Opinion handed down November 20, 2012
At trial, the American Federation of Teachers and its St. Louis affiliate, Local 420, (together “the union”), claimed that the Construction Career Center Charter School District and the individual members of its Board of Education (“the board”) failed to satisfy its duty to bargain collectively under article I, section 29, of the Missouri Constitution.[2] The trial court granted summary judgment declaring that the board had no duty to “meet and confer” or to bargain collectively in good faith with the union.[3] On appeal, the Supreme Court of Missouri reversed the trial court, holding that that article I, section 29 guarantees employees’ right to organize and bargain collectively, which includes a duty for the board to meet and confer in good faith.[4]
I. Facts & Holding
The union and the board met on 18 separate occasions between May 13, 2008, and April 9, 2009, to negotiate a collective bargaining agreement.[5] Except for teachers’ salaries, all issues were tentatively agreed upon.[6] No agreement was finalized, however.[7] During this time, the board held closed meetings.[8] No minutes or votes were recorded in these meetings, but the board discussed and ultimately rejected the tentative agreement.[9] The board also adopted teacher salaries for the following year in one of the closed-door meetings.[10] After unilaterally determining teachers’ salaries, the board met with the union on March 30, 2009, but failed to discuss the change.[11] On April 9, 2009, the board finally proposed its new agreement terms to the union and gave it six days to reply.[12] The union made a counteroffer on April 13, 2009, but the board rejected it.[13]
The union filed a petition for declaratory judgment asserting that it has a constitutional right to bargain collectively with the board, and the board therefore has a duty to collectively bargain with the union.[14] In this case, the union claimed the board failed to satisfy its duty to bargain collectively in good faith.[15] The board conceded that it has an obligation to meet and confer with the union, but claimed that such duty does not also impose the duty to bargain collectively in good faith.[16]
The case was submitted to the trial court, which held that the Missouri Constitution imposes no duty on a public employer to “meet and confer” or to bargain in good faith with a collective bargaining representative.[17] However, the trial court did find that if there is a duty to bargain in good faith, the board did not do so in this instance.[18] Accordingly, the trial court granted summary judgment for the board and the union appealed.[19] Because article I, section 29 of the Missouri Constitution grants both public and private sector employees “the right to organize and to bargain collectively through representatives of their own choosing,” the Supreme Court of Missouri reversed and remanded.[20]
In a dissenting opinion, Judge Zel M. Fischer disagreed with the majority’s contention that article I, section 29, would be "nullified or redundant" if it did not impose a duty on employers to meet and confer and negotiate in good faith.[21] Judge Fischer believed the plain language of the provision, the constitutional debates that took place at the time the provision was adopted, and precedent do not impose an affirmative duty on employers to negotiate, or collectively bargain, in good faith.[22]
II. Legal Background
In many states, employers have a statutorily imposed duty to bargain collectively in good faith.[23] Not in Missouri, though.[24] In Missouri, the employer remains free to accept or reject any proposal made during the course of bargaining.[25] Nevertheless, the right to bargain collectively still requires “negotiations between an employer and the representatives of organized employees to determine the conditions of employment.”[26]
“Collective bargaining” is a technical term that has always been construed to include a duty to negotiate in good faith, whether required explicitly by statute or not.[27] Terms used in the constitution that carry technical meaning “are to be understood in their technical sense unless there is something to show that they were employed in some other way.”[28] Technical words or phrases have a particular meaning in law and are to be understood according to that meaning.[29]
