Missouri Nat. Educ. Ass'n v. Missouri State Bd. of Mediation, 66634

• Decision Date: 10 September 1985
• Docket Number: No. 66634,66634
• Citation: 695 S.W.2d 894
• Parties: 27 Ed. Law Rep. 981 MISSOURI NATIONAL EDUCATION ASSOCIATION, Appellant, v. MISSOURI STATE BOARD OF MEDIATION, Respondent Belton, Missouri School District, Respondent-Appellant.
• Court: Missouri Supreme Court

Page 894

695 S.W.2d 894

27 Ed. Law Rep. 981

MISSOURI NATIONAL EDUCATION ASSOCIATION, Appellant, v. MISSOURI STATE BOARD OF MEDIATION, Respondent

Belton, Missouri School District, Respondent-Appellant.

No. 66634.

Supreme Court of Missouri,

En Banc.

Sept. 10, 1985.

Charles A. Werner, St. Louis, for appellant.

William L. Webster, Atty. Gen., Mark Siedlik, Asst. Atty. Gen., Carl S. Yendes, Asst. Atty. Gen., Jefferson City, for respondent.

E.J. Holland, Jr., Georgann H. Eglinski, Kansas City, Elvin S. Douglas, Harrisonville, for respondent-appellant.

DONNELLY, Judge.

This is a public sector labor law case involving the Belton, Missouri School District (District), the Missouri National Education Association (MNEA) and the Missouri State Board of Mediation (Board). The MNEA petitioned the Board pursuant to the Public Sector Labor Law, §§ 105.500, et seq., RSMo 1978, for certification as exclusive bargaining representative of all clerical employees, teacher aides and school nurses employed by the District. Following an evidentiary hearing, a majority of the Board determined that twelve secretaries which the MNEA sought to include within the bargaining unit were "confidential" employees and should be excluded. At an election conducted pursuant to Board Rule 8 CSR 40-2.160, the MNEA was chosen by a majority of members of the bargaining unit as their exclusive bargaining representative. The ballots cast by the twelve secretaries excluded from the unit were not counted and remain sealed.

The MNEA and the District each appealed the decision of the Board to the circuit court pursuant to § 105.525, RSMo 1978. The District contended that the certification election was unlawful as in violation of Board Rule 8 CSR 40-2.160(1) because one of the persons designated as an observer for the election was not a nonsupervisory employee of the District. The MNEA contended that the Board committed errors of fact and law in excluding the twelve secretaries from the bargaining unit. The circuit court consolidated the petitions and, after review, affirmed the decision of the Board. The decision of the Board was again affirmed on appeal to the Western District of the Court of Appeals.

We ordered transfer of this case because of its general interest and importance. Rule 83.03; Mo. Const. art. V, § 10. We now consider and decide this cause as if the appeal had originally been brought in this Court. Id. It is the decision of the Board which we review and not the judgment of the circuit court. City of Cabool v. Missouri State Board of Mediation, 689 S.W.2d 51, 53 (Mo. banc 1985).

The District's sole point on appeal is that the results of the certification election should be set aside for failure to comply with Board Rule 8 CSR 40-2.160(1) which provides as follows:

Each of the interested parties may designate two (2) persons as observers at the polls, subject to such limitations as the chairman may prescribe. Unless otherwise stipulated by the interested parties, observers must be non-supervisory employees of the public employer.

The District argues that Audrey Bimby, the person designated by the MNEA as its observer for the election, was not a non-supervisory employee of the District and, in fact, was the MNEA's own employee. The District concludes that Ms. Bimby was unqualified to serve as observer and that her presence at the polls tainted the election.

Rules of a state administrative agency duly promulgated pursuant to properly delegated authority have the force and effect of law and are binding upon the agency adopting them. See Page Western, Inc. v. Community Fire Protection District of Saint Louis, 636 S.W.2d 65, 68 (Mo. banc 1982). See generally, 73 C.J.S. Public Administrative Law and Procedure § 97 (1983). Nevertheless, the failure of an agency to comply with its own rules may invalidate its actions only when prejudice results. See, e.g., Port of Jacksonville Maritime Ad Hoc Committee, Inc. v. Hayes, 485 F.Supp. 741 (M.D.Fla.1980) aff'd, 620 F.2d 567 (5th Cir.1980); FTC v. Foucha, 356 F.Supp. 21 (N.D.Ala.1973).

