City of Cabool v. Missouri State Bd. of Mediation

• Decision Date: 30 April 1985
• Docket Number: No. 66270,66270
• Citation: 689 S.W.2d 51
• Parties: CITY OF CABOOL, Missouri, Plaintiff-respondent, v. MISSOURI STATE BOARD OF MEDIATION, Defendant-appellant.
• Court: Missouri Supreme Court

Page 51

689 S.W.2d 51

CITY OF CABOOL, Missouri, Plaintiff-respondent, v. MISSOURI STATE BOARD OF MEDIATION, Defendant-appellant.

No. 66270.

Supreme Court of Missouri,

En Banc.

April 30, 1985.

John Ashcroft, Atty. Gen., Mark Siedlik, Carl S. Yendes, Asst. Attys. Gen., Jefferson City, for defendant-appellant.

Donald W. Jones, Springfield, John Alpers, Cabool, for plaintiff-respondent.

Ronald C. Gladney, Clayton, for amicus curiae Mo. State Labor Council.

GUNN, Judge.

This is a public sector labor law case. The Missouri State Board of Mediation (Board) certified the International Brotherhood of Electrical Workers (IBEW) as exclusive bargaining representative for certain employees of the City of Cabool. The circuit court reversed the Board, but on further appeal, the Missouri Court of Appeals reinstated the Board's ruling. We ordered transfer of the case to this Court under Mo. Const. art. V, § 10 and also find, as did the Mediation Board, that the IBEW should be certified as bargaining representative for certain employees of the City of Cabool.

The primary issues for consideration concern the proper scope of review of the Board's decision and the composition of the bargaining unit with particular reference to so-called supervisors.

This old chestnut is jaded and sere from its many years of existence. The germ of this controversy was planted in 1967, when the IBEW held its first meeting with city employees, hoping eventually to become their exclusive bargaining representative. Subsequent disciplinary action by the city against employees for union activities led to State ex rel. Missey v. City of Cabool, 441 S.W.2d 35 (Mo.1969), which upheld, inter alia, the "meet and confer" dialectical provisions of the Public Sector Labor Law, §§ 105.500-.530, RSMo Cum.Supp.1967 (now RSMo 1978). At that time it seemed as though the matter might be safely interred, but it resolutely continues to periodically resurrect. From the time of Missey, indecisive skirmishing between the city, its employees and the IBEW continued until August 1977 when the IBEW petitioned the Board to certify it as the exclusive bargaining representative for city employees and to determine the appropriate bargaining unit.

After a hearing, the Board determined that the appropriate bargaining unit would consist of all employees within the following departments: electrical, parks and pool, water and sewer, trash, mechanical, and clerical. Excluded from the unit were the city administrator, the city clerk, all temporary employees hired under federal grants, all police and fire personnel and a city superintendent who supervised the streets, parks, water and mechanical departments. The bargaining unit, containing eleven employees, voted six to five on the adoption of IBEW as exclusive bargaining representative.

The city appealed the Board's decision to the circuit court, challenging the composition of the bargaining unit and the participation in the case of an officer of the IBEW as a member of the Board. The circuit court reversed on the basis of the inclusion of an electrical department head within the bargaining unit and by reason of the union officer-board member's participation in the proceeding. On further appeal, the Southern District ordered the Board's decision reinstated.

Preliminarily, we observe that an appellate court sitting in review of an administrative agency reviews the findings and decision of the agency and not the judgment of the circuit court. Evangelical Retirement Homes of Greater St. Louis, Inc. v. State Tax Commission, 669 S.W.2d 548, 552 (Mo. banc 1984). Therefore, the city's challenge to the Board member's participation in the proceeding is properly addressed to the lawfulness of the Board's action. See § 536.140.2, RSMo 1978; Evangelical, 669 S.W.2d at 552.

The particulars of the city's challenge are that Robert Missey served as both a member of the Board and an officer of the IBEW at the time the petition for certification was filed. The city also notes that Missey signed the petition on behalf of the IBEW. As a result, the city raises the two-fold allegation that Missey's conduct violated the proscription of Section 105.480, RSMo 1969 (repealed, Laws 1978, H.B. 1610, p. 246) and that it created an "appearance of impropriety." ¹

The short answer to the first contention is that the statute on which the city relies has been repealed. However, even if the statute were in effect, its design is to prohibit an officer of an agency from appearing before that agency, or receiving fees for services, in relation to a case in which there is personal participation on behalf of the agency. There is no suggestion by the city that Missey personally participated in this case on behalf of the Board. To the contrary, the hearing officer for the Board stated his understanding at the time of the hearing that Missey would not confer with the Board in any way concerning the case, and no evidence of his participation has been offered by the city at any stage of this proceeding.

