*1 51 following sought.” 79 1980 and and would deal with payment tax would be of sales can stated, required his client to when if to do so. We Fairly told Jack Gant con- Department’s substantially improve for the climate prepare himself business tax, trying to collect tinued efforts the confidence of our of our state and testimony that is not one line of leaving imposition there of tax- taxpayers by appellant attorney Gant ever legislature. es to the obligated to collect legally that he was pay sales tax. years later not until four
It was again without benefit of
Department
change appellant’s of law audited books period January
and assessed tax for the through 1976 December provides The Sales Tax Act its own Stat- CABOOL, Missouri, CITY OF 144.220, Limitations, ute of Section Plaintiff-respondent, plain simple year 1978.1 It is a statute two limitations, except in cases of fraud. v. totally The record us is devoid of before MEDIA- STATE BOARD OF MISSOURI fraud of kind. evidence of TION, Defendant-appellant. principal opinion’s Neither the reliance No. 66270. suggestion that his client Jack Gant’s prepare “should himself” nor its conclusion Supreme Court of taxpayer that “because had received En Banc. plus the earlier of assessment notice advice April action, possible of counsel of tax collection (for good taxpayer) it is not now faith unawareness,” proof any type
to claim part appellant.
of fraud on the penalty
state has no claims to either tax or years
for the of 1976 and 1977 nor to a
penalty years for the of 1978 and 1979. example
This case is but another
Department’s imposition of tax re-inter-
pretation existing tax laws.2 It is a example bungling
classic bureaucratic
the worst kind. Lora v. Director
Reve-
nue,
(1981),
guishable from this case but rather man-
dates the aforementioned result. facts,
On these I also would reverse penalties
case as to all taxes and
for 1976-
Comm’n,
(Mo.
Hearing
Cum.Supp.1984.
S.W.2d 687
banc
1. Now
652
1983); Banquet
Corp.
Foods
v. Administrative
Inc.,
Industries,
King
v. Mound
665
Comm’n,
(Mo.
Hearing
banc
John Yendes, Gen., Attys. S. Carl Asst. Jeffer- City, defendant-appellant. son Jones, Springfield, Donald W. John Al- Cabool, pers, plaintiff-respondent. Clayton, for Gladney, Ronald C. curiae Mo. State Labor Council. GUNN, Judge. public
This is a sector labor law ease. The Missouri State Board Mediation (Board) certified the International Brother- (IBEW) hood of Electrical as ex- Workers representative clusive cer- employees of Cabool. The tain Board, court circuit reversed appeal, Ap- further the Missouri Court ruling. peals reinstated the Board’s We transfer of the to this Court ordered Const, find, V, Mo. 10 and also under art. Board, did the Mediation IBEW bargaining represent- should be certified as certain ative for Cabool. primary issues for consideration con- proper scope of review
cern Board’s decision and unit reference supervisors. so-called from jaded This old chestnut is and sere inclusion of an electrical head germ many years of existence. The unit and reason controversy when planted participa- union officer-board member’s meeting the IBEW held its first proceeding. tion in the appeal, On further eventually employees, hoping to become the Southern District ordered the Board’s bargaining representative. their exclusive decision reinstated. *3 Subsequent disciplinary action city the Preliminarily, we observe that an against employees for union activities led appellate sitting court review an ad Missey City Cabool, State ex rel. agency findings ministrative reviews the (Mo.1969), upheld, in- and decision agency of the and not the alia, ter the “meet and confer” dialectical judgment of Evangelical the circuit court. provisions Law, of the Public Sector Labor Louis, Retirement Homes Greater St. §§ 105.500-.530, Cum.Supp.1967 RSMo Commission, Inc. v. State Tax (now At that time it seemed 1984). Therefore, the though might the safely matter in- be city’s challenge to the par Board member’s
terred,
resolutely
but it
period-
continues to
ticipation
proceeding
properly
the
ad
ically resurrect. From
Missey,
the time of
dressed to the lawfulness of the Board’s
skirmishing
indecisive
city,
between the
its
§ 536.140.2,
1978;
action. See
employees and the IBEW continued until
Evangelical,
hearing
Missey
would not confer with
necticut
Board
Labor Relations
State
case,
Co.,
the Board
any way concerning
Taxi
151 Conn.
v. Greenwich
(1964).
of his participation
evidence
The
construes
A.2d
stage
offered
holding
“supervisors”
exclude
from
this
proceeding.
this
scope
employees under the
of covered
evidently
act.
