School Dist. of Kansas City v. Clymer, KCD

• Decision Date: 27 June 1977
• Docket Number: No. KCD,KCD
• Parties: 96 L.R.R.M. (BNA) 2945 The SCHOOL DISTRICT OF KANSAS CITY, Missouri, Relator, v. The Honorable Lewis W. CLYMER, Respondent. 29495. Kansas City District
• Court: Missouri Court of Appeals

Page 483

554 S.W.2d 483

96 L.R.R.M. (BNA) 2945

The SCHOOL DISTRICT OF KANSAS CITY, Missouri, Relator, v. The Honorable Lewis W. CLYMER, Respondent.

No. KCD 29495.

Missouri Court of Appeals,

Kansas City District.

June 27, 1977.

Application to Transfer Denied Sept. 12, 1977.

Taylor Fields, John C. Noonan and Sheryl B. Etling, for relator; North, Colbert & Fields, Stinson, Mag, Thomson, McEvers & Fizzell, Kansas City, of counsel.

Norman Humphrey, Jr., Independence, for amicus curiae, Missouri School Bds. Assn.; Burns & Humphrey, Independence, of counsel.

Robert J. Reinhold, Kansas City, for amicus curiae, John E. Keane.

William A. Jolley, Doyle R. Pryor, Donald M. Fehr, Kansas City, for respondent; Jolley, Moran, Walsh, Hager & Gordon, Kansas City, of counsel.

Before PRITCHARD, C. J., and SHANGLER, DIXON, SWOFFORD, WASSERSTROM, SOMERVILLE and TURNAGE, JJ., sitting as the Court en banc.

ORIGINAL PROCEEDING IN PROHIBITION

PRITCHARD, Chief Judge.

The preliminary rule in prohibition, the return thereto, and the traverse to the return seek to test the power and authority of respondent judge to enter a memorandum and order of May 6, 1977, amending a temporary injunction dated April 13, 1977. The temporary injunction enjoined defendants, Kansas City, Missouri, Federation of Teachers, Local 691 (AFL-CIO), and all of its members from "(1) participating in any strike, concerted walkout, concerted work stoppage, concerted refusal to teach or work, concerted breach of employment contracts, or concerted interference with other teachers' employment contracts; or any other acts of coercion against plaintiff (The School District of Kansas City, Missouri), its employees or its property; (2) establishing or maintaining or participating in any picket line on or around any of plaintiff's schools or other of plaintiff's premises, where the purpose of such picketing is to cause or attempt to cause others to fail or refuse to report for work", in Case No CV77-0968 pending in the Circuit Court of Missouri, Sixteenth Judicial Circuit.

A temporary restraining order had been issued against certain named individuals and the teachers' union on March 20, 1977, and an order to show cause why a temporary injunction should not be granted. Many of the teachers had been on strike, as called by the union, after March 21, 1977, which resulted in citations for contempt of the temporary restraining order, and resultant fines and incarceration, which are not really relevant to the issues here presented, except that they were a part of the overall situation which prompted respondent judge to initiate procedures aimed at an amicable resolution of the strike and the return to work of all teachers and other district employees who were involved. Pursuant to this salutary purpose, respondent, on April 15, 1977, appointed Mr. Sal A. Capra, Esq., as a liaison officer, after which "Mr. Capra has been conferring with the parties and to secure a return to an orderly education system and a resolution of the existing controversy." As a result of Mr. Capra's reports and his recommendations, the court entered, without participation by relator and over its objection (as is apparent from its petition for writ of prohibition herein), the May 6, 1977, amendment to the temporary injunction, as follows:

"1. The parties are directed to act in good faith for the purpose of effecting the end of the strike, the cessation of related activities and the normalization of the educational process in the District.

2. All employees, including those terminated since March 20, shall be allowed to return to work without loss of accumulated seniority or District Service and be issued contracts or (in the case of non-certified employees) be otherwise renewed for employment for the 1977-1978 school year with the assurance of the Board and the Administration that all teachers and employees shall be treated equally and fairly and that no one shall be discriminated against because of his or her part in the events that have transpired since March 20, 1977.

3. The Union shall end the strike and all picketing against the School District within forty-eight (48) hours.

4. The District may investigate, evaluate and deal with any alleged acts of teachers or other employees occurring during the period from March 20, 1977, through the end of the strike in accordance with Missouri law and the provisions of this Order. The School District shall not terminate the employment of any teacher or other employee because of strike activities unless it is proven with due process that such person engaged in violent acts causing physical injury to persons or damage to property.

5. With the exception of termination of employment or non-renewal of contracts of employment for violent acts causing physical injury to persons or damage to property, neither the School District nor the Union nor any of its officers, agents, employees or members shall discriminate against any teacher because of that employee's peaceful participation or nonparticipation in the strike.

6. Any teacher not reporting for work within seven (7) calendar days following the end of the strike may be subjected to appropriate proceedings under the Teacher Tenure Act for excessive or unreasonable absence except, however, that such seven (7) calendar day period may be extended for good cause upon written application to the Board of Education.

7. Upon cessation of the strike, the discussion teams representing the School District and the Kansas City, Missouri Federation of Teachers, Local 691 (AFL-CIO) shall meet, confer and discuss in good faith at reasonable times and places in an effort to resolve the issues between said parties, including but not limited to the issues of dues check-off and loan status."

The preliminary rule in prohibition ordered that respondent refrain from enforcing these parts of the memorandum and order, with denoted exceptions:

"(a) All of Paragraph 2, EXCEPT that all employees, including those terminated since March 20, 1977, shall be allowed to return to work without loss of accumulated seniority or District service, except those who have been terminated for various and sundry reasons wholly unrelated to the strike.

(b) All of Paragraph 4, EXCEPT that the District may investigate, evaluate and deal with any alleged acts of teachers or other employees occurring during the period from March 20, 1977, through the end of the strike in accordance with Missouri law.

(c) All of paragraph 5."

Apparently relator has in its discretion met with representatives of the teachers' union to discuss problems of mutual interest although § 105.510, RSMo 1969, excepts "teachers of all Missouri schools, colleges and universities" as having the right to join labor organizations and bargain collectively. It is stated in relator's brief that "The Kansas City, Missouri Federation of Teachers, Local 691 (AFL-CIO) (hereinafter referred to as the 'union') is a labor organization which is recognized by Relator as the nonexclusive agent of defendant teachers." No issue is presented as to whether the teachers' union has any right at all to negotiate with relator.

It is without question, however, that the teachers' strike was illegal. It was so conceded by respondent's counsel in argument before this court. Although not within the ambit of restrictions against strikes by employees under § 105.530, RSMo 1969 (and § 105.510), the teachers' strike was violative of the common law. City of Grandview v. Moore, 481 S.W.2d 555, 557(1, 2) (Mo.App.1972), citing 51A C.J.S. Labor Relations § 306, p. 104; and St. Louis Teachers Ass'n v. Bd. of Ed., etc., 544 S.W.2d 573, 575 (Mo. banc 1976).

What respondent's order of May 6, 1977, does is to invade the legislative prerogatives of the Board of Education of the Kansas City School District. It is provided by Mo.Const., Art. IX, § 1(a), that the "general assembly shall establish and maintain free public schools for the gratuitous instruction of all persons in this state within ages not in excess of twenty-one years as prescribed by law." Pursuant to this constitutional direction the general assembly enacted various statutes establishing and regulating public schools....