Lead Opinion
The American Federation of Teachers, its St. Louis affiliate Local 420, and individual representatives, Mary Armstrong and Byron Clemens,
Facts and Procedural Background
After receiving formal recognition as the collective bargaining representative for all teachers and other certified employees, the union met and conferred with the board on 18 occasions between May 13, 2008, and April 9, 2009, to negotiate a collective bargaining agreement. In January 2009, the negotiators reached a tentative agreement for all issues except for salaries, but both parties recognized that the agreement was subject to ratification by the local union members and the board members. No agreement was finalized.
The board then discussed the labor negotiations and its tentative agreement during closed meetings in January, February, and March 2009. Advance notice of the meetings and a tentative agenda were posted 24 hours prior to each meeting at the board’s meeting place. During its February 17, 2009, meeting, the board unanimously rejected the tentative labor agreement and instructed its negotiators to present a revised proposal to the union. At the March 30, 2009, meeting, the board resolved not to negotiate teacher tenure matters with the union and unilaterally adopted teacher salaries for the 2009-2010 academic year. No minutes or votes were recorded from those meetings.
The day following the board’s March 30th meeting, the board’s representatives met with the union, but it failed to mention salaries for the 2009-2010 school year. During an April 9, 2009, meeting between the board and union representatives, the board proposed teachers’ salaries for the 2009-2010 school year and announced that contracts would be presented to teachers the next day. At the end of that meeting, the board agreed to extend its deadline by six days to allow the union to respond to its decision. On April 13, 2009, the union offered a counterproposal that the board rejected.
The union filed a petition for declaratory judgment asserting that the board violated the Missouri “sunshine law,” section 610.010, et seq., RSMo Supp.2011,
Standard of Review
The propriety of a grant of summary judgment is an issue of law that this Court reviews de novo. ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp.,
Because this case concerns a declaratory judgment, the trial court’s decision will be affirmed unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. Guyer v. City of Kirkwood,
Discussion
On appeal, the union claims that the trial court erred in declaring that employers do not owe a duty to bargain in good faith under article I, section 29. The union asserts that because it has a constitutional right to bargain collectively with the board, the board has a corresponding duty to bargain collectively in good faith with the union. Contrary to the trial court’s judgment, the board concedes that it has an obligation to meet and confer with the union but asserts that such duty does not also impose the duty to bargain collectively in good faith.
Article I, section 29 of the Missouri Constitution provides that “employees shall have the right to organize and to bargain collectively through representatives of their own choosing.” This guarantee applies to both public and private sector employees. Independence-Nat. Educ. Ass’n v. Independence Sch. Dist.,
Unlike most states, Missouri does not have a statutorily imposed duty to bargain collectively in good faith. See, e.g., Alaska Stat. § 23.40.110(a)(5); Cal. Gov.Code § 3543.5; Conn. Gen.Stat. § 10-153a(a); Del.Code Ann. § 4007(5); Fla. Stat. § 447.309(1). The question, then, is whether article I, section 29 requires public employers to bargain in good faith. “Constitutional provisions are subject to the same rules of construction as other laws, except that constitutional provisions are given a broader construction due to their more permanent character.” Neske v. City of St. Louis,
Without an interpretation that imposes a duty to negotiate in good faith, the article I, section 29 right to bargain collectively would be nullified or redundant. Both of those results are unreasonable. The ultimate purpose of bargaining is to reach an agreement. Independence,
Moreover, if the right did not include a duty for the public employer to negotiate in good faith, article I, section 29 would be reduced to the right to petition an employer for redress of grievances. In situations in which the employer is a government entity, that interpretation would make the right redundant because this goes no further than the limited right to petition the government already guaranteed by the First Amendment of the United States Constitution and article I, sections 8 and 9 of the Missouri Constitution. While debating section 29’s application to public employees, delegates to Missouri’s constitutional convention noted this distinction, finding that the right to bargain collectively was separate and different from rights of speech, petition, and press. See 9 Debates of the 1943-1944 Constitutional Convention of Missouri 2546-47 (2008).
Most importantly, “collective bargaining,” as a technical term, always has been construed to include a duty to negotiate in good faith — even when it was not required explicitly by statute. When the constitution employs words that long have had a technical meaning, as used in statutes and judicial proceedings, those words are to be understood in their technical sense unless there is something to show that they were employed in some other way. Ex parte Bethurum,
Evidence of this understanding may be found when examining the American history of collective bargaining. The governmental promotion of collective bargaining
As the right of the workers to bargain collectively through their chosen representatives is recognized by this board, the company should recognize and deal with such committees of their employees after they have been constituted by the employees.
