Schaffer v. Board of Educ. of City of St. Louis

Decision Date23 November 1993
Docket NumberNo. 63575,63575
Parties148 L.R.R.M. (BNA) 2623, 88 Ed. Law Rep. 1262 Betty J. SCHAFFER, et al., Plaintiffs/Appellants, v. BOARD OF EDUCATION OF the CITY OF ST. LOUIS, et al., Defendants/Respondents.
CourtMissouri Court of Appeals

Application to Transfer Denied Feb. 22, 1994.

John C. Scully, Springfield, VA, Thomas M. Hanna, St. Louis, for plaintiffs, appellants.

Bruce C. Cohen, Mark J. Rubinelli, St. Louis, for defendants, respondents.

GRIMM, Presiding Judge.

This case involves a matter of first impression for this state. 1 The primary question presented is whether our statutes permit a "fair share" provision to be included in a school board's policy statement concerning working conditions. We hold that the provision is permissible and affirm the trial court's decision.

The St. Louis Board of Education recognizes Local 50, Service Employees International Union, as the exclusive representative of board's custodial and food service employees. Although board employs plaintiffs as either custodians or food service workers, they are not union members.

Under board's policy statement, plaintiffs are required to pay their fair share of union's expenses in the "meet and confer process, policy statement administration and [the union's pursuit of] matters affecting wages, hours and conditions of employment." Plaintiffs do not contest the computation of the fair share cost.

Rather, in the trial court, plaintiffs brought a declaratory judgment action against board and union seeking to invalidate the clause entirely. They alleged the fair share provision violated § 105.510 2 relating to public employees collective bargaining and § 432.030 concerning wage assignments. Defendants' filed summary judgment motions, which were granted.

Plaintiffs appeal, raising four points. They allege the trial court erred in granting the summary judgment motions because the fair share provision (1) compels non-union members to become financial-core members of union in violation of § 105.510, (2) indirectly compels membership in union in violation of § 105.510, (3) is an unlawful delegation of legislative power to union, and (4) is an illegal wage arrangement under § 432.030.

I. Background

Missouri public employee labor relations are governed by §§ 105.500-.530. With certain exceptions not applicable here, employees "of any public body shall have the right to form and join labor organizations and to present proposals to any public body relative to salaries and other conditions of employment through the representative of their own choosing." Section 105.510. The majority of board's custodians and food service workers selected union as the "exclusive bargaining representative" for all of board's custodians and food service workers; board so recognized union. See § 105.500(2).

Union, as authorized by § 105.510, presented proposals to board concerning salary, benefits, and other conditions of employment. Following discussions, board adopted a written "Policy Statement" relating to working conditions for all of board's custodians and food service employees. It included a fair share provision. This provision pertains to custodians and food service workers who are employed in the bargaining unit represented by union, but who are not union members. It states in pertinent part:

Every employee included in the appropriate unit who is not a member of the Union will be required to contribute a fair share for services rendered by the Union as the exclusive representative of all the employees in the unit. The Union will certify to the Board the amount constituting the non-members' proportionate share of the costs of the meet and confer process, policy statement administration and pursuing matters affecting wages, hours and conditions of employment, but not to exceed the amount of dues uniformly required of members. Upon the appropriate request for deductions submitted to the Board from the Union on behalf of all of the non-member employees represented by the Union, the proportionate share payment shall be deducted by the Board from the wages of non-member employees and paid to the Union, not less than once every thirty (30) days.

In August, 1990, union sent a letter to plaintiffs which explained the fair share provision. Also, it stated that membership in union was not required.

In response to the letter, plaintiffs notified board and union of their objection to deduction of fees without their consent. In October, 1990, board began making deductions from plaintiffs' salaries pursuant to the policy statement.

II. Fair Share Provision

We consider plaintiffs' first and second points together. Plaintiffs contend that the fair share provision violates § 105.510. Specifically, they claim such a fee (1) compels "nonmembers to become financial core members" or (2) "at a minimum indirectly compels membership in the union."

