Independence-National Education Ass'n v. Independence School District

WILLIAM RAY PRICE, JR., Judge,

concurring in part and dissenting in part.

I.

This case presents a complex factual and legal situation. The majority overrules two longstanding cases, City of Springfield v. Clouse, 856 Mo. 1289 , 206 S.W.2d 539 (1947), and Sumpter v. City of Moberly, 645 S.W.2d 359 (Mo. banc 1982). Clouse should not be overruled, but Sumpter should. The status of either case, however, makes little difference to the outcome of this matter in light of other case and statutory law that otherwise controls.

II.

The appellants in this case are three employee groups that sued the Independence School District. The Independence-Transportation Employees Association represents the district’s transportation employees. The Independence-Educational Support Personnel represents the district’s custodial employees. The Independence-National Education Association represents the district’s teachers and paraprofessionals (“teachers”).

Prior to 2002 and the events that led to this action, it was customary for representatives of the transportation and custodial employee associations to meet and confer separately with representatives of the school board about proposals relating to the salaries and working conditions of their represented employees in accordance with the public sector labor law, sections 105.500 to 105.530, RSMo 2000. Though teachers are not included in the public sector labor law, it was customary for the board to hold discussions with representatives of the teachers relating to the teachers’ working conditions, pursuant to a “discussion procedure” that was adopted by the board as board policy.

*142 In April 2002 the board, unilaterally and without meeting with the employees, adopted a “Collaborative Team Policy” (“CTP”) and rescinded the “discussion procedure.” The CTP took away the ability of the representatives of the employee associations to meet and confer separately with representatives of the board about proposals relating to their salaries and working conditions. Instead, the CTP provides for the creation of one collaborative team comprised of representatives of all employee groups and joint, rather than separate, meet and confer discussions between representatives of all employee groups.

In addition, the board unilaterally changed the articles of an agreement in existence between the board and the transportation employees without discussions with, or the consent of, the transportation employees. The articles unilaterally changed by the board related to grievance procedure, payroll deductions, and dismissal and discipline procedure. In August 2002, the board unilaterally adopted a new grievance procedure, Board Policy 4850 and Board Regulation 4850, without discussions or the consent of the appellants.

The appellants argue that they are entitled to the right to bargain collectively under article I, section 29 of the Missouri Constitution and that City of Springfield v. Clouse, 356 Mo. 1239 , 206 S.W.2d 539 (1947), was wrongly decided. They also argue that the Board was not permitted to adopt the CTP without first meeting and conferring with representatives of the employees. The appellants contend that they have the right to meet, confer, and discuss working conditions with the Board separately through the exclusive representative of their choosing, not by way of the joint meet and confer discussions under the existing CTP. Finally, the appellants argue that the board is not permitted to unilaterally rescind the agreements it reaches with its employees.

The issues presented in this case are: 1) do public employees enjoy the right to bargain collectively with public employers under article I, section 29; 2) what matters are required to be the subject of bargaining and/or discussions between a public employer and its employees; 3) who is the board required to accept proposals from and meet with during discussions; and 4) once a proposal produced by the discussions is adopted by the public employer through its governing body, is the employer bound to that agreement?

III. Resolution of the Case Without Overruling Clouse and Sumpter

A.

Article I, section 29 of the Missouri Constitution states: “Organized labor and collective bargaining — That employees shall have the right to organize and to bargain collectively through representatives of their own choosing.” City of Springfield v. Clouse, 356 Mo. 1239 , 206 S.W.2d 539 (1947), provided the initial interpretation of this section. Clouse held that article I, section 29 “can only be construed to apply to employees in private industry.” Id. at 545. However, Clouse recognized the right of all citizens under the Missouri Constitution, including public employees, “to peaceably assemble and organize for any proper purpose, to speak freely and to present their views and desires to any public officer or legislative body.” Id.

B.

