Sumpter v. City of Moberly

645 S.W.2d 359

• Court: Supreme Court of Missouri
• Decided: February 23, 1983
• Docket: 64014
• Status: Published

Opinions

JAMES A. FINCH, Jr., Senior Judge.

Plaintiffs, members of the Professional Firefighters Association of Moberly, Missouri, Local 2671, filed suit seeking injunc-tive relief to prevent defendant City of Moberly from violating certain provisions of what plaintiffs claim is a binding collective bargaining agreement. The City filed a motion to dismiss the petition on the ground that it failed to state a claim on which relief could be granted in that the document relied upon was not an enforceable contract binding upon the City. The court sustained the motion and dismissed the petition. Plaintiffs appealed to the Missouri Court of Appeals, Western District, which reversed and remanded for trial. On application the case was ordered transferred to this Court and is decided by us as though here on direct appeal. We utilize portions of the Court of Appeals opinion without the use of quotation marks. We affirm.

Acting pursuant to the provisions of §§ 105.500-105.530 RSMo 1978,¹ sometimes popularly referred to as the Public Sector Labor Law, firefighters employed by the city formed and joined the Professional Firefighters Association of Moberly, Missouri, Local 2671, a labor organization which was certified by the State Mediation Board as the exclusive representative for the firefighters. That organization, as authorized by § 105.510,² presented proposals relative to salaries and other conditions of employment to the City of Moberly.

Thereafter, pursuant to § 105.520³ the results of discussions with the City concerning the union’s proposals were incorporated in a written Memorandum of Understanding which was presented to the City Council. It covered wages, overtime pay, call back pay, sick leave, holidays and other allowances, duty tours, training, and many other subjects beginning July 1, 1980, with a provision for automatic renewal every two years in the absence of notice of intention to modify. In May, 1980 the City Council enacted an ordinance adopting the provisions of the Memorandum of Understanding “as the terms and working conditions for Local 2671” for the term of that document.

On January 28,1981, the City Manager of Moberly sent a memorandum to all fire department personnel that effective February 1, 1981, the work schedule for the department would be 24 hours on duty, followed by 48 hours off duty. This represented a change from the schedule in the Memorandum of Agreement which called for 24 hours on duty every other day for 12 days, followed by 7 days off duty. The Manager’s Memorandum stated that one additional firefighter would be hired and that the change in schedule was “necessary to provide adequate on-duty personnel to mann (sic) the fire stations, to accommodate 911 emergency calls and to effectuate a logical training schedule.” It went on to advise that by reason of “inability of the Training Committee to agree on a Training Program” a program therein outlined would be instituted in lieu of the in-service training program set out in the Memorandum of Understanding. The City Manager’s notice recited that it had been approved by the Mayor and City Council.

Plaintiffs allege that the notice from the City Manager constitutes a unilateral change in duty tours and training schedules from those specified in the agreement negotiated between the City and Local 2671, and that such unilateral acts violate the terms of said agreement. They seek to have the City enjoined from making such changes or any other unilateral changes from the terms of the agreement as embodied in the Memorandum of Understanding.

The question thus presented on this appeal is whether a memorandum of the results of discussions pursuant to § 105.520, after approval or adoption of those results by the City Council, constitutes a binding collective bargaining agreement which is enforceable on the City of Moberly.

The question of whether a Missouri city may enter into a binding collective bargaining agreement with its employees was addressed at length in Springfield v. Clouse, 356 Mo. 1239, 206 S.W.2d 539 (1947). That case involved an appeal in a declaratory judgment action wherein the City of Springfield sought a determination of its power to make collective bargaining contracts covering wages, hours, and working conditions with labor unions representing its employees. This Court held that it could not make such contracts, concluding that under the separation of powers doctrine as enunciated in the Missouri Constitution, the whole matter of qualifications, compensation, tenure and working conditions of employees are matters for legislative determination which, absent constitutional authorization, cannot be delegated or contracted away.

In the course of that decision the Court recognized that all citizens have the right under both federal and state constitutions to peaceably assemble, to speak freely, and to present their views to any public officer or legislative body. It held that employees have such rights in connection with establishment of their pay and working conditions. However, said the court, such rights are not to be confused with or equated to collective bargaining as that term is usually understood in the private sector.

In so ruling, the court considered the provisions of Article I, § 29 of the Missouri Constitution, which provides “that employees shall have the right to organize and to bargain collectively through representatives of their own choosing.” The Court, for reasons detailed in it’s opinion, concluded that this provision applies only to the private sector and is not applicable to public employees.