The general argument that Missey's conduct created an "appearance of impropriety" is also without merit. This presumes that a Board member, being an official empowered to make decisions relative to the labor-management nexus, must be invested (both actually and apparently) with the same impartiality required of judicial officers. However, the explicitly partisan composition of the Board belies any such premise. Section 295.030, RSMo 1978, mandates that the Bord be comprised of two union members as well as two employers or employers'-association members, in addition to one who is neither an employee nor an employer. This composition ensures not impartiality on an individual basis, but rather impartiality based on a consensus of partisans. The participation of Board members in issue-oriented, sectarian activities is thus, presumably, not to be merely tolerated but expected.

The city's second attack on the Board's decision is directed at the inclusion of the "department head" or "section chief" of the city's electrical department in the bargaining unit. This charge is based on the holding in Golden Valley Memorial Hospital District v. State Board of Mediation, 559 S.W.2d 581, 583 (Mo.App.1977), that the term "employee" as it is used in the Public Sector Labor Law, §§ 105.500-.530, RSMo 1978, "excludes those persons whose duties involve acting directly or indirectly in the interest of their employer in relation to another employee." Id., quoting Connecticut State Board of Labor Relations v. Greenwich Taxi Co., 151 Conn. 573, 200 A.2d 712, 714 (1964). The city construes this holding to exclude "supervisors" from the scope of covered employees under the act. The Board evidently concurs with this conclusion and has developed a set of factors by which it determines whether an employee is an excluded supervisor. ² The Board concluded, however, that the electrical department employee was not a supervisor. The parties therefore join issue on the scope of review applicable to the Board's decision. The Board contends that its decision must be upheld as based upon competent and substantial evidence upon the whole record, § 536.140.2, RSMo 1978, and the city maintains that the "competent and substantial evidence" test does not totally circumscribe a reviewing court's inquiry into the bases for agency determinations of fact.

However, the "competent and substantial evidence" test does not apply to circumstances in which the agency's determination involves only the application of the law to the facts. § 536.140.3. In such circumstances, the reviewing "court may weigh the evidence for itself and determine the facts accordingly.... In making such determination the court shall give due weight to the opportunity of the agency to observe the witnesses and to the expertness and experience of the particular agency." Id.; Evangelical, 669 S.W.2d at 552. The question implicated in the present case--whether the statute excludes supervisors from its ambit--is a question of law. Such questions are reserved for the independent judgment of the reviewing court. King v. Laclede Gas Company, 648 S.W.2d 113, 114 (Mo. banc 1983). The application of the resulting principle of law to the facts of this case is a matter involving only the application of the law to the facts, such as is contemplated by § 536.140.3.

With regard to the principles of law involved in the present case, the city suggests, somewhat obliquely, that federal law provides authority for the proposition that supervisors are not within the ambit of the term "employee" as it is used in the Missouri Public Sector Labor Law. It should be noted, however, that the National Labor Relations Act, 29 U.S.C. § 152(3), (11) (1982), specifically excludes supervisors from the definition of the term "employee." The Missouri Public Sector Labor Law, by contrast, contains no such exclusion. See §§ 105.500, .510, RSMo 1978. ³ Furthermore, the N.L.R.A. as originally enacted contained no such exclusion, and the United States Supreme Court refused to imply such an exclusion in the face of the plain and ordinary meaning of the term "employee." Packard Motor Car Co. v. National Labor Relations Board, 330 U.S. 485, 67 S.Ct. 789, 91 L.Ed. 1040 (1947). It was as a direct response to this decision that Congress enacted the supervisory exclusion for federal labor law. Metropolitan Edison Co. v. National Labor Relations Board, 460 U.S. 693, 704 n. 9, 103 S.Ct. 1467, 1475 n. 9, 75 L.Ed.2d 387 (1983).

This contrast between the federal and the Missouri statutes evokes a question as to whether supervisors are necessarily prevented from belonging to a bargaining unit under the Missouri scheme. ⁴ However, this question need not be addressed in the present case, as the record clearly demonstrates that the questioned employee did not possess "supervisory" authority, either in the ordinary sense of that term or as it is defined by the Board's delineated factors....