Board
concurs
general
argument
Missey’s con-
set of
developed
conclusion and has
fac-
“appearance
improprie-
duct created an
tors
which it determines whether an
ty” is
presumes
also
merit. This
without
supervisor.2
is an excluded
member,
that a
being
Board
an official
concluded, however,
Board
that the electri-
empowered to make decisions relative to
department employee
super-
cal
was not
nexus,
labor-management
must
in-
parties
join issue
visor. The
therefore
(both actually
apparently)
vested
scope
applicable
review
impartiality required
judicial
the same
Board’s decision. The Board contends that
explicitly partisan
officers.
*4
upheld
upon
its decision must be
as based
any
of the Board belies
such
competent
upon
and substantial evidence
1978,
premise. Section
RSMo
§
record,
536.140.2,
whole
the
comprised
mandates that the Bord be
of
“competent
city
and the
maintains that the
two union
as well
employ-
members
as two
not
and substantial evidence” test does
to-
members,
employers’-association
ers or
tally
reviewing court’s in-
circumscribe a
employee
to
is
addition
one who
neither an
quiry
agency
into
the bases
determina-
nor an
This
employer.
composition ensures
tions of fact.
basis,
impartiality
not
on an individual
impartiality
rather
on
based
a consensus of
“competent
the
partisans.
The
of Board
apply
test
substantial evidence”
does
to
issue-oriented,
members in
sectarian activi-
agency’s
circumstances in which the
deter
thus, presumably,
merely
ties is
to
be
only
application
mination involves
the
expected.
tolerated but
§
In
the law to the facts.
536.140.3.
such
circumstances,
city’s
reviewing
may
The
second attack
the
the
“court
Board’s
weigh
decision is directed at the
the
determine
inclusion
the
evidence
itself and
making
“department
accordingly....
head” or
chief”
facts
“section
the
such
department
give
the
electrical
bar-
determination the court shall
due
charge
gaining
weight
opportunity
agency
unit. This
of the
to
is based
the
the
holding
expert
Valley
Hospi-
and to the
Golden
Memorial
observe
witnesses
Mediation,
agen
experience
District v.
ness and
of the
tal
State Board of
Id.;
(Mo.App.1977),
cy.”
Evangelical,
669 S.W.2d
552.
present
“employee”
question implicated
term
used in
The
it is
§§
Law,
super
105.500-.530,
Public Sector Labor
case—whether
statute excludes
persons
question
from its ambit—is a
law.
“excludes those
whose
visors
acting directly
indirectly
questions are
for the inde
duties involve
or
Such
reserved
reviewing
employer
pendent judgment
in relation
of the
court.
in the interest of their
employee.” Id.,
King
Company,
quoting
to another
Con-
Laclede Gas
pay, including
qualifying
The
an evaluation
2.The Board’s
factors for exclusion as
4.
level of
supervisor
paid for his
supervisor
whether the
skill
are:
supervision
employees.
or for his
authority
effectively
recommend the
supervisor
primarily super-
5. Whether the
transfer,
hiring,
discipline
promotion,
or
vising
activity
primarily supervising
discharge
employees.
employees.
authority
assign
direct
the work
supervisor
working super-
is a
6. Whether the
force.
spends
visor
or whether
substantial
employees supervised,
The number of
supervising employees.
majority
his time
exercising
persons
the number of other
independent judgment
7. The amount of
authority
greater,
or lesser
over the
similar
supervision
exercised
discretion
employees.
employees.
same
ap-
by
term or as it is defined
the Board’s
plication
resulting
principle
of law to
supra,
delineated factors. See
n. 2.
the facts of this
involving
case is a matter
The record reveals that
application
facts,
of the law to the
employees
was one of two
of the
§
contemplated
such as is
by
536.140.3.
department,
who worked side
side. The
regard
principles
With
to the
in-
of law
formerly
had
been denominated
case,
present
volved in the
city sug-
“superintendent”
department
of the
gests,
obliquely,
somewhat
that federal law and had
directly
city
communicated
to the
provides authority
proposition
for the
council his
regarding
recommendations
supervisors are not
ambit of the
personnel
both
matters and
“employee”
term
as it is used in the Mis- projects.
prior
Several months
to the hear-
souri Public Sector Labor Law.
It should
ing, however,
employed an adminis-
noted, however,
that the National Labor
charged
trator
expressly
who was
with the
Act,
152(3), (11)
Relations
29 U.S.C.
hire, fire,
authority
promote,
wages
set
(1982), specifically
supervisors
excludes
for,
generally supervise
from the definition of
“employee.”
the term
city, along
power
with the
to over-
Law,
Missouri Public
Sector Labor
any
rule
action taken
contrast, contains no such exclusion. See
head.
