On November 16, 2020, the Missouri Supreme Court heard oral arguments in the case of Missouri National Education Association, et al. v. Missouri Department of Labor and Industrial Relations, et al., Ferguson-Florissant School District, et al, challenging a circuit court ruling that House Bill 1413 (HB 1413), a public labor union reform law, is unconstitutional in its entirety. The circuit court held that the 2018 law unlawfully discriminates against certain public labor unions representing first responder personnel and infringes on public employees’ fundamental rights to bargain collectively and to choose their own representative, as well as certain First Amendment and equal protection rights. Upon concluding that the unconstitutional provisions dominate “the entirety of the legislative intent to undermine the plaintiff’s fundamental rights,” the circuit court enjoined the Missouri Department of Labor and Industrial Relations and the Missouri State Board of Mediation (SBM) from implementing and enforcing the provisions of HB 1413. On appeal, the Defendants assert that the right to bargain collectively is not a constitutionally protected fundamental right and deny that the restrictions imposed by HB 1413 abridge public employees’ constitutional rights.
Labor organizations and public employees impacted by HB 1413
HB1413 imposes restrictions on public sector labor unions but carves out an exception for “public safety labor organizations.” A public safety labor organization is an organization which “wholly or primarily represents persons trained or authorized by law or rule to render emergency medical assistance or treatment, including, but not limited to, firefighters, ambulance attendants, attendant drivers, emergency medical technicians, emergency medical technician paramedics, dispatchers, registered nurses and physicians, and persons who are vested with the power of arrest for criminal code violations including, but not limited to, police officers, sheriffs, and deputy sheriffs” (generally referred to as “first responder personnel”). Public safety labor organizations (“public safety unions”) are exempt from all restrictions imposed under HB 1413.
However, public sector labor unions that are not considered public safety labor unions (“non public safety labor unions”) may also include first responder personnel in their membership and are the exclusive bargaining representatives for their membership. Yet, these non-public safety labor unions are not exempt from the HB 1413 restrictions because these unions do not “wholly or primarily” represent first responder personnel.
New restrictions and obligations imposed under HB 1413
HB 1413 enacted significant changes to Missouri’s public sector labor laws. The types of restraints imposed by HB 1413 on non-public safety unions and their members’ fall into the following three categories:
1. Restrictions on selection and retention of a bargaining representative
HB 1413 eliminates the practice of selecting a bargaining representative through voluntary recognition by the employer and instead requires unions to undergo an initial SBM-administered election to obtain exclusive bargaining representative status. Thereafter, instead of relying on members to decertify a union as their exclusive bargaining representative, HB 1413 requires the union to undergo recertification every three years to retain their exclusive representative status. Moreover, in both the initial election and recertification, a union can only become the exclusive bargaining agent if it receives not a majority of the votes cast in the election but the majority of votes from all eligible members that could have been cast in the election. The effect of this provision is that members who do not participate in the election are considered as votes opposing the union. Finally, HB 1413 imposes new payment obligations to pay for initial and recertification elections of up to $2,000 based on the size of the union.
2. Restrictions on terms subject to collective bargaining
While HB 1413 continues to permit negotiation over wages and benefits, it eliminates the right of the union to bargain over the right to hire, promote, assign, direct, transfer, discipline and discharge public employees and the right to make, amend, and rescind work rules and standard operating procedures. Instead, only the public employer retains the right to decide such issues. HB 1413 also requires the union’s membership to ratify the collective bargaining agreement (CBA) after negotiations with the public employer have concluded. After ratification, the pubic employer has no obligation to accept the negotiated agreement. Instead, the pubic employer may accept or reject any part of the negotiated CBA, require further negotiating, unilaterally adopt a replacement term or refuse to adopt a replacement term, and may unilaterally modify the “economic terms” of the agreement if, for “good cause” (which is undefined), the management deems it “necessary.” Union representatives who engage in bargaining-related activity on behalf of the union are proscribed from being compensated for release time.
3. Restrictions on the exercise of free speech and association
Under HB 1413, union dues can no longer be automatically deducted from union member or non-member paychecks unless the public employer receives written or electronic consent from the employee annually. Moreover, union dues cannot be used for political contributions or expenditures unless the union obtains “informed written or electronic authorization” which must be renewed annually. HB 1413 requires compliance with financial disclosure and reporting obligations substantially similar to those required under federal law 29 USC 431(b), and disclosure to every represented public employee. HB 1413 also prohibits any conduct intended to cause the removal or replacement of the designated representative of the public employer. Civil enforcement actions are imposed against non-public safety unions that fail to comply with certain provisions of HB 1413.
While HB 1413 also prohibited “picketing of any kind,” this proscription on “any kind of picketing” previously was struck down as unconstitutional and severed from HB 1413 by the Missouri Supreme Court on March 31, 2020, in the decision Rebecca Karney, et al., v. The Department of Labor and Industrial Relations, et al.
Constitutional issues on appeal
1. Collective bargaining as a fundamental right
Circuit court holding: Article 1, Section 29 of the Missouri Constitution explicitly protects the right of Missouri public employees to organize and collectively bargain through representatives of their choosing and, as such, is a fundamental right. The circuit court based its decision on previous Missouri court decisions and decisions from other jurisdictions with similar state constitutional protections. As a result, the circuit court applied strict scrutiny to its judicial review of the provisions of HB 1413 which requires that an abridgment of a fundamental right will be upheld only if the purpose for the abridgment serves a compelling governmental interest and is narrowly tailored to achieve that interest.
Defendants’ position: Defendants contend the right to collectively bargain is not a fundamental right “in the sense of one that is deeply rooted in the nation’s history and traditions.” As a result, the defendants argue that HB 1413 must be only rationally related to a legitimate government interest. They also argue that even if the right to collectively bargain is a fundamental right, the State has articulated a compelling interest.
2. Legislative encroachment on the right of public employees to bargain collectively with a representative of their own choosing
Circuit court holding: HB 1413 significantly burdens the right to collectively bargain by: abrogating the right to choose a bargaining representative through the voluntary recognition procedure; by limiting the selection and retention to the process of an SBM election; by requiring triennial recertification; and by using a skewed voting standard that arbitrarily counts eligible voters who do not participate in the election to be considered as votes in opposition to the bargaining representative.
Defendants’ position: Defendants deny that the changes to selection and retention of bargaining representatives prevent public employees from electing or selecting a representative of their choice. Defendants acknowledge that the provisions of HB 1413 make it more difficult for certain unions to obtain or maintain certification. Instead, they argue that limiting the voting process to secret elections is necessary to protect against the “undemocratic” card-check process that favors unionization. Defendants also argue that triennial recertification is necessary to prevent employers from negotiating for indefinite certification, notwithstanding the existing right of union members to revoke or decertify their union. Finally, by requiring certification, recertification and decertification to be based on all eligible votes rather than votes cast, defendants state that short-term employees will have more incentive to participate in union elections which will thwart union bias in favor of issues that affect long-term employees.
3. Constitutional burdens imposed by restrictions on topics subject to collective bargaining and the reservation of broad rights to management
Circuit court holding: HB 1413 excludes many traditional terms of employment from the collective bargaining process, and the terms that remain subject to negotiation may be unilaterally changed by public employers, regardless of the existence of a negotiated and agreed-to CBA. By removing basic working conditions such as hiring, firing, assigning and transferring personnel, work rules, and union release time from the list of topics subject to bargaining, collective bargaining becomes a nullity. For those topics that remain subject to collective bargaining, provisions that permit public employers to repudiate a negotiated and agreed-to CBA and to unilaterally replace negotiated provisions with their own provisions defy basic contract principles. The court characterized the statutory scheme as a “farce” that completely ignores the duty to bargain in good faith.
Defendants’ position: The Defendants argue that the circuit court’s holding requires protection of collectively bargaining outcomes rather than the process of collective bargaining. Under defendants’ reasoning, the Missouri Constitution only protects the process of negotiation—it does not demand that parties actually abide by the negotiated and agreed-to CBA, or in defendants’ terminology “it does not guarantee that collective bargaining will reach any agreement or substantive outcome.”
4. HB 1413 provisions violate the First Amendment protections of free speech and association and the equal protection clause of the Missouri Constitution
Circuit court holding: The restrictions on core speech and association rights imposed solely on non-public safety unions while exempting public safety unions are discriminatory and presumptively invalid because they impose restrictions based on the identity of the speaker. The restrictions include the requirement of advance authorization from members before spending funds on political activities, of mandatory onerous recordkeeping and disclosure requirements, and of refraining from traditional forms of labor protest, such as peaceful informational picketing. The imposition of extensive restrictions on some safety employees but not others, depending on their union to which they belong, negates the suggestion that the dissimilar treatment serves a compelling state interest.
Defendants’ position: Defendants argue that collective bargaining is not a fundamental right for equal protection purposes and further argue that public employees do not have a fundamental right to engage in collective bargaining. Defendants deny that HB 1413 imposes severe restrictions on collective bargaining rights, and further denies that it imposes burdens on the freedom of association. Defendants also assert that the exemption for public safety employees does not raise equal protection concerns because the types of unions covered and exempted by HB 1413 are not similarly situated. Defendants argue that the exemption for public safety unions is rationally related to the purpose of preventing labor unrest by public-safety personnel. The exemption, however is based not on the occupation or job classification, but the identity of the union with whom members associate.
What this means to you
During oral argument, the few questions directed at counsel for the parties focused on the effect of excepting public safety unions from the constraints of HB 1413 on the right to choose a bargaining representative and the freedom of association. Until the Missouri Supreme Court enters a decision in the case, the practical effect of the circuit court order is to prevent the Missouri Department of Labor and Industrial Relations as well as the SBM from implementing and enforcing HB 1413.
Husch Blackwell attorneys will continue to keep you apprised of the developments in this case. If you would like guidance on strategies for navigating this unsettled area of labor law in Missouri, contact Terry Potter, Derek Teeter, Dom Peterson or your Husch Blackwell attorney.
Tracey Oakes O’Brien, Knowledge Manager, is a co-author of this content.