American Federation of Teachers v. Ledbetter

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.1

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., 854 S.W.2d 371, 376 (Mo. banc 1993). “The propriety of summary judgment is purely an issue of law. As the trial court’s judgment is founded on the record submitted and the law, an appellate court need not defer to the trial court’s order granting summary judgment.” 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 that “there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law.” Rule 74.04(c)(6).

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*369er, 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, 89 S.W.3d 447, 452 (Mo. banc 2002).

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, 298 S.W.2d 413, 417 (Mo. banc 1957). This view is supported by the debates over the Missouri Constitution of 1945 in that the supporters of article I, section 29, envisioned the provision as guaranteeing that the right to organize and bargain collectively would be free from legislative interference. See 8 Debates of the 1943-1944 Constitutional Convention of Missouri 2517 (1943-1944). The Honorable R.T. Wood, one of the provision’s main supporters, stated, “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.” Id. Wood argued that article I, section 29, would be a “measure of protection” that members of organized labor would “have the same right to organize and bargain collectively in our own interest as every other organization and every other group.” Id. It is perplexing, to say the least, that the principal opinion is willing to look to no fewer than four federal statutes to seek guidance as to what article I, section 29, meant when it was adopted rather than the actual discussion by the people who adopted the provision when it was adopted.

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, 298 S.W.2d at 418. “[T]he constitutional provision provides for no required affirmative duties concerning this right....” Id. at 419. Article I, section 29, was adopted as part of the Missouri Constitution to guarantee the right of employees “to organize and to bargain collectively through representatives of their own choosing.” In this role, article I, section 29, has been understood to protect employees from coercion by their employer, undesired unions, or other entities that may attempt to coerce them into, or out of, union activity. See Quinn, 298 S.W.2d at 419 (enjoining an employer from engaging in activity designed to prevent its employees from organizing); Bellerive Country Club v. McVey, 365 Mo. 477, 284 S.W.2d 492, 501 (1955) (enjoining union picketing designed to force an employer to coerce its employees into joining the union). Article I, section 29, has never been found to require any affirmative duty on the part of an employer, either public or private. Quinn, 298 S.W.2d at 419. This Court held, “It is evident that the constitutional provision guaranteeing employees the right to organize and bargain collectively through representatives of their own *370choosing does not cast upon all employers a correlative obligation.” Id.

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.2 “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. Rather, 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, 89 S.W.3d 447, 452 (Mo. banc 2002).

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, 89 S.W.3d at 452. Further, the longstanding understanding of article I, section 29, does not render it a nullity because it serves to protect the right to bargain collectively rather than to set out the scheme through which such bargaining should occur. Quinn, 298 S.W.2d at 417.

*371The plain language of article I, section 29, protects employees’ rights to organize and to bargain collectively through representatives of their own choosing. Neither the state, nor any labor union, nor any employer may infringe on these rights. This constitutional provision was never intended to actually facilitate a collective bargaining process as does the National Labor Relations Act or Missouri’s public sector labor law. While requiring employers to meet and confer and negotiate in good faith may, or may not, be good policy, “[t]there is no authority for this Court to read into the Constitution words that are not there.” Independence-Nat’l Educ. Ass’n v. Independence Sch. Dist., 223 S.W.3d 131, 137 (Mo. banc 2007). The principal opinion’s redefining of our state constitutional provision, which was adopted to authorize an employee to choose a representative to collectively bargain, to now create an affirmative duty on all employers to “meet and confer with the union, in good faith, with the present intention to reach an agreement” fails to consider all of the practical ramifications now placed on statewide private employers, in addition to public employers. American Federation of Teachers v. Ledbetter, 387 S.W.3d 360, 362 (Mo. banc 2012) (decided November 20, 2012, No. SC91766). 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, 386 S.W.3d 755, 758 (Mo. banc 2012) (decided November 20, 2012, Nos. SC91736 and SC91737).

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, 298 S.W.2d at 419.

In Quinn v. Buchanan,3 this Court held that article I, section 29, protected a handful of employees after they were terminated for engaging with a union. Quinn, 298 S.W.2d at 419. The employer was enjoined from “coercing his employees into withdrawing from the union and rescinding their authorization to it to act as their collective bargaining representative and also from otherwise interfering *372with these employees’ rights to freely choose the union as their collective bargaining representative.” Id. The Court held that the employees were not entitled to requested relief that would “require defendant to recognize and bargain with the union.” Id. The Court specifically stated, “It is evident that the constitutional provision guaranteeing employees the right to organize and bargain collectively through representatives of their own choosing does not cast upon all employers a correlative obligation.” Id. (emphasis added). Quinn indicates that article I, section 29, is intended to protect employees from coercion, but explicitly states that employers need not bargain. Quinn specifically held, “Thus implementation of the right to require any affirmative duties of an employer concerning [the right to bargain collectively] is a matter for the legislature.” Id. at 419.

