter under investigation by or in issue before the arbitrator. If the dispute is not settled, the arbitrator shall make findings of fact and recommend terms of settlement, which recommendations shall be advisory only and shall be made within thirty (30) calendar days after his appointment. Any findings of fact or recommended terms of settlement shall be submitted in writing to the parties. The arbitrator, in his discretion, may make such findings and recommendations public, and either the public employer or the public employees' representative may make such findings and recommendations public if no agreement is reached within ten (10) calendar days after their receipt from the arbitrator. The costs for the services of the arbitrator, including per diem expenses, if any, and actual and necessary travel and subsistence expenses, shall be borne equally by the public employer and the public employees' organization.

SECTION 15. (1) A public employer and a recognized public employees' organization who enter into an agreement covering terms and conditions of professional service or other matters of mutual concern may include in such agreement procedures for final and binding arbitration of such disputes as may arise involving the interpretation, application or violation of such agreement or of established policy or practice of such public employer affecting terms and conditions of professional service or other matters of mutual concern.

(2) In the event that such agreement does not include procedures of the type provided for in subsection (1) of this section, either party to the agreement may submit such disputes to final and binding arbitration pursuant to rules and procedures prescribed for such purpose by the Public Employee Relations Commission.

(3) Where a party to such agreement is aggrieved by the failure, neglect or refusal of the other party to proceed to arbitration in the manner provided for in such agreement, such aggrieved party may file a complaint in court for a summary action seeking an order directing that the arbitration proceed in the manner provided for in such agreement or pursuant to rules and procedures adopted pursuant to subsection (2) of this section.

SECTION 16. Section 25-1-105, Mississippi Code of 1972, which prohibits strikes by public employees, is repealed.

SECTION 17. Section 37-9-75, Mississippi Code of 1972, which prohibits strikes by teachers, is repealed.

SECTION 18. This act shall take effect and be in force from and after July 1, 1999.