Bargaining with bite: Missouri High Court's constitutional holdings alter public sector labor law.

• Author: Bay, Peter W.

Eastern Missouri Coalition of Police v. City of Chesterfield, 386 S.W.3d 755 (Mo. 2012); American Federation of Teachers v. Ledbetter, 387 S.W.3d 360 (Mo. 2012)

1. INTRODUCTION

   Collective bargaining--negotiations over working conditions between an employer and representatives of their employees (1)--appeared as early as 1891 as labor unions arose in response to the Industrial Revolution. (2) Collective bargaining in private industry was recognized in 1935 by the National Labor Relations Act (3) but was considered prohibited in the public sector. (4) In 1945, the state of Missouri ratified its constitution, which included article 1, section 29, a provision protecting employee collective bargaining rights. (5) That provision, however, was quickly interpreted by courts as applying only to private employees, (6) and thus, public employees had little power to negotiate employment terms. In the 1960s the Missouri legislature passed a number of public sector labor laws that established a very limited collective bargaining framework applicable to most government employees. (7) This area of Missouri law remained relatively untouched until 2007 when, in Independence-National Education Ass'n v. Independence School District, the Supreme Court of Missouri reinterpreted article 1, section 29 as applying to all Missouri employees. (8) The holding was a decisive victory for teachers and law enforcement (who are statutorily excluded from the public sector labor laws) (9) but left many questions as to what the holding would mean. Then in 2012, the Court again interpreted article 1, section 29 in a pair of cases handed down on the same day: Eastern Missouri Coalition of Police v. City of Chesterfield (10) and American Federation of Teachers v. Ledbetter. (11) The decisions considered the scope of article 1, section 29, specifically whether the constitutional right of public employees to collectively bargain imposed a corresponding affirmative duty on public employers to collectively bargain with their employees. (12) The Court held that such a duty is inherent in article 1, section 29--public employers must bargain with employee unions (13) and must do so in good faith with an eye toward reaching an agreement. (14) This Note examines the evolution of collective bargaining rights in Missouri and discusses the import of these 2012 holdings.

2. FACTS AND HOLDING

   1. Eastern Missouri Coalition of Police

      In the first case, plaintiff Eastern Missouri Coalition of Police, Fraternal Order of Police, Lodge 15 (FOP) sued separately the Missouri cities of Chesterfield and University City (the cities). (15) In 2007 and 2008, the majority of the cities' police officers agreed to certify FOP as their exclusive representative for collective bargaining with the cities. (16) FOP asked the cities to recognize their representative status and to establish the procedures necessary for collective bargaining because none existed statutorily. (17) The cities denied the request. (18)

      FOP then brought separate suits in the Circuit Court of St. Louis County against each city seeking a declaratory judgment that article 1, section 29 of the Missouri Constitution imposed an affirmative duty on the cities to implement a framework that would allow collective bargaining to take place. (19) The cities answered that no such duty existed and that the court lacked authority to order a public employer to adopt collective bargaining procedures. (20) FOP won both cases, and the trial courts ordered the cities to set up a collective bargaining framework covering the scope of the appropriate bargaining unit, (21) election procedures to certify FOP as employee representative, and procedures for the "meet and confer" process. (22) The cities separately appealed to the Missouri Court of Appeals, which issued opinions before ultimately transferring the cases to the Supreme Court of Missouri. (23)

      The cities' position on appeal was that: (1) a public employer has no affirmative duty to institute a collective bargaining framework for statutorily exempted public employees and likewise no duty to recognize and engage in actual collective bargaining with unions, and (2) the Missouri Constitution's separation of powers doctrine prohibits a court from ordering a city to legislate such a framework. (24)

      Judge Patricia Breckenridge for the majority (with Judge Zel Fischer dissenting), reversed the trial court orders that the cities establish a specific bargaining framework (25) but held that article 1, section 29 did impose an affirmative duty on employers to bargain collectively with a goal of reaching an agreement. (26)