We recommend that when such shop committees are elected that the company representatives meet with them at an early date to take up differences that still exist in an earnest endeavor to reach an agreement on all points at issue. ...”
Amalgamated Meat Cutters & Butcher Workmen of Am. v. W. Cold Storage Co., Nat’l War Labor Bd. Docket No. 80 (1919) (cited in Smith, The Evolution, supra, at 1069-70) (emphasis added).
After World War I, the Transportation Act, passed by Congress, obligated employers in the railroad industry to “exert every reasonable effort and adopt every available means to avoid any interruption to the operation of any carrier growing out of any dispute between the carrier and the employees or subordinate officials.” Transportation Act, Pub.L. No. 152, 41 Stat. 456, 469 (1920). That act also did not contain an explicit duty to bargain in good faith, but the Railroad Labor Board still found that collective bargaining required more than a mere “perfunctory performance of the statute.” Internat’l Ass’n of Machinists, 2 R.L.B. 87, 89 (1921). Indeed, The Railroad Labor Board found that collective bargaining “requires an honest effort by the parties to decide in conference.” Id. (emphasis added).
The requirement of good faith in collective bargaining was reaffirmed by Congress’ adoption of the National Industrial Labor Act. Pub.L. No. 67, 48 Stat. 195 (1933). Section 7(a) of that act specifically notes that “employees shall have the right to organize and bargain collectively through representatives of their own choosing.” Although this act, once again, did not explicitly include a duty to bargain in good faith, id. at 198, the National Labor Board, an administrative board that served as short-lived precursor to the National Labor Relations Board, found in 1934 that good faith was implicit to collective bargaining. Connecticut Coke Co., 2 N.L.B. 88, 89 (1934). It found that the statute required more than simply “meeting] and conferring]” with employee representatives because
[t]rue collective bargaining involves more than the holding of conferences and the exchange of pleasantries. It is not limited to the settlement of specific grievances.... 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.
Id. (emphasis added). A short while later, the newly organized National Labor Relations Board held that the duty of an employer to bargain collectively requires the employer “to negotiate in good faith with
By 1935, Congress enacted new labor relations laws through the National Industrial Recovery Act, again without adding an explicit obligation to negotiate in “good faith.” National Labor Relations Act, Pub.L. No. 198, 49 Stat. 449, 452 (1935). However, the National Labor Relations Board continued to find that good faith was an implicit component of collective bargaining. Atlantic Refining Co.,
By 1945, when article I, section 29 was adopted as part of Missouri’s current constitution, the words “bargain collectively” were common usage for negotiations conducted in good faith and looking toward a collective agreement. In fact, national labor laws did not explicitly include an employer’s corresponding duty to bargain in good faith until 1947, when Congress amended the National Labor Relations Act. Robert P. Duvin, The Duty to Bargain: Law in Search of Policy, 64 Colum. L.Rev. 248, 255-56 (1964) (citing Labor Management Relations Act (Taft-Hartley Act) § 8(d), Pub.L. No. 101, 61 Stat. 136, 142 (1947)).
Furthermore, since the adoption of Missouri’s constitution, courts continue to recognize the essential role of good faith in collective bargaining. In 1951, the United States Supreme Court recognized that the “performance of the duty to bargain requires more than a willingness to enter upon a sterile discussion of union-management differences.” N.L.R.B. v. American Nat’l Ins. Co.,
To say that [the right to bargain collectively] does not confer upon the employ*367 er a corresponding duty to likewise bargain is preposterous. Surely, employees do not organize in order to conduct a sewing circle. Organization and collective bargaining, terms of art in the field, imply and impel an obligation to sit down at a bargaining table and bargain in good faith. To hold any other way would emasculate the constitutional provision.
Comite Organizador De Trabajadores v. Levin,
Under Missouri law, “ ‘good faith’ is not an abstract thing, but ‘is a concrete quality, descriptive of the motivating purpose of one’s act or conduct when challenged or called in question.’”
Conclusion
As recognized in Independence, article I, section 29 of the Missouri Constitution grants public employees the “right to bargain collectively,” requiring public employers to “meet and confer” regarding working conditions, even though it is not required to make an agreement with employees. Independence,
The judgment of the trial court is reversed, and the case is remanded.
