IN THE MISSOURI COURT OF APPEALS EASTERN DISTRICT ED103063 ST. LOUIS POLICE LEADERSHIP ORGANIZATION Appellant, v. CITY OF ST. LOUIS Respondent. Appeal from the Circuit Court of the City of St. Louis The Honorable David Dowd Reply Brief of Appellant LAW OFFICES OF RICK BARRY, P.C. RICK BARRY, #25592 1034 South Brentwood Blvd., 1301 St. Louis, Missouri 63117 Phone: (314) 918-8900 Fax: (314) 918-8901 Attorney for Appellant
TABLE OF CONTENTS TABLE OF CONTENTS TABLE OF CASES AND AUTHORITIES REPLY TO RESPONDENTS' ARGUMENT I & III CONCLUSION CERTIFICATE OF COMPLIANCE CERTIFICATE OF SERVICE 2 3-4 5-10 12 12 13 2
Cases TABLE OF CASES AND AUTHORITIES American Federation of Teachers v. Ledbetter, SC 91766 (Mo. bane 11-20-2012)...... 6, 9 Eastern Missouri Coalition of Police, Fraternal Order of Police, Lodge 15 v. City of Chesterfield Consolidated with Eastern Missouri Coalition of Police, Fraternal Order of Police, Lodge 15 v. City of University City, SC 91736, (Mo. bane 2012)........ 5 Eastern Missouri Coalition of Police, Fraternal Order of Police, Lodge 15 v. City of University City, (Mo. App. ED., May 3, 2011)............. 6 Hanna v. Director of Revenue, 347 S.W.3d 95, 97 (Mo. App. S.D. 2011)... 5 Independence - National Educ. Ass'n v. Independence School Dist, 223 S.W.3d 131 (Mo. bane 2007).................. 5, 6, 7, 9 Smith ex rel. Stephan v. AF & L Ins. Co., 147 S.W.3d 767, 773 (Mo. App. 2004)......... 5 Universal Underwriters Ins. Co. v. Dean Johnson Ford, Inc., 905 S.W.2d 529, 533 (Mo. App. W.D. 1995)......... 9 White v. Dir. Of Revenue, 321 S.W.3d 298 (Mo. bane 2010)...................5 Statutes R.S.Mo. 105.500...................... 5,7 Other Authorities Article I, Section 29 Missouri Constitution...... 5, 10, 12-25 8 CSR 40-2.020............ 7 8 CSR 40-2.040............ 7 3
8 CSR 40-2.100......... 8 8 CSR 40-2.150............ 8 8 CSR 40-2.160.......................................... 8 Charter of City of St. Louis Article XVIII............ 9, 10 City of St. Louis Civil Service Rule XVII......... 9, 10 City of St. Louis Ordinance 62234........... 9 City of St. Louis Department of Personnel Administrative Regulation No. 147... 9, 10 4
I. Appellant's Reply to Respondent's Argument I. As previously set forth in Appellant's Brief, questions of law, including those of constitutional interpretation and application, "are reviewed de novo." White v. Director ofrevenue, 321 S.W.3d 298 at 308, 310 (Mo. bane 2010). Claimed error in applying the law is reviewed de novo." Hanna v. Director of Revenue, 347 S.WJd 95, 97 (Mo. App. S.D. 2011). Although the reviewing Court generally defers to the trial court's findings of fact, it reviews conclusions of law without deference to the trial court. Smith ex rel. Stephan v. AF & L Ins. Co., 147 S.W.3d 767, 773 (Mo. App. 2004). The reviewing court independently reviews whether the trial court properly declared or applied the law to the facts presented. Id. Respondent contends the trial court properly held that Rule 13 did not violate Article I, Section 29 of the Missouri Constitution, because said constitutional provision does not require a procedure to challenge decertification, a vote to decertify a recognized labor organization, or a mechanism for confirming the authenticity of signatures on a decertification petition. Collective Bargaining Framework Police officers, who are specifically excluded from Missouri public sector labor law, have the right to collectively bargain, pursuant to the Missouri Constitution. Eastern Missouri Coalition of Police, FOP Lodge 15 v. Chesterfield, 386 S.W.3d 755 (Mo bane 2012). Missouri's public sector labor law, codified in section 105.500, et seq., creates a procedural framework for collective bargaining for public employees, but it expressly excludes certain professions, including law enforcement officers and teachers. Id. at 363. 5
When a procedural framework for bargaining is not codified, i.e. for excluded employees, the lack of a framework does not excuse the public employer from its constitutional duty to bargain collectively with public employees. Id. In those situations, the collective bargaining process requires a reasonable framework be established by the public employer for collective bargaining, which includes reasonable mechanisms for recognition and certification of a bargaining representative. Independence 223 S.W.3d at 136. (emphasis added). In determining what constitutes a constitutionally-consistent collective bargaining framework, the Supreme Court explains "collective bargaining" is a technical term whose meaning is determined by examining the history, development, and modem understanding of American collective bargaining. American Federation of Teachers v. Ledbetter, 387 S.W.3d 360, 366-67 (Mo. bane 2012). Because police officers are excluded from Missouri's public sector labor law, cities may create their own procedures when necessary, so long as they satisfy the constitutional requirements. Independence NEA v. Independence Sch. District, 223 S.W.3d 131, 137 (Mo. bane 2007). A public employer's framework must contain certain procedural elements which are routinely found in other collective bargaining frameworks. Eastern Missouri Coalition of Police, Fraternal Order of Police, Lodge 15 v. City of University City, No. ED95564, *9 (Mo. App. ED., May 3, 2011) (emphasis added) (basic components of a reasonable framework for collective bargaining include procedures for elections). 6