Subsequently, in Glidewell v. Hughey, 314 S.W.2d 749 (Mo. banc 1958), this Court again discussed whether public employees have a right to collective bargaining. In that case a declaratory judgment was sought as to whether, after Springfield adopted a city charter, unions could enter into collective bargaining agreements with Springfield’s board of public utilities respecting wages, hours and working conditions of employees of the city’s public utilities. The Court observed that under Springfield’s charter there was no provision for separation of corporate activity involving utilities from work concerning other governmental functions. Hence, such matters could not become the subject of bargaining and contract between the board of public utilities and its employees. The Court said, l.c. 736:

“.. . As we held in the Clouse case, § 29 Art. I, Constitution, does not confer any collective bargaining rights upon public officers or employees in their relations with municipal government and we hold that it is not applicable to the situation in this case because there is no such separation of the public utilities of the city from its general governmental functions and legislative powers as would be required to make it applicable. Therefore, our conclusion is that under the present charter of the city the whole matter of qualifications, tenure, compensation and working conditions in the city’s public utilities involves the exercise of legislative powers and cannot become a matter of bargaining and contract.”

Thereafter, the present Public Sector Labor Law was enacted. Its constitutionality and its effect were considered in State ex rel. Missey v. City of Cabool, 441 S.W.2d 35 (Mo.1969). In ruling that the act is constitutional, the Court said, l.c. 41:

“The general assembly is presumed to be aware of existing declarations of law by the supreme court when it enacts law on the same subject, Mack Motor Truck Corp. v. Wolfe, Mo.App., 303 S.W.2d 697, [5]; Jacoby v. Missouri Valley Drainage Dist., 349 Mo. 818, 163 S.W.2d 930, 938[8]; and, without indication to the contrary the general assembly must have had the intent to enact this legislation in accord with constitutional principles previously enunciated in City of Springfield v. Clouse, supra, and reiterated in Glidewell v. Hughey, Mo., 314 S.W.2d 749. For these reasons, it is constitutional.” (Emphasis added).

The Court analyzed the act and explained its ruling in these words, l.c. 41:

“... The act does not constitute a delegation or bargaining away to the union of the legislative power of the public body, and therefore does no violence to City of Springfield v. Clouse, supra, 206 S.W.2d l.c. 543[4], 545-6[8, 9], because the prior discretion in the legislative body to adopt, modify or reject outright the results of the discussions is untouched. The public employer is not required to agree but is required only to ‘meet, confer and discuss’, a duty already enjoined upon such employer prior to the enactment of this legislation. City of Springfield v. Clouse, supra, l.c. 542-3[1-3]. The act provides only a procedure for communication between the organization selected by public employees and their employer without requiring adoption of any agreement reached ...” (Emphasis added).

The Public Sector Labor Law was interpreted again in Curators of the University of Missouri v. Public Service Employees Local No. 45, 520 S.W.2d 54 (Mo. banc 1975). In that case the Curators, contending that said act was inapplicable to them, sought an injunction against defendant union and its striking members. The trial court enjoined the defendants from striking but held that the Public Sector Labor Law applies to the Board of Curators. The Board of Curators appealed from the latter ruling but this Court affirmed, holding that when said act is interpreted and applied against the background of Missouri constitutional provisions it does not represent an impermissible encroachment on the constitutional powers of the Curators to govern the state university pursuant to Mo. Const., art. IX, § 9(a). It cited and discussed Clouse and Missey and then went on to say, l.c. 57-58:

“The question then becomes: what are the respective rights and responsibilities of the parties under the Missouri Public Sector Labor Law? The Law gives public employees the vehicle for petitioning their employer through a designated representative. When this representative submits proposals and grievances relative to salaries and other conditions of employment, the public body or its designated representative must acknowledge such proposals and grievances and must discuss them with the bargaining representative. Generally, the public body will designate a representative to meet with the representative of the employees. In this event, the public body’s representative acts essentially as a hearer and a receptor of the employees’ petitions and remonstrances. His duty is to discuss them with the bargaining representative, and to fully apprise himself of the nature and extent of the proposals and grievances presented. The representative of the public body must then transmit to it, in written form, the proposals and grievances and the substance of the discussions. The public body must then give them its consideration ‘in the form of an ordinance, resolution, bill or other form required for adoption, modification or rejection.

“We believe the requirements of the Public Sector Labor Law, as delineated above, merely provide a procedural vehicle for assertion by defendants of their constitutional rights to peaceably assemble and to petition for redress of grievances. In these circumstances, we hold that they do not encroach upon the power of the board of curators to govern the State University.” (Emphasis added).

Plaintiffs, and amicus curiae which have filed briefs in support of plaintiffs’ position, contend that the last sentence of § 105.520, while authorizing the public body to reject or modify a bargaining representative’s proposal, also authorizes a binding agreement between the public body and its employees when it authorizes adoption of the proposal by “ordinance, resolution, bill or other form required for adoption ...” Therefore, they say, when the Moberly City Council, a legislative body, decided to and did adopt by ordinance the proposals submitted, it thereby entered into a binding and enforceable collective bargaining agreement.

These contentions misinterpret § 105.520. In the first place the statutory authorization to reject, modify and adopt the representative’s proposal is not limited to action by a legislative body. It also authorizes action by an “administrative ... or other governing body.” Clearly, the decision in Clouse says that an administrative body cannot decide to and then enter into a collective bargaining agreement. Such action would violate applicable constitutional restrictions regarding separation of powers. It seems clear, therefore, that the General Assembly was saying in § 105.520 only that when a proposal is submitted to a public body (whether it be an administrative, legislative or other governing body), it has a duty to consider and act on such proposal. It may reject, modify or adopt. If it decides to adopt the proposal, it does so by ordinance, resolution or other appropriate form, depending on the nature of the public body. The result will be an administrative rule, an ordinance, a resolution, or something else which governs wages and working conditions, but it will not be a binding collective bargaining contract.⁴ We cannot conclude that the legislature, by the provisions of § 105.520, intended to authorize and provide for a contract if the public body is a legislative body, but something less if it is an administrative board or other governing body. If the legislature had intended by the last sentence of § 105.520 to provide for and authorize a binding contract under some but not all circumstances mentioned in the statute, it would have so stated. Secondly, § 105.520 says nothing whatsoever about a public body entering into or executing a contract if it decides to adopt the representative’s proposal. Therefore, we hold that § 105.520 did not authorize the Moberly City Council to enter into a collective bargaining contract.

The above conclusions are in harmony with what this Court said in Missey and Curators in construing the Public Sector Labor Law. Both found that act to be a “meet, confer and discuss” law which merely provided a specific procedure whereby public employees could implement their constitutional rights to meet, talk and petition and which also assured that the public body would consider and take action of some kind (reject, modify or adopt) on the proposals. Both cases held that the statute was consistent with what the Court has held in Clouse and hence was constitutional. That the Court concluded that the act went no further is shown by this language in Curators, 520 S.W.2d, l.c. 58:

“The general assembly of Missouri may see fit in the future to amend the Public Sector Labor Law and to extend its requirements beyond the boundaries set in Clouse, supra. If so, and an attack on the constitutional aspects of the Clouse holding is made, we will consider the questions at that time. We need not and should not, attempt to resolve them now.”

This clearly indicates that the Court did not consider that the Public Sector Labor Law as then drafted provided for or authorized binding collective bargaining agreements for public employees. That would have been beyond the boundaries expressed in Clouse and would have called for the Court to then consider that which it postponed until such time as the statute might be amended to go beyond the boundaries of Clouse.

There has been no change in the Public Sector Labor Law since Missey and Curators and no change in the constitutional provisions considered in Clouse. Hence, the trial court was correct in sustaining the city’s motion to dismiss.

Judgment affirmed.

DONNELLY, C.J., and RENDLEN, WELLIVER, HIGGINS and GUNN, JJ., concur. ROBERT E. SEILER, Senior Judge, dissents in separate dissenting opinion filed. BILLINGS, J., not sitting.

1 . All statutory references, unless otherwise indicated, are to RSMo 1978.

2 . The portion of § 105.510 pertinent to this case is as follows:

“Employees, except police, deputy sheriffs, Missouri state highway patrol, Missouri national guard, all teachers of all Missouri schools, colleges and universities, of any public body shall have the right to form and join labor organizations and to present proposals to any public body relative to salaries and other conditions of employment through representatives of their own choosing ...”

3 . Section 105.520 provides:

“Whenever such proposals are presented by the exclusive bargaining representative to a public body, the public body or its designated representative or representatives shall meet, confer and discuss such proposals relative to salaries and other conditions of employment of the employees of the public body with the labor organization which is the exclusive bargaining representative of its employees in a unit appropriate. Upon the completion of discussions, the results shall be reduced to writing and be presented to the appropriate administrative, legislative or other governing body in the form of an ordinance, resolution, bill or other form required for adoption, modification or rejection.”

4 . Judge Seiler’s dissent suggests that by this language the Court in holding that the ordinance adopted by the City Council has no binding effect. That is not what we hold. The ordinance, just as any city ordinance, governs and is binding until changed by appropriate action. We hold only that this ordinance did not result in a collective bargaining contract which could be changed only with union approval.