In 1965 the legislature enacted the public sector labor law, sections 105.500 to 105.530. Those sections outline the manner in which public employees are entitled to exercise the right to assemble recognized in Clouse. See State ex rel. Missey v. City of Cabool, 441 S.W.2d 35 (Mo.1969). *143 In Missey, this Court held that “the general assembly must have had the intent to enact this legislation in accord with constitutional principles previously enunciated in City of Springfield v. Clouse.” Id. at 41. The Court declared:

The act does not constitute a delegation or bargaining away to the union of the legislative power of the public body, and therefore does no violence to City of Springfield v. Clouse, supra, 206 S.W.2d l.c. 543(4), 545-6(8, 9), because the prior discretion in the legislative body to adopt, modify or reject outright the results of the discussions is untouched. The public employer is not required to agree but is required only to “meet, confer and discuss,” a duty already enjoined upon such employer prior to the enactment of this legislation. City of Springfield v. Clouse, supra, l.c. 542-3(1-3). The act provides only a procedure for communication between the organization selected by public employees and their employer without requiring adoption of any agreement reached.

Id. The Court also distinguished the rights and limitations outlined in sections 105.500 to 105.530 from collective bargaining rights allowed to private employees under the constitution:

[Sections 105.500 to 105.530] do not purport to give to public employees the right of collective bargaining guaranteed by Section 29, Article I, of the 1945 Constitution to employees in private industry and in the sense that term is usually known with its attendant connotation of unfair labor practice for refusal by the employer to execute and adopt the agreement produced by bargaining, and the use of strike as a bargaining device constitutionally protected to private employees but expressly denied by Section 105.530 to public employees.

Id. (internal citations omitted). Sections 105.500 to 105.530 have provided public employees with the alternative to collective bargaining that has been utilized for over 40 years. Although teachers are expressly excluded from those sections, they too enjoy the right to organize and discuss employment conditions with the public body through a representative of their choosing. See Peters v. Bd. of Educ. of the Reorganized Sch. Dist. No. 5 of St. Charles County, 506 S.W.2d 429, 432 (Mo.1974).

C.

The public sector labor law sets out the perimeters in which the discussions between public employees and the governing body must take place.

Section 105.510 provides, in relevant part:

Employees, except police, deputy sheriffs, Missouri state highway patrolmen, Missouri national guard, all teachers of all Missouri schools, colleges and universities, of any public body shall have the right to form and join labor organizations and to present proposals to any public body relative to salaries and other conditions of employment through the representative of their own choosing.

Section 105.520 provides, in relevant part:

Whenever such proposals are presented by the exclusive bargaining representative to a public body, the public body or its designated representative or representatives shall meet, confer and discuss such proposals relative to salaries and other conditions of employment of the employees of the public body with the labor organization which is the exclusive bargaining representative of its employees in a unit appropriate. Upon the completion of discussions, the results shall be reduced to writing and be presented to the appropriate administrative, legislative or other governing body in *144 the form of an ordinance, resolution, bill or other form required for adoption, modification or rejection.

The statutes guarantee the right of public employees, through their exclusive bargaining representative, to present proposals regarding salary and working conditions to a governing body. It also requires the governing body to meet, confer and discuss the proposals with the labor organization that is the exclusive bargaining representative of the employees. Again, teachers are afforded the same rights under Clouse and Peters. See Clouse, 206 S.W.2d at 542 ; Peters, 506 S.W.2d at 432 .

D.

It is important to note that the right to meet, confer and discuss clearly applies only to “salaries and other conditions of employment.” Sec. 105.520. In the instant case, Missouri law is clear that the board retains the exclusive right to manage the district’s operations and make all decisions regarding the manner in which the operations of the district are conducted. Section 171.011 gives school boards the power to make “all needful rules and regulations for the organization, grading and government in the school district.” The statute vests the school districts with “broad powers and discretion in the management of school affairs.” School Dist. of Kansas City v. Clymer, 554 S.W.2d 483, 486 (Mo.App.1977). Accordingly, the board is free to unilaterally adopt policies that do not relate to salary or working conditions, such as policies that establish the details of meet and confer procedures. However, the power of the board to manage school affairs through its policies is subject “to the guidelines of the statutefe] and to due process of law considerations,” Clymer, 554 S.W.2d at 486 , such as the meet and confer procedures set out in sections 105.500 to 105.520. Although the details of the discussion procedures may be established in the policies of the employer, those procedures must comply with sections 105.500 to 105.530.

