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A new paper from James N. Foster, Jr., Brian C. Hey, and Allison J. Hartnett provides context to the controversy over HB 1413 with a historical overview of public-sector union law in Missouri.

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This study shows how our state can provide regular elections for its unionized government employees at a low cost to incumbent unions and at no cost to taxpayers.

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Bayless NEA card. From public record.

SAINT LOUIS — The state's largest teacher union, the Missouri National Education Association (MNEA), argued in court on Friday that public school teachers should be represented by either a single union or none. The lawsuit against the Bayless School District's collective bargaining policy, "Bayless Working Together," is one of two lawsuits that the union has filed against public school districts that allow non-exclusive representation. The other, against the Springfield School District's teacher union election policy, has already been argued in circuit court, with the judge ruling in favor of the district. The union is appealing the decision.

Circuit Court Judge Thomas Prebil likely won't issue a decision about the validity of the Bayless policy before 2010. Both the Bayless union affiliate, the Bayless National Educational Association (BNEA), and the school district have until Dec. 22 to file post-trial briefs.

Bayless' bargaining policy is unusual. Many school districts simply hold an election for teachers to choose a union, which then bargains exclusively with the district. But exclusivity isn't required. Patrick Harvey, director of field services and organizing for the MNEA, testified that about 86 percent of Missouri school districts don't actually require the majority teacher union to serve as the representative during contract negotiations.

If Prebil rules that "bargain collectively" entails bargaining through exclusive representation only, about 450 school districts would need to change their union bargaining policies, if Harvey's calculations are correct.

The Bayless bargaining policy doesn't grant any particular union every seat at the bargaining table; instead, teachers vote for two bargaining representatives for each school building, and the majority teacher union gets to elect one additional representative. The school district says this process can help ensure minority participation.

From the policy: "… the majority employee group receives additional representation, and no groups or individuals are excluded from the process."

In other states, school districts and teacher unions can look to state statute for direction. In Illinois, for example, legislation governing teacher–school district negotiations is extensive. But in Missouri, there is little law to guide the collective bargaining between teacher unions and school districts. Article 1, Section 29 of the state Constitution merely states "that employees shall have the right to organize and to bargain collectively through representatives of their own choosing."

The union's position is that "bargain collectively" is a phrase historically known to mean bargaining with exclusive representation, while the district's position is that the word "representatives" allows either exclusive or multiple representation. You can read the union's lawsuit here.

Sally Barker, an attorney for the BNEA, argued that exclusive representation is like an election, where the winner of the majority represents all.

"That is all we are asking for," Barker said. "A simple election. The same kind of labor democracy that prevails in every other labor context in this country."

But if Prebil ruled in favor of the BNEA, argued D. Shane Jones, an attorney for the school district, he would be overstepping his authority.

Establishing a framework for public school bargaining is up to the legislature, Jones said, and if the legislature does nothing, then school districts are left to establish their own policies.

"The plaintiffs are asking you to write a statute for them," he said. "They're asking you to fill that statutory void."

According to Harvey, the state teacher union has been trying to get the legislature to write exclusive bargaining into state statute. The NEA has been introducing exclusive bargaining bills since the '90s, he said.

Jones said that the legislature's inaction for so many years is an indication that it's leaving the policy-writing authority up to the school districts.

The Missouri State Teachers Association, which had joined the Springfield School District in defending its collective bargaining policy, did not join the Bayless case.

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A district affiliate of the majority state teacher union, the Missouri National Education Association (MNEA), has appealed a state judge's ruling that public school teachers can choose whether to be represented by one union, several, or none. Most public school districts in the state negotiate with only one teachers' union, but a select few, such as the Springfield, Brentwood, and Bayless school districts, allow non-exclusive teacher–school district negotiations.

The issue of teacher union representation came to a head at the Springfield School District when the Springfield National Education Association (SNEA) filed suit on June 2.

The SNEA argued against a district policy that allowed teachers to vote first for either single, multiple, or no representation, and then later to vote on which union (or unions) would represent them in negotiations with the school district. In court, Sally Barker, an attorney for the SNEA, argued that such a voting system represented a "false choice," and that collective representation was traditionally understood to be done by a single union.

The Greene County Circuit Court allowed the district policy. In his ruling, Judge Michael Cordonnier wrote that the Article I, Section 29, of the Missouri Constitution provides for multiple representation with the following language: "That employees shall have the right to organize and to bargain collectively through representatives of their own choosing."

“The word ‘representatives’ in Section 29 is unambiguous, plural, and must be read to include the possibility of more than one representative,” Cordonnier wrote.

On Oct. 20, the SNEA filed a notice of appeal with the Southern District Court of Appeals. The appeal itself hasn't been filed with the court, said Sandra Skinner, the court clerk. The filing could come as late as the end of January, she said.

BAYLESS

Another teacher union lawsuit, this one on the behalf of the Bayless National Education Association (BNEA), has been scheduled for trial on Dec. 11 at the Saint Louis County circuit court. According to court documents, Barker will be representing the BNEA.

The BNEA's suit alleges that the school district has violated Article 1, section 29, of the Missouri Constitution by refusing to recognize the BNEA as the exclusive bargaining representative of the district's teachers, or agreeing to let teachers vote on the matter.

Under the district's policy adopted in Feb. 2009, "Bayless Working Together," teachers in each school building nominate and vote for two representatives and one alternate, regardless of union affiliation. In its response to the lawsuit, the district wrote that it prefers to keep the current collective bargaining arrangement in place.

At trial, Barker will likely argue that the district's bargaining policy isn't a legitimate form of collective bargaining and violates the state constitution.

In the lawsuit filed on behalf of the BNEA, Barker wrote that the district's collective bargaining policies "violate Plantiff's right to engage in collective bargaining within the meaning of Article I, Section 29."

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