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., 223 S.W.3d 131 (Mo. banc 2007).

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. 370 S.W.2d 249, 254 (Mo.1963). This was so because the employee has a constitutional right “to choose collective bargaining representatives to bargain for him concerning his employment.” Id. In Bellerive Country Club v. McVey, this Court enjoined union picketing where it found that the picketing was designed to force an employer to coerce non-union employees of a private country club to join the union. 365 Mo. 477, 284 S.W.2d 492, 501 (1955). In that case, this Court stated, “We think it is clear that the right guaranteed to employees by [article I, section 29], ‘to organize and to bargain collectively through representatives of their own choosing’ is a free choice, uncoerced by management, union, or any other group or organization.” Id. at 500.

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 *373protected by article I, section 29, to the same extent that private employees were protected. 223 S.W.3d 131, 139 (Mo. banc 2007). Independence does not hold, however, that article I, section 29, requires employers to bargain with their employees.

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.4 Id. at 135-36. If the public entity can reject all proposals, it can “use its governing authority to prescribe wages and working conditions,” and “none of the public entity’s legislative or governing authority is being delegated.” Id. at 136. This finding is completely consistent with Quinn and with the concept of article I, section 29, that it supports — employers need not bargain with employees. It is difficult to understand how an employer who is “free to reject any and all proposals made by the employees” must comply with all of the mandates of the principal opinion. Id. at 138.

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, *374the duty to bargain, and the need to “meet and confer,” Op. 363-64, 367-68, comes from the Independence Court’s discussion of the public sector labor law, as interpreted in State ex rel. Missey v. City of Cabool, 441 S.W.2d 35 (Mo. banc 1969). The duty to “meet and confer” comes from section 105.520, RSMo 2000, not from article I, section 29. The Independence Court discussed this section in attempting to define “collective bargaining,” but it never held that the duty to “meet and confer” is found in, or required by, article I, section 29. Any affirmative duty placed on public school boards to meet and confer in good faith with a present intention to reach an agreement is entirely a new creation by the principal opinion in this case.

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, 223 S.W.3d at 139. Article I, section 29, serves an important role in legalizing collective bargaining and in keeping that right protected. These rights are certainly more than, and different from, the right to petition the government for a redress of grievances. Op. at 364. The mere fact that “union-busting” activities, such as those discussed in Quinn, may not be as prevalent in 2012 does not render article I, section 29, a redundant nullity, and it does not justify this Court ascribing a meaning to the provision it does not have.

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, 846 S.W.2d 196, 200 (Mo. banc 1993) (“The quintessential power of the judiciary is the power to make final determinations of questions of law.”). If a legislative or executive action conflicts with a constitutional provision, this Court must hold the action invalid. State ex inf. Nixon v. Kinder, 89 S.W.3d 454, 459 (Mo. banc 2002). In many cases, the declaration of this Court will render a statute or an action void, leaving it up to the legislature to decide whether or not to attempt to pass a similar, but constitutionally acceptable, replacement statute. Similarly, when legislative inaction is declared unconstitutional, it is the role of the legislature to decide the best way to comply with the constitution. This is true because the legislature is the proper branch of government to make policy decisions. Parktown Imports, Inc. v. Audi of Am., Inc., 278 S.W.3d 670, 674 (Mo. banc 2009). *375When there are multiple answers to a question, the legislature is the appropriate branch to choose the best one.

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.5 Arguably, this mandate requires more of the school boards than is required under the public sector labor law of all other public employers.6 In the second instance, it is for the local school boards to decide, as a matter of policy, if, and when, they desire to negotiate with the representative selected by the teachers to collectively bargain. This Court does not have the authority to mandate the creation of procedures to facilitate collective bargaining.7

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.8 That right guarantees public employees the freedom of choice in whether or not to organize for the purpose of collective bargaining and who they want to represent them in the process. Article I, section 29, does not impose any affirmative duty on Missouri public schools, but, rather, requires only that they recognize their employees’ right to collectively bargain.