In determining the constitutionality of a public employers' framework, Missouri Public Sector Labor Law is particularly instructive. RSMo 105.500, et seq. Notably, when the Supreme Court in Independence imposed upon public employers the duty of creating a procedural framework, it did so in the context of determining how public employers not covered by the Public Sector Labor Law would provide procedures similar to those provided to public employees who are covered by statute. Missouri Public Sector Law, codified in section 105.500, et seq., provides the following fundamental framework elements which must be established to decertify an exclusive bargaining representative of public employees by the State Board of Mediation: Filing of Decertification Petition: A petition for decertification shall be accompanied by a showing of interest of not less than thirty percent (30%) of the employees in the unit in which an employee representative has been voluntarily recognized or certified. A showing of interest shall indicate that the employees no longer desire to be represented for purposes of collective bargaining by the voluntarily recognized or certified employee representative. 8 CSR 40-2.020 Verification of Showing if Interest: Once the alphabetical list of employees provided by management is received, a 30% showing of interest must be met to proceed. 8 CSR 40-2.040 Notification of Showing oflnterest: If showing of interest has been met, notification will be sent to all parties involved and then scheduled for a preliminary conference. If showing of interest has not been met, the petition will be dismissed. 8 CSR 40-2.100 Preliminary Conference: Parties will meet with the State Board of Mediation either by telephone or in-person to discuss the petition. During the preliminary conference parties work together to reach an agreement on the composition of the bargaining unit. If an agreement is met, an election time and date and other details will be decided upon. If an agreement is not met, the case will need to be set for a hearing. 7
Notice of Election: The Notice of Election shall contain the date, hours and place of election; the eligibility period; the details and procedures for an election; the appropriate unit, and a sample ballot. They are to be posted no less than six (6) business days prior to the opening of the election polls. 8 CSR 40-2.150 Election: Each employee in the bargaining unit is given the opportunity to vote by secret ballot during the poll times listed on the Notice of Election. Each party may have up to two persons to serve as observers at the election polls. 8 CSR40-2.160 Objection to Conduct of Election: Within ten (10) business days after the tally of ballots has been furnished to the parties, any party may file with the board objections to the conduct of the election or conduct affecting the results of the election. If objections are filed the Chairman shall investigate them, if necessary, the Chairman will set a hearing to make a decision on the objections. 8 CSR 40-2.160 Certification of Election Results: If no objections have been filed, the Chairman will certify the election results following the ten (10) day objection period in the form of either a Certification of Representation or a Decertification of Representation. 8 CSR 40-2.160 In the present case, Rule 13 and its application to decertify Appellant as the exclusive bargaining representative fails to satisfy the constitutional requirements of Article I, Section 29 of the Missouri Constitution in that the framework provided by Rule 13 to decertify an existing bargaining unit, which is inconsistent with codified Missouri Public Sector Labor Law. Specifically, in order to decertify an exclusive bargaining representative under Rule 13 all that is required is that a "majority" of the employees in a designated bargaining unit set forth their desire to no longer be represented by a certain Labor Organization in a signed Petition to the Board. Under Rule 13, there is no mechanism in place to confirm the authenticity of any decertification petition, and no steps were taken to authenticate the signatures in the decertification petition. 8