Before article I, section 29, was adopted as part of Missouri’s constitution, the words “bargain collectively” were commonly used to describe negotiations conducted in good faith in an attempt to reach an agreement.[30] Under Missouri law, acting in “good faith” means acting “without simulation or pretense, innocently and in an attitude of trust and confidence . . . .”[31] Parties had to act “honestly, openly, sincerely, without deceit, covin, or any form of fraud” in order to act in good faith.[32] Nationally, bargaining collectively was also understood to mean negotiating in good faith, even though national labor laws did not actually include an employer’s duty to bargain in good faith until 1947, when the National Labor Relations Act was amended.[33]
Since the adoption of Missouri’s constitution, courts and agencies have continued to hold that collective bargaining requires an employer to bargain in good faith.[34] The National Labor Relations Board has also repeatedly held that the duty to bargain collectively requires the employer make a reasonable effort to reach an agreement by negotiating in good faith and matching unacceptable employee proposals with counter-proposals.[35] According to several National Labor Relations Board holdings, bargaining means more than negotiating, it means negotiating with intent to reach an agreement.[36]
In National Labor Relations Board v. American National Insurance Company, the United States Supreme Court held that an employer has a duty “to negotiate in good faith with his employees’ representatives; to match their proposals, if unacceptable, with counter-proposals; and to make every reasonable effort to reach an agreement.”[37] In Quinn v. Buchanan, however, the Court held the purpose of article I, section 29 "was to declare that such rights of collective bargaining were established in this state.”[38] In other words, “employees have the right to organize and function for a special purpose: namely, for the purpose of collective bargaining."[39] Quinn also held that article I, section 29, is not a labor relations act, nor does it specify any rights, duties, practices and obligations of employers and labor organizations.[40] The Quinn Court found that the constitutional provision requires no affirmative duties by the employer.[41] It merely guarantees the right of employees to organize and to bargain collectively.[42]
III. Comment
Holding that Missouri’s constitution does not require public employers to negotiate in good faith would essentially nullify employees’ right to collectively bargain and make Missouri’s constitution redundant. Reaching an agreement is the ultimate goal of collective bargaining. If employers were allowed to bargain in bad faith, they could ensure an agreement is never reached, thereby frustrating the very purpose of the right. Additionally, if good faith is not required, the right to collective bargaining becomes nothing more than a right to petition an employer for grievances. Employees have this right already, so failing to require good faith would make article I, section 29, redundant as well.
According to the dissent, article I, section 29, was not designed to facilitate the process of collective bargaining. Instead, it was designed to protect the right of employees to organize and bargain through a representative of their own choosing, and nothing more. For the previously mentioned reasons, this is not the case. The majority does not expand the plain language of article I, section 29. If nothing else, the majority opinion clarifies the section. Employers are not required to make an agreement with employees, but the Missouri Constitution does require them to collectively bargain. As such, employers are required to meet and confer with employees (or their representatives), and furthermore, do so in good faith.
- Joe Palumbo
[1] No. SC91766 (Mo. Nov. 20, 2012) (en banc). The West reporter citation is Am. Fed'n of Teachers v. Ledbetter, 387 S.W.3d 360 (Mo. Nov. 20, 2012) (en banc).
[2] Ledbetter, slip op. at 2.
[3] Id. at 2-3.
[4] Id. at 2.
[5] Id.
[6] Id.
[7] Id.
[8] Id.
[9] Id.
[10] Id.
[11] Id.
[12] Id. at 3.
[13] Id.
[14] Id. at 4.
[15] Id.
[16] Id.
[17] Id.
[18] Id.
[19] Id.
[20] Id.
[21] Id. at 3 (J. Fischer dissenting).
[22] Id.
[23] Id. at 5.
[24] Id.
[25] Independence-Nat. Educ. Ass’n v. Independence Sch. Dist., 223 S.W.3d 131, 136 (Mo. banc 2007).
[26] Id. at 138 n.6 (quoting Black’s Law Dictionary 280 (8th ed. 2004)).
[27] Ledbetter, slip op. at 7.
[28] Ex parte Bethurum, 66 Mo. 545, 548 (1877).
[29] Ledbetter, slip op. at 7.
[30] Id. at 10.
[31] State ex rel. West v. Diemer, 164 S.W. 517, 521 (Mo. 1914).
[32] Id.
[33] Id. at 10.
[34] Id.
[35] Id. at 9.
[36] Id. at. 10.
[37] 343 U.S. 395, 402 (1951).
[38] 298 S.W.2d 413, 417 (Mo. banc 1957).
[39] Id.
[40] Id. at 418.
[41] Id. at 419.
[42] Id.