E.

Sumpter v. City of Moberly, 645 S.W.2d 359 (Mo. banc 1982), acknowledged that a governing body may adopt the proposal of an employee group by way of ordinance, resolution or other appropriate form, depending on the nature of the public body. Id. at 363 . It stated that “the result will be an administrative rule, an ordinance, a resolution, or something else ... but it will not be a binding collective bargaining contract.” Id. Because any agreement made with employees was merely an ordinance or resolution, Sumpter held that governing bodies are free to disregard the agreement so long as the agreement is rescinded by appropriate action. Id.

F.

Assuming that neither Clouse nor Sumpter is overruled, the appellants are nonetheless entitled to relief on most, but not all, of their claims.

i.

Although Clouse would prevent the Court from ordering the board to bargain collectively with its employees pursuant to article I, section 29, under Missey, Peters and the public sector labor law the appellants are entitled to meet and confer with the Board regarding salary and other conditions of their employment. The Board was prohibited from adopting a grievance procedure without first meeting and conferring with the representatives of the employee groups, when requested, and, therefore, the unilaterally adopted grievance procedures are invalid. Grievance procedures are clearly a condition of employ *145 ment. NLRB v. Indep. Stave Co., 591 F.2d 443, 446 (8th Cir.1979); see also Schaffer v. Bd. of Educ. of City of St. Louis, 869 S.W.2d 163, 166 (Mo.App.1993) (federal authority is persuasive in the interpretation of the phrase, “other conditions of employment”). Further, the transportation employees are entitled to relief on their claim that the board improperly adopted policies regarding payroll deductions and dismissal and discipline without first discussing those changes with the representatives of the employees. Those subjects plainly deal with salary and conditions of employment and the provisions adopted unilaterally by the board in violation of the law are invalid.

ii.

However, the board was not required to meet and confer with the appellants prior to adopting its policy on discussion procedure. Section 171.011 gives the board broad powers in managing the operations of the school. In the parties’ joint stipulation of facts, the parties agree that the communication procedure rescinded by the board when it adopted the CTP was at all times contained in a board policy, not a contract or any other type agreement. There was no agreement between the board and the appellants that provided the appellants with any greater rights relative to the modification of that policy. Because the details of exactly how the parties will structure meetings to discuss working conditions is not itself a working condition, the board is free to adopt that policy unilaterally.

iii.

As to the third issue, who the board is required to accept proposals from and meet with during discussions, appellants would be entitled to relief. Although the board was free to unilaterally adopt policies that did not relate to salary or working conditions, it was obligated by law to meet and confer with the exclusive bargaining representative of its employee groups. The meet and confer procedure adopted by the board in its CTP violates section 105.520 as well as the rights of the teachers recognized in Clouse and Peters. See Clouse, 206 S.W.2d at 542 ; Peters, 506 S.W.2d at 432 .

Requiring the representatives of the Independence-Transportation Employees Association and the Independence-Educational Support Personnel to join a collaborative team before presenting their proposals did not adequately guarantee each respective group’s “right to form and join labor organizations and to present proposals to any public body relative to salaries and other conditions of employment through the representative of their own choosing.” Sec. 105.510 (emphasis added); see also Independence-Nat’l Educ. Assoc. v. Independence Sch. Dist., 162 S.W.3d 18, 23 (Mo.App.2005). The CTP did not guarantee that the board would meet and confer “with the labor organization which is the exclusive bargaining representative of its employees.” Sec. 105.520; see also Independence-Nat’l Educ. Assoc., 162 S.W.3d at 23 . Likewise, requiring the teachers to join a collaborative group did not adequately guarantee the teachers the right to speak freely and to present their views and desires either individually or through a representative of their choosing. See Clouse, 206 S.W.2d at 542 ; Peters, 506 S.W.2d at 432 .