Here, the fair share provision calls for deduction of a "proportionate share of the costs" associated with collective bargaining, rather than the full amount of union dues. A fair share provision:

defines the amount of the fee as the actual (pro rata) costs of the union's services rather than union dues.... [T]he fair share arrangement compensate[s] the union for providing, as required under its duty of fair representation, full and equal protection to all employees in the bargaining unit, regardless of union membership status. (footnotes omitted).

Zwerdling, The Liberation of Public Employees: Union Security in the Public Sector, 17 B.C.Indus. & Com.L.Rev. 993, 1008 (1976).

The rationale supporting fair share provisions is the elimination of "free riders." Free riders are "employees who receive the benefits of union representation but are unwilling to contribute their fair share of financial support to such union...." NLRB v. Gen. Motors Corp., 373 U.S. 734, 743, 83 S.Ct. 1453, 1459, 10 L.Ed.2d 670, 676 (1963).

This policy was further stated in Abood v. Detroit Bd. of Educ., 431 U.S. 209, 221-22, 97 S.Ct. 1782, 1792-93, 52 L.Ed.2d. 261, 275-76 (1977). In that case, the Court stated:

The designation of a union as exclusive representative carries with it great responsibilities. The tasks of negotiating and administering a collective-bargaining agreement and representing the interests of employees in settling disputes and processing grievances are continuing and difficult ones. They often entail expenditure of much time and money. The services of lawyers, expert negotiators, economists, and a research staff, as well as general administrative personnel, may be required. Moreover, in carrying out these duties, the union is obliged "fairly and equitably to represent all employees ..., union and nonunion," within the relevant unit. A union-shop arrangement has been thought to distribute fairly the cost of these activities among those who benefit, and it counteracts the incentive that employees might otherwise have to become "free riders"--to refuse to contribute to the union while obtaining benefits of union representation that necessarily accrue to all employees.

Id. at 221-22, 97 S.Ct. at 1792-93 (footnote and citations omitted).

We now turn to whether our statutes permit fair share provisions. We do not find any express language permitting or prohibiting fair share provisions. However, we find implicit authority for them in § 105.520, which provides:

Whenever such proposals are presented by the exclusive bargaining representative to a public body, the public body or its designated representative or representatives shall meet, confer and discuss such proposals relative to salaries and other conditions of employment.... (emphasis added).

This section makes salaries and other conditions of employment mandatory areas of discussion. Our statutes do not define "other conditions of employment." However, the Missouri Supreme Court has stated Missouri's statutory process of "conducting negotiations resembles the procedures available under the federal labor relations statutes." See Parkway Sch. Dist. v. Local 902/MNEA, 807 S.W.2d 63, 67 (Mo.banc 1991). Therefore, federal authority is persuasive for our interpretation of § 105.520.

The National Labor Relations Act compels collective bargaining with "respect to rates of pay, wages, hours of employment, or other conditions of employment...." 29 U.S.C § 159(a) (1973) (emphasis added). Federal courts have held that provisions having the effect of the fair share provision here are properly considered "conditions of employment" and must be bargained for. See NLRB v. W.T. Grant Co., 199 F.2d 711, 712 (9th Cir.1952); Local 164, Bhd. of Painters v. NLRB, 293 F.2d 133, 137 (D.C.Cir.1961); NLRB v. Bricklayers & Masons Int'l Union, 405 F.2d 469, 470 n. 1 (9th Cir.1968).

Further, at oral argument, plaintiffs' counsel acknowledged that a clause like the fair share provision here is a condition of employment. He said, "There is no question that they are conditions of employment, but it's a condition of employment that is very different than, say, you get more vacation or working hours."

Also, other state courts have concluded that clauses having the effect of a fair share provision are included within the term "working conditions." See Rae v. Bay Area Rapid Transit, Etc., 114 Cal.App.3d 147, 170 Cal.Rptr. 448 (1980); Fort Wayne Educ. Ass'n, Inc. v. Goetz, 443 N.E.2d 364 (Ind.Ct.App.1982).

We conclude that the fair share provision is included within the term "other conditions of employment." This conclusion is consistent with federal precedent and other states' interpretations of similar statutes.

Having said this, it is clear that union is bound by statute to represent every employee within the bargaining unit. See §§ 105.500-.530. Therefore, following Abood's rationale, it would be inequitable to permit plaintiffs to benefit from union's services without...

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