Missouri Supreme Court strikes down prohibition on "picketing of any kind" by public employees

In Karney v. The Department of Labor and Industrial Relations, a Missouri Supreme Court opinion issued March 31, 2020, Missouri’s highest court invalidated part of a state law (Section 105.585(2) RSMo.) containing a statutory requirement that “[e]very labor agreement [negotiated between a public body and a labor organization] shall expressly prohibit all strikes and picketing of any kind.” The case involved two members of the Communication Workers of America employed as dispatchers who were engaged in negotiations with the Sheriff’s Office for a new labor agreement. The previous labor agreement expired at the end of 2018, and the law requiring all new labor agreements to prohibit “picketing of any kind” was enacted the same year.


The dispatchers sought an injunction against the Jackson County Sheriff’s Office (and the Department of Labor and Industrial Relations and the State Board of Mediation) to prohibit any enforcement of the new anti-picketing law, arguing that it violated their rights to equal protection, free speech, peaceable assembly, and collective bargaining under the Missouri Constitution.


The Court's analysis in the case first pointed out the difference between “picketing” and a “strike.” The Court made clear that it is undisputed that public sector employees are not permitted to “strike.” However, “picketing,” as the Court noted, is “commonly understood to encompass much more than a demonstration in conjunction with a labor strike.” “Picketing of any kind” could include demonstrations and protests “unrelated to an employee strike.” In this case, the dispatchers attempted to picket the Sheriff’s Office in an effort to apply public pressure to increase dispatcher wages. This “picketing” was done on public property, and on the employees’ own time. It was not performed in connection with a strike or walk-out. However, under the new law, it was considered unlawful.


Courts have long held that public governmental employees, by nature of their employment, accept certain restraints on their right to free speech. The legislature may impose restraints on “job-related speech of public employees,” even if those restraints would be unconstitutional if applied to the general public. Nevertheless, in this case, the Court found that the statute mandating that all labor agreements contain a clause that employees who picket in any way are subject to immediate termination was unconstitutionally broad in violation of the Missouri Constitution.


In arriving at this conclusion, the Court distinguished between a free speech analysis involving individual public employees and a free speech analysis involving a collective unit of public employees. For individualized claims, the interests of the employee in commenting upon matters of public concern must be balanced with the interests of the government in promoting efficiency of public services. (See: Pickering v. Board of Education of Township High School District 205, Will County, Illinois, 391 U.S. 563 (1968)). For collective claims, however, such as a labor agreement or picketing, the government has a greater burden and “must show that the interests of both potential audiences and a vast group of present and future employees in a broad range of present and future expression are outweighed by that expression’s necessary impact on the actual operation of the Government.” (See: United States v. Nat’l Treasury Emps. Union, 513 U.S. 454 (1995)). Applying this analysis and higher burden, the Court held that the blanket prohibition against “picketing of any kind” was an example of impermissibly limiting unobtrusive speech (in this case, picketing the Sheriff’s Office in an effort to apply public pressure to increase dispatcher wages).

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