         IN THE MISSOURI COURT OF APPEALS
                 WESTERN DISTRICT
COALITION OF GRADUATE                        )
WORKERS, ERIC SCOTT, DAVID L.                )
ELLIOTT, JOSEPH DEAN MOORE                   )
AND DOUG VALENTINE,                          )
                                             )
               Respondents,                  )
                                             )
vs.                                          )       WD81978
                                             )
                                             )       Opinion filed: July 30, 2019
THE CURATORS OF THE                          )
UNIVERSITY OF MISSOURI,                      )
                                             )
               Appellant.                    )


      APPEAL FROM THE CIRCUIT COURT OF BOONE COUNTY, MISSOURI
                 THE HONORABLE JEFF HARRIS, JUDGE

                   Before Division One: Victor C. Howard, Presiding Judge,
                     Lisa White Hardwick, Judge and Gary D. Witt, Judge

        The Curators of the University of Missouri (University) appeal the judgment in favor of

Eric Scott, David Elliott, Joseph Moore, and Doug Valentine and the Coalition of Graduate

Workers (CGW) (collectively Plaintiffs) finding that graduate workers are employees under

Article I, section 29 of the Missouri Constitution and that CGW is the duly elected exclusive

bargaining representative of graduate workers at the University and ordering the University to

recognize and collectively bargain with CGW. The judgment is affirmed in part and reversed in

part, and the case is remanded for further proceedings consistent with this opinion.
                             Factual and Procedural Background

       The trial court decided this case by summary judgment on the following stipulated facts.

The University is a public institution of higher learning that offers graduate student programs in a

variety of subjects to students pursuing advanced degrees. Many graduate students enrolled in the

programs are graduate assistants, graduate teaching assistants, graduate research assistants,

graduate instructors, graduate fellows, and graduate library assistants (collectively “graduate

workers”). The primary duties of graduate workers include teaching three-hour classes, teaching

five-hour classes, leading discussions or laboratory sections of a course, proctoring and grading

large lecture exams, preparing and grading lab exams, assisting faculty with research and writing

activities, helping students and faculty use microscopes, computers, and other lab equipment,

teaching lab sections, keeping the library open and staffed, cataloging new acquisitions, and

checking out assigned readings.

       In return for this work, the University pays graduate workers a flat stipend or an hourly

wage. The University requires that “[a]ny assignment of responsibilities, such as teaching a

course, must be associated with fair and reasonable compensation” and prohibits volunteering for

extensive service commitments to the academic programs. The minimum stipend for doctoral

level graduate workers is $20,197.50 per year for academic year 2016-2017; for master’s/specialist

level graduate workers, the minimum stipend is $18,361.25 per year. The minimum hourly rate

for doctoral level graduate workers is $19.80; for master’s/specialist level graduate workers, it is

$18.00. Payments to graduate workers are paid as earnings and taxed at the time of payment, and

the federal government regards the payments as income for tax purposes.

       Graduate faculty, administrative staff, or principal investigators supervise graduate

workers. Supervisors must conduct a written evaluation of the graduate worker’s performance at



                                                 2
least once a year and should consider specific criteria such as accurate and efficient completion of

assigned tasks; independent work; analysis and problem solving; adequate evaluations by students

for instructional and tutoring assignments in courses, laboratory, and clinical settings; cooperation

with mentor, director, and other graduate workers; and professional and ethical behavior in all

assigned tasks and duties, including course studies and research.

       The University includes graduate workers in its workers’ compensation coverage, which

provides for the payment of medical expenses and compensation to any employee who sustains

personal injuries arising out of, and in the course of, his or her employment. Graduate workers

qualify for a student medical insurance subsidy that is credited to the workers’ university accounts

after enrollment in the insurance policy and eligibility has been verified. The University requires

graduate workers to complete mandatory employee training on discrimination prevention and the

Family Educational Rights and Privacy Act.

       Individual Plaintiffs are enrolled in graduate studies at the University’s Columbia campus

and are graduate workers. Plaintiff CGW is an unincorporated labor organization.

       On December 21, 2015, and January 6, 2016, CGW asked the University to hold an election

for graduate workers on its Columbia campus to choose whether they wanted CGW to be their

exclusive bargaining representative in collective bargaining with the University. The University

denied the request. Despite the denial, CGW held such an election with the assistance of the

League of Women Voters on April 18 and 19, 2016. The election ballot asked graduate workers

whether they wanted CGW to serve as their exclusive representative in collective bargaining with

the University or whether they wanted no representation. Approximately thirty percent of roughly

2,600 eligible graduate workers voted in the election, and eighty-four percent of the ballots cast

were in favor of CGW serving as the exclusive collective bargaining representative of graduate



                                                 3
workers. Following the election, CGW sent a written communication to the University’s chief of

staff, and on May 6, 2016, the University’s attorney notified counsel of CGW that CGW’s request

for recognition as bargaining agent for certain graduate students and commencement of bargaining

was denied.

       Plaintiffs subsequently filed the underlying action seeking declaratory judgment that

graduate workers are employees within the meaning of article I, section 29 of the Missouri

Constitution and asking the trial court to order the University to recognize and bargain with CGW

as the exclusive bargaining representative for graduate workers. In the alternative, Plaintiffs

sought a declaration that the University violated their rights under article I, section 29 by refusing

to hold an election and asking the court to order the University to hold such an election.

       The parties filed a joint stipulation of facts and cross motions for summary judgment.

Following argument on the motions, the trial court granted Plaintiffs’ motion and denied the

University’s. It found that graduate workers are employees under Article I, section 29 of the

Missouri Constitution and that CGW is the duly elected exclusive bargaining representative of

graduate workers at the University and ordered the University to recognize and collectively bargain

with CGW. This appeal by the University followed.

                                       Standard of Review

       Appellate review of the grant of summary judgment is de novo. ITT Commercial Fin.

Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). Summary

judgment will be upheld on appeal if the movant is entitled to judgment as a matter of law and no

genuine issues of material fact exist. Id. at 377. Where an affirmative defense is raised, the movant

must also show, beyond any genuine dispute, that the defense is legally insufficient. Id. at 383.




                                                  4
The record is reviewed in the light most favorable to the party against whom judgment was entered,

according that party all reasonable inferences that may be drawn from the record. Id. at 376.

                              Employees under Article I, Section 29

        In its first point on appeal, the University contends that the trial court erred in finding that

graduate workers are employees under article I, section 29 of the Missouri Constitution. It argues

that graduate workers are more students than employees because they are only eligible for

positions based on admission to their graduate degree programs, their work is done as students of

those programs rather than employees, and their stipends and other remuneration come from a

public institution.

        Constitutional provisions are subject to the same rules of construction as other laws except

they are given a broader construction because of their more permanent character. Am. Fed’n of

Teachers v. Ledbetter, 387 S.W.3d 360, 363 (Mo. banc 2012). The primary rule in construing

constitutional or statutory provisions is to consider words in their plain and ordinary meaning.

StopAquila.org v. City of Peculiar, 208 S.W.3d 895, 902 (Mo. banc 2006). When a word is not

defined, the court looks to the plain and ordinary meaning as found in the dictionary. Howard v.

City of Kansas City, 332 S.W.3d 772, 780 (Mo. banc 2011); StopAquila.org, 208 S.W.3d at 902.

        Article I, section 29 of the Missouri Constitution provides that “employees shall have the

right to organize and to bargain collectively through representatives of their own choosing.” In

determining that this guarantee applies to both public and private sector employees, the Missouri

Supreme Court explained:

        “Employees” plainly mean employees. There is no adjective; there are no words
        that limit “employees” to private sector employees. The meaning of section 29 is
        clear and there is, accordingly, no authority for this Court to read into the
        Constitution words that are not there.




                                                   5
Independence-Nat’l Educ. Ass’n v. Independence Sch. Dist., 223 S.W.3d 131, 137 (Mo. banc

2007). Similarly, article I, section 29 contains no words limiting “employees” to employees who

are not graduate students, and this court will not read into the provision such words.

        Furthermore, the undisputed facts demonstrate that graduate workers are employees under

its plain and ordinary meaning as found in the dictionary. “The word ‘employee’ is commonly

defined as ‘one employed by another, usually in a position below the executive level and usually

for wages,’ as well as ‘any worker who is under wages or salary to an employer and who is not

excluded by agreement from consideration as such a worker.’” Howard, 332 S.W.3d at 780

(quoting WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 743 (1993)). “To ‘employ’ means

‘to provide a job that pays wages or a salary or with a means of earning a living.’” Id. (quoting

WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 743).