   2. American Federation of Teachers

      The second case, American Federation of Teachers v. Ledbetter, involved a teacher's union." (27) The American Federation of Teachers (AFT) sued the board of education of the Construction Career Center Charter School District (the board)." (28) In 2008 and 2009, AFT met with the board several times. In January 2009, they reached a tentative and informal collective bargaining agreement on all issues except salaries. (29) In January and February 2009, the board held several closed-door meetings before deciding to reject the tentative agreement and submit a revised proposal to the AFT. (30) At a March 2009 meeting, the board unilaterally adopted teacher salaries for the 2009-2010 academic year. (31) The next day, the board met with the AFT but did not mention its salary decision. (32) Then in April 2009, the board again met with the AFT and proposed salaries for the 2009-2010 academic year, giving the union six days to respond. (33) Four days later, the AFT made a counterproposal on the issue of salaries, which the board rejected. (34) Thereafter, the AFT petitioned the Circuit Court of the City of St. Louis for a declaratory judgment that the board had failed its duty to bargain collectively under article 1, section 29, which it claimed included an implied duty to bargain in good faith. (35)

      The trial court found in favor of the board, holding that Missouri's constitution does not impose an affirmative duty on a public employer to collectively bargain or to do so in good faith. (36) The court, however, stated that if such a duty of good faith bargaining did exist, the board failed to satisfy it as that term is defined under federal labor law. (37)

      The AFT appealed to the Missouri Court of Appeals, which transferred the case to the Supreme Court of Missouri. (38) On appeal, the AFT argued that because the constitution gives employees a right to collectively bargain, employers have a corresponding duty to collectively bargain in good faith. (39) The board conceded that it does have the duty to "meet and confer" with the union (40) but argued that this duty did not carry with it a duty of good faith bargaining. (41)

      Judge Breckenridge for the majority (with Judge Fischer dissenting), reversed the trial court, finding (1) that the right of public employees to collectively bargain imposes an affirmative duty for public employers to "meet and confer" with them, (2) that this duty inherently includes a good faith obligation on the part of the employer, and (3) that the trial court erred in finding that the board failed its good faith obligation because it defined that term under federal, rather than Missouri law. (42)

3. LEGAL BACKGROUND

   The right to assemble for the purpose of joining labor unions is protected both by the First Amendment to the U.S. Constitution (43) as well as article 1, section 8 of the Missouri Constitution. (44) Federal policy and legislation favoring collective bargaining began after World War I and continued through the 1920s and 1930s, (45) but the first true broad strokes came with the procedures laid out in the National Labor Relations Act of 1935 (NLRA). (46) Congress found that employer denial of employee rights to organize and collectively bargain caused strikes and "industrial strife or unrest." (47) On signing the act, President Franklin Roosevelt stated that the act's purpose was a "better relationship between labor and management," premised on an "equitable basis" and "orderly procedure[s]." (48) For nearly all private employees, the NLRA thus specifically guaranteed and protected the right of collective bargaining through representatives chosen by the employees and attempted to establish procedures that would facilitate bargaining. (49) The NLRA as enacted in 1935 did not define the term "collective bargaining," and the major spokesmen for the bill seemed to have very different views of what the process would look like. (50) The 1947 Taft-Hartley amendments to the NLRA gave more guidance, (51) and it was here that the good faith bargaining standard generally became part of the bargaining process. (52) The NLRA addresses, among other things, the details for collective bargaining, the election of representatives, union dues, unfair labor practices, and the establishment of the National Labor Relations Board (NLRB) to handle and prevent disputes. (53) However, the NLRA does not cover public employees. (54)

   The push for collective bargaining rights federally was soon mirrored at the state level. Section A of this Part discusses Missouri's constitutional and statutory efforts to protect employee bargaining rights, while Section B examines initial judicial interpretations of those efforts.

   1. Sources of Collective Bargaining Rights in Missouri

      Missouri included in its 1945 state constitution article 1, section 29, which provides "[t]hat employees shall have the right to organize and to bargain collectively through representatives of their own choosing." (55) During the debates of the 1943-1944 Constitutional Convention of Missouri, R.T. Wood (the sponsor of article 1, section 29) stated that although the right of employees to bargain collectively already existed (by virtue of federal labor law), inclusion of a collective bargaining provision in the Missouri Constitution was necessary to "preclude the...