West Central Missouri Region Lodge 50 of The Fraternal Order of Police v. The city of Grandview, Missouri , 460 S.W.3d 425 ( 2015 )

In the
Missouri Court of Appeals
Western District

WEST CENTRAL MISSOURI REGION 
LODGE #50 OF THE FRATERNAL  WD77250
ORDER OF POLICE, ET AL.,  OPINION FILED:
Respondents, 
 January 27, 2015
v. 

THE CITY OF GRANDVIEW, 
MISSOURI, 

Appellant. 

Appeal from the Circuit Court of Jackson County, Missouri
The Honorable Sandra Midkiff, Judge
Before Division Four: Alok Ahuja, C.J. Presiding,
James Edward Welsh, J., and Tracey Mason-White, Sp. J.
The City of Grandview appeals the circuit court's grant of summary judgment in favor of
West Central Missouri Region Lodge #50 of the Fraternal Order of Police and its members who
are current or former police officers, sergeants, and civilian members of the Grandview Police
Department.1 The circuit court determined that the City's ordinance which established the
1
We collectively refer to West Central Missouri Regional Lodge #50 of the Fraternal Order of Police and
its members who are current or former police officers, sergeants, and civilian members of the Grandview Police
Department as "Fraternal Order of Police."
collective bargaining framework for personnel in the Grandview Police Department violated
article I, section 29 of the Missouri Constitution.2
In its appeal, the City asserts eight points on appeal. The City contends that the circuit
court erred in ruling that: (1) the City may not enact an ordinance requiring a secret ballot
election as the designated method for employees to select a collective bargaining representative,
(2) the ordinance was invalid because it did not allow supervisory and non-supervisory
employees to be members of the same bargaining unit, (3) the ordinance was unconstitutional
because it failed to establish a specialized procedural framework for the resolution of conflicts
regarding the composition of collective bargaining units, (4) the Constitution requires the City to
allow supervisory and non-supervisory employees to be represented by the same collective
bargaining agent, (5) the ordinance was unconstitutional because, for the collective bargaining
representative to be elected, it had to receive the votes of a majority of all eligible voters rather
than the majority of the votes cast, (6) the ordinance was unconstitutional because it provided
2
The circuit court's judgment in its declarations mentioned that the City's ordinance violated article I,
section 2 (equal protection clause), section 10 (due process clause), and section 29 (collective bargaining clause) of
the Missouri Constitution. The Fraternal Order of Police asserts that we should affirm the circuit court's judgment
as to seven of the City's points on appeal because those points and arguments focus almost entirely on article I,
section 29 of the Missouri Constitution and do not address, identify, or challenge the other two constitutional
violations. In its reply brief, the City contends that nothing in its opening brief limits its allegation of error to
article I, section 29 and that its points relied on and arguments challenge every basis provided by the circuit court for
its entry of summary judgment. The City asserts that, although the circuit court generally declared that the
ordinance was unconstitutional under article I, sections 2 and 10 of the Missouri Constitution, the circuit court made
such declarations without any analysis or explanation. Thus, rather than addressing the circuit court's bare
references to constitutional provisions, the City framed its points relied on and arguments in accordance with the
circuit court's substantive explanations for its entry of summary judgment and addressed the ordinance's
constitutionality as a general matter. Further, we note that, in its judgment, the circuit court specifically stated that it
rejected the Fraternal Order of Police's assertions that the City's ordinance violated the equal protection clause of the
Missouri Constitution, but in its declarations it noted generally that the ordinance violated article I, section 2 along
with article I, sections 10 and 29 by "requiring that a collective bargaining representative be required to receive
more than fifty percent (50%) of votes of all eligible voters, as opposed to more than fifty percent (50%) of the votes
cast." This general reference to the equal protection clause is most certainly contradictory to the circuit court's
express finding that it was rejecting the Fraternal Order of Police's assertion that the City's ordinance violated the
equal protection clause of the Missouri Constitution. We, therefore, decline the Fraternal Order of Police's request
that we affirm the circuit court's judgment in regard to seven of the City's points on appeal on the basis that the City
failed to address or challenge the other constitutional violations found by the circuit court.
2
that the City would not pay any union representative for time spent preparing for or engaging in
collective bargaining and would not enter into wage commitments that exceeded one year, (7) the
ordinance was unconstitutional because the Board of Alderman retained the right to require the
modification of the economic terms of any labor agreement in the event of a budget shortfall, and
(8) the ordinance was unconstitutional because it gave the Board of Alderman the ability to
modify the terms and conditions of employment for employees in the bargaining unit in the event
a collective bargaining representative was decertified.
We reverse the circuit court's grant of summary judgment in regard to the circuit court's
determination that the ordinance was unconstitutional for all the points stated above, except we
make no determination about the constitutionality of the provision in the ordinance requiring that
a collective bargaining representative receive more than 50 percent of votes of all eligible voters.
We remand to the circuit court with instructions to enter summary judgment in favor of the City
concerning those provisions in the ordinance. We also reverse the circuit court's determination
that, as a matter of law, an election was not necessary in this case and that the City must
immediately recognize the Fraternal Order of Police as the exclusive bargaining representative of
the proposed bargaining unit of police officers and sergeants.
The parties submitted cross-motions for summary judgment to the circuit court in this
case. In doing so, they stipulated to the following facts.
The Fraternal Order of Police is an incorporated fraternal organization located in
Raytown, Missouri, and represents law enforcement officers collectively in matters of
employment. Cody Allen, Beau D. Bailey, Brian Bradley, Mike E. Bridges, Paul A. Brooks,
Thomas Byrd, Roger L. Denton, Matthew C. Earnest, Bradley Edwards, Scott L. Evans, Gabriel
H. Gilbert, Scott Graef, Brandon Grantham, Jacob Gross, David Gutierrez, Mark Hermelink,
3
Richard W. Jones, Gary Kerley, Tiffani Kendrick, Stephen King, Daniel C. Matthews, Gregory J.
McCord, Jacob S. Mueller, Jonathan Nicholas, Mary Oliver, Lonnie Pfeifer, Travis Richardson,
Will Ridnour, Justin M. Rigot, Greg Smith, Michael D. Spano, Martin Studdard, Douglas
Thacker, Ricky Van Sickle, and Alan Walker are current or former police officers of the City of
Grandview Police Department. Kris A. Cochran, Danielle Killion, Collier Lunn, Traci Mahlan,
and Paula J. Pritchett are current or former civilian members of the City of Grandview Police
Department. Henry R. Ellis, Larry Godfrey, Jonathan Going, James Innes, Matthew L. McCall,
Gregory Pruitt, Ryan Sharp, and Lorrie Whitehead are current or former police sergeants of the
City of Grandview Police Department. All of the above mentioned individuals are currently
members of the Fraternal Order of Police, even though the Fraternal Order of Police is not
currently recognized as their exclusive bargaining representative for purposes of collective
bargaining under the Missouri Constitution. While the duration of their Fraternal Order of Police
membership varies, many of the officers, civilian members, and sergeants have been members
for over ten years.
The City of Grandview is a fourth-class city in Jackson County duly existing under the
laws of the State of Missouri. The City is governed by the Board of Aldermen, whose members
are elected by citizens of the City and are tasked with, among other responsibilities, "pass[ing]
such laws and ordinances from time to time as shall be deemed necessary and which shall not
conflict with the laws of the state[.]" Grandview Municipal Code § 2.20. The City operates a
police department, which employs or formerly employed each of the named individuals listed
above.
