Loren K. Allison, attorney at law 803 S. Calhoun St., Suite 300, Fort Wayne, Indiana 46802 (260) 407-0040Many public sector employers are raising questions about a new state law, effective January 1, 2008, which requires, under certain circumstances, cities and towns to sit down and discuss wages and working conditions with the “Exclusive Recognized Representative” of full–time police officers and firefighters. Business People public sector readers need to prepare for and understand the new law before an “Exclusive Recognized Representative” knocks on their door.

    For the first time in Indiana, public safety employees covered by the law have the right to meet freely on their own time to discuss their interests to form, join or assist an employee organization. Moreover, they can solicit membership for the employee organization and have dues deducted from the employee’s wages, i.e. dues “checkoff.” Employees, however, are not required to become a member of an employee organization or pay dues, i.e. “closed shop.”

    If at least 30 percent of the relevant employees of the public sector employer signs a petition requesting an election to determine their “Exclusive Recognized Representative,” an election must be held under a specific set of criteria at least 30 days and within 60 days after the employer receives the petition. If the “Recognized Representative” becomes the “Exclusive” agent by receiving more than 50 percent of the votes cast, they must notify the employer in writing that it intends to exercise its rights under this new law.

    The public sector employer who receives such a written request is statutorily bound to “meet and confer,” therefore, in good faith. The times for such meetings must be reasonable, including meeting in advance of the budget meeting process with the designated representative to discuss terms and conditions of employment, such as proposals concerning wages and the hours of employment. Should the employer and representative enter into a written agreement, it may not exceed 48 months, and the employer cannot enter into an agreement funded by deficit financing.

    The public sector employer is obligated to meet and confer with the representative and may only terminate that duty if, after good faith meeting and conferral, the parties are unable to reach a written agreement and at least 50 percent of the members of the legislative body of the employer vote to terminate the employer’s duty. In the unlikely event of such an occurrence, written notice of that decision must be given to the representative. Upon receipt of such notice, the employee representative may not exercise its rights to bargain for a year from the date the notice was received.
    The employer, of course, still maintains the “managerial right” to direct the workforce; hire, promote, and demote; transfer, assign, discipline and discharge employees for “just cause” and take action necessary to carry out the mission of the employer in emergencies.

    An important exception to coverage under the statute are municipalities under 7,000 or those that have adopted, by ordinance, resolution, amendment or executive order that already permit its employees to form, join or assist employee organization for collective bargaining purposes. Morever, covered employees may not participate in or encourage participation in a strike. An employee engaging in such activity is subject to discharge.

    Unlike the private sector, there is no agency vested with authority to oversee the election process or monitor day–to–day activities to ensure no “unfair labor practices” take place. A remedy for a violation of an employer’s duty to “collectively bargain” appears to be that of declaratory and injunctive relief, and perhaps even voiding policies or decisions taken as a result of failure to meet and confer in a form or fashion dictated by the statute (I.C. 5–14–1.5–7).
    In any event, northeast Indiana public sector employers must be aware of the new obligation imposed upon it by the legislature and know that in the near term, employees may be asking for financial information and accessing the Public Records statute as they prepare for organization and collective bargaining (I.C. 5–4–3). Are you prepared?

    Article by Loren K. Allison, attorney at law
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