DeGraffenreid v. State Bd. of Mediation

• Court: Missouri Court of Appeals
• Writing for the Court: Division Three: JAMES E. WELSH
• Citation: DeGraffenreid v. State Bd. of Mediation, 379 S.W.3d 171 (Mo. App. 2012)
• Decision Date: 29 May 2012
• Docket Number: Nos. WD 73330,WD 73331,WD 73332.,s. WD 73330
• Parties: Angelique DEGRAFFENREID, et al., Appellants–Respondents, v. STATE BOARD OF MEDIATION, et al., Respondents–Appellants, Missouri Home Care Union, Respondent–Appellant.

379 S.W.3d 171

Angelique DEGRAFFENREID, et al., Appellants–Respondents,

v. STATE BOARD OF MEDIATION, et al., Respondents–Appellants,Missouri Home Care Union, Respondent–Appellant.

Nos. WD 73330, WD 73331, WD 73332.

Missouri Court of Appeals, Western District.

May 1, 2012.

Motion for Rehearing and/or Transfer to

Supreme Court Denied May 29, 2012.

Application for Transfer Denied Oct. 30, 2012.

Lowell D. Pearson and Harvey M. Tettlebaum, Jefferson City, MO, for appellant-respondents.

James Layton and William Sherman Vanderpool, III, Jefferson City, MO, and Arthur J. Martin, St. Louis, MO, for respondent-appellants.

Division Three: JAMES E. WELSH, P.J., JAMES M. SMART, JR., and JOSEPH M. ELLIS, JJ.

JAMES M. SMART, JR., Judge.

This case involves a challenge to a union election conducted by the State Board of Mediation to decide whether home care workers participating in the Consumer–Directed Personal Care Assistance Program under Missouri law would be represented by the Missouri Home Care Union for purposes of collective bargaining with state authorities. After the election was conducted, certain individuals challenged the election as having been conducted in violation of law and constitutional provision. The circuit court enjoined the State Board of Mediation from certifying the election in favor of the Union. The Union, the State Board of Mediation, and the Plaintiffs appeal. We reverse the ruling of the circuit court and remand the case with instructions that the election be certified.

The Consumer–Directed Personal Care Assistance Services Program

The State of Missouri has undertaken the responsibility of providing home care assistance to Medicaid-eligible disabled individuals who could not live independently without such assistance. The program is funded by the federal government via Medicaid. See, e.g., § 208.868. The Department has carried out this responsibility through the “Consumer–Directed Personal Care Assistance Services Program” (“the Program”), originally established pursuant to the now-repealed sections 178.661–.673 RSMo and now governed by sections 208.900–.951 RSMo (Cum.Supp.2010).¹ The Program is managed primarily by the Missouri Department of Health and Social Services (“DHSS”).

The Quality Home Care Council and Collective Bargaining

In 2008, Missouri voters adopted by initiative an additional measure called the “Quality Home Care Act” (“Proposition B”) sections 280.850–.871. The 2008 law added certain new provisions to the Program. Among the new provisions was one that introduced the concept of collective bargaining in behalf of home care workers statewide with a single entity. Section 208.862.3 specified that the home care workers (“personal care attendants”) would be deemed, for purposes of collective bargaining (and only for the purposes of collective bargaining), ² to be employees of a new entity called the Missouri Quality Home Care Council (“the Council”), created by section 208.856. The Council consists of eleven members appointed by the Governor with the advice and consent of the Senate. Six are to be current or former recipients of personal care services. Others are to be representatives of DHSS, the Missouri Centers for Independent Living, the Governor's Council on Disabilities, and the Governor's Advisory Council on Aging. § 208.856.2. The Council is a “public body,” section 105.500, and personal care attendants are “employees” of the Council for collective bargaining purposes. § 208.862.3.

The Public Sector Labor Law (§§ 105.500–.530) provides, inter alia, that a “public body” has the duty to meet, confer, and discuss with labor organizations representing public employees. It provides for the discussion of proposals related to salaries and other conditions of employment. § 105.520. The representatives of the public body are also required to place in writing the results of such discussions, and to present them to the appropriate governing body for adoption, modification, or rejection. Id.