Notes
. The American Federation of Teachers, Local 420 and the individual representatives are referenced collectively as "the union.”
. The board of education of the Construction Career Center Charter School District and the individual members of the board are collectively referenced as "the board.”
. All statutory references are to RSMo 2000 unless otherwise indicated.
. Referencing the debates over article I, section 29, however, does not clarify what the right to collective bargaining entails. The debates only state that the goal of section 29 was to preserve the right from any future attack by the Legislature. 8 Debates of the 1943-1944 Constitutional Convention of Missouri 2517 (2008) ("If [article I, section 29] is in our Constitution we will preclude the possibility and the probability as has happened in the past [of], in future sessions of the legislature, many bills being introduced seeking to destroy collective bargaining.”). They do not give any indication as to whether the right imposes an affirmative duty, a sword that can compel employers to bargain, or whether it created only a negative duty, a shield that prohibits public and private employers from impeding the organization of labor unions. In any case, the debates "neither add to nor subtract from the plain meaning of the constitution’s words.” Independence,
. The union argues that Missouri’s adoption of article I, section 29 evinces an intent to adopt the same duty of good faith in collective bargaining as under settled federal labor law. In support of this assertion, the union points to the fact that the National Labor Relations Act predates Missouri’s 1945 constitution and that the language of the Missouri Constitution appears to be taken from section 7 of the NLRA. Compare article I, section 29 with 29 U.S.C. § 157 (2006) (granting to employees the right “to bargain collectively through representatives of their own choosing’’). The NLRA, by its own provisions, specifically excludes its application to employees of "any State or political subdivision." 29 U.S.C. § 152(2); Independence-NEA,
Dissenting Opinion
I respectfully dissent from the principal opinion. The principal opinion holds that, under article I, section 29, of the Missouri Constitution, Missouri employers have an affirmative duty to collectively bargain that inherently creates a duty to meet and confer and negotiate in good faith with the present intention to reach an agreement. The plain language of article I, section 29, does not create these affirmative duties on the part of public school boards. Rather, article I, section 29, serves to guarantee the right of Missouri employees to organize and to choose a representative through which they intend to bargain; article I, section 29, imposes no affirmative duty on any public employer.
Standard of Review
This Court’s standard of review for a circuit court’s grant of summary judgment is de novo. ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Co.,
Analysis
A. The Affirmative Duty to Meet and Confer and to Negotiate in Good Faith
The principal opinion holds that Missouri employers have an affirmative duty to meet and confer with their employees and to negotiate in good faith with the present intention to reach an agreement. This duty, according to the principal opinion, derives from the right to “bargain collectively” created in article I, section 29, of the Missouri Constitution. In order to justify this new interpretation of article I, section 29, the principal opinion quotes the often-used rule of construction “a court will read a constitutional provision broadly,” Op. at 363-64, but what is missing from the principal opinion’s analysis is “the rest of the story,” to quote Paul Harvey, when a court is required to interpret a constitutional provision.
While a court will read a constitutional provision broadly, it cannot ascribe to it a meaning that is contrary to that clearly intended by the drafters. Rath*369 er, a court must undertake to ascribe to the words of a constitutional provision the meaning that the people understood them to have when the provision was adopted.
Farmer v. Kinder,
The principal opinion holds that 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. Because the plain language of this provision, a review of the constitutional debates that took place at the time the provision was adopted, and review of this Court’s cases do not impose an affirmative duty on employers, I do not agree.
The purpose of article I, section 29, “was to declare that such rights of collective bargaining were established in this state. It means that employees have the right to organize and function for a special purpose: namely, for the purpose of collective bargaining.” Quinn v. Buchanan,
The principal opinion greatly expands the clear and express language of article I, section 29, into a “labor relations act.” This Court has consistently held that article I, section 29, “is not a labor relations act, specifying rights, duties, practices and obligations of employers and labor organizations.” Quinn,
The principal opinion’s new interpretation of article I, section 29, to require employers to meet and confer and negotiate in good faith with the present intention to reach an agreement, goes beyond the plain language of the provision and imposes an affirmative duty where one has never before existed. Article I, section 29, does not impose a duty on employees to “bargain collectively in good faith” as the principal opinion holds.
In my view, the plain language of article 1, section 29, does not require employers to negotiate at all. The provision reads: “employees shall have the right to organize and to bargain collectively through representatives of their own choosing.” The provision does not include the words, “meet and confer.” Nor does it include the words “duty to negotiate,” “good faith,” or any other phrase imposing an affirmative duty on employers.