Under the case law and the public sector law, the CTP mandating collaborative team proposals is improper. The board must enact a new policy regarding the meet and confer procedure in accordance with the law, although it is not required to meet and confer with the appellants prior to doing so.

*146 IV.

Finally, once a proposal produced by the meet and confer procedure is adopted by the board, the question is whether the board is bound to that agreement. If Sumpter is not overruled the appellants would not be entitled to relief on that issue. Under Sumpter , the board was free to unilaterally rescind any agreement it adopted so long as the agreement was rescinded by appropriate action. In this case, the board voted to rescind the agreements and, therefore, its action was proper under Sumpter .

IV. Should Clouse be Overruled and Does it Make a Difference

A. Should Clouse be Overruled

Article I, section 29 does not expressly differentiate between public and private employees. As noted by the majority, when read in isolation, art. I, sec. 29 might appear to apply to public employees. But the section must be read in historical context with the understanding of collective bargaining in relation to public employees that existed at the time of its adoption in 1945.

The sponsors of art. I, sec. 29 recognized that wages and hours of public employees must be established by statute or ordinance and cannot be the subject of bargaining. The Honorable R.T. Wood, president of the State Federation of Labor and sponsor of section 29 at the convention stated: “I don’t believe there is anyone in the organization that would insist upon having a collective bargaining agreement with a municipality setting forth wages, hours, and working conditions.” Clouse, 206 S.W.2d at 543 . The idea that collective bargaining was unacceptable in the public sector was also illustrated in a letter by Franklin D. Roosevelt, read at the convention:

All Government employees should realize that the process of collective bargaining, as usually understood, cannot be transplanted into the public service. It has its distinct and insurmountable limitations when applied to public personnel management. The very nature and purposes of Government make it impossible for administrative officials to represent fully or to bind the employer in mutual discussions with Government employee organizations. The employer is the whole people, who speak by means of laws enacted by their representatives in Congress. Accordingly, administrative officials and employees alike are governed and guided, and in many instances restricted, by laws which establish policies, procedures, or rules in personnel matters.

Id.

The decision in Clouse, that public employees do not enjoy the right to collective bargaining under the constitution, was handed down only two years following the convention. There is no doubt the Court then knew the intent of the framers and the mood of the 1945 electorate better than the Court does now. Essentially it determined that the term “collective bargaining” simply had no relation, by definition, to public employment. The holding has been relied upon as the correct interpretation of that section in Missouri for 60 years. See, e.g., Curators of Univ. of Mo. v. Pub. Serv. Employees Local No. 45, Columbia, 520 S.W.2d 54, 56 (Mo. banc 1975); Missey, 441 S.W.2d at 41 ; State ex rel. O’Leary v. Mo. State Bd. of Mediation, 509 S.W.2d 84, 87 (Mo. banc 1974). I would not overrule Clouse.

B. Does it Make a Difference i. Law

While the majority spends great effort in overruling Clouse and in giving “all *147 employees, including those represented by the employee associations in this case ... the ‘right to bargain collectively,’ ” it does not outline what differences from existing law would result by doing so. Missey and the public sector labor law have already marginalized Clouse by allowing “meet and confer rights” and giving public employees the right to “form and join labor organizations and to present proposals to any public body ... through the representative of their own choosing.” Sec. 105.510.

The majority does not expressly define the right to “collective bargaining” in the public sector as opposed to the procedure already in place. The majority limits the right of the public employees to bargain collectively by expressly acknowledging that “nothing in this constitutional provision requires public employers to reach agreements with their employee associations” and stating that “the employer is not required to reach an agreement with employees as to working conditions.” As for the right to strike, the majority further limits traditional ideas of collective bargaining by stating that the law “forbids strikes by public employees” and “public employees — unlike their private-sector counterparts — are not permitted to strike.” The majority does not appear to have given public employees anything more than the rights public employees already enjoy to meet and confer and to choose their own representative.

