Missouri School Boards, Cities, and Counties: Consider Enacting Ordinance Providing for Secret Ballot Union Elections for Certain Employees

Article I, Section 29 of the Missouri Constitution gives employees “the right to organize and to bargain collectively through representatives of their own choosing.” For most public sector employees, Chapter 105 of the Missouri Revised Statutes (RSMo) includes a procedure by which employees may select—or reject—union representation in a secret ballot election supervised by Missouri’s State Board of Mediation. Chapter 105 includes an exception from these rights to a State Board of Mediation secret ballot election for police, deputy sheriffs, highway patrolmen, members of the Missouri National Guard, and teachers.

In Eastern Missouri Coalition of Police, Fraternal Order of Police, Lodge 15 v. City of Chesterfield, the Supreme Court of Missouri held, among other things, that the City of Chesterfield was required to bargain with a union on behalf of police officers simply because the union had obtained and submitted authorization cards signed by a majority of the City’s police officers and sergeants. In other words, the police officers and sergeants were allowed to exercise their Article I, Section 29 constitutional rights without a secret ballot election through what is known in the private sector as a “card check.” A card check occurs when the majority of employees in a bargaining unit decide to sign and submit papers declaring their desire to form a union.

Private sector employers have long been dubious of the value of authorization cards (and the card check process) as a true measure of union support. As NLRB Member Oviatt wrote in the 1993 NLRB decision, DTR Industries, Inc.:

employees often sign authorization cards for reasons having little or nothing to do with an informed, uncoerced willingness to have a union bargain for them. In a typical organizing campaign, like the campaign in this case, authorization cards are handed out to a group of employees after a union organizer’s speech. In such a setting many employees may be induced to sign an authorization card because others in the group have signed—a kind of group psychology—without ever having read the card’s language. Other employees may sign cards because they fear union retaliation, or simply because they want the union organizer to leave them alone.

 

Recently, the Missouri Court of Appeals, Western District, in West Central Missouri Region Lodge #50 of the Fraternal Order of Police v. The City of Grandview, Missouri, rejected the use of a card check in favor of a secret ballot election in deciding how employees outside the ambit of State Board of Mediation jurisdiction might select union representation.

In this case, the City of Grandview, following up on a suggestion of the Supreme Court of Missouri in Independence-National Education Association v. Independence School District, had drafted its own union election ordinance, specifying how police officers might select union representation. This ordinance included a mechanism by which officers could participate in a secret ballot election. After the City adopted this ordinance, the union presented the City with authorization cards, which were purportedly signed by a majority of the police officers, and demanded recognition. The City refused to recognize the union and, instead, insisted upon following the ordinance and proceeding to a secret ballot election.

The Circuit Court of Jackson County disagreed with the City’s decision and issued a bargaining order based on authorization cards. The Missouri Court of Appeals reversed the lower court’s decision, holding that “nothing within the Missouri Constitution or case law would prohibit the City from mandating that employees act through a secret ballot election to designate a collective bargaining representative.”

The significance of City of Chesterfield, and City of Grandview, read together, is clear: any Missouri employer of police, deputy sheriffs, highway patrolmen, or teachers is well-advised to enact its own election ordinance. Failure to do so will allow unions to claim representation rights merely by presenting a majority of authorization cards, which often fail to truly represent employee desires.

City of Grandview also, contrary to the Circuit Judge, approved many procedures in  the City’s election ordinance, which were more burdensome to the union than the corresponding State Board of Mediation procedures and National Labor Relations Board procedures would have been—had either of these agencies had jurisdiction. City of Grandview presents a great opportunity for Missouri employers to craft union election ordinances that are fair to all concerned.