Additionally, Rule 13 does not require a conference to be held between the existing bargaining unit, the parties requesting decertification, and the employer. Arguably most importantly, Rule 13 does not require an election to decertify the existing bargaining unit. Here, the framework and application of Rule 13 to summarily and unilaterally nullify Appellants constitutional rights pursuant to Article I, Section 29 of the Missouri Constitution was unreasonable and in direct violation of Article I, Section 29 of the Missouri Constitution and the law articulated in the Missouri Supreme Court's holdings in the cases of American Federation of Teachers et al. v. Ledbetter, et al., 387 S.W.3d 360, Independence NEA, et al. v. Independence, 223 S.W.3d 131 (Mo. bane 2007), and Coalition of Police v. Chesterfield 386 S.W.3d 755 (Mo. bane 2012). II. Appellant's Reply to Respondent's Arguments III Respondent next contends that Appellants failed to identify in what way the evidence relied on by the trial court in determining that Respondent did not violate City Charter, Civil Service Rule XVII and Regulation 147 was deficient and as such Appellant violated Supreme Court Rule 84.04(d). Furthermore, Respondent argues that the only factual evidence Appellant argues the court disregarded was the testimony of the Director of Personnel regarding his belief as to the appropriate procedure to follow for decertification, and this testimony was a legal conclusion. In support of this proposition Respondent relies on Universal Underwriters Ins. Co. v. Dean Johnson Ford, Inc., 905 S.W.2d 529, 533 (Mo. App. W.D. 1995). In Universal, the court held that for purposes of responding to a motion for summary 9
judgment, statements made regarding the provisions of an insurance policy are not facts but legal conclusions. (emphasis added). Here, Frank's testimony provided his interpretation of his responsibilities and duties under Article XVIII, Section 9 of the City of St. Louis' Charter and Ordinance 62234, based upon his experience as the Director of Personnel. In support of the argument in Appellant's brief, Appellant provides that immediately proceeding the submission of the decertification petition Frank did not consider himself bound by Rule 13, and that had he been permitted to exercise the authority granted him under the City Charter and Civil Services Rule, he would have had an election pursuant to the rules of the State Board of Mediation in response to the decertification petition, and that he was unaware of any ordinance, charter provision, or civil service rule that provided the Chief with the authority to decertify the SLPLO. (ROA. p. 29, 29, 37, 38). Therefore, Appellant's argument that the decision of the trial court lacked any evidence, much less substantial evidence, in finding Respondent did not violate its Charter, Civil Service Rule XVII or Regulation 147 by following Rule 13 to decertify Appellant as the exclusive bargaining unit was not deficient or violative of Missouri Supreme Court Rule 84.04(d) IO
CONCLUSION Based upon the foregoing facts and authorities cited, Appellant prays this Honorable Court reverse the trial Court's judgment, and remand this matter to the trial Court, with instructions to grant all relief requested in the Appellant's Petition for Declaratory Judgment, and for such other further relief as this Court deems just and necessary under the facts and circumstances of this case. Respectfully Submitted, BY: _Is/ Rick Barry RICK BARRY, MBE#25592 MEGEN I. HOFFMAN, MBE# 58772 SEAN C. BARRY MBE# 64716 Attorneys for Appellant 1034 South Brentwood Blvd., Suite 1301 St. Louis, MO 63117 (314) 918-8900 Fax: (314) 918-8901 rickbarry@rickbarrypc.com II
CERTIFICATE OF COMPLIANCE WITH RULE 84.06 (C) AND E.D. RULE 360 The undersigned counsel hereby certifies that this brief complies with the requirements of Missouri Rule 84.06 (c) and Eastern District Rule 360, in that the brief contains 2,222 words. This brief is otherwise in compliance with Rule 84.06 (c). Respectfully Submitted, BY: _Isl Rick Barry _ RICK BARRY, MBE#25592 MEGEN I. HOFFMAN, MBE# 58772 SEAN C. BARRYMBE# 64716 Attorneys for Appellant 1034 South Brentwood Blvd., Suite 1301 St. Louis, MO 63117 (314) 918-8900 Fax: (314) 918-8901 rickbarry@rickbarrypc.com 12
CERTIFICATE OF SERVICE The undersigned does hereby certify that a true and accurate copy of the foregoing was served upon all parties of record by way of the Court's electronic filing system, this 28 1 h day of January 2016. Respectfully Submitted, BY: /s/ Rick Barry _ RICK BARRY, MBE#25592 MEGEN I. HOFFMAN, MBE# 58772 SEAN C. BARRY MBE# 64716 Attorneys for Appellant 1034 South Brentwood Blvd., Suite 1301 St. Louis, MO 63117 (314) 918-8900 Fax: (314) 918-8901 rickbarry@rickbarrypc.com 13