General Drivers, Helpers, & Truck Terminal Employees, Local 120 v. City of St. Paul

270 N.W.2d 877, 99 L.R.R.M. (BNA) 2899, 1978 Minn. LEXIS 1153

• Court: Supreme Court of Minnesota
• Decided: September 1, 1978
• Docket: 47761
• Status: Published

Opinions

PETERSON, Justice.

The issue for decision is whether the Minnesota Public Employment Labor Relations Act (PELRA) permits sympathy strikes by public employees in support of "a lawful primary strike by public employees in collective bargaining units of which the sympathy strikers are not members. The issue is solely one of statutory construction. The district court of Ramsey County ruled that such a sympathy strike is prohibited by Minn.St. 179.64, subd. 1 (PELRA), and we are compelled to agree.

Employees of the city of St. Paul in two bargaining units of clerical and technical employees, represented by Council 91, American Federation of State, County and Municipal Employees (Council 91), commenced a lawful strike against the city on May 26, 1976. Negotiations for a new agreement were unsuccessful and, pursuant to § 179.69, Council 91 requested binding arbitration. The Bureau of Mediation Services (BMS) then certified that an impasse had been reached. In this situation the city had a choice¹ between agreeing to arbitration or accepting a lawful strike by the two bargaining units represented by Council 91. The city chose not to arbitrate. Employees in the two bargaining units accordingly were, by statute, authorized to and lawfully did picket their place of employment with banners publicizing the strike.

Employees of the city of St. Paul in other bargaining units, represented by several other labor unions, plaintiffs in this matter, gave notice of their intention to strike in sympathy by refusing to cross the picket lines of the striking employees and to report for work. The city responded with notice to plaintiffs’ members that only Council 91 employees in the two bargaining units could lawfully strike and that their own refusal to work would subject them to discipline, including suspension or termination of employment. Plaintiffs promptly initiated an action for declaratory judgment and an injunction against disciplinary action by the city.²

The threshold premise is that under both state and Federal law public employees do not possess all of the rights of nonpublic employees. Permissible practices which are commonplace in the private sector of employment are not so in the public sector unless permitted by statute. President Franklin D. Roosevelt, under whose administration the original Wagner Act was enacted for the benefit of private employees, said of public employees:

“ * * * [A] strike of public employees manifests nothing less than an intent on their part to prevent or obstruct the operations of Government until their demands are satisfied. Such action, looking toward the paralysis of Government by those who have sworn to support it is unthinkable and intolerable.”³

To this day, the National Labor Relations Act applies only to private sector employees, 29 U.S.C.A. § 152 (2 and 3), and sympathy strikes by Federal employees are prohibited. Exec. Order No. 11491, 5 C.F.R. 2400.1 (Supp.1975), 5 U.S.C.A. §§ 7301, 7311. Under common law, a strike by public employees for any purpose was unlawful. Head v. Special School Dist. No. 1, 288 Minn. 496, 182 N.W.2d 887 (1970), certiorari denied, 404 U.S. 886, 92 S.Ct. 196, 30 L.Ed.2d 186 (1971).

Minnesota has by legislative enactment occupied a middle ground in conferring upon public employees some, but not all, rights enjoyed by nonpublic employees. The Public Employment Labor Relations Act, when first enacted in 1971, granted public employees the right to meet and confer with their public employer but continued to withhold from them any right to strike. Ex.Sess.L.1971, c. 33.⁴ Minn.St. 179.63, subd. 12, defines a “strike” as follows:

“ ‘Strike’ means concerted action in failing to report for duty, the willful absence from one’s position, the stoppage of work, slowdown, or the abstinence in whole or in part from the full, faithful and proper performance of the duties of employment for the purposes of inducing, influencing or coercing a change in the conditions or compensation or the rights, privileges, or obligations of employment.”

This definition is supplemented by § 179.64, subd. 3, which provides:

“ * * * [A]n employee who is absent from any portion of his work assignment without permission, or who abstains wholly or in part from the full performance of his duties without permission of his employer on the date when a strike occurs is prima facie presumed to have engaged in a strike on such date or dates.”

Under these provisions, it is clear that failure to report for work because of refusal to cross a picket line (commonly termed a sympathy strike) is a “strike” under PELRA.

PELRA’s general prohibition against strikes is set out in § 179.64, subd. 1, which provides:

“No person holding a position by appointment or employment in the government of the state of Minnesota, or in the government of any one or more of the political subdivisions thereof, or in the service of the public schools, or of the state university, or in the service of any authority, commission or board or any other branch of the public service, whether included or excepted from this act may engage in a strike, nor shall any such person or organization of such persons or its officials or agents cause, condone, instigate, encourage, or cooperate, in a strike except as may be provided in subdivision 7.” (Italics supplied.)

In the provision just quoted, the reference to subd. 7 was added in 1973, when subd. 7 was amended⁵ to create two exceptions where strikes by public employees are lawful. Subdivision 7 phrases these two exceptions as follows:

“Either a violation of section 179.68, subdivision 2, clause (9) [employer’s duty to comply with valid arbitration decision], or a refusal by the employer to request binding arbitration when requested by the exclusive representative pursuant to section 179.69, subdivision 3 or 5, is a defense to a violation of this section, except as to essential employees * * (Italics supplied.) Minn.St. 179.64, subd. 7.

The first exception allows a strike where a public employer refuses to comply with a valid arbitration decision. The second exception (emphasized in the quotation above) allows a strike where an employer and a bargaining unit have reached a certified impasse and the employer elects not to submit the impasse to arbitration. It is this second exception which allowed Council 91 to strike. Plaintiffs argue that this exception also allows their members to engage in a supporting sympathy strike. We disagree.

Under the terms of the second exception a strike is allowed only where there is a “a refusal by the employer to request binding arbitration when requested by the exclusive representative pursuant to section 179.69, subdivision 3 or 5 * * *.” In the present case only the two bargaining units represented by Council 91 have reached a certified impasse and have requested and been refused arbitration. Thus, in our opinion, the terms of the second exception allow only these two bargaining units lawfully to strike. The exception refers to an arbitration request by “the exclusive representative,” which indicates the legislature recognized that different exclusive representatives often request separate bargaining units. Separate bargaining units are particularly important in public sector employment. Among other things, they help prevent disputes involving some public employees from automatically expanding to involve all public employees and thus paralyzing an entire governmental body. In this case the interpretation sought by plaintiffs would allow the strike to spread from the two bargaining units which sought arbitration to all other bargaining units of nonessential employees, even though these bargaining units were not engaged in a certified impasse and had never sought arbitration. As we interpret the second exception in subd. 7, it does not allow this result.

Our interpretation finds support in the context in which the second exception appears. It will be noted that both exceptions in subd. 7 are closely related to arbitration. Both exceptions seem clearly intended to allow strikes only as a limited instrument for encouraging effective arbitration. The two exceptions cannot be read either as overthrowing subd. l’s general rule against public employee strikes or as granting public employees the same right to strike as private-sector employees.

The statutory history also supports our interpretation of the statute. The terms of the 1973 amendment which created the two exceptions in subd. 7 must be viewed against the longstanding statutory prohibition against strikes by public employees. When the 1973 Legislature first created exceptions to this prohibition it would not have chosen the limited terminology of subd. 7 if it had intended to allow a strