Precedent challenged in collective bargaining case

JEFFERSON CITY, Mo. -- When the Missouri Supreme Court first tackled the issue of whether government employees have a constitutional right to collectively bargain with management, it issued an unequivocal opinion that such rights didn't extend to public sector workers. While the result was straightforward and has since guided state policy for 55 years, the court will revisit the case in a hearing on Wednesday.

Section 29 of the Missouri Constitution's Bill of Rights says: "That employees shall have the right to organize and to bargain collectively through representatives of their own choosing." Since that provision lacks a specific exemption for government workers, a strict constructionist could argue it also protects the bargaining power of such workers.

However, in the landmark 1947 case City of Springfield v. Clouse, a unanimous Supreme Court said otherwise, relying on the separation of powers doctrine. The court said decisions such setting wages and working conditions for public sector workers are solely vested with the legislative branch, which can't delegate away its authority through negotiations with unions.

Former University of Missouri law school dean Timothy J. Heinsz, the author of several books on labor law and a noted authority on the subject, said the Clouse decision today could be construed as judicial activism -- judges seeking a desired outcome and finding a way to bring it about.

"That is pretty fair to say, but in fairness to the court at that time, that wasn't all that unusual," Heinsz said. "There was just a much greater distrust of public sector collective bargaining. They were worried about the havoc caused by striking."

While not disputing that social and judicial sentiment toward labor relations has changed with the times, long-time labor-management lawyer Donald W. Jones of Springfield said Clouse is as valid today as it was in 1947.

"It has since been cited with approval by the Missouri Supreme Court in a lot of cases," Jones said. "It is pretty well ingrained in precedent. It certainly would be judicial activism to overrule it now."

Brought by ex-employees

The court has the opportunity to reverse itself in the case it hears this week. That case, Thruston, et al, v. Jefferson City School District, is brought by two former district employees and their union representative who argue that, contrary to Clouse, Section 29 applies to public sector workers.

Opponents of collective bargaining for public employees fear that if the court abandons its long-standing constitutional interpretation, it could reduce the authority of elected officials on labor matters and make government services more costly to taxpayers.

While the court has decided numerous collective bargaining cases since 1947, Heinsz, who still teaches labor law at MU, said the court has never directly revisited its reasoning in Clouse.

"In the later cases, although they cite Clouse as an authority, the court hasn't gone back and looked at it in a challenging way," Heinsz said.

Jones predicted Clouse will hold up under scrutiny.

"I think it is still good law," Jones said. "I don't think the Missouri Supreme Court can change that."

The city of Springfield initiated the Clouse case to seek guidance from the court on whether it had the legal authority to bargain with its workers. In its the decision, the court said: "Under our form of government, public office or employment never has been and cannot become a matter of bargaining and contract."

Relying on the separation of powers doctrine to thwart public sector collective bargaining rights was common for courts throughout the country from the 1940s until the early 1960s, Heinsz said. However, courts in many states have since rejected that line of reasoning and have extended such rights to government employees. Among them is New York, which has a constitutional provision on collective bargaining virtually identical to Missouri's.

Taken as a given

In the cases that followed Clouse, Heinsz said the Missouri Supreme Court always took that precedent as a given and merely clarified related issues.

Among the key subsequent cases:

State ex rel Missey v. City of Cabool (1969): The court said that Missouri's Public Sector Labor Law, enacted by the legislature after Clouse, was constitutional and didn't result in a delegation of legislative authority as prohibited by the earlier decision. The labor law allows most public workers to join unions and to "meet and confer" with management but doesn't bind management to any negotiated agreements. (Incidentally, Jones represented Cabool in that case.)

Curators of University of Missouri v. Public Service Employees Local No. 45 (1975): The court ruled the Public Sector Labor Law applied to university workers. It also said the legislature had the power to expand collective bargaining authority beyond the limits set forth in Clouse.

Sumpter v. City of Moberly (1982): If a city council enacts an ordinance spelling out wages and working conditions negotiated with a union, in this case firefighters, the court said that under Clouse the council could change the ordinance without the consent of the union.

More likely today

While not hazarding a guess as to how the court will decide the current case, Heinsz said the chances for a reversal of Clouse are much better today than 15 or 20 years ago.

"So many states now have a long history of public sector bargaining, and it hasn't resulted in chaos or government not being able to function properly," Heinsz said.

"The flip side of that argument is that every year a collective bargaining bill is put into the General Assembly, and they don't enact it. That is a strong argument the legislature doesn't want that."

Jones said the legislature's authority in labor matters is remains the overriding issue.

"Clause has still got to be right," Jones said. "The legislature still has to be able to set wages."

mpowers@semissourian.com

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