City of Kirkwood v. Missouri State Bd. of Mediation, AFL-CI

Decision Date22 February 1972
Docket Number34247,R,Nos. 34243,AFL-CI,s. 34243
Citation478 S.W.2d 690
Parties80 L.R.R.M. (BNA) 2328, 67 Lab.Cas. P 52,747 CITY OF KIRKWOOD, a Municipal Corporation, Petitioner-Respondent, v. MISSOURI STATE BOARD OF MEDIATION, and Local 2, International Brotherhood of Electrical Workers,espondents-Appellants. . Louis District
CourtMissouri Court of Appeals

Kappel, Neill, Staed & Wolff, Robert E. Staed, St. Louis, for petitioner-respondent.

Daniel C. Rogers, Fayette, Schuchat, Cook & Werner, James K. Cook, St. Louis, for respondents-appellants.

DOERNER, Commissioner.

The Missouri State Board of Mediation and Local 2, International Brotherhood of Electrical Workers, AFL-CIO, separately appealed from the judgment of the Circuit Court of St. Louis County reversing an order of the Board. On our own initiative we ordered the appeals consolidated for hearing. In the interest of brevity the City of Kirkwood will be referred to as the City, the Missouri State Board of Mediation as the Board, and Local 2, International Brotherhood of Electrical Workers, AFL- -CIO, as the Union. Although it is one of the appellants the Board has not favored us with a brief, nor has it joined in the brief filed by the Union.

In 1970 the Union informed the City that a majority of the employees of the City's forestry department had authorized the Union to represent it for the purposes of collective bargaining and requested the City to grant it such recognition and to enter into such bargaining. The City rejected both requests. The Union then petitioned the Board for assistance. The Board held a hearing, in which both parties participated, and entered findings of fact and on order declaring, (1) that the employees of the forestry department of the City constituted an appropriate bargaining unit; and (2) that the Union was the exclusive bargaining representative of the employees in that unit. The City appealed and, as stated, the trial court entered a judgment reversing the order of the Board.

Unfortunately, before submission of the case to the trial court neither party requested the court to dictate to the court reporter, or to file a brief opinion, of a statement of the grounds for that court's decision, pursuant to Civil Rule 73.01(b), V.A.M.R. 1 The judgment of the trial court furnishes no clue as to the basis of its judgment for it merely reads, 'The order of the State Board of Mediation is Reversed.' We use the word 'unfortunately' advisedly for the result has been, as is apparent from the briefs, that the parties, as well as this court, have been left in the dark as to the grounds for the court's judgment. Thus the points advanced by the parties as to why the judgment should, or should not, be reversed cover a wide spectrum in their briefs, and in the main do not coincide. It is appropriate to note that since this appeal falls within the ambit of our Administrative Procedure Act, Chapter 536, the scope of our review is limited to those matters enumerated in § 536.140. And with regard to the Board's findings of fact our review, as was the trial court's, is restricted to ascertaining whether the Board could have reasonably made its findings and reached its result upon consideration of all the evidence before it and whether the Board's decision was clearly contrary to the overwhelming weight of the evidence. McCallister v. Priest, Mo., 422 S.W.2d 650; St. Louis County v. State Tax Commission, Mo., 406 S.W.2d 644; Johnson v. Priest, Mo.App., 398 S.W.2d 33.

As indicated, the Board found and ruled that the employees of the City's forestry department comprised an appropriate bargaining unit. In § 105.500(1), RSMo 1969, V.A.M.S., an 'appropriate unit' is defined as

'* * * a unit of employees at any plant or installation or in a craft or in a function of a public body which establishes a clear and identifiable community of interest among the employees concerned.'