It follows that
supervisory au-
§§ 105.500, .510, RSMo 1978.3 Further-
thority
employee prior
held
to the
more, the
originally
N.L.R.A. as
enacted
advent
administrator is immate-
exclusion,
contained no such
and the United
rial, unless the evidence shows that
*5
States
imply
refused to
authority
regime.
continued under the new
such an exclusion in the
plain
face of the
end,
To this
heavily
relies
on the
ordinary
meaning of the
“employ-
term
testimony of the administrator to demon-
ee.” Packard Motor Car Co. v. National
policy
delegation
strate his
authority
Board,
Labor
485,
Relations
330 U.S.
67
789,
supervisory
However,
(1947).
S.Ct.
91 L.Ed.
matters.
1040
the ad-
It was as a
response
direct
to this decision
ministrator’s own testimony clearly
that Con-
shows
gress enacted the supervisory exclusion for
authority
that the ultimate
vested in him
federal labor
Metropolitan
law.
Edison
under the ordinance
scrupulously
re-
Co. v.
Board,
National Labor Relations
him,
served
delega-
and that the claimed
693,
9,
460
1467,
U.S.
704 n.
103 S.Ct.
1475 tions amounted to no more than solicitous
9,n.
(1983).
56 literally employee cannot be justify exclusion of the term [T]he pay- every person on the bargaining read to include employee from the unit.5 public body. of a As stated roll judgment of the circuit court must Employ. Milwaukee v. Wisconsin reversed and remanded with therefore be Com., 168 N.W.2d Rel. 43 Wis.2d the decision of the directions to reinstate (1969): sit ‘someone has to Board of Mediation. State bargaining table.’ side Id. at RENDLEN, C.J., and HIGGINS compelled to on one other I feel comment JJ., DONNELLY, concur. aspect case. For sometime have of this WELLIVER, J., sepa- concurs result regu- urging adopt rule the Court to opinion rate filed. lating of amicus which apply equally. v. to all Sermchief BLACKMAR,JJ., concur BILLINGS (Mo. Gonzales, 660 S.W.2d banc separate opinions filed. 1983); Sprinkle, v. State ex rel. Chandra WELLIVER, concurring in result. (Mo. 1984) (Welliver, banc J., dissenting). Counsel the Missouri agree principal with the Council, per- non-party, State Labor regarding the issues “to intervene mitted the Court ques- substantial unit involve briefs, ap- also to as amicus” and file fact and that based tions of both law and argue in In pear and this case. herein, the so-called “Elec- upon the facts Corporation, 673 S.W.2d Park elec- Superintendent” trical two-man 1984), summarily denied as a matter of fact trical en- associations and business some fifteen correctly included in the unit. right file even to titles of Missouri unnecessary inappro- I deem it both suggestions curiae in a matter as amicus into priate principal calls directly affecting all of their industries.1 long-standing practice question the Board’s industry, both deserve Be it labor employees from excluding supervisory equal treatment our Court. same and my opinion, such a units. *6 requests inconsistency dealing in with Such contemplated by Legislature policy was that accusations appear as amici invites Sector Labor when it enacted Public organizations over favors labor the Court and its necessary and is if the State Law adoption of urge I business interests. effectively are to agencies and subdivisions participation of ami- regulating the a rule Judge Tur- manage personnel. I believe cus curiae. nage correctly stated the law in this State Hospital v. Valley in Memorial Golden BILLINGS, concurring. Judge, Mediation, 559 Board Missouri State continues to be My initial vote was and rejected he (Mo.App.1977) when opinion. principal by of concurrence suggests today one majority the view the there has I to demonstrate write way of dictum: Inc.; Bancorporation, Boatmen’s any stage challenged, Centerre Bancshares, Inc.; at Associa- proceeding, of a sufficient Terminal Railroad this the existence interest,” 105.500(1), Atchison, Louis; "community Topeka, between § and Santa tion of St. employ- Railroad; in and the other Burlington Railway; Northern Fe unit, Co.; and ees included in the Transportation Chicago and North Western point. of that See Court forbears treatment Milwaukee, Rail- Chicago, St. Paul and Pacific 512.160.1, (no allegations of error RSMo 1978 Railroad; road; Kansas Gulf Illinois Central presented have not been to be considered which Co.; Railway Missouri-Kansas- Southern court). by or decided the trial Co.; Railroad; Railroad Pacific Missouri Texas Co.; Railway St. Louis Western and Norfolk Association; the Automobile Dealers 1. Missouri Co.; Railway and Kansas Southwestern Leasing Association Truck Rental and Car and Railway Co. Terminal Inc.; Missouri; Bancorporation, Mercantile 26,1984. “inconsistency” argued January in ami- been the Court’s was A Fowler procedure suggested Judge opinion prepared cus and curiae as in draft was circulated adoption. opinion concurring but failed The case was reas- separate Welliver’s in signed opinion and I to me circulated result. consideration at the June Conference. The all, First of I limit curiae would day Judge before that Conference Welliver procedure drastically because in main dissent, in circulated repetitous most amicus are briefs might have adverse effects parties briefs filed the real in interest security on lenders on chattel and on the merely prop- and too often are vehicles for leasing I industry. chattel considered his aganda Secondly, appears efforts. it my opin- made in changes some ordinarily amicus curiae ion it only to make clear that ruled Fowler filing limited to the oral briefs—before My opinion fact situation.1 argument and submission of the case for vote, separate carried 4 to 3 three (5th decision. Black’s Law ed. Dictionary dissents. 1979); see, e.g., Rule U.S. practice, accordance with our it fell to report July me to to the Conference on the As he did in his criticism of the rehearing motion Fowler. The mo- concerning Chandra case the amicus papers tion my my came to attention on situation, Judge again Welliver fails to ac- City July return to Jefferson 1984. At knowledge that both Chandra and this I that time noted that motions for leave case, the amicus curiae briefs were file amicus briefs had denied been case argued, case submitted before July Acting Justice on Chief contrary happened to what decided— checked Clerk’s Office see if Fowler. The had not proposed briefs had been tendered with briefed, argued de- submitted for they motions found that had not cision parties real interest appeared papers been. It from the motion Court’s decision had been handed down apparently that the would-be amici were before non-parties sought permission to file point concerned about the raised amicus briefs. opinion, Welliver’s which is a matter that I I submit there a vast and obvious had considered and discussed with the oth- difference between amicus curiae briefs be- er Judges the June Conference. I was decision, here, opposed what proposed fore satisfied that the amicus briefs happened in the Fowler case decision. anything demonstrate after “misinterpreted.”2
“overlooked” or BLACKMAR,Judge, concurring. defendant-appellant’s sugges- motions and thorough tions I stud- were detailed. principal opinion, concur in the and also *7 carefully ied them and determined that join Judge Billings’ opinion, in nothing they raised new. explains the file denial extra time to Conference, amicus briefs in Fowler Corpora- reported orally July v. Park I at the tion, 1984) recommending a for the motion rehear- way satisfy any expressed sufficient to Judge fair-minded No overruled. person. separately my I write extended The motion because of desire for discussion. perspective as author was Fowler. overruled without dissent.3 discussion, court, Flag,” opinion. Reargument “The shown Journal of (July August, 1984). Missouri Bar 280 determined will be of issues — disregarded. paragraph 2. second of Rule 84.17 reads dissenting judges ordinarily follows: 3.Even do not vote grant rehearing judge to motion for unless a purpose rehearing a motion expresses who concurred in the call attention to material matters of law or position. change misinterpreted fact overlooked has been to allow ami- policy The Court’s STATE I freely before submission.
cus briefs Plaintiff-Respondent, Judge agree policy. with this Welliver and Billings apparently be more Since have been restrictive. FREDRICKSON, Marsha Christine Court, however, I know of no instance in Defendant-Appellant. delayed ruling on a motion which the Court No. 47065. rehearing permit non-parties to file Appeals, Court Missouri briefs. District, Eastern Division One. There was denial “the same and no handling equal treatment” Dec. 1984. was invitation of Fowler case. There Rehearing Motion for and/or Transfer the Court favors labor “accusation Supreme Denied Jan. 1985. Court organizations business interests.” over Case Transferred to Feb. Judge Welliver also is less than candid permit- non-party that a his statement Appeals Case Retransferred to appear argue present ted to May By practice case. the Court’s established Opinion Original Reinstated only (1) may argue within the 28, 1985. May (2) supported party consent supported party time as the such willing yield. in this The amicus case The amici in
was treated as other. appeared had the time the argued. purpose Judge do not what Wel- know continuing the issue to hold
liver light. in a false
amicus briefs in Fowler spread as he has his views
Inasmuch reports, response official
Court’s medium in order.
same