       Graduate workers teach classes, lead discussions and lab sections, proctor and grade large

lecture exams, prepare and grade lab exams, assist faculty with research and writing, and keep the

library open and staffed. They perform this work for the University under the supervision of

graduate faculty, administrative staff, or principal investigators. In return for this work, the

University pays them a flat stipend or hourly wage. These payments are paid as earnings and taxed

at the time of payment, and the federal government regards the payments as income for tax

purposes. Moreover, the University repeatedly treats graduate workers as employees through its

policy and practices.    The University’s rules and regulations classify graduate workers as

employees with specific job titles.       The University requires that “[a]ny assignment of

responsibilities, such as teaching a course, must be associated with fair and reasonable

compensation.” It includes graduate workers in its workers’ compensation coverage, providing

that “[a]ll academic and non-academic employees of the University, both full-time and part-time,



                                                 6
(including student employees) are extended coverage.” And finally, it requires graduate workers

to complete employee training on discrimination prevention and the Family Educational Rights

and Privacy Act.

       The University urges this court to adopt the rationale of the National Labor Relations Board

(NLRB) in Brown University, 342 NLRB 483 (2004), and of the dissent in The Trustees of

Columbia University in the City of New York, 364 NLRB No. 90 (2016). In Brown, the Board, in

a 3-2 decision, held that graduate student assistants are not employees for the purposes of collective

bargaining under the Labor Management Relations Act. 342 NLRB at 490. It concluded that

graduate student assistants are primarily students and have a primarily educational, rather than

economic, relationship with their school. Id. at 487. It reasoned that graduate student assistants

are students and must be enrolled in the school to be awarded the roles of teaching or research

assistants, such roles are directly related to and constitute an integral part of their graduate

educations, they perform their roles under the direction and control of the same faculty members

that teach or advise them, and financial support is provided only to students and only for the period

they are enrolled as students. Id. at 488-89. It further reasoned that collective bargaining would

be detrimental to the educational process. Id. at 490, 493.

       Columbia University, however, overruled Brown University twelve years later and held

that student assistants who have a common-law employment relationship with their university are

statutory employees under the Act. 364 NLRB at 1-2. It explained that the Act broadly defines

employee to include any employee subject to certain specified exceptions, none of which addresses

students employed by their universities. Id. at 1, 5. It found that student assistants who performed

work, at the direction of the university, for which they were compensated are employees under the




                                                  7
Act regardless of whether that employment relationship co-exists with an educational or other non-

economic relationship. Id. at 5-7. The Board reasoned:

       The fundamental error of the Brown University Board was to frame the issue of
       statutory coverage not in the terms of the existence of an employment relationship,
       but rather on whether some other relationship between the employee and the
       employer is the primary one—a standard neither derived from the statutory text of
       Section 2(3) nor from the fundamental policy of the Act.

Id. at 7. The dissenting Board member in Columbia University agreed with the reasoning in Brown

University and again focused on the academic relationship between the student assistants and the

university. Id. at 29-30.

       The decisions of the NLRB are not binding here, though Missouri courts have considered

such decisions interpreting the NLRA as potentially persuasive. See Ledbetter, 387 S.W.3d 360

(discussing the American history of collective bargaining). Regardless, the most recent NLRB

decision, Columbia University, rejects the University’s argument that graduate workers are

different than other workers for purposes of collective bargaining because of their academic

relationship with the University. More importantly, the University’s argument ignores the plain

and ordinary meaning of “employee” in article I, section 29. Article I, section 29 does not exclude

employees who also happen to be students. There is simply “no authority…to read into the

Constitution words that are not there.” Independence, 223 S.W.3d at 137. The trial court correctly

found that graduate workers are employees under article I, section 29 of the Missouri Constitution.

The point is denied.

                            CGW as Exclusive Bargaining Representative

       In its next three points on appeal, the University contends that the trial court erred in

requiring it to recognize and bargain with CGW as the exclusive bargaining representative for all

graduate workers based on the election held by CGW. First, it asserts in point two that article I,



                                                8
section 29 only gives individual employees the right to organize and bargain collectively but does

not include the right to hold an election to select an exclusive bargaining representative. In point

three, the University asserts that giving effect to an election conducted without the involvement of

the University is impermissible because (1) it is entitled to participate in establishing the

framework for and administering any election and (2) it did not forfeit its right to participate in

any election. Finally in point four, the University argues that the record is insufficient to support

the trial court’s determination that CGW was properly elected the exclusive bargaining

representative of graduate workers.