On July 9, 2010, the Fraternal Order of Police demanded to be recognized as the
exclusive bargaining agent of all police officers, police sergeants, and police communication
4
officers employed by the City.3 In response to the Fraternal Order of Police's request for
collective bargaining, the City prepared a draft ordinance to establish the collective bargaining
framework for personnel in the City's police department. On September 23, 2010, the City
provided a draft of the proposed ordinance to the Fraternal Order of Police for review and
comment. On October 11, 2010, the Fraternal Order of Police responded, raising several specific
objections or concerns about the proposed ordinance. In a letter dated October 11, 2010, the
Fraternal Order of Police requested "an opportunity to address the City in closed or open session
to discuss these issues and answer any questions." On November 5, 2010, the City provided a
revised draft of the proposed ordinance to the Fraternal Order of Police and stated that the draft
would be presented to the Board of Alderman on November 9, 2010.
On November 9, 2010, the City presented the proposed ordinance to the Board of
Alderman. A representative of the Fraternal Order of Police, counsel for the Fraternal Order of
Police, and a Grandview Police Department employee representative for the Fraternal Order of
Police attended the meeting. Although the City did not designate a speaking opportunity for the
Fraternal Order of Police's representatives on the meeting's official agenda, the City did offer a
3
In the circuit court's judgment, the circuit court found that, when the Fraternal Order of Police demanded
that the City recognize it as the exclusive bargaining agent on July 9, 2010, the Fraternal Order of Police tendered
signature cards, individually signed by every police officer, every sergeant, and a majority of police communication
officers, authorizing the Fraternal Order of Police as its exclusive collective bargaining agent. The letter, dated
July 9, 2010, from the Fraternal Order of Police's attorney to the City stated:
The purpose of this letter is to inform you that the [Fraternal Order of Police] has been requested
and authorized in writing by every police officer, every police sergeant, and a majority of police
communication officers employed by the Grandview, Missouri Police Department
(City/Department) to serve as the exclusive representative of all police officers, police sergeants,
and police communication officers (bargaining unit) employed by the City/Department in
collective bargaining[.]"
The joint stipulation of facts upon which the parties submitted their cross-motions for summary judgment
did not state that the Fraternal Order of Police tendered signature cards with the letter. Further, at oral
arguments, the Fraternal Order of Police conceded that the signature cards were not included with the letter.
5
general public comment session open to anyone present at the meeting. Prior to beginning the
public comment session, the City announced that such comments were limited to approximately
five minutes. The representative of the Fraternal Order of Police, Rick Inglima, spoke during the
public comment session and primarily commented on the police sergeants' joint representation
with police officers and the proposed ordinance's language requiring a labor organization to
receive more than fifty percent of the votes of all eligible voters to be recognized as the exclusive
bargaining representative for the bargaining unit. Inglima also voiced opposition to the lack of a
public hearing before voting on the ordinance. Thereafter, the Board of Alderman, by a vote of
five to one, adopted the proposed ordinance as Ordinance No. 6411. The Board of Alderman did
not hold an evidentiary hearing or any other type of hearing before voting on the proposed
ordinance.
Ordinance No. 6411, entitled as "Provisions for Collective Bargaining with Law
Enforcement Personnel," states that its purpose is to provide "a framework within which law
enforcement personnel employed by the City of Grandview can exercise their right under
Article I, Section 29 of the Constitution of the State of Missouri to bargain collectively with the
City, through representatives of their own choosing." Ordinance No. 6411, art. 1, §1.1. The key
provisions of the ordinance in dispute in this appeal provide:
(1) "To avoid the division of loyalties and conflicts of interest, supervisory
personnel shall not be included within the same bargaining unit as employees they
supervise. Further, the same labor organization shall not represent both non-
supervisory and supervisory employees within the Police Department. For the
purposes of this subsection, Sergeants, Captains, Majors, the Chief of Police, and
the Records Unit Supervisor shall be considered supervisory employees."
Ordinance No. 6411, art. 2, § 2.2.1.
(2) "The election [of the exclusive bargaining representative] shall be
conducted by secret ballot, using such procedure as the Director of Human
Resources shall determine are appropriate for ensuring the privacy and security of
6
each employee's vote. Once the poll is closed, the Director of Human Resources
shall oversee the counting of the ballots." Ordinance No. 6411, art. 3, § 3.5.
(3) "Any labor organization receiving more than fifty percent (50%) of the
votes of all eligible voters shall be designated and recognized by the City as the
exclusive bargaining representative for all employees in the bargaining unit."
Ordinance No. 6411, art. 3, § 3.5.3.
(4) "The City shall not pay any union representative for time spent
participating in collective bargaining or preparing for collective bargaining,
except to the extent the person in question is an employee of the City and elects to
use accrued paid time off to cover the time so spent." Ordinance No. 6411, art.4,
§ 4.3.
(5) "After the first agreement between the City and the labor organization
is adopted, bargaining for renewal agreements shall take place annually. . . . The
parties may elect to bargain non-economic terms for longer periods (e.g. three
years or five years), but all economic provisions of the agreement shall be adopted
on a year-to-year basis only." Ordinance No. 6411, art. 4, § 4.5.
(6) "In the event of the decertification of the exclusive bargaining
representative of the employees in any bargaining unit within the Police
Department, all terms and conditions of employment existing at the time of
decertification shall remain in place until such time as those terms or conditions
of employment are altered by the City's Board of Aldermen." Ordinance No.
6411, art. 3, § 3.6.3.
(7) "In the event of a budget shortfall, the Board of Aldermen shall have
the right to require the modification of the economic terms of any labor
agreement." Ordinance No. 6411, art. 6, § 6.1.
On dates ranging from March 4, 2011, to March 23, 2011, the police officers, civilian
members, and sergeants signed representation cards requesting the City to recognize the
Fraternal Order of Police as their "chosen exclusive bargaining representative for the purpose of
collective bargaining[.]" The representation cards further stated:
Despite provisions of City Ordinance No. 6411 to the contrary, I direct the City to
recognize a single bargaining unit of police officers and police sergeants or,
alternatively, to recognize the [Fraternal Order of Police] as the representative of a
bargaining unit of police officers of my same rank even if the [Fraternal Order of
Police] represents--or is preparing to represent--a bargaining unit of police
officers holding a different rank.
7
Upon the Fraternal Order of Police's presentation of the representation cards, the City refused to
proceed with an election under those conditions.
Thereafter, the Fraternal Order of Police filed a second amended petition for declaratory
judgment and injunctive relief challenging the constitutionality of the City's Ordinance No. 6411.
The parties filed cross-motions for summary judgment, and the circuit court granted summary
judgment in favor of the Fraternal Order of Police and denied the City of Grandview's motion for
summary judgment. Specifically, the circuit concluded that the collective bargaining framework
established by the City in Ordinance No. 6411 violated article I, sections 10 and 29 of the
Missouri Constitution by:
1. [S]ummarily declaring that Plaintiff Sergeants are supervisory
employees and are prohibited from being in the same bargaining unit as Plaintiff
Police Officers [and] by failing to provide a fair and impartial forum for full and
fair consideration and resolution of conflicts including the summary exclusion of
sergeants from the same bargaining unit as police officers.