Assuming, without deciding, that Board Rule 8 CSR 40-2.160(1) prohibits employees of a labor union who are not "non-supervisory employees of the public employer" from serving as observers, we fail to see how any of the interested parties could have been prejudiced by Bimby's mere presence at the polls. The District's objections to the conduct of the election were fully investigated by the chairman of the Board pursuant to Board Rule 8 CSR 40-2.160(8) and were overruled. The investigation by the chairman was confirmed by a stipulation subscribed by each of the three persons who acted as an observer for the election. The stipulation recited that, prior to election, none of the interested parties voiced any objection regarding the qualifications of the persons selected to serve as observers when given such an opportunity by the chairman. The observers further stipulated that "[d]uring the hours of the election * * * none of the parties [observers] left the polling location and no electioneering, intimidation, or coercion was observed * * *." The record is void of any evidence indicating irregularity in the election proceedings. We conclude that the mere presence of a union employee at the election site, without more, was not inherently destructive of the conditions necessary for a fair election and the election results should stand.

Prior to reviewing the MNEA's contention that twelve secretaries were erroneously excluded from the bargaining unit by the Board, we note that while we are obliged to defer to the findings of fact made by the Board insofar as they are supported by competent and substantial evidence, the final determination of questions of law and the final interpretation of the meaning of statutes are part of the judicial function vested in this Court. St. Louis County v. State Tax Commission, 562 S.W.2d 334, 337-38 (Mo. banc 1978); Howlett v. Social Security Commission, 149 S.W.2d 806, 810 (Mo. banc 1941). We review the MNEA's contention that the twelve secretaries at issue are not impliedly excluded from the coverage of the Public Sector Labor Law by reason of being "confidential" employees as a question of law. See City of Cabool, 689 S.W.2d at 54.

Although § 105.510, RSMo 1978, uses the word "employees" without additional specificity in describing the composition of a bargaining unit, the legislature did not intend for all persons on the public payroll to be considered employees for bargaining purposes. See City of Columbia Missouri v. Missouri State Board of Mediation, 605 S.W.2d 192, 194 (Mo.App.1980); Golden Valley Memorial Hospital District v. Missouri State Board of Mediation, 559 S.W.2d 581, 583 (Mo.App.1977). In the course of labor relations, someone must act on behalf of the public employer and it is the responsibility of the Board to exclude from an otherwise appropriate bargaining unit "those employees, if any, whose duties involve acting directly or indirectly in the interest of the employer in relation to other employees." Golden Valley Memorial Hospital District, 559 S.W.2d at 583.

Among the categories of employees whose duties involve acting directly or indirectly in the interest of the employer in relation to other employees are "managerial" employees and "confidential" employees. See, Shaw & Clark, Determination of Appropriate Bargaining Units in the Public Sector: Legal and Practical Problems. 51 Or.L.Rev. 152, 168-171 (1971). "Managerial" employees formulate, determine or effectuate policies on behalf of their employer while "confidential" employees are persons who, in the normal performance of their duties, have access to confidential information affecting the employer-employee relationship. Id. at 170-171. "Management" employees and "confidential" employees are excluded from the bargaining unit either because their inclusion could create conflicts of interest in the performance of their duties or because they lack sufficient community of interest with other workers. See Westinghouse Electric Corp. v. NLRB, 398 F.2d 669, 670 (6th Cir.1968); Retail Clerks International Ass'n. v. NLRB, 366 F.2d 642, 644-45 (D.C.Cir.1966); cert. denied, 386 U.S. 1017, 87 S.Ct. 1373, 18 L.Ed.2d 455 (1967). See also Comment, Bargaining Units for State and Local Employees, 39 Mo.L.Rev. 187, 198 (1974). The Board has consistently taken the position that the definition of "employee" in § 105.510, RSMo 1978, excludes both "managerial" and "confidential" employees. See, e.g., St. Genevieve Federation of Classified Employees Local 4126, a/w American Federation of Teachers, AFL-CIO v. St. Genevieve School District, R-II, Public Case No. 80-036 (1982).

In an effort to define the appropriate breadth of the "confidential" employee exclusion under the Public Sector Labor Law, the Board has traditionally placed great reliance on the decisions of the National Labor Relations Board (NLRB), the body established by Congress to administer the National Labor Relations Act (NLRA) 29 U.S.C. §§ 141 et seq. (1973). The NLRB has recognized that certain "confidential" employees should be excluded from the bargaining unit even though the NLRA, like the Public Sector Labor Law, does not expressly exclude "confidential" employees from its coverage. However, in contrast to the position taken by the Board, that "confidential" employees are not "employees" within the meaning of the Public Sector Labor Law, the NLRB has adopted the position that "confidential" employees are not impliedly excluded from the definition of "employee" under the NLRA. See NLRB v. Hendricks County Rural Electric Membership Corp., 454 U.S. 170, 177-78, 102 S.Ct. 216, 222, 70 L.Ed.2d 323 (1981). Nevertheless, in the course of fulfilling its obligation to determine appropriate bargaining units under § 9 of the NLRA, the NLRB has adopted a policy of excluding those "confidential" employees with a "labor-nexus"; i.e., those employees acting in a...