ii. Applied to Facts

Whether or not Clouse is overruled, the rights of the appellants are the same and, therefore, the relief they would be entitled to is the same. Under either approach, the appellants are entitled to relief on then’ claim that the board wrongfully refused to meet and confer with them prior to adopting any grievance procedures, which is a working condition. In addition, the transportation employees are entitled to relief on their claim that the Board wrongfully refused to meet and confer with them prior to adopting policies governing payroll deductions and dismissal and discipline procedure. The board would be required to accept proposals and meet and confer with the employee representatives, when requested, prior to adopting policies relating to salaries, grievance procedures and other working conditions in the future, although it is not required to agree to anything. Finally, the CTP adopted by the board is invalid and the appellants would be entitled to meet with the board through their exclusive representative, rather than through a “collaborative team.” However, the board would not be required to meet and confer with the appellants prior to adopting its policy on the further details of the discussion procedure. Sec. 171.011.

V. Should Sumpter be Overruled

I agree with the majority that Sumpter should be overruled. Without going into detail, otherwise fully set out by the majority in its opinion and by Judge Seiler in his dissent to Sumpter , suffice it to say that while a governmental entity may not be forced to enter into a labor agreement, once it does so, it should be bound accordingly.

The complication in this regard, however, is the long recognized prohibition of one legislative body from binding a subsequent legislative body. See Clouse, 206 S.W.2d at 545 ; State v. Hamey, 168 Mo. 167 , 67 S.W. 620, 624 (1902); Watson Seminary v. Pike County Court, 149 Mo. 57 , 50 S.W. 880, 883 (1899). This is a variation on the separation of powers doctrine from one branch of government to another (legislative, executive, judicial), to one governmental body in time to the following governmental body in time. That is, the *148 succeeding governmental body must be allowed the full power to represent its constituents, regardless of the actions of any previous governmental body. This has been referred to in our precedent as follows:

[I]n so far as one legislature could bind a subsequent one by its enactments, it could in the same degree reduce the legislative power of its successors; and the process might be repeated until, one by one, the subjects of legislation would be excluded altogether from their control, and the constitutional provision that the legislative power shall be vested in two houses would be, to a greater or less degree, rendered ineffectual. ‘Acts of parliament,’ says Blackstone, ‘derogatory from the power of subsequent parliaments, bind not.’

Hamey, 67 S.W. at 624 .

[I]t is also indisputable that, as the general law of 1845 was only a legislative enactment, it could not bind subsequent legislatures, and prevent their granting charters.

Watson Seminary, 50 S.W. at 883 .

This doctrine is easy to understand and apply to the legislature where general assemblies are expressly designated by number from election to election. Other governmental entities, such as school boards, are not so easy to differentiate from term to term. By focusing on Sumpter , the parties have not developed a legal record nor elevated themselves to a full briefing of the issue necessary for the Court to adequately resolve it.

It is enough here to say that even if Sumpter is overruled and a school board may be bound to its own agreements, such agreements may be rescinded by a subsequent school board and the only difference in result from overruling Sumpter is the extent of time that may be found to exist between one school board and its successor.

The appellants are entitled to relief on their claim that any given Board may not unilaterally change agreements it votes to adopt. However, any subsequent Board cannot be bound by a previous board’s vote.

VI. Conclusion

The majority states that stare decisis “is not absolute, and the passage of time and the experience of enforcing a purportedly incorrect precedent may demonstrate a compelling case for changing course.” However, a comparison of the outcome of this case under the majority opinion with the outcome under Missey and the existing public sector labor law, sections 105.500 to 105.530 appears to be insignificant.

“A decision of this court should not be lightly overruled, particularly where, as here, the opinion has remained unchanged for many years.” Novak v. Kansas City Transit, Inc., 365 S.W.2d 539, 546 (Mo. banc 1963). Although Clouse has been substantially undercut by Missey and the public sector labor law, the “meet and confer” procedure is well established, predictable and functions acceptably both generally and in relation to the present controversy. It seems less harm would result from leaving this longstanding procedure in place than from giving public employees a new constitutional right to “collective bargaining” that the majority does not define, describes in terms similar to “meet and confer,” and the application of which no one can predict.