The City's own evidence showed that tree trimming, pruning and related activities were originally performed by relatively unskilled employees of the City's street department, but that in an effort to place such work on a more professional basis the City created the forestry department as a separate department of the City's governmental structure, employed an experienced forester, named Brickey, as superintendent of forestry, and gathered under him the men who had primarily served in some forestry capacity. There was evidence, not disputed, that Brickey occupied a separate office in the city hall, marked forestry, that the forestry department had its own tool room, in which it kept its own hand tools and equipment, that trucks and other automotive equipment, marked 'forestry department,' were assigned to it for its own use, and that the employees of the forestry department kept their own time and assignment records. The evidence further showed that while, on special occasions, such as during the leaf gathering season in the Fall, one or two men from the forestry department might be temporarily assigned to another department, such interchanges of employees were limited, and in the main the work of the employees of the forestry department were those of tree trimming, pruning, planting, mowing grass in City owned areas, and similar activities. The evidence disclosed that the City owned most of its own electrical distribution system, and that it contracted with an independent concern for the clearing of the City's wires; that another independent concern performed similar work for the Union Electric Company; and that the Union was the exclusive collective bargaining representative for the employees of about six private concerns which did tree trimming and related work. In short, the evidence showed that the forestry department was created to better carry out a particular function, that it was a separate and independent segment of the City's governmental structure, and that it was supervised, administered and controlled by its own staff. And it further showed that the activities and work of the employees of the department were restricted primarily to carrying out the special function of the independent department, and that their activities closely corresponded to those of the members of a recognized craft performed by employees of private enterprises. We are of the opinion, and hold, that there was ample evidence to support the Board's finding and order that the employees of the City's forestry department constituted an appropriate bargaining unit, and that if the trial court's reversal of the Board's order was based on an opinion to the contrary it erred.

The remaining finding and order of the Board concerned the issue of majority status of the Union as the exclusive bargaining representative of the employees in the unit. The phrase 'exclusive bargaining representative' is defined in § 105.500(2) to mean:

'* * * an organization which has been designated or selected by majority of employees in an appropriate unit as the representative of such employees in such unit for purposes of collective bargaining.'

Neither in that section nor in any other part of the act is there any provision as to the manner in which such designation or selection is to be made by the employees, nor any indication as to the nature of the evidence necessary to be produced to enable the Board to resolve the issue of majority representative status.

Prior to the introduction of any evidence at the hearing before the Board the City, by a written motion for the dismissal of the proceedings, as well as orally, it first took the position that an election should be held at which the employees could vote on the question of whether they desired the Union to represent them as their exclusive bargaining representative. The record before us shows that the Board readily agreed that it would hold an election for the purpose, as it had in other cases. The Union likewise immediately agreed to the holding of such an election. The transcript clearly shows that after the Union and the Board had agreed to the City's proposal the City then backtracked and despite the Board's suggestions as to a date for the election, the determination of those who would be eligible to vote, and the manner in which the election would be conducted in order to insure its fairness, one of the attorneys terminated any further discussion of the subject by stating: 'And we don't think that the attorneys or the parties present have the authority to make this decision (as to the holding of the election) without having it presented to the full Council and approved in a regular session.' The Chairman then stated that the Board would hear evidence on the issue.

The uncontradicted evidence was that the City for about 20 years had recognized the Union as the exclusive bargaining representative of the approximately 18 employees in the City's electrical department and had entered into a memorandum of understanding with the Union concerning wages, pensions, and other conditions of employment. The evidence also showed that Leroy Kneip, one of the employees of the forestry department, had approached an employee of the electrical department, named John, stated that the employees of the forestry department wanted to go union, and asked John to obtain cards for them; that John obtained what are called 'authorization cards' from the Union and gave them to Kneip; that all of the employees of the forestry department filled out and signed the cards in the presence of Kneip, and that they were delivered to the Union by John. Robert Missey, the business manager of the Union, testified that he had had no contact with the employees of the forestry department before the cards came into his possession, and that the organizational efforts of the employees of the forestry department were initiated by the men themselves.

Eight signed cards were introduced into...

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  • In the Matter of Catherine Beyersdorfer
    • United States
    • Court of Appeal of Missouri (US)
    • June 26, 2001 the statute, that they may be rejected as surplusage, and omitted, eliminated, or disregarded. City of Kirkwood v. Mo. State Bd. of Mediation, 478 S.W.2d 690, 697 (Mo. App. 1972) (quoting Leibson v. Henry, 204 S.W.2d 310, 315 (Mo. banc 1947) (citation omitted)) (emphasis added); see also......
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    ...a brief in this court. Their appeal is therefore abandoned, and the same is dismissed by this court. City of Kirkwood v. Missouri State Bd. of Mediation, 478 S.W.2d 690, 699 (Mo.App.1972); Supreme Court Rules 84.08, 84.27. All concur. 1 "Where the claimant occupies land without color of tit......
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    • May 29, 2012
    ...majority status of a union. However, secret election is the preferred method. City of Kirkwood v. Missouri State Bd. of Mediation, 478 S.W.2d 690 (Mo.App.1972). 9. While certainly there are procedures by which a workforce can de-certify a union, we would assume that those procedures are not......
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