Missouri's public-sector busting bill has been delayed, but not defeated
by Eric Scott
On March 8th, Judge Joseph Walsh issued an injunction against Missouri’s House Bill 1413, a law that turned the world upside down for public sector labor organizing in the state.
Though commonly known by union supporters as “Paycheck Deception,” 1413 does far more than simply make it harder for unions to collect dues through payroll deduction. Its numerous provisions include mandatory recertification elections, stringent new requirements for management rights in every union contract, and even a ban on picketing. While Walsh’s injunction means the law will not be enforced for a time, it remains a serious threat to Missouri’s public sector unions - one that will crush them if they do not take measures to organize now.
When Representative Paul Taylor introduced 1413, it only contained two changes to Missouri’s public sector labor law. The first was the portion known as “paycheck deception,” which forces union members to send in authorizations every year in order to have dues taken out of their paychecks - a straightforward means of reducing union rolls over time. The second was a reporting requirement that would effectively make unions’ internal financial records public.
That bill then was replaced with a far more ponderous substitute bill in the Missouri Senate, introduced by Bob Onder, whose career has been built on anti-labor legislation. After being repeatedly amended on the Senate floor in the closing hours of the session - many of the amendments written in by hand - the bill had grown to completely rewrite Missouri’s public sector labor laws.
The most disruptive change in 1413 was the introduction of Wisconsin-style recertification elections, the first of which were required to happen by August and which then would be held every three years. These elections are especially onerous because the law requires a majority of all eligible voters to vote in favor of the union, not just a majority of those who voted. In other words, anyone who does not vote in the election counts as voting against the union.
The same rules apply to any new union attempting to certify for the first time. The law also prohibits voluntary recognition by public employers, and potentially decertifies any union that was voluntarily recognized in the past.
In addition to payroll deception and recertification, the law contains many miscellaneous provisions designed to make it impossible for public sector unions to achieve real success. The provisions contain rules against union members engaging in bargaining during work hours and against picketing (including, apparently, simple informational picketing). Further, it would ban, “conduct intended to cause the removal or replacement of any designated representative by the public body.” Taken to the logical endpoint, 1413 makes a union merely complaining that the employer’s bargaining team isn’t working in good faith illegal.
After putting forward all of these barriers to effective collective action by union members, 1413 adds insult to injury by establishing that any tentative agreement, even after ratification by union members, can be unilaterally altered or ignored by the public body that just agreed to the contract. Every agreement made at the bargaining table could be thrown out at the whim of the employer.
1413 was passed at the very end of the 2018 legislative session, one of the final bills signed into law by the disgraced ex-governor, Eric Greitens. It served as the grand finale of the Greitens administration’s anti-labor agenda, which began with the passing of Right-to-Work legislation in 2017. But where Right-to-Work met with a fierce campaign to have the law overturned at the ballot, the union fight against 1413 has mainly been fought in the courts.
Just after law came into effect in August 2018, a coalition of labor unions, including Missouri NEA, LIUNA Local 42, IUOE Local 148, Teamsters Local 610, and SEIU Local 1, filed suit against 1413, seeking to prove the law unconstitutional under Missouri’s constitution. Their legal strategy rests on Missouri’s right to bargain, as guaranteed in Article 1, Section 29 of the state constitution, and a carve-out added to 1413 during the flurry of last-minute amendments added in the closing hours of the legislative session.
Seeking to maintain the good graces of Missouri’s police unions, the Republican supermajority added a provision exempting “public safety labor organizations” from 1413’s new requirements. This means that certain unions who are primarily known for representing first-responders - organizations like the Fraternal Order of Police and the International Association of Firefighters - aren’t bound by the payroll deception or recertification election requirements.
Strangely, these exemptions are tied to the organizations, not the employees. Police officers represented by FOP don’t have to play by 1413’s rules, but police officers represented by other unions - such as the officers of Bel-Ridge Police Department, represented by LIUNA Local 42 - do get hit by the regulations. Meanwhile, non-first responders who happen to be represented by a “public safety labor organization” don’t have to suffer under 1413 - despite not being first-responders, they still get the benefits of being part of a favored union.
Indeed, this was one reason why St. Louis County’s prosecuting attorneys chose to organize with the St. Louis Police Officers Association rather than a different union - 1413 makes organizing with a “public safety union” much more attractive than any other union, even for workers who aren’t first responders.
The unions’ legal response largely hinges on the discrimination inherent in the carve-out for “public safety” unions. Article 1, Section 29 states that “employees shall have the right to organize and bargain collectively through representatives of their own choosing.” The unions argue that, by virtue of setting up a system in which some unions get a favorable legal environment while others do not, the state has violated the constitutional protection. After all, if the employees get a choice between a union that has actual bargaining power and one that does not, they don’t really get a choice at all.
Judge Shaw’s injunction concurs with the unions’ case in all respects and applies withering criticism to the bill: “Such a scheme [as laid out by 1413] is the epitome of a farce condemned in Kerkemeyer vs. Midkiff… where the ‘freedom of either party to promote and advance his own interest is subject to the consent and approval of his adversary.” Shaw ultimately found that the favoritism shown to some unions in preference to others was so inextricably tied to the rest of the law that the entire law needed to be enjoined. It will remain so unless the injunction is turned over by an appellate court, or until the case is settled.
Already some employers are ignoring the injunction in an attempt to break the power of certain public sector unions. In the city of Columbia, the local school district has taken the position that the teachers’ union must obtain a recertification election through the State Board of Mediation before the district will ratify their contract. The fact that the State Board is legally prohibited from holding any recertification elections while the injunction is in effect does not seem to have bothered the school district. If this ploy succeeds, the district will have effectively ended the union’s collective bargaining powers and right to exclusive representation. (The teachers’ union has filed a secondary lawsuit to claim bad-faith bargaining on the part of the district.)
While the injunction is a substantial victory for Missouri’s public sector unions, an injunction is not a reversal of the law itself. The possibility remains that the law will be found constitutional and come into effect at the conclusion of the lawsuit. Some unions made extensive preparations for payroll deception, but no union was ready for the sheer extent of the changes in labor law brought on by 1413. If public sector unions are to survive with exclusive representation intact - much less any shred of bargaining power - they will need to begin organizing their members now, rather than waiting for the courts to make their decision.
Eric O. Scott is a field representative for LIUNA Local 773, which represents public sector employees in Missouri. The views above are his own.