The State Board of Mediation

Any issues with respect to the selection of collective bargaining representatives shall be resolved by the State Board of Mediation. Id.; see also § 105.500. The State Board of Mediation consists of five members appointed by the Governor and affirmed by the Senate. The Board is designed to provide neutrality in union-management relations. Two members represent unions, two members represent employers, and the fifth represents neither and is the chair. See § 295.030; Parkway School Dist. v. Parkway Ass'n of Educ., 807 S.W.2d 63, 68 (Mo. banc 1991). In determining the details related to the conduct of elections, the Board is empowered to conduct contested-case hearings and adjudicate disputed issues. § 295.070. Any party aggrieved by a Board decision may seek judicial review. § 105.525.

Under Proposition B (the 2008 initiative measure adopted by voters), when a union seeks to be the exclusive bargaining representative of the personal care attendants, the State Board of Mediation shall conduct an election by mail ballot pursuant to Missouri Public Sector Labor Law to determine whether the personal care attendants wish to choose a union to represent them. Section 208.862.4 states in pertinent part:

The sole appropriate unit of personal care attendants ... shall be a statewide unit. .... The state [Board] shall conduct an election, by mail ballot, to determine whether an organization shall be designated the exclusive bargaining representative ... for the statewide unit of personal care attendants ... upon a showing that ten percent of the personal care attendants in said unit want to be represented by a representative. The Missouri office of administration shall represent the council in any collective bargaining with a representative of personal care attendants. Upon completion of bargaining, any agreements shall be reduced to writing and presented to the council for adoption, modification or rejection....

Accordingly, a union seeking to be the exclusive bargaining representative of the personal care attendants must face an election by mail ballot conducted by the State Board of Mediation. The election shall determine whether the union will be designated the exclusive bargaining representative.

The “Vendors”

In order to conduct an election to determine a collective bargaining representative,the Board must have cooperation and assistance from the “vendors.” The vendors are those privately owned businesses around the state in various locations who serve the Program in various ways, including, among other things, recruiting and screening applicants, handling the payroll work for the care attendants, and performing other administrative work related to the care attendants and the consumers. See § 208.862.2; § 208.903.2; § 208.909.2 and .5. The vendors are compensated from the Program in accordance with the terms of their written agreement with DHSS and the requirements thereof. The vendors evidently have a financial interest in the issue of whether care attendants are allowed to collectively bargain, but Proposition B did not provide for any direct representation of vendors on the Council. Thus, it is not clear that the Council includes any persons whose interests may be adverse to collective bargaining, except to whatever extent the members of the Council from DHSS may seek to protect the interests of vendors as well as care attendants.³

Background: the First Election—Spring 2009

After the passage of Proposition B in 2008, a newly organized labor union called the Missouri Home Care Union, AFSCME–SEIU,⁴ filed a petition with the State Board of Mediation seeking an election in an attempt to be certified as the exclusive representative for the bargaining unit of personal care attendants. Chairman of the State Board of Mediation, James Avery, after compiling a list of personal care attendants, determined that the Union met the ten percent (10%) showing of interest necessary to process the petition. No one disputes that determination. On May 13, 2009, Avery sent a letter to the Union and DHSS notifying them that the Union had met the ten percent showing of interest required and that the Board therefore would proceed with an election.

Subsequently, Chairman Avery conducted a conference with representatives of the Union and the Council. Upon agreement between the parties, Chairman Avery prepared, and the parties signed, a “Stipulation for Certification upon Consent Election.”

Stipulation by the Parties to the Election

The stipulation dealt with the manner of carrying out the election, covering comprehensively such items as:

• the provision of notice,

• the eligibility criteria,

• the secrecy of the ballots,

• the tallying of the ballots,

• the authorized observers and challengers,

• the run-off procedure (if necessary),

• the wording of the ballot, and

• other items.

Although the vendors will be financially affected by the potentiality of collective bargaining, the vendors did not participate in the stipulation process because the statutory scheme assigns a role to vendors that differs from the role of a true employer. See § 208.862–.909. Also, Proposition B granted the vendors no specific representation on the eleven-member Quality Home Care Council, which is the “employer” for collective bargaining purposes.

Before the election, three vendors, who were opposed to any effort to establish collective bargaining, refused to provide lists of all eligible personal care attendants who earned income between January 1, 2008 and June 1, 2009. Another irregularity was that approximately 2,489 eligible personal care attendants were left off of the Board's list, because the Board inadvertently failed to update the list to include all of the personal care attendants who earned income between January 1, 2009 and June 1, 2009.

On July 21, 2009, after the deadline for voting, and the day before the ballots were to be counted, a vendor and a group of personal care attendants who had not...