The principal opinion asserts that collective bargaining “always has been construed to include a duty to negotiate in good faith;” thus, article I, section 29, must include a requirement to meet and confer and negotiate in good faith. Op. at 364. To support this proposition, the principal opinion relies on a number of federal laws and agency decisions, including the Transportation Act of 1920, the National Industrial Labor Act, the National Labor Relations Act, and decisions of the National War Labor Board and the National Labor Relations Board. There is a fundamental difference, however, between these federal acts and agency decisions relied on by the principal opinion and article I, section 29, of the Missouri Constitution. The federal authority quoted by the principal opinion was put in place by Congress to facilitate the process of collective bargaining. In facilitating bargaining, the federal government made a policy choice to require good faith negotiations. It did so either expressly through statute or through agency decision — not by judicial mandate based on a judicial philosophy that changes the meaning of a state constitutional provision over time.
But article I, section 29, was not, and is not, designed to facilitate the process of collective bargaining. As noted previously, article I, section 29, was designed to protect from legislative or employer interference the right of employees to organize and bargain through a representative of their own choosing. It was not included in the constitution to establish a process to resolve all the labor relations issues of public school teachers. It is not appropriate for this Court to ascribe a new meaning that is contrary to what was intended by the drafters and those who approved its adoption. Farmer,
This Court’s precedent demonstrates that article I, section 29, had, and continues to have, meaning and utility without the requirement of good faith bargaining. Employees in Missouri are free to organize and to choose a representative through whom to bargain. In this role, article I, section 29, serves to protect employees from coercion by employers and by undesired unions. It also serves to protect from legislative interference the right to organize. This is so because “[t]he constitutional provision was shaped as a shield; the union seeks to use it as a sword.” Quinn,
In Quinn v. Buchanan,
In Quinn, this Court held the employer’s actions in attempting to prevent its employees from organizing violated article I, section 29, but the employer’s refusal to bargain did not. Id. at 419. In a rare speaking order to ensure there was no misunderstanding or confusion created by this Court’s opinion, the order overruling the motion for rehearing stated:
Sec. 29, Art. I of our Constitution ... does not purport to require collective bargaining by either employees or employers. The right it gives to employees is the right to organize for the purpose of collective bargaining through representatives of their own choosing. Whether or not employers and organized employees can bargain or reach an agreement depends upon the willingness of both just as in the case of bargaining for any kind of contract between other persons who have the right to make contracts. Perhaps modern industrial conditions make desirable more than that for best labor relations but that is a matter for the Legislature.
Id. at 420 (internal citations omitted). There is nothing in the text of article I, section 29, the debates concerning the adoption of article I, section 29, or this Court’s prior interpretation of article I, section 29, that suggests this Court should not continue to follow Quinn. Quinn was not overruled nor modified in any way by this Court’s holding in Independence-Nat’l Edu. Ass’n v. Independence Sch. Dist.,
Moreover, cases both before and after Quinn demonstrate the same understanding of the right. In Smith v. Arthur C. Baue Funeral Home, the Court, citing Quinn, held if an employer discharges an employee for engaging in union activities, that is a wrongful discharge under article I, section 29, and the employee is entitled to damages.
Nothing in Independence-National Education Ass’n v. Independence School District serves to alter this understanding of article I, section 29. In Independence, this Court held that public employees were
The Independence Court discussed three points in reaching the conclusion that article I, section 29, extends to public employees. First, the Court found that extending article I, section 29, to public employees does not constitute legislative delegation because employers are not required to agree to any proposals made by employees.
The Court then evaluated the plain meaning of article I, section 29. Id. at 137-39. It concluded that “ ‘[ejmployees’ plainly means employees ... there are no words to limit ‘employees’ to private sector employees.” Id. at 138. The Court then noted that it did not have the authority to read words into the Constitution when the meaning is clear, id., which is exactly what the principal opinion in this case does by requiring public entities to meet and confer and bargain in good faith. In my view, this Court still does not have the authority to read words into the Constitution and particularly to read words into the Constitution that drastically redefine the long established meaning of its actual words.
The Court in Independence discussed the extent of the constitutional right. Id. at 139. It attempted to define “collective bargaining” using, in part, the public sector labor law, but found neither that law, nor the cases interpreting it, defined “collective bargaining.” Id. The Court noted that “the point of bargaining, of course, is to reach agreement,” but stopped short of holding that article I, section 29, requires an employer to bargain with employees. Id. The Court then noted, again, that an employer need not agree with any employees — whether collective or individual — before leaving the question of what “collective bargaining” means unanswered. Id. 138-39.