           As discussed above, article I, section 29 of the Missouri Constitution gives employees “the

right to organize and to bargain collectively through representatives of their own choosing,” and

this right applies to both private and public sector employees. Ledbetter, 387 S.W.3d at 363;

Independence, 223 S.W.3d at 133. Missouri’s public sector labor law, codified in section 105.500

et seq., RSMo 2016,1 and 8 CSR 40-2.010 et seq., provides a procedural framework for collective

bargaining for most public employees but expressly excludes certain professions such as teachers

and law enforcement officers. Ledbetter, 387 S.W.3d at 363; E. Mo. Coalition of Police, Fraternal

Order of Police, Lodge 15 v. City of Chesterfield, 386 S.W.3d 755, 760 (Mo. banc 2012); §

105.510. For most public employees, the public sector labor law allows employees to present

proposals to the employer through their exclusive bargaining representative, requires an employer

to “meet, confer, and discuss” such proposals with the representative, and requires results of the

discussion to be reduced to writing and the proposal be presented to the employer for adoption,

modification, or rejection. Chesterfield, 386 S.W.3d at 760; Independence, 223 S.W.3d at 138; §

105.520. The labor law grants the Board of State Mediation the authority to give effect to and



1
    The public sector labor law was substantially rewritten in 2018 by H.B. No. 1413.

                                                           9
implement the constitutional right to bargain collectively.                  Degraffenrreid v. State Bd. of

Mediation, 379 S.W.3d 171, 179 (Mo. App. W.D. 2012); § 105.525. In accordance with section

295.070,2 the Board has promulgated rules for choosing an exclusive bargaining representative.

Under the rules, an exclusive bargaining representative may be voluntarily recognized by the

employer or designated by the Board after a certification election. 8 CSR 40-2.010(C) & (H).

Eight CSR 40-2.150 through 2.180 sets out the procedure for elections covering notices of

elections, observers at the polls, challenges to voter eligibility, secret ballot, tallying of votes,

election objections and investigation of objections, certification of election results, and run-off

elections. An organization shall be certified as the exclusive bargaining representative if it receives

a majority of the votes cast. 8 CSR 40-2.160(5). Under section 105.525, the Board shall resolve

challenges to an election of an exclusive bargaining representative. See also Chesterfield, 386

S.W.3d at 764 n.7.

           When a procedural framework for bargaining is not codified, i.e. for excluded employees,

the lack of statutory procedures does not excuse public employers from their constitutional duty

to bargain collectively with public employees. Ledbetter, 387 S.W.3d at 363; Independence, 223

S.W.3d at 136. The constitutional duty of public employers to bargain collectively requires them

to “meet and confer” with collective bargaining representatives regarding working conditions and

to bargain in good faith in doing so. Ledbetter, 387 S.W.3d at 367; St. Louis Police Leadership

Org. v. City of St. Louis, 484 S.W.3d 882, 889 (Mo. App. E.D. 2016). “The absence of such a duty

would render meaningless the rights guaranteed to public employees under article I, section 29.”

Chesterfield, 386 S.W.3d at 760.




2
    “The board shall by regulation prescribe the methods of procedure before it.” § 295.070, RSMo 2016.

                                                         10
       For excluded employees not covered by a collective bargaining statute, public employers

have “a role in setting ‘the framework for these public employees to bargain collectively through

representatives of their own choosing.’” W. Cent. Mo. Region Lodge #50 of Fraternal Order of

Police v. City of Grandview, 460 S.W.3d 425, 436 (Mo. App. W.D. 2015)(quoting Independence,

223 S.W.3d at 136). Employers have the “‘ability to establish a procedural framework for

collective bargaining with its excluded employees if necessary to effectuate its duty’ to bargain

collectively with the exclusive bargaining representative elected by the employees.” Id. (quoting

Chesterfield, 386 S.W.3d at 758). But beyond the clear but limited duty to “meet and confer” and

to bargain in good faith, article I, section 29 does not require public employers to establish any

specific procedural framework for facilitating collective bargaining with their employees. St.

Louis, 484 S.W.3d at 889. “Article I, section 29 merely serves to protect an employee’s right to

bargain collectively and does not purport to require any specific procedures within which to

conduct collective bargaining activities by either employees or employers.” Grandview, 460

S.W.3d at 446-47. “In the absence of wording in the Constitution that limit[s] the [public

employer’s] discretion as to how collective bargaining is to be conducted, the courts are without

authority to establish standards for bargaining unit constructs, election processes, and the

appropriate subjects for bargaining.” Id. at 447.      Accordingly, Missouri courts have upheld

challenged frameworks and procedures established by public employers as not infringing upon

public employees’ constitutional right to organize and bargain collectively under article I, section

29. St. Louis, 484 S.W.3d at 890; Grandview, 460 S.W.3d at 447.

       Following the April 2016 election held by CGW, the University’s attorney notified counsel

of CGW on May 6, 2016, that CGW’s request for recognition as bargaining agent for certain

graduate students and commencement of bargaining was denied. In that letter, the University’s



                                                11
attorney raised the issue of whether some of the graduate workers in the bargaining unit were

covered by the Missouri public sector labor law. Thereafter, Plaintiffs filed their petition for

declaratory judgment requesting, in part, that the trial court order the University to recognize and

bargain with CGW as the exclusive bargaining representative for graduate workers.                                The

University asserted as an affirmative defense to the petition that some of the graduate workers

were subject to the labor law and the exclusive jurisdiction of the Board.3

         In their motion for summary judgment, Plaintiffs relied on Eastern Missouri Coalition of

Police, Fraternal Order of Police, Lodge 15 v. City of Chesterfield, 386 S.W.3d 755, 760 (Mo.

banc 2012), to argue that they were entitled to judgment as a matter of law on the issue whether

the University must recognize CGW as the graduate workers’ exclusive bargaining representative

based on the April 2016 election. In Chesterfield, a majority of police officers and sergeants,

employees excluded from the public sector labor law, in two different cities signed “representation

interest cards” supporting the certification of Eastern Missouri Coalition of Police, Fraternal Order

of Police, Lodge 15 (the union) as their exclusive representative for collective bargaining. 386

S.W.3d at 758. Thereafter, the union requested that each city voluntarily recognize the union’s

representative status and establish procedural framework for collective bargaining. Id. When the

cities declined, the union filed two actions for declaratory judgment asserting the cities had an

affirmative duty under the Missouri Constitution to establish a meaningful procedural framework

allowing law enforcement employees to bargain collectively with their employers. Id.

         The Missouri Supreme Court held that the trial court erred in ordering the cities to organize

an election to designate the union as the exclusive bargaining representative. Id. at 764. It

reasoned that because an undisputed majority of employees selected the union as their


3
 In the case of statutorily excluded employees, the choice of an exclusive bargaining representative may be challenged
by the public employer or the employees in a court proceeding. Chesterfield, 386 S.W.3d at 764 n.7.

                                                         12
representative and because the election process was not challenged in the proceeding, holding an

election was not an issue and it should not have been ordered. Id. Thus, the Court reversed the

trial court’s summary judgments and ordered the cities to recognize the union as the exclusive

bargaining representative for the cities’ police officers and sergeants and to collectively bargain

with the union. Id.

       Chesterfield is, however, distinguishable from the instant case. All of the employees in

Chesterfield were law enforcement officers and, thus, were excluded from the public sector labor

law. Their selection of an exclusive bargaining representative was not subject to the procedural

requirements of the public sector labor law, and the cities had not established their own framework

for such election. On the other hand, the stipulated facts in this case reveal that some graduate

workers are teachers and some are not (researchers and library assistants). While the teachers, like

the officers in Chesterfield, are excluded from the public sector labor law, the non-teachers are

governed by it and subject to the specific procedures for electing an exclusive bargaining

representative. § 105.510. The stipulated facts also show that graduate workers voted as one

group in the April 2016 election held by CGW. The stipulated facts do not, however, show that

the election was held in accordance with the Missouri public sector labor law, which governed the

non-teachers in the group. To be entitled to summary judgment in this case, Plaintiffs are required

to show that based on the undisputed facts, they are entitled to judgment as a matter of law. They

are also required to show, beyond any genuine dispute, that the University’s affirmative defense

is legally insufficient. The undisputed facts regarding the election are few. Under them, Plaintiffs

fail to show that they are entitled to judgment as a matter of law regarding the selection of CGW

as the exclusive bargaining representative of graduate workers. The trial court’s summary

judgment on that issue is, therefore, reversed, and the case is remanded for further proceedings.



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              __________________________________________
              VICTOR C. HOWARD, JUDGE
All concur.




                14
