American Federation of Teachers v. Ledbetter , 387 S.W.3d 360 ( 2012 )

PATRICIA BRECKENRIDGE, Judge.

The American Federation of Teachers, its St. Louis affiliate Local 420, and individual representatives, Mary Armstrong and Byron Clemens,¹ appeal the trial court’s summary judgment declaring that the board of education of the Construction Career Center Charter School District and the individual members of the board² have no duty to “meet and confer” or to bargain collectively in good faith with the union. Because article I, section 29 of the Missouri Constitution provides that all employees, public and private, have a right to organize and to bargain collectively, it necessarily requires the board to meet and confer with the union, in good faith, with the present intention to reach an agreement. The judgment is reversed, and the cause is remanded.

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.2011,³ and failed to satisfy its duty to bargain collectively under article I, section 29. The case was submitted to the trial court on the parties’ cross-motions for summary judgment. The trial court 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. The trial court further found that, if there is a duty to bargain in good faith, the board did not bargain in “good faith” as that term is understood under federal labor law. Accordingly, the trial court granted summary judgment for the board. The union appeals.

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., 854 S.W.2d 371, 376 (Mo. banc 1993). The criteria on appeal for testing the propriety of summary judgment are no different from those that should be employed by the trial court to determine the propriety of sustaining the motion initially. Id. This Court reviews the record in the light most favorable to the party against whom judgment was entered. Id. Summary judgment is appropriate when the moving party has demonstrated, on the basis of facts as to which there is no genuine dispute, a right to judgment as a matter of law. Rule 74.04(c)(6); Grattan v. Union Elec. Co., 151 S.W.3d 59, 61 (Mo. banc 2004).

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, 38 S.W.3d 412, 413 (Mo. banc 2001) (citing McDermott v. Carnahan, 934 S.W.2d 285, 287 (Mo. banc 1996); Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976)).

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., 223 S.W.3d 131, 133 (Mo. banc 2007). Missouri’s public sector labor law, codified in section 105.500, et seq., creates a procedural framework for collective bargaining for public employees, but it expressly excludes certain professions, including law enforcement officers and teachers. Section 105.510. When a procedural framework for bargaining is not codified, i.e., for excluded employees, the lack of a framework does not excuse the public employer from its constitutional duty to bargain collectively with public employees. See Independence, 223 S.W.3d at 136. When bargaining, “proposals are made and either accepted or rejected.” Id. at 138. While the employer remains free to reject any proposal, id. at 136, the right to bargain collectively still requires “ ‘negotiations between an employer and the representatives of organized employees to determine the conditions of employment ...,’” id. at 138 n. 6 (quoting Black’s Law Dictionary 280 (8th ed.2004)).

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, 218 S.W.3d 417, 421 (Mo. bane 2007), overruled on other grounds by King-Willmann v. Webster Groves School Dist., 361 S.W.3d 414 (Mo. banc 2012). “Statutory construction is favored that avoids unjust or unreasonable results.” David Ranken, Jr. Tech. Inst. v. Boykins, 816 S.W.2d 189, 192 (Mo. banc 1991), overruled on other grounds by Alumax Foils, Inc. v. City of St. Louis, 939 S.W.2d 907, 911 (Mo. banc 1997). In a constitutional context, “[a] constitutional provision should never be construed to work confusion and mischief unless no other reasonable construction is possible.” Theodoro v. Dept. of Liquor Control, 527 S.W.2d 350, 353 (Mo. banc 1975).

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, 223 S.W.3d at 138; City of Springfield v. Clouse, 356 Mo. 1239, 206 S.W.2d 539, 543 (1947), overruled by Independence, 223 S.W.3d at 137 (“Surely the real purpose of such bargaining is to reach agreements and to result in binding contracts between unions representing employees and their employer.”). If public employers were not required to negotiate in good faith, they could act with the intent to thwart collective bargaining so as never to reach an agreement — frustrating the very purpose of bargaining and invalidating the right.

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).⁴

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, 66 Mo. 545, 548 (1877). Section 1.090 (“Words and phrases shall be taken in their plain or ordinary and usual sense, but technical words and phrases having a peculiar and appropriate meaning in law shall be understood according to their technical import.”).

Evidence of this understanding may be found when examining the American history of collective bargaining. The governmental promotion of collective bargaining was born out of the economic emergency caused by the First World War. Russell A. Smith, The Evolution of the “Duty to Bargain” Concept in American Law, 39 Mich. L.Rev. 1065, 1067 (1941). In 1918, the President of the United States organized the War Labor Board in order to mediate and adjudicate labor disputes. Id. at 1068-69. Official policy at that time favored the collective bargaining process, but little, if any, attempt was made to define the extent of an implicit reciprocal duty in employers to bargain with employee representatives. Id. at 1069. Nevertheless, many of the War Labor Board’s findings contained the following, or a similar, formula:

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 his employees’ representatives; to match their proposals, if unacceptable, with counter-proposals; and to make every reasonable effort to reach an agreement.” Houde Engineering Corp., 1 N.L.R.B. (old) 35 (1934) (decided by the National Labor Relations Board organized under Pub. Res. No. 44, 48 Stat. 1183 (1934)).