The Independence Court’s single holding on the issue was: “In any event, article I, section 29 applies to ‘employees,’ regardless of whether they are in the private or public sector, and nothing in this constitutional provision requires public employers to reach agreements with their employee associations.” Id. at 139. This express holding in Independence in no way requires employers to bargain with their employees. Rather, it extends the rights guaranteed by article I, section 29, to public employers. No more, no less.
Moreover, the language from Independence cited in the principal opinion relating to procedural frameworks for bargaining,
This Court’s prior cases demonstrate that article I, section 29, is not nullified or redundant if it does not impose a duty to negotiate in good faith as the principal opinion asserts. Op. at 364. Quinn demonstrates that the provision guarantees employees the right to be free from coercion in their choice to organize and bargain. And it serves to prevent legislative interference with this right. It is also significant that collective bargaining, and organization for that purpose, was unlawful before it was authorized by labor regulations or constitutional provisions. Independence,
B. Separation of Powers
The principal opinion’s decision raises serious separation of powers concerns. Article II, section 1, of the Missouri Constitution codifies the separation of powers doctrine in Missouri. The provision states:
The powers of government shall be divided into three distinct departments— the legislative, executive and judicial— each of which shall be confided to a separate magistracy, and no person, or collection of persons, charged with the exercise of powers properly belonging to one of those departments, shall exercise any power properly belonging to either of the others, except in the instances in this constitution expressly directed or permitted.
The role of this Court in reviewing the constitutional validity of legislative or executive action traditionally has been to declare whether or not the legislature’s or executive’s action is constitutional. This function derives from the Court’s duty to make final determinations of questions of law. Asbury v. Lombardi,
The principal opinion goes beyond its authority by requiring public schools to meet and confer and negotiate in good faith with the present intention to reach an agreement.
Conclusion
The principal opinion treads on the legislative role of public school boards and violates the separation of powers principles embodied by article II, section 1. In Independence a majority of this Court reversed decades of this Court’s jurisprudence by interpreting article I, section 29, to recognize the right of public employees to collectively bargain.
. See also Eastern Missouri Coalition of Police, Fraternal Order of Police, Lodge 15 v. City of Chesterfield (consolidated with) Eastern Missouri Coalition of Police, Fraternal Order of Police, Lodge 15 v. City of University City,
. In fact, the public sector law that sets out the procedural framework, including meet and confer procedures for most public employers, does not expressly include a "good faith” requirement.
. The principal opinion in Eastern Missouri Coalition of Police, Fraternal Order of Police, Lodge 15 v. City of Chesterfield,
. The proposals discussed in Independence were proposals required by the public sector labor law found at section 105.500, et seg., RSMo 2000. Independence,
. In my view, the principal opinion may have failed to consider all of the existing statutory obligations imposed on public schools that may limit a school board’s ability to bargain in the same fashion as private employers. For instance, section 168.126, RSMo, provides that public schools must notify any public school teacher who will not be retained of his or her termination by April 15th. If the school board fails to timely notify the teacher of his or her termination, then that teacher is deemed to be appointed for the next school year. Section 168.126 also requires public school boards to tender a contract to all probationary teachers by May 15th. Public entities must also prepare an annual budget that estimates all revenues and expenditures for the coming year. Section 67.010, RSMo 2000. The estimated expenditures may not exceed the total estimated revenues. Id. The need for public entities to comply with these and other similar statutory obligations may limit the bargaining opportunities of governmental bodies or explain perceived refusals to bargain by public entities.
. The public sector labor law does not contain an express “good faith” provision.
. Article I, section 29, of the Missouri Constitution creates a legally enforceable duty by a public employer “to bargain collectively with those employees and, when necessary, adopt procedures to participate in that process.” Eastern Missouri Coalition of Police, Fraternal Order of Police, Lodge 15 v. City of Chesterfield (consolidated with) Eastern Missouri Coalition of Police, Fraternal Order of Police, Lodge 15 v. City of University City,
. Even though the learned Judge Price foreshadowed that it would be hard to predict how a majority of this Court would apply "giving public employees a new constitutional right to 'collective bargaining’ that the majority does not define,” it is surprising that a majority of this Court would reverse years of precedent to now hold that every local government that has public employees must establish its own version of the public sector labor law to establish a framework to negotiate with its public employees. Independence,