Three Missouri Supreme Court cases – two of which were decided in November of 2012 – have dramatically changed the face of collective bargaining in Missouri. The framers of the 1945 Missouri Constitution included as part of the bill of rights a provision in article I, section 29 that provides “… employees shall have the right to organize and bargain collectively through representatives of their own choosing.” For some 62 years this provision laid dormant with respect to public employees as court after court held it did not apply to public employees.
Finally in 2007, the Missouri Court wakened this sleeping giant by holding in the Independence case that article I, section 29 means exactly what it says. “Employees” include all employees who work for state and local government not just employees in the private sector. The 2007 decision in the Independence case granted public employees a constitutionally protected right to engage in collective bargaining through representatives of their choosing.
While the Independence case was extremely significant it left a lot of unanswered questions and did not seem to have a significant impact since Missouri’s “Meet and Confer Law” already covered nearly all public employees except for law enforcement officers and teachers. Even though teachers and law enforcement officers were excluded from the Meet and Confer Law many political subdivisions negotiated with employee representatives for teachers and law enforcement officers based on the constitutional right of association, a right that exists independently of article I, section 29. The Missouri Meet and Confer law is aptly named since it only requires public employers to collectively bargain by meeting and conferring with union representatives over terms and conditions of employment and to submit the results to the political subdivision for acceptance, rejection or modification.
Despite the significance of the Independence case and the relative calm after this decision there was a huge gaping hole with respect to teachers and law enforcement officers since there was no process for officially recognizing the union as the exclusive bargaining agent nor was there any procedure for how negotiations should proceed and conclude. Some astute observers recognized this problem and adopted their own procedures to fill the gaps with respect to law enforcement and teachers. For most public entities things seemed to be relatively stable and remained the same until two decisions by the Missouri Supreme Court in November of 2012, completely changed the face of public sector collective bargaining.
The first case in 2012 – the Ledbetter case – focused on whether or not a public employer has a “good faith” duty to engage in collective bargaining under the Missouri Constitution. In this case, the school district had recognized the union and had some 18 different bargaining sessions with union representatives. The school district then met in a closed session and resolved to reject the union’s latest offer, not to negotiate any further with respect to teacher tenure and adopted the pay schedules for the upcoming school year. After the closed meeting, representatives from the school board continued to meet with the union but failed to tell the union know about the school board decisions until the school board announced to the union that it was going to provide teachers their contracts the very nest day for the upcoming school year based on the pay schedules already adopted earlier by the school board. The school board delayed the delivery of the contracts while the parties met to see if they could agree.
When the parties failed to agree the union sued alleging that the school board did not bargain in “good faith.” The case finally wound its way to the Missouri Supreme Court, which held that without an interpretation that imposes a duty to negotiate in good faith, the right in article I, section 29 to bargain collectively would be nullified or redundant; that the ultimate purpose of bargaining is to reach an agreement; and while the law does not compel the parties to reach agreement, it does contemplate that both parties will approach the negotiations with an open mind and will make a reasonable effort to reach a common ground of agreement.
While the court did not determine whether or not the actions of the school board violated the duty to “bargain in good faith” it did strongly suggest that Missouri court’s should feel free to draw from a large body of federal law in construing the term “bargaining in good faith” particularly where Missouri law is silent on the matter. Since the parties had stipulated that the actions of the school board did not constitute “good faith bargaining” under federal law the handwriting seems to be on the wall for the school district since there are no Missouri cases interpreting the term “good faith” with respect to collective bargaining. Unresolved is the question of what remedy will the courts impose when an employer violates the duty to bargain in “good faith.” For a better look at that question we now turn to the second 2012 case involving University City and the City of Chesterfield.
The Chesterfield and the University City cases, while separate were consolidated for the purpose of issuing an opinion since both cases involved nearly identical facts. The union representing a majority of police officers and sergeants signed “representation interest cards” supporting the certification of the union as their exclusive representative for collective bargaining. The Union requested that each City voluntarily recognize the union’s representative status and establish a procedural framework for collective bargaining. Both Cities declined the union’s request and the Union sued in separate actions for a declaration that each City had an affirmative duty, under the Missouri Constitution, to establish a meaningful procedural framework allowing law enforcement employees to bargain collectively with their employers. Each City claimed that they were under no duty to adopt a process for collective bargaining and that the court lacked the authority to compel a public employer to adopt such procedures because this would violate the separation of powers. In both cases, the trial court ordered each City to expeditiously establish procedures under which the police officers and sergeants could bargain collectively and procedures for recognition of the union.
The Missouri Supreme Court answered by holding that each City had a duty to bargain, even though there were no procedures; that the trial courts decision went too far in directing each City to establish procedures although the opinion made it clear that the court retains the power to implement its orders; and while each City waived its right to object to the bargaining unit composed of police officers and sergeants the constitution seems to clearly say the employees have the right to bargain through “representatives of their own choosing.”
What can we make of all of this and where do we go from here?
First, the constitutional provision gives all citizens of Missouri who are employees the right to bargain with their employers and requires the parties to bargain in “good faith” This provision is self enforcing since the court held that even without established procedures there was an obligation to bargain in “good faith.” The term “bargain in good faith” when not defined by Missouri law may be determined based on a large body of federal law that construes that term although facts and context will be extremely important. I expect there will be some quick reads and learning on how this term is used under federal law, otherwise it will be very easy to step into some pretty messy deals. You can expect unions will have a head start on this issue.
Second, public employers need to quickly establish procedures for recognizing unions that represent law enforcement and police officers. You would expect that the General Assembly would act by making the Missouri Meet and Confer Law apply to law enforcement and teachers but don’t count on this since until the General Assembly acts there is a big hole that needs to be filled. Start shoveling now!
Third, the composition of the bargaining unit is of great concern since the Missouri Supreme Court suggested that the plain language of the Missouri Constitution allows the employees to determine who will represent them in the negotiations. Does that mean supervisors can be in the same unit as employees they supervise? Does that mean bargaining units certified under the Meet and Confer Law might have to defer to the broader language in the Missouri Constitution with respect to who gets to determine the bargaining unit? Can you require elections to be supervised by a neutral party based on reasonable procedures to determine the majority status of the representatives and the appropriateness of the bargaining unit? Can there be more than one union representing employees who have the same classification?
Fourth, unanswered by these opinions is how negotiations are brought to a conclusion? The Meet and Confer Law provides a straight forward answer by requiring that after negotiating the final results are submitted to the body for acceptance, rejection or modification. How many times do you have to meet to be in good faith and when funds are insufficient is the court prepared to establish a budget or provide additional revenues?
As you can see there are lots of unanswered questions. Get prepared.
For a more detailed discussion of these cases see my December 2012 MMAA newsletter.
Howard Wright@ 2013