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., 1 N.L.R.B. 359, 368 (1935) (“Collective bargaining means more than the discussion of individual problems and grievances with employees or groups of employees. It means that the employer is obligated to negotiate in good faith with his employees as a group, through their representatives .... ” (emphasis added)); Atlas Mills, 3 N.L.R.B. 10, 21 (1937) (“[I]f the obligation of the Act is to produce more than a series of empty discussions, bargaining must mean more than mere negotiation. It must mean negotiation with a bona fide intent to reach an agreement if agreement is possible.”); Globe Cotton Mills, 6 N.L.R.B. 461, 467 (1938) (“The term collective bargaining denotes in common usage, as well as in legal terminology, negotiations looking toward a collective agreement.”); Inland Steel Co., 9 N.L.R.B. 783, 797 (1938) (“If honest and sincere bargaining efforts fail to produce an understanding on terms, nothing in the Act makes illegal the employer’s refusal to accept the particular terms submitted to him.” (emphasis added)); Highland Park Mfg. Co., 12 N.L.R.B. 1238, 1248-49 (1939) (“The duty [to bargain collectively] encompasses an obligation to enter into discussion and negotiation with a fair mind and with a sincere purpose to find a basis of agreement .... ” (emphasis added)).

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., 343 U.S. 395, 402, 72 S.Ct. 824, 96 L.Ed. 1027 (1951). Indeed, the Court found that, under national labor laws, collective bargaining requires an employer “ ‘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.’” Id. (citing Houde Engineering, 1 N.L.R.B. (old) at 35). Finally, and in a much more modern context, the New Jersey Superior Court held that its state’s constitutional guarantee for collective bargaining imposes a corresponding duty of good faith on employers:

To say that [the right to bargain collectively] does not confer upon the employer 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, 212 N.J.Super. 362, 515 A.2d 252, 255 (1985). Consequently, because article I, section 29 of Missouri’s constitution imposes on employers a duty to meet and confer with collective bargaining representatives, employers must also engage in the bargaining process in good faith.

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.’”⁵ Krone v. Snapout Forms Co., 360 Mo. 821, 230 S.W.2d 865, 869 (1950) (quoting Municipal Bond & Mortgage Corp. v. Bishop’s Harbor Drainage Dish, 154 Fla. 246, 17 So.2d 226, 227 (1944)). Parties act in “good faith” when they act “without simulation or pretense, innocently and in an attitude of trust and confidence....” State ex rel. West v. Diemer, 255 Mo. 336, 164 S.W. 517, 521 (1914). Those parties act “honestly, openly, sincerely, without deceit, covin, or any form of fraud.” Id. Consequently, the course of a negotiation between parties acting in good faith should reflect that both parties sincerely undertook to reach an agreement. While there is an inherent tension between the duty to bargain with a serious attempt to resolve differences and the employer’s freedom to reject any proposal, this tension serves to strike the balance intended by the voters of Missouri in their adoption of article I, section 29.

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, 223 S.W.3d at 137. This requirement in article I, section 29 inherently includes the obligation that public employers act in good faith because otherwise public employers could act with the intent to thwart collective bargaining so as never to reach an agreement, frustrating the very purpose of bargaining and invalidating the right. Consequently, the trial court erred in finding that the board had no duty to meet and confer with the union and, further, that it had no duty to bargain collectively in good faith. The trial court further erred in its conditional finding that the board had not bargained in good faith because that finding considered only “good faith” as that term is understood under federal law. This case must be remanded for adjudication of whether the board negotiated in good faith under Missouri law, including a determination of whether there are disputed issues of fact under this standard.

The judgment of the trial court is reversed, and the case is remanded.

TEITELMAN, C.J., RUSSELL and STITH, JJ., and HARTENBACH, Sr.J., concur. FISCHER, J., dissents in separate opinion filed. DRAPER, J., not participating.

1 . The American Federation of Teachers, Local 420 and the individual representatives are referenced collectively as "the union.”

2 . 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.”

3 . All statutory references are to RSMo 2000 unless otherwise indicated.

4 . 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, 223 S.W.3d at 137. Therefore, this Court must look to the meaning of the words of the constitution as they generally were understood because "Missouri voters did not vote on the words used in the deliberations of the constitutional convention. The voters voted for the words in the Constitution...." Id.

5 . 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, 223 S.W.3d at 139. Federal law and cases can give guidance to the extent they are consistent with Missouri law, but cases interpreting federal statutes are not binding with regard to this Court’s interpretation of Missouri law. See Daugherty v. City of Maryland Heights, 231 S.W.3d 814, 818-19 (Mo. banc 2007).