2. [R]equiring that a collective bargaining representative be required to
receive more than fifty percent (50%) of votes of all eligible voters, as opposed to
more than fifty (50%) of the votes cast.4
3. [P]rohibiting Plaintiff Sergeants and Plaintiff Police Officers from
being represented by the same organization in separate bargaining units.
4. [S]ummarily prohibiting collective bargaining representatives
employed by [the City] from receiving pay from [the City] for time spent
preparing for, and participating in, collective bargaining with [the City].
5. [S]ummarily limiting to a maximum of one year the duration of
economic provisions of any labor agreement reached in collective bargaining.
6. [A]uthorizing [the City] to alter the terms of a labor agreement reached
in collective bargaining in the event of an organization being decertified as
representative.
4
The circuit court stated that this provision of the ordinance also violated article I, section 2 of the Missouri
Constitution.
8
7. [A]uthorizing [the City] to modify the terms of a labor agreement
reached in collective bargaining in the event of a budget shortfall.
The circuit court further declared that the City violated article I, section 29 of the Missouri
Constitution by:
[N]ot recognizing [the Fraternal Order of Police] as the exclusive bargaining
representative of its proposed bargaining units of Plaintiff Police Officers and
Plaintiff Sergeants and instead by adopting and enforcing a framework which
requires an election, and further in failing to move forward with any election
procedure for one combined or two separate bargaining units.
The circuit court, therefore, ordered that the unconstitutional provisions of the ordinance be
removed and given no meaning or effect and that the City immediately recognize the Fraternal
Order of Police as the exclusive bargaining representative "of the proposed bargaining unit of
Plaintiff Police Officer and Sergeants." The City appeals.
Our review of a summary judgment is de novo. ITT Commercial Fin. Corp. v. Mid-Am.
Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). We review the record in the light
most favorable to the party against whom judgment was entered, and we afford that party the
benefit of all reasonable inferences. Id. "The propriety of summary judgment is purely an issue
of law." Id. We will affirm the circuit court's grant of summary judgment if no genuine issues of
material fact exist and the moving party is entitled to judgment as a matter of law. Id. at 380;
Rule 74.04.
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 2007, the Missouri Supreme Court held in Independence-National Education Association v.
Independence School District, 223 S.W.3d 131, 139 (2007), that the right to collectively bargain
guaranteed by the Missouri Constitution applies to public employees as well as private-sector
9
employees. The Court also recognized that, in the absence of a statute dealing with the collective
bargaining process for public employees, the public employer has a role in setting "the
framework for these public employees to bargain collectively through representatives of their
own choosing."5 Id. at 136. However, the Court emphasized:
There is nothing in the law, as it has developed, that requires a public
entity to agree to a proposal by its employee unions or organizations. In fact, this
Court has repeatedly recognized that the public sector labor law allows employers
to reject all employee proposals, as long as the employer has met and conferred
with employee representatives.
Id.
The Missouri Supreme Court provided further clarification of article I, section 29 in
Eastern Missouri Coalition of Police, Fraternal Order of Police, Lodge 15 v. City of
Chesterfield, 386 S.W.3d 755 (2012). In Chesterfield, a majority of police officers and sergeants
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. Id. at 758. Thereafter, the union requested
that each city voluntarily recognize the union's representative status and establish a procedural
framework for collective bargaining. Id. When the cities declined the union's request, the union
filed two separate actions for declaratory judgment. Id.
The Missouri Supreme Court held:
The very notion of collective bargaining . . . entails "negotiations between an
employer and the representatives of organized employees to determine the
conditions of employment[.]" "[T]he point of collective bargaining . . . is to reach
5
"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[.] Section 105.100." Am. Federation of Teachers v. Ledbetter, 387 S.W.3d 360, 363 (Mo.
banc 2012). "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. (citing Independence, 223 S.W.3d at 136).
10
an agreement." Therefore, an employer of statutorily excluded employees has a
duty to bargain collectively with those employees, and, when necessary, adopt
procedures to participate in that process. The absence of such a duty would
render meaningless the rights guaranteed to public employees under article 1,
section 29.
Id. at 760 (citations omitted). The Chesterfield court emphasized, however, that "[e]ach city has
the ability to establish a procedural framework for collective bargaining with its excluded
employees if necessary to effectuate its duty." Id. at 758. The Court declared, "If it is
unnecessary for the cities to pass an ordinance to carry out their constitutional duty to bargain
collectively, then there is no reason to order the cities to do so." Id. at 763. The Chesterfield
court concluded that the trial courts below erred "in requiring the cities to establish a procedure
for a meet and confer process rather than simply ordering them to meet and confer with the
union, allowing the cities, on their own, to make whatever arrangements are necessary to carry
out that order." Id. at 763-64. Moreover, the Chesterfield court, found that, because an
undisputed majority of the employees had chosen the union as their exclusive bargaining
representative, the trial courts erred "in ordering the cities to organize an election to designate the
union as the exclusive bargaining representative." Id. at 764. The Court noted that, because the
election process was not challenged, the election was not an issue, and, therefore, the trial court
should not have ordered the cities to organize an election. Id.
In our case, the circuit court concluded, relying on the Chesterfield, that an election was
not necessary to recognize the Fraternal Order of Police as the exclusive bargaining
representative. In so concluding, the circuit court stated:
The facts appear undisputed that pursuant to Article 3.1 of the Collective
Bargaining Framework, Plaintiff [Fraternal Order of Police] provided to the
Defendant City cards containing the signatures of all Plaintiff Officers and all
Plaintiff Sergeants indicating that they wish to select Plaintiff [Fraternal Order of
Police] as their exclusive bargaining representative for collective bargaining. . . .
11
The City refused to proceed with either an election or recognition of the [Fraternal
Order of Police] as bargaining representative for all or either of the groups of
police officers.
Under these factual circumstances, it is clear that no election is necessary.
In the City of Chesterfield case, the Supreme Court held that the City could not be
required to establish an election framework because there was no need for an
election to certify the union in that case. . . . Given the facts of this case, the
unanimity of Police Officer and Police Sergeants in selecting the [Fraternal Order
of Police] as their bargaining representative, there is no need for an election.6
In finding that no election was necessary in this case, there is confusion on whether the
circuit court was relying on the July 9, 2010, letter from the Fraternal Order of Police, where in
the Fraternal Order of Police demanded to be recognized as the exclusive bargaining agent of all
police officers, police sergeants, and police communication officers employed by the City. The
letter, dated July 9, 2010, said:
The purpose of this letter is to inform you that the [Fraternal Order of Police] has
been requested and authorized in writing by every police officer, every police
sergeant, and a majority of police communication officers employed by the
Grandview, Missouri Police Department (City/Department) to serve as the
exclusive representative of all police officers, police sergeants, and police
communication officers (bargaining unit) employed by the City/Department in
collective bargaining[.]"
The circuit court found, apparently on the basis of this letter, that the Fraternal Order of Police
tendered signature cards authorizing the Fraternal Order of Police as its exclusive collective
bargaining agent, individually signed by every police officer, every sergeant, and a majority of
police communication officers. In particular, the circuit court found:
Plaintiff [Fraternal Order of Police] demanded that the City of Grandview
recognize it as the exclusive bargaining agent for all police officers, police
sergeants and police communication officers employed by the City on July 9,
2010. The [Fraternal Order of Police] tendered signature cards authorizing the
[Fraternal Order of Police] as its exclusive bargaining agent, individually signed
6
We added the emphasis.
12
by every police officer, every sergeant and a majority of police communication
officers.
The joint stipulation of facts upon which the parties submitted their cross-motions for
summary judgment, however, did not state that the Fraternal Order of Police tendered signature
cards with the letter. The parties merely stipulated that "Plaintiff [Fraternal Order of Police],
through its attorney, demanded to be recognized as the exclusive bargaining agent of all police
officer, police sergeants, and police communications officers employed by the City on July 9,
2010." Thus, the circuit court could not have found on the basis of the stipulation of facts that, as
of July 9, 2010, that the Fraternal Order of Police had tendered signature cards authorizing the
Fraternal Order of Police as its exclusive collective bargaining agent.7 This is significant
because the City adopted its ordinance after it received the July 9, 2010, letter.
In Chesterfield, the Missouri Supreme Court concluded that an election was unnecessary
because an undisputed majority of the employees had chosen the union as their exclusive
bargaining representative, and therefore the trial courts erred in ordering the cities to "organize
an election" to designate the union as the exclusive bargaining representative." 386 S.W.3d at
764. Moreover, the Chesterfield court held that the courts may require a city to meet and confer
to carry out their constitutional duty to bargain collectively but that the court cannot require a
city to establish a procedure for the collective bargaining framework. Id. at 763-64. The facts
and circumstances of this case, however, are not like Chesterfield. In this case, prior to "an
undisputed majority of the employees" choosing the Fraternal Order of Police as their exclusive
collective bargaining representative, the City established a framework to collectively bargain
with the police officers, civilian members, and sergeants.
7
Indeed, at oral argument on this matter, the Fraternal Order of Police conceded that it did not tender
signature cards with the July 9, 2010, letter.
13
Although the Fraternal Order of Police did eventually submit signed cards from the
police officers, civilian members, and sergeants demanding that the City recognize the Fraternal
Order of Police as their "chosen exclusive bargaining representative for the purpose of collective
bargaining," these cards were submitted after the City adopted Ordinance No. 6411 and
established the collective bargaining framework. The police officers, sergeants, and civilian
members demanded that, "[d]espite provisions of City Ordinance No. 6411 to the contrary," that
the City recognize them as "a single bargaining unit" or as separate bargaining units but both
being represented by the Fraternal Order of Police. Upon the Fraternal Order of Police's
presentation of the representation cards, the City refused to proceed with an election under the
conditions that were contrary to its ordinance.
The Missouri Supreme Court has recognized that, in the absence of a statute dealing with
the collective bargaining process for public employees, the public employer has a role in setting
"the framework for these public employees to bargain collectively through representatives of
their own choosing." Independence, 223 S.W.3d at 136. Indeed, "[e]ach city has 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. Chesterfield, 386 S.W.3d at 758. The ordinance
adopted by the City in this case provided the collective bargaining framework, and, although the
City was not required to adopt an ordinance to establish the framework, see id. at 763, it most
certainly was the City's prerogative to do so. Given that the stipulated facts merely supported
that, prior to the adoption of the ordinance, the Fraternal Order of Police demanded to be
recognized as the exclusive bargaining representative, the circuit court erred in concluding, on
the basis of Chesterfield, that as a matter of law an election was not necessary in this case and
14
further erred in ruling that the City should "immediately recognize the Fraternal Order of Police
as the exclusive bargaining representative of the proposed bargaining unit of Plaintiff Police
Officers and Sergeants."
We note that, in its first point relied on, the City asserts that the circuit court erred in
ruling that the City may not enact an ordinance requiring a secret ballot election as the
designated method for employees to select a collective bargaining representative. The circuit
court, however, made no such ruling. The circuit court instead held that, under the facts of this
case, no election was necessary. But, as we have already discussed, the facts of this case did not
demonstrate that an election was unnecessary. Indeed, the facts of this case demonstrate that the
City had the right to enact its own framework for collective bargaining in the absence of state
legislative action, and nothing within the Missouri Constitution or case law would prohibit the
City from mandating that employees act through a secret ballot election to designate a collective
bargaining representative.
The framework enacted by the City adopted a secret-ballot election as the sole means of
determining whether employees wished to have collective representation. The Fraternal Order of
Police’s demand to be recognized based on the presentation of signature cards was inconsistent
with the procedure adopted by the City’s ordinance. The Fraternal Order of Police makes no
argument, other than by its reliance on Chesterfield, to suggest that Article I, section 29 requires
recognition of a labor union based on signature cards, when the relevant legal framework adopts
a different election method. We reject the Fraternal Order of Police’s first point.
The true issue in this case, and the question presented to the circuit court in the
declaratory judgment action, is whether the collective bargaining framework provided by the
15
City in Ordinance No. 6411 is constitutional. When dealing with a constitutional attack on a
legislative enactment, we are guided by the established principle:
"The state constitution, unlike the federal constitution, is not a grant of power, but
as to legislative power, it is only a limitation; and, therefore, except for the
restrictions imposed by the state constitution, the power of the state legislature is
unlimited and practically absolute. An act of the legislature is presumed to be
valid and will not be declared unconstitutional unless it clearly and undoubtedly
contravenes some constitutional provision. Legislative enactments should be
recognized and enforced by the courts as embodying the will of the people unless
they are plainly and palpably a violation of the fundamental law of the
constitution."
Americans United v. Rogers, 538 S.W.2d 711, 716 (Mo. banc 1976) (citations omitted). This
same principle is equally applicable in evaluating the constitutionality of city ordinances. St.
Louis Univ. v. Masonic Temple Ass'n of St. Louis, 220 S.W.3d 721, 725 (Mo. banc 2007). There
is a presumption that local government ordinances are constitutional. City of Pagedale v.
Murphy, 142 S.W.3d 775, 778 (Mo. App. 2004).
We, therefore, must presume that the City's ordinance in this case is valid unless it clearly
and undoubtedly contravenes some constitutional provision. In this case, the City asserts seven
points of error where it contends that the circuit court erroneously declared that as a matter of
law the City's ordinance was unconstitutional. In particular, the City complains about each of
these declarations by the circuit court that Ordinance No. 6411 violated the constitution by:
1. [S]ummarily declaring that Plaintiff Sergeants are supervisory
employees and are prohibited from being in the same bargaining unit as Plaintiff
Police Officers [and] by failing to provide a fair and impartial forum for full and
fair consideration and resolution of conflicts including the summary exclusion of
sergeants from the same bargaining unit as police officers.
2. [R]equiring that a collective bargaining representative be required to
receive more than fifty percent (50%) of votes of all eligible voters, as opposed to
more than fifty (50%) of the votes cast.
16
3. [P]rohibiting Plaintiff Sergeants and Plaintiff Police Officers from
being represented by the same organization in separate bargaining units.
4. [S]ummarily prohibiting collective bargaining representatives
employed by [the City] from receiving pay from [the City] for time spent
preparing for, and participating in, collective bargaining with [the City].
5. [S]ummarily limiting to a maximum of one year the duration of
economic provisions of any labor agreement reached in collective bargaining.
6. [A]uthorizing [the City] to alter the terms of a labor agreement reached
in collective bargaining in the event of an organization being decertified as
representative.
7. [A]uthorizing [the City] to modify the terms of a labor agreement
reached in collective bargaining in the event of a budget shortfall.
Again, the constitutional provision at issue in this case provides: "That employees shall
have the right to organize and to bargain collectively through representatives of their own
choosing." Mo. Const. art. I, sec. 29. Ordinance No. 6411, article 2, section 2.2.1 provides:
To avoid the division of loyalties and conflicts of interest, supervisory
personnel shall not be included within the same bargaining unit as employees they
supervise. Further, the same labor organization shall not represent both non-
supervisory and supervisory employees within the Police Department. For the
purposes of this subsection, Sergeants, Captains, Majors, the Chief of Police, and
the Records Unit Supervisor shall be considered supervisory employees.
At first blush, it would seem that this provision of Ordinance No. 6411 may conflict with the
constitutional right of employees to organize and to bargain collectively through representatives
of their own choosing. This issue, however, has been decided by the courts in the realm of the
Missouri public sector labor law, sections 105.500 et seq., RSMo 2000, which necessarily must
also comply with article I, section 29 of the Missouri Constitution.
Section 105.510, RSMo 2000, of the Missouri public sector labor law provides:
Employees, except police, deputy sheriffs, Missouri state highway
patrolmen, Missouri National Guard, all teachers of all Missouri schools, colleges
and universities, of any public body shall have the right to form and join labor
17
organizations and to present proposals to any public body relative to salaries and
other conditions of employment through the representative of their own choosing.
The Missouri Supreme Court in construing the meaning of this provision stated:
Although § 105.510, RSMo 1978, uses the word "employees" without
additional specificity in describing the composition of a bargaining unit, the
legislature did not intend for all persons on the public payroll to be considered
employees for bargaining purposes. See City of Columbia Missouri v. Missouri
State Board of Mediation, 605 S.W.2d 192, 194 (Mo. App. 1980); Golden Valley
Memorial Hospital District v. Missouri State Board of Mediation, 559 S.W.2d
581, 583 (Mo. App. 1977). In the course of labor relations, someone must act on
behalf of the public employer and it is the responsibility of the Board to exclude
from an otherwise appropriate bargaining unit "those employees, if any, whose
duties involve acting directly or indirectly in the interest of the employer in
relation to other employees." Golden Valley Memorial Hospital District, 559
S.W.2d at 583.
Mo. Nat'l Educ. Ass'n v. Mo. State Bd. of Mediation, 695 S.W.2d 894, 897 (Mo. banc 1985); see
also Germann v. City of Kansas City, 577 S.W.2d 54, 56-57 (Mo. App. 1978) (city's ordinance
prohibiting fire battalion chiefs from being in the same union as firefighters under their
supervision did not violate section 105.510 of the Missouri public sector labor law and did not
violate the First Amendment of the United States Constitution); Golden Valley Mem'l Hosp.
Dist., 559 S.W.2d at 583 (the Board of Mediation has the duty to identify employees whose
duties involve acting directly or indirectly in the interest of the employer in relation to other
employees and such employees shall be excluded from the bargaining unit).
The Court in Missouri National Education Association concluded that "managerial"
employees and "confidential" employees are employees "whose duties involve acting directly or
indirectly in the interest of the employer in relation to other employees" and that such employees
"are excluded from the bargaining unit either because their inclusion could create conflicts of
18
interest in the performance of their duties or because they lack sufficient community of interest
with other workers." 695 S.W.2d at 898.8 In so concluding, the Court stated:
We believe that in enacting § 105.510, RSMo 1978, the legislature did not intend
that management should "be required to handle labor relations matters through
employees who are represented by the union with which the company is required
to deal and who in the normal performance of their duties may obtain advance
information of the company's position with regard to contract negotiations, the
disposition of grievances, or other labor relations matters."
Id. at 900-01 (citation omitted). Thus, the Court held that twelve secretaries employed by the
Belton, Missouri School District were confidential employees, were not employees within the
meaning of section 105.510 of the Missouri public sector labor law, and should be excluded from
the bargaining unit consisting of all clerical employees, teacher aides, and school nurses
employed by the school district. Id. at 901.9
Like the Missouri public sector labor law, the Missouri Constitution does not define
employees and sets no boundaries on the types of employees that may be included in a collective
bargaining unit. Thus, because "someone must act on behalf of the public employer," it is
appropriate for the City in this case to "exclude from an otherwise appropriate bargaining unit"
supervisory employees "'whose duties involve acting directly or indirectly in the interest of the
8
In Parkway School Dist. v. Parkway Ass'n of Educ., 807 S.W.2d 63 (Mo. banc 1991), the Missouri
Supreme Court emphasized that in Mo. Nat'l Educ. Ass'n, 695 S.W.2d at 899, it "recognized the breadth of the
[school] board's discretion in implementing statutory policy" and that the school board had the freedom to modify or
discard the guidelines if they proved unworkable. Parkway, 807 S.W.2d at 67. In Parkway, the school district
found the "confidentiality test" impracticable and returned to the "labor nexus test" in determining the parameters of
a bargaining unit. Id. at 68. The Parkway court held: "Determinations about the standards of appropriateness of a
bargaining unit are primarily for the board. Our only inquiry is as to whether it is operating within its statutory
mandate. Just as we did in [Mo. Nat'l Educ. Ass'n], we give great deference to the board's policy determinations."
Id.
9
In so concluding, we are assured that the Missouri Supreme Court issued its opinion with full knowledge
of article I, section 29 of the Missouri Constitution because the dissenting opinion by Judge Charles Blackmar stated
in his opening paragraph of his dissent: "The denial to the twelve secretarial employees of the very limited
collective bargaining rights afforded by §§ 105.500 through 105.530, RSMo 1978, is contrary to the policy of the
Missouri Constitution, Art. I, Sec. 29, and to the policy of the governing statute." Id. at 901.
19
employer in relation to other employees.'" Id. at 897 (citation omitted). Excluding supervisory
employees from a particular bargaining unit does not deny those employees any collective
bargaining rights.10 It merely allows the City to manage its work force and to exercise its
discretion in legislating the collective bargaining framework as authorized in by the Missouri
Supreme Court in Independence, 223 S.W.3d at 136, and Chesterfield, 386 S.W.3d at 758.
The circuit court found that the City violated article I, section 29 of the Missouri
Constitution "by summarily declaring that Plaintiff Sergeants are supervisory employees" and
"by failing to provide a fair and impartial forum for the full and fair consideration and resolution
of conflicts including the summary exclusion of sergeants from the same bargaining unit as
police officer." In its argument, the Fraternal Order of Police emphasizes that the City enacted
its ordinance "without holding a hearing of any kind to determine the appropriateness or
inappropriateness of [the] proposed bargaining unit."
The parties stipulated that:
Police sergeants employed by the City's police department are the highest
ranking members of the police force on duty from the hours of 5:00 p.m. until
8:00 a.m. on weekdays, and at all times on weekends and holidays. During these
times, higher ranking officers are equipped with Department-issued cellular
telephones and take-home cars so they can be contacted and promptly return to
duty, if an incident described in the . . . Command Staff Notifications occurs or if
otherwise necessary under the circumstances.
10
The parties stipulated that several local jurisdictions currently recognize a single bargaining unit of police
department employees which contains both sergeants and officers, including: Kansas City, Missouri; Kansas City,
Kansas; Independence; St. Joseph; Buchanan County; Liberty; Jackson County; Claycomo; and Richmond. They
also stipulated that Lee's Summit recognizes sergeants and officers in two separate bargaining units but recognize a
single labor union as the collective bargaining representative for both bargaining units. Further, the parties
stipulated that the City currently recognizes a single bargaining unit comprised of all firefighters and captains with
the City's Fire Department and recognizes a single labor organization as the collective bargaining representative for
that multi-rank bargaining unit. Finally, the parties stipulated that the City has never raised any objection of any
kind to its police officers and police sergeants maintaining membership in the Fraternal Order of Police and that the
City has never issued any disciplinary action indicating that a sergeants membership in the Fraternal Order of Police
has caused divided loyalty or conflicts of interest in the performance of their job duties. None of these stipulations
establish the unconstitutionality of the City's ordinance.
20
The ordinance states that "Sergeants, Captains, Majors, the Chief of Police, and the Records Unit
Supervisor shall be considered supervisory employees." Ordinance No. 6411, art. 2, § 2.2.1.
The stipulation establishes that, from "5:00 p.m. until 8:00 a.m. on weekdays, and at all times on
weekends and holidays," sergeants are the highest ranking members of the police force on duty.
In its judgment, the circuit court stated:
The City has created a controversy as to what is the appropriate bargaining
unit by summarily declaring that the position of sergeant is a supervisory position.
Therefore, there must be a procedural forum established for the full and fair
hearing and resolution of this conflict. The hearing must afford the opportunity to
confront, the opportunity to present evidence, and to be heard in a full and
impartial forum. The Court finds that Ordinance No. 6411 is defective in its
failure to provide a procedure and forum for resolution of controversies including
its designation of sergeant as supervisory position, in violation of Article I,
Sections 10 and 29.
We find nothing in the Missouri Constitution that requires the City to create a procedural forum
to make determinations about the scope of appropriate bargaining units within the City's police
department.
The Fraternal Order of Police asserts that the primary purpose of a collective bargaining
framework is to protect the right of employees to bargain in large but appropriate bargaining
units by requiring an evidentiary forum prior to modification of the unit proposed by employees.
In support of this contention, the Fraternal Order of Police cites Central County Emergency 911
v. International Association of Firefighters Local 2665, 967 S.W.2d 696, 700 (Mo. App. 1998),
which dealt with the issue of whether shift supervisors of a fire and emergency dispatching
center were supervisory employees. In deciding this issue, the court noted:
The Public Sector Labor Law authorizes employees of any public body,
with certain exceptions, to form and join labor organizations for the purpose of
collective bargaining. §§ 105.500-.530, RSMo 1994. The State Board of
Mediation by this statute is empowered to resolve issues as to the appropriateness
of bargaining units and majority representative status. § 105.525, RSMo 1994.
21
One of the primary purposes of the statute is to provide a forum to decide if the
bargaining unit proposed by the employees is acceptably constituted. City of
Columbia [v. Mo. State Bd. of Mediation, 605 S.W.2d 192, 194 (Mo. App. 1980)].
The Board must decide, in appropriate cases, the status of supervisory personnel
and whether they are properly included in the employee bargaining unit because
they are employee orientated in job function. Id.
Cent. Cnty. Emergency 911, 967 S.W.2d at 700. That the public sector labor law provides a
forum "to decide if the bargaining unit proposed by the employees is acceptably constituted," id.,
does not mean that it is constitutionally required.
Notably, the Fraternal Order of Police does not contend that the exclusion of
“supervisory” employees from a bargaining unit violates article I, section 29. Nor has it argued
in this lawsuit that the designation of sergeants as “supervisory” employees was erroneous given
their responsibilities and the legal standards governing the determination whether particular
employees are “supervisory.” If the union believes that the ordinance improperly designates
sergeants as “supervisory,” and in the absence of any other procedural mechanism to challenge
that designation, the union may file suit in circuit court to challenge the designation. Cf.
Chesterfield, 386 S.W.3d at 764 n.7 (in the absence of any statutory mechanism for employer to
challenge union’s selection as bargaining representative, employer could file suit in circuit court
to litigate the issue). Nothing in the constitution, however, requires the City to establish any
other procedural forum for litigation of the union’s challenge to the “supervisory” designation.
Indeed, in holding that the City's ordinance should have included a procedural forum for
making determinations about the scope of appropriate bargaining units, the circuit court invaded
the Board of Alderman's legislative province, in violation of the separation of powers provision
contained in article II, section 1 of the Missouri Constitution. As the Missouri Supreme Court
held in Chesterfield, courts cannot require a city to establish a procedure for the collective
22
bargaining framework. 386 S.W.3d at 763-64. Thus, the circuit court is not authorized to
mandate that the City "provide a procedure and forum for resolution of controversies" in its
collective bargaining framework. The circuit court's authority is limited to determining whether
the provisions the Board of Alderman included in the ordinance violated the constitution, and, as,
noted above, it is well-established that supervisory employees may be excluded from a unit
containing non-supervisory employees.
In addition to prohibiting supervisory personnel from being in the same bargaining unit
as employees they supervise, the City's ordinance also prohibited the same labor organization
from representing both non-supervisory and supervisory employees within the Police
Department. The circuit court found that this provision violated article I, section 29 of the
Missouri Constitution because it prohibited sergeants and police officers "from being represented
by the same organization in separate bargaining units." In essence, the circuit court effectively
read article I, section 29 to say that employees must be allowed to select any representative they
wish and that no restrictions whatsoever may be placed on the selection of the employee's
collective bargaining representative.
As this court declared in Dagraffenreid v. State Bd. of Mediation, 379 S.W.3d 171, 179
(Mo. App. 2012), the likely concern of article I, section 29 "is that there would be no
unreasonable or arbitrary barriers erected to the right of workers to establish collective
bargaining with their employers." The City's ordinance allows sergeants, police officers, and
civilian members to choose a collective bargaining representative. The ordinance merely
prohibits the same collective bargaining agent from representing both non-supervisory and
supervisory employees. We find nothing arbitrary or unreasonable about the ordinance's
limitation. The same concerns exist with having the same collective bargaining agent represent
23
both non-supervisory and supervisory employees as exist with having non-supervisory and
supervisory employees included within the same collective bargaining unit. The collective
bargaining representative would be representing the City's non-supervisory employees while also
representing supervisory employees "'whose duties involve acting directly or indirectly in the
interest of the employer in relation to other employees[.]'" Mo. Nat'l Educ. Ass'n, 695 S.W.2d at
898; see also Germann, 577 S.W.2d at 56 (court held "prohibition of battalion chiefs from
holding membership in the same union as the firefighters they supervise serves a legitimate state
interest and the restriction of their First Amendment rights is the least drastic restriction to
accomplish this purpose").
Article I, section 29 of the Missouri Constitution requires that employees be allowed to
select a collective bargaining representative, not that they be permitted to choose from absolutely
any conceivable representative without any limits. The enactment of a reasonable limitation by
the City does not prevent the supervisory employees from selecting a "representative of their
own choosing" within the meaning of article I, section 29 of the Missouri Constitution.
Thus, the circuit court erred when it declared, as a matter of law, that the City's ordinance
was unconstitutional because it did not allow sergeants to be members of the same bargaining
unit as police officers and civilian members, failed to establish a specialized procedural
framework for the resolution of conflicts regarding the composition of collective bargaining
units, and did not allow supervisory and non-supervisory employees to be represented by the
same collective bargaining agent.11
11
This court expresses no opinion on the propriety of the City's decision to classify the police sergeants as
supervisory personnel. On the facts as stipulated, it may or may not be an appropriate classification.
24
The circuit court also declared that the ordinance was unconstitutional because it required
a collective bargaining representative receive the votes of a majority of all eligible voters in a
bargaining unit rather than the majority of the votes cast, provided that the City would not pay
any union representative for time spent preparing for or engaging in collective bargaining,
provided that the City would not enter into wage commitments that exceeded one year, provided
that the Board of Alderman retained the right to required the modification of the economic terms
of a labor agreement in the event of a budget shortfall, and provided that the Board of Alderman
retains the ability to modify the terms and conditions of employment for employees in a
bargaining unit in the event the collective bargaining representative was decertified. As
previously noted, the Missouri Supreme Court has explicitly acknowledged that public
legislative bodies have the constitutional authority to establish collective bargaining frameworks
for employees not covered by the Missouri public sector labor law. Independence, 223 S.W.3d at
136.
We need not, however, decide the constitutionality of the City's framework which
required that a labor organization receive more than 50 percent of the votes of all eligible voters
to be designated and recognized by the City as the exclusive bargaining representative for all
employees in the bargaining unit. It is apparent from the record that the number of police
officers, sergeants, and civilian employees desiring to have the Fraternal Order of Police be their
exclusive collective bargaining agent would exceed an absolute majority.12 Under the facts of
this case, regardless of whether an election would require a simple majority or an absolute
12
The parties stipulated that: "The rank structure (and number of positions within that rank) currently
employed within the City's police department consists of: 1 Chief of Police; 1 Deputy Chief of Police; 1 Major; 1
Captain; 9 Sergeants; 41 Sworn Officers; and 18 civilian support employees (includes both full-time and part-time)."
There are 8 named sergeants, 35 named officers, and 5 named civilian employees as plaintiffs in this case. The
representation cards presented to the City on April 25, 2011, were signed by 9 sergeants, 37 police officers, and 4
civilian employees.
25
majority, it would result in the approval of a collective bargaining agent. In a declaratory
judgment action, the courts will not "'adjudicate hypothetical or speculative situations that may
never come to pass.'" Schweich v. Nixon, 408 S.W.3d 769, 778 (Mo. banc 2013) (quoting Mo.
Soybean Ass’n v. Mo. Clean Water Comm’n, 102 S.W.3d 10, 25 (Mo. banc 2003)). Moreover,
courts "'will avoid the decision of a constitutional question if the case can be fully determined
without reaching it.’” Winfrey v. State, 242 S.W.3d 723, 724 n.2 (Mo. banc 2008) (quoting State
ex rel. Union Elec. Co. v. Pub. Serv. Comm'n, 687 S.W.2d 162, 165 (Mo. banc 1985)).
The City also established in its framework for collective bargaining that it would "not pay
any union representative for time spent participating in collective bargaining or preparing for
collective bargaining" and that it would bargain with employees on "economic provisions of the
agreement" on a year-to-year basis only. Ordinance No. 6411, art. 4, §§ 4.3 and 4.5. The
Fraternal Order of Police does not argue that the Missouri Constitution requires the City to pay
its employees for the time spent participating or preparing in collective bargaining. Instead, the
Fraternal Order of Police argues that compensation for collective bargaining is a mandatory
subject of negotiation between the City and the officers' designated collective bargaining
representative. We, however, see nothing in the ordinance which prevents the City from
negotiating with a labor union over whether union representatives should be compensated for
collective bargaining activities. The mere fact that some issue is initially addressed in an
ordinance providing a framework for negotiations does not mean that the City would be
unwilling to negotiate over a change to that ordinance. Many of the City’s existing terms and
conditions of employment for police officers may be contained in ordinances; to the extent an
eventual collective bargaining agreement adopted different terms and conditions, the existing
ordinance could be amended.
26
The same is true of the limitations in the ordinance restricting the economic terms of any
labor agreement to a one year term (Ordinance No. 6411, art. 4, § 4.5), allowing the Board of
Alderman to retain the right to modify the economic terms of any labor agreement in the event of
a budget shortfall13 (Ordinance No. 6411, art. 6 § 6.1), and allowing the Board of Alderman to
retain the ability to modify the terms and conditions of employment for employees in a
bargaining unit in the event a collective bargaining representative is decertified14 (Ordinance No.
6411, art. 3, § 3.6.3). Nothing in the ordinance prevents the City from negotiating with a labor
union over these limitations. The mere fact that some issue is initially addressed in an ordinance
providing a framework for negotiations does not mean that the City would be unwilling to
negotiate over a change to that ordinance.
Indeed, the collective bargaining has not even begun between the City and the Fraternal
Order of Police. The City has enacted its framework, but it has not refused to meet and confer
with the Fraternal Order of Police on any of these issues. The City may be "showing its hand" to
the Fraternal Order of Police regarding its stance on certain issues, but nothing within the
ordinance itself takes the issues off of the table during the bargaining process. The constitution
requires that an employer "meet and confer" with a collective bargaining representative and
engage in the bargaining process in good faith. Am. Federation of Teachers v. Ledbetter, 387
13
We note, however, that the Missouri Supreme Court has stated that labor contracts between individual
employees and governmental bodies cannot be changed unilaterally, even if the agreed upon labor proposal was
adopted by the employer through an ordinance that could be changed by the public body at anytime. Independence,
223 S.W.3d at 139.
14
As noted supra in note 13, labor contracts between individual employees and governmental bodies cannot
be changed unilaterally. Independence, 223 S.W.3d at 139. Indeed, "[a]lthough a collective-bargaining agreement
with a decertified union becomes null and void upon a change in bargaining representative, the employer must abide
by the terms and conditions of employment established under that agreement until a new collective-bargaining
agreement is negotiated or the parties reach impasse." Children's Hosp. and Research Center of Oakland, 360
NLRB No. 56, note 1 (February 28, 2014).
27
S.W.3d 360, 367 (Mo. banc 2012). Besides these parameters, the Missouri Constitution does not
impose any other affirmative duties upon a public employer. No requirements exists in the
constitution that the parties must reach an agreement. Indeed, an impasse may be the result of
good faith bargaining. Moreover, in the absence of a statute dealing with the collective
bargaining process for public employees, the legislative body has the authority "to set the
framework for these public employees to bargain collectively through representatives of their
own choosing." Independence, 223 S.W.3d at 136. Thus, the establishment of a collective
bargaining framework is for the legislative bodies and not the courts. To the extent that the City
may in the future refuse to negotiate concerning any of the terms addressed in the ordinance, the
Fraternal Order of Police may challenge the City's refusal at that time, if it believes that the
refusal violates the duty of a public employer to negotiate in good faith as recognized in
Ledbetter. 387 S.W.3d at 367. Enactment of the ordinance itself, however, does not necessarily
presage a future refusal to negotiate in good faith.
Consistent with this legislative authority, the City enacted Ordinance No. 6411. Indeed,
the Missouri Supreme Court in Chesterfield instructed:
"[T]he point of collective bargaining, of course, is to reach an agreement."
Therefore, an employer of statutorily excluded employees has a duty to bargain
collectively with those employees and, when necessary, adopt procedures to
participate in that process. The absence of such a duty would render meaningless
the rights guaranteed to public employees under article I, section 29.
Because the police officers and sergeants are excluded from Missouri's
public sector labor law, the cities may create their own procedures when
necessary, so long as they satisfy the constitutional requirements.
386 S.W.3d at 760 (citations omitted). The City of Grandview did just this, and its enactment of
Ordinance No. 6411 is a valid exercise of the City's legislative authority.
28
Beyond the affirmative duties to "meet and confer" and to do so in good faith as declared
by the Missouri Supreme Court in Ledbetter, 387 S.W.3d at 367, we find nothing in article I,
section 29 of the Missouri Constitution that prohibits the City from establishing the framework it
provided in Ordinance No. 6411.15 It is for the City to decide, as a matter of policy, when and
how they desire to meet and confer to collectively bargain with their employees. As long as they
"meet and confer" and do so in good faith, the City has met its constitutional duties under
article I, section 29 of the Missouri Constitution. Although a court may "read a constitutional
provision broadly, it cannot ascribe to it a meaning that is contrary to that clearly intended by the
drafters." Farmer v. Kinder, 89 S.W.3d 447, 452 (Mo. banc 2002). "[T]here is . . . . no authority
for [a] Court to read into the Constitution words that are not there." Independence, 223 S.W.3d
at 137. Article I, section 29 of the Missouri Constitution serves only to guarantee the right of
employees to organize and to bargain collectively through representatives of their own choosing.
The Missouri Supreme Court declared in Quinn v. Buchanan, 298 S.W.2d 413, 417 (Mo. banc
1957),16 that the purpose of article I, section 29 of the Missouri Constitution "'was to declare that
such rights of collective bargaining were established in this state. It means that employees have
the right to organize and function for a special purpose: namely, for the purpose of collective
bargaining.'" The Quinn court, however, stated, "Sec. 29, Art. I is not a labor relations act,
specifying rights, duties, practices and obligations of employers and labor organizations[.]" Id.
at 418. The provisions of the ordinance noted above that the circuit court declared
15
The City may well have gone beyond establishing the procedural framework for negotiations by setting
forth its initial positions on a variety of anticipated issue but that does not make the framework established
constitutionally infirm. By the same token, the Fraternal Order of Police wishes to avoid negotiating with the City
over many of these same issues by arguing that they are constitutionally entitled to prevail.
16
The Missouri Supreme Court overruled Quinn in Chesterfield but only to the extent that Quinn held that
article I, section 29 of the Missouri Constitution did not impose any affirmative duty on employers to bargain
collectively. Chesterfield, 386 S.W.3d at 760-62.
29
unconstitutional in this case do not in any way violate the employees' right to organize and to
bargain collectively.
As part of the judicial branch, the circuit court's authority in this case was limited to
determining whether the ordinance violated article I, section 29 of the Missouri Constitution.
The circuit court's declarations regarding the City's ordinance, however, crossed the line from
adjudication to legislation. As such, the circuit court's declarations violated the separation of
powers provision embodied in article II, section 1 of the Missouri Constitution. Article II,
section 1, provides:
The powers of government shall be divided into three distinct
departments--the legislative, executive and judicial--each of which shall be
confided to a separate magistracy, and no person, or collection of persons, charged
with the exercise of powers properly belonging to one of those departments, shall
exercise any power properly belonging to either of the others, except in the
instances in this constitution expressly directed or permitted.
The circuit court engaged in legislative functions by imposing obligations on the City not found
in the plain language of article I, section 29.
The circuit court, in essence, was making policy determinations about what it believed
should be required in the collective bargaining process with the City. Implementation of policy,
however, is solely the prerogative of the legislative branch. "To substitute for the concept of the
[City] [the court's] view of what might be the more salutary public policy would be for [the
court] to legislate rather than to adjudge." Lemasters v. Willman, 281 S.W.2d 580, 590 (Mo.
App. 1955). The court's function "is to declare the law as [the court] discover[s] it in the text
furnished us by the [City] and when we have done so our authority ends." Id. "Courts determine
questions of power, not policy." Bader Realty & Inv. Co. v. St. Louis Housing Auth., 217 S.W.2d
489, 493 (Mo. banc 1949). It was within the City's discretion alone to decide when and how they
30
desire to meet and confer to collectively bargain with their employees, and it was not for the
circuit court to set standards or policies regulating the City's authority to collectively bargain
with its employees.
Article I, section 29 merely serves to protect an employees' 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. "If people want to change the
constitution, the means are available to do so." Independence, 223 S.W.3d at 137. But, it is not
for the courts to change the constitution. In the absence of wording in the Constitution that limit
the City'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.17 The determination of such standards is left to the
discretion of the legislative body, which in this case is the Board of Alderman of the City of
Grandview. On the current record, and in light of the arguments made by the Fraternal Order of
Police, the City's ordinance does not "'clearly and undoubtedly'" contravene article I, section 29
of the Missouri Constitution by: (1) summarily declaring that police sergeants are supervisory
employees and are prohibited from being in the same bargaining unit as police officer; (2) failing
to provide a fair and impartial forum for full and fair consideration and resolution of conflicts;
(3) prohibiting sergeants and police officers from being represented by the same organization in
separate bargaining units; (4) summarily prohibiting collective bargaining representatives
employed by the City from receiving pay from the City for time spent preparing for, and
17
Even if this court were to agree that the circuit court's construct of the framework for collective
bargaining was superior to that of the City's, it is nonetheless our task to allow the City to set its own policy.
Policies need flexibility to change with experience and circumstances. Policies set by constitutional mandate lack
flexibility to meet evolving circumstances, even when it involves a matter of agreement between the parties.
31
participating in, collective bargaining; (5) summarily limiting to a maximum of one year the
duration of economic provisions of any labor agreement reached in collective bargaining; (6)
retaining the right to require the modification of the economic terms of any labor agreement in
the event of a budget shortfall; and (7) retaining the ability to modify the terms and conditions of
employment for employees in the bargaining unit in the event a collective bargaining
representative is decertified. Enactment of these provisions of the ordinance is a valid exercise
of the City's legislative authority.18
Conclusion
We, therefore, reverse the circuit court's judgment granting summary judgment in favor
of the Fraternal Order of Police in regard to the circuit court's determination about the
constitutionality of the City of Grandview's ordinance and remand to the circuit court with
instructions to enter summary judgment in favor of the City. We, however, make no
determination about the constitutionality of the provision of the ordinance requiring that a
collective bargaining representative receive more than 50 percent of votes of all eligible voters.
We also reverse the circuit court's determination that, as a matter of law, an election was not
necessary in this case and that the City must immediately recognize the Fraternal Order of Police
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The ordinance also does not violate article I, section 2 (equal protection) and article I, section 10 (due
process) of the Missouri Constitution. The police officers, sergeants, and civilian members have not been denied
their right to collectively bargain. The equal protection and due process clauses do not give the police officers,
sergeants, and civilian members the constitutional right to determine the framework under which they may
collectively bargain. Determination of the collective bargaining framework is a decision for the appropriate
legislative body and in this case that is the Board of Alderman. As long as the framework provides a reasonable
means for the employees to exercise their right to bargain collectively and does not curtail the exercise of a
fundamental right, they have not been deprived of their constitutional rights to equal protection and due process.
Article I, section 29 gives these the employees "the right to organize and to bargain collectively through
representatives of their own choosing." As previously discussed, the City's ordinance did not infringe upon this
right in any way.
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as the exclusive bargaining representative of the proposed bargaining unit of police officers and
sergeants.
/s/ JAMES EDWARD WELSH
James Edward Welsh, Judge
All concur.
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