JEFFERSON CITY, Mo. -- For 55 years, the Missouri Supreme Court has repeatedly ruled that the right of employees to bargain collectively as guaranteed by the state constitution does not pertain to public sector workers.

No such exemption of government employees from that right is expressly stated in the state charter, Article I, Section 29, which says "That employees shall have the right to organize and to bargain collectively through representatives of their own choosing."

Nevertheless, in the 1947 case City of Springfield v. Clouse the court ruled that "Section 29 does not apply to any public officers or employees." The court has since upheld that decision on numerous occasions.

However, a case coming before the Supreme Court on Nov. 6 challenges that long-standing constitutional interpretation and, according to some, could pave the way for full collective bargaining rights for all public sector employees.

That case, Thruston, et al, v. Jefferson City School District, is brought by two former district employees and their union representative who claim the district denied their collective bargaining rights under the Missouri Constitution.

Thomas A. Mickes of Chesterfield, a member of the district's legal team, said the case is a ploy by labor supporters to win from the court what the General Assembly has denied them for decades.

"This is an end-run around their failure to get a collective bargaining bill through the legislature," Mickes said.

Ronald C. Gladney, a prominent St. Louis labor attorney representing the plaintiffs in this case, declined to discuss why his clients are challenging a seemingly settled area of law.

"Some lawyers argue cases in the press; I think that is a discredit to our courts," Gladney said. "I believe we have a worthwhile case that is easily distinguished from legislative efforts. I think the court will make the right decision."

Judges bow out

In a twist that could affect the outcome, four of the Supreme Court's seven members, including all three Republican appointees, have recused themselves from the case because of various conflicts of interest. Among those sitting out are Chief Justice Stephen N. Limbaugh Jr., who was appointed by Republican Gov. John Ashcroft.

With Limbaugh's withdrawal, Judge Michael A. Wolff will preside over the case and choose four special judges to fill the vacant seats on the bench. Wolff was named to the court by Democratic Gov. Mel Carnahan, a supporter of public employee unions during his administration. Wolff had previously served as Carnahan's chief counsel.

Wolff has already selected three Republican appointees -- Judge John E. Parrish of the Missouri Court of Appeals Southern District in Springfield, St. Louis City Circuit Court Judge Michael B. Calvin and retired state Supreme Court Judge Charles B. Blackmar. The fourth spot had not been filled as of Friday.

During the 1999-2000 school year, Cheryl Thruston and Fern Ward were employed by the Jefferson City School District. Co-plaintiff Luana Gifford was president of the Missouri Federation of Teachers and School-Related Personnel, of which Thruston and Ward were members.

According to court records, Thruston, a special education teacher, claims her building principal was "antagonistic and confrontational" and urged her to resign after she raised issues regarding the working conditions in her class. At the end of the school year, her contract was not renewed.

Ward, a principal, says she was stripped of her duties after the district told her in February 2000 that her contract would not be renewed in the spring.

Both women sought to file grievances with the district and to be represented by Gifford. They claim such efforts were thwarted in violation of their rights.

The three sued the district, but Cole County Circuit Court Judge Thomas J. Brown III dismissed the case in June 2001.

Relying on the precedent set forth in the 1947 Clouse case, as well as a state law that allows most public workers to join unions but specifically bars public school teachers and law enforcement officers from enjoying the privilege, Brown said the women had no justiciable claim.

"There is no constitutional right under either the Missouri or United States Constitution of a public school teacher to be represented by a union representative during grievance hearings," Brown wrote in his dismissal order.

A three-judge panel of the Missouri Court of Appeals Western District in Kansas City, unanimously affirmed Brown's decision in May. That court held that since Thruston and Ward were no longer district employees, the redress they sought -- a hearing of their grievances by the district with Gifford as their representative -- could not be granted and, therefore, their claims were rendered moot.

In a written argument submitted to the state Supreme Court, Gladney, the plaintiff's attorney, challenges the conclusions reached in the Clouse case.

Gladney says the Clouse court was concerned about the effects binding collective bargaining agreements could have on public entities, and that a ruling in favor of such rights could open the door to strikes by public sector workers.

The court reasoned in Clouse that allowing public employees to negotiate on issues such as wages, hours and working conditions would amount to an unconstitutional delegation of the authority vested in the Legislature.

However, Gladney says those concerns aren't at issue in the present case as his clients are merely asking the school district to follow its own grievance procedures.

"No attempt to strike is involved in this case and no attempt to compel Respondent School District to enter into a binding contract is involved," Gladney wrote.

Gladney further maintains that courts in two states -- New York and Florida -- that have constitutional provisions virtually identical to Missouri's Article I, Section 29 have upheld collective bargaining for public employees.

In the written argument filed on behalf of the district, attorneys scoff at the notion that the plaintiffs are merely interested in the limited right to "meet and confer" with management.

"Plaintiffs should direct their concerns to the General Assembly," the attorneys wrote. "Their invitation to this Court to sit as a super-legislature and to override the will of elected representatives should be recognized for what it is and rejected."

The plaintiffs, the district notes, completely ignore in their arguments the statute banning teachers from joining unions, a law upheld on its own merits by the court.

The district further contends that a reversal of Clouse would have dire consequences for all public entities and the residents of Missouri.

"This would not only lead to governmental chaos and gridlock but would also threaten both the security and the financial stability of the state," the attorneys wrote. "Plaintiffs have not come close to making a case for such revolutionary

action ... ."

Interest groups watching

Though the case has garnered little notice to date, various interest groups are keeping an eye on it.

The Missouri Municipal League, which opposes public sector collective bargaining, praised the western district court's decision as a "win" for local governments. The issue was also discussed last week during a legislative action seminar sponsored by the state Chamber of Commerce, where the sentiment was strongly against expanding bargaining rights.

The Missouri School Boards Association filed a friend-of-the-court brief backing the Jefferson City district's position. Melissa Randol, MSBA counsel, said her organization has long opposed collective bargaining for teachers.

In her brief, Randol says the issue is one best left to the lawmakers and the people, not judges.

"The Court is asked to saddle the taxpayers with the millions of dollars of costs associated with public employee bargaining at a time when the state cannot even meet its own financial obligations to the state agencies, educational institutions and school districts of the state," Randol wrote.

Should the court rule for the plaintiffs, the case would go back to the circuit court for a trial on the merits of their claims. However, in that event the larger issue -- whether public employees have collective bargaining power -- will have already been decided.

mpowers@semissourian.com

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