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4247S.09F
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SENATE SUBSTITUTE
FOR
SENATE COMMITTEE SUBSTITUTE
FOR
HOUSE BILL NO. 1644
AN ACT
To repeal sections 105.510 and 290.500, RSMo, and to
enact in lieu thereof four new sections relating to
the employer-employee relationship.
Be it enacted by the General Assembly of the State of Missouri, as follows:
Section A. Sections 105.510 and 290.500, RSMo, are 1
repealed and four new sections enacted in lieu thereof, to be 2
known as sections 105.510, 105.515, 285.075, and 290.500, to 3
read as follows:4
105.510. Employees, except [police,] deputy sheriffs, 1
Missouri state highway patrolmen, Missouri National Guard, 2
all teachers of all Missouri schools, colleges and 3
universities, of any public body shall have the right to 4
form and join labor organizations and to present proposals 5
to any public body relative to salaries and other conditions 6
of employment through the representative of their own 7
choosing. No such employee shall be discharged or 8
discriminated against because of his exercise of such right, 9
nor shall any person or group of persons, directly or 10
indirectly, by intimidation or coercion, compel or attempt 11
to compel any such employee to join or refrain from joining 12
a labor organization, except that the above excepted 13
employees have the right to form benevolent, social, or 14
fraternal associations. Membership in such associations may 15
not be restricted on the basis of race, creed, color, 16
religion or ancestry. 17
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105.515. 1. For purposes of this section, the term 1
"first responder" means any firefighter, emergency medical 2
technician, 911 dispatcher, police dispatcher, and police 3
officer. 4
2. Within thirty days after a labor organization has 5
been designated as the exclusive bargaining representative 6
for the first responders in a bargaining unit, 7
representatives of the public body, designated by the public 8
body, and representatives of the labor organization, 9
selected by the labor organization, shall meet and begin 10
bargaining in good faith for an agreement covering the 11
wages, benefits, and other terms and conditions of 12
employment for the first responders within the bargaining 13
unit. 14
3. The labor organization and the public body shall 15
engage in good faith bargaining with each other's designated 16
representatives. 17
4. (1) In the event that an agreement cannot be 18
reached within one hundred eighty days after a labor 19
organization is designated as the exclusive bargaining 20
representative for the first responders in a bargaining 21
unit, the dispute shall be referred to mediation pursuant to 22
this subsection. 23
(2) Within fourteen days after the period in 24
subdivision (1) of this subsection has expired, the parties 25
shall mutually agree on a neutral mediator selected from a 26
panel of neutrals from the United States District Court of 27
either the Western or Eastern District of Missouri. If the 28
parties cannot agree on a neutral mediator within fourteen 29
days, the matter shall be referred to the board and the 30
board shall assign a mediator. 31
(3) If, after the dispute has been referred to a 32
mediator, whether the neutral mediator or the state board of 33
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mediation, the dispute has not been resolved within ninety 34
days, the dispute shall be referred to arbitration through 35
an arbitrator as selected pursuant to subsection 5 of this 36
section. 37
(4) Upon mutual agreement of the parties, the 38
obligation to submit the matter to mediation pursuant to 39
this subsection may be waived and the matter may be 40
immediately submitted to interest arbitration in accordance 41
with subsection 5 of this section. 42
5. (1) At any time during the bargaining process, if 43
either the labor organization or the public body determines 44
an impasse has been reached over wages, benefits, hours, or 45
other terms and conditions of employment, the party may 46
submit the matter to interest arbitration. 47
(2) If the parties agree that an impasse has been 48
reached, within seven days of such decision, the public body 49
and labor organization shall attempt to agree upon an 50
impartial arbitrator to resolve the impasse. 51
(3) If an arbitrator cannot be agreed upon within such 52
time period, the party that made the initial determination 53
of impasse or, if agreement was not reached and mediation 54
was unsuccessful or waived, the labor organization, shall 55
request a panel of seven arbitrators from the Federal 56
Mediation and Conciliation Service (FMCS) or, if the FMCS 57
cannot produce a panel of seven arbitrators, the American 58
Arbitration Association (AAA). The parties shall alternate 59
striking from the panel one arbitrator at a time until a 60
single arbitrator is left, with the party that requested the 61
panel striking first. The party striking first shall have 62
an affirmative duty to notify the board that the matter has 63
been referred to interest arbitration pursuant to this 64
subsection. 65
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(4) Once an arbitrator has been selected pursuant to 66
subdivision (2) or (3) of this subsection, the parties shall 67
proceed to resolve whether the matter will be presented to 68
the arbitrator as a total package, issue by issue, or a 69
combination of both. If the parties fail to agree upon a 70
method of presentation to the arbitrator, a prehearing 71
conference shall be held at which each party shall present 72
its position to the arbitrator and the arbitrator shall then 73
determine the method of presentation. If the parties cannot 74
mutually agree upon a date to present their respective 75
arguments, the arbitrator shall set a hearing date at which 76
the labor organization and public body shall each be 77
afforded the opportunity to present its respective case, 78
including a presentation of evidence, data, and testimony, 79
in support of its proposal. The arbitrator shall consider 80
the evidence and render a decision within forty-five days. 81
If the parties do not agree an impasse has been reached, in 82
a singular hearing, the arbitrator shall hear both the 83
procedural and substantive arguments of the parties. Before 84
the arbitrator can render a decision on the parties' 85
substantive arguments, the arbitrator shall first determine 86
whether an impasse has been reached. The decision of the 87
arbitrator shall be binding upon the parties, provided that 88
any provision that would require the enactment of law for 89
its implementation shall not be binding until such time as 90
the law is enacted. 91
(5) All proceedings before the board and the 92
arbitrator shall be recorded with a written transcript being 93
available to each party. The costs of the arbitrator and 94
court reporter shall be borne by both parties equally. Any 95
attorney's fees accrued by any party shall be the 96
responsibility of the party accruing the same. 97
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6. For all successor collective bargaining agreements, 98
if at any time during the bargaining process either the 99
labor organization or the public body determines an impasse 100
has been reached over wages, benefits, hours, or other terms 101
and conditions of employment or a successor agreement is not 102
achieved within one hundred eighty days after the expiration 103
of the predecessor collective bargaining agreement, either 104
party may submit the matter to interest arbitration in 105
accordance with subdivision (1) of subsection 5 of this 106
section. Upon submission to interest arbitration, the 107
arbitrator shall be selected and the matter shall be handled 108
pursuant to subdivisions (2), (3), and (4) of subsection 5 109
of this section. 110
7. For purposes of this section, the term "good faith" 111
includes, but is not limited to, approaching negotiations 112
with a sincere intention to reach an agreement, meeting at 113
reasonable times, dealing with the respective parties in an 114
honest and open manner, and matching unacceptable proposals 115
with sincere counter-proposals with the sincere intent to 116
reach an agreement. Acting in good faith includes more than 117
a perfunctory performance of an obligation to meet and 118
confer with the requisite parties. 119
8. If, at any time during the bargaining process for 120
an initial contract as set forth in subsections 2 and 4 of 121
this section or for successor contracts as set forth in 122
subsection 6 of this section, either the labor organization 123
or public body believes the opposing party has engaged in 124
bad faith bargaining in violation of subsection 3 of this 125
section, it may submit the matter to the board for 126
determination. If the board determines a party has engaged 127
in bad faith bargaining in violation of subsection 3 of this 128
section, it shall refer the matter to interest arbitration 129
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in accordance with the provisions of subdivisions (3) to (5) 130
of subsection 5 of this section. 131
9. At no time after a labor organization has been 132
designated as the exclusive bargaining representative for 133
the first responders in a bargaining unit, or after an 134
agreement covering the wages, benefits, and other terms and 135
conditions of employment for first responders within a 136
bargaining unit has expired, shall the public body make any 137
unilateral changes to wages, benefits, or other terms and 138
conditions of employment subject to mandatory bargaining. 139
Any such unilateral changes shall be considered a failure to 140
bargain in good faith. If the labor organization believes 141
that the public body has made unilateral changes to wages, 142
benefits, or other terms and conditions of employment 143
subject to mandatory bargaining, the labor organization may 144
seek declaratory relief, injunctive relief, and monetary 145
damages arising from the unlawful unilateral change in an 146
appropriate state or federal court. 147
285.075. 1. Notwithstanding any voluntary agreement 1
entered into between the United States Department of Labor 2
and a franchisee or a franchisor, neither a franchisee nor a 3
franchisee's employee shall be deemed to be an employee of 4
the franchisor for any purpose, unless the franchisor 5
exercises direct and immediate control over the hiring, 6
termination, discipline, and direction of the franchisee's 7
employees. 8
2. For purposes of this section, the terms 9
"franchisee" and "franchisor" have the same meaning as in 16 10
CFR 436.1. 11
3. Notwithstanding any other provision of law to the 12
contrary, this section shall not be construed to affect 13
employee or employer status under Article I, Section 29, of 14
the Missouri Constitution or the National Labor Relations 15
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Act, 29 U.S.C. Section 151, et. seq., or its successor 16
provisions. 17
290.500. As used in sections 290.500 to 290.530, the 1
following words and phrases mean: 2
(1) "Agriculture", farming and all its branches 3
including, but not limited to, the cultivation and tillage 4
of the soil, dairying, the production, cultivation, growing 5
and harvesting of any agricultural commodities, the raising 6
of livestock, fish and other marine life, bees, fur-bearing 7
animals or poultry and any practices performed by a farmer 8
or on a farm as an incident to or in conjunction with 9
farming operations, including preparation for market, 10
delivery to storage or to market or to carriers for 11
transportation to market; 12
(2) "Director", the director of the department of 13
labor and industrial relations or his authorized 14
representative; 15
(3) "Employee", any individual employed by an 16
employer, except that the term "employee" shall not include: 17
(a) Any individual employed in a bona fide executive, 18
administrative, or professional capacity; 19
(b) Any individual engaged in the activities of an 20
educational, charitable, religious, or nonprofit 21
organization where the employer-employee relationship does 22
not, in fact, exist or where the services rendered to the 23
organization are on a voluntary basis; 24
(c) Any individual standing in loco parentis to foster 25
children in their care; 26
(d) Any individual employed for less than four months 27
in any year in a resident or day camp for children or youth, 28
or any individual employed by an educational conference 29
center operated by an educational, charitable or not-for- 30
profit organization; 31
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(e) Any individual engaged in the activities of an 32
educational organization where employment by the 33
organization is in lieu of the requirement that the 34
individual pay the cost of tuition, housing or other 35
educational fees of the organization or where earnings of 36
the individual employed by the organization are credited 37
toward the payment of the cost of tuition, housing or other 38
educational fees of the organization; 39
(f) Any individual employed on or about a private 40
residence on an occasional basis for six hours or less on 41
each occasion; 42
(g) Any handicapped person employed in a sheltered 43
workshop, certified by the department of elementary and 44
secondary education; 45
(h) Any person employed on a casual basis to provide 46
baby-sitting services; 47
(i) Any individual employed by an employer subject to 48
the provisions of part A of subtitle IV of title 49, United 49
States Code, 49 U.S.C. §§ 10101 et seq.; 50
(j) Any individual employed on a casual or 51
intermittent basis as a golf caddy, newsboy, or in a similar 52
occupation; 53
(k) Any individual whose earnings are derived in whole 54
or in part from sales commissions and whose hours and places 55
of employment are not substantially controlled by the 56
employer; 57
(l) Any individual who is employed in any government 58
position defined in 29 U.S.C. §§ 203(e)(2)(C)(i)-(ii); 59
(m) Any individual employed by a retail or service 60
business whose annual gross volume sales made or business 61
done is less than five hundred thousand dollars; 62
(n) Any individual who is an offender, as defined in 63
section 217.010, who is incarcerated in any correctional 64
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facility operated by the department of corrections, 65
including offenders who provide labor or services on the 66
grounds of such correctional facility pursuant to section 67
217.550; 68
(o) Any individual described by the provisions of 69
section 29 U.S.C. 213(a) (8); 70
(p) Any individual who has entered into a contract to 71
play baseball at the minor league level and who is 72
compensated pursuant to the terms of a collective bargaining 73
agreement that expressly provides for wages and working 74
conditions; 75
(4) "Employer", any person acting directly or 76
indirectly in the interest of an employer in relation to an 77
employee; 78
(5) "Learner and apprentice", any individual under 20 79
years of age who has not completed the required training for 80
a particular job. In no event shall the individual be 81
deemed a learner or apprentice in the occupation after three 82
months of training except where the director finds, after 83
investigation, that for the particular occupation a minimum 84
of proficiency cannot be acquired in three months. In no 85
case shall a person be declared to be a learner or 86
apprentice after six months of training for a particular 87
employer or job. Employees of an amusement or recreation 88
business that meets the criteria set out in 29 U.S.C. § 89
213(a) (3) may be deemed a learner or apprentice for ninety 90
working days. No individual shall be deemed a learner or 91
apprentice solely for the purpose of evading the provisions 92
of sections 290.500 to 290.530; 93
(6) "Occupation", any occupation, service, trade, 94
business, industry, or branch or group of industries or 95
employment or class of employment in which individuals are 96
gainfully employed; 97
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(7) "Wage", compensation due to an employee by reason 98
of his employment, payable in legal tender of the United 99
States or checks on banks convertible into cash on demand at 100
full face value; 101
(8) "Person", any individual, partnership, 102
association, corporation, business, business trust, legal 103
representative, or any organized group of persons; 104
(9) "Man-day", any day during which an employee 105
performs any agricultural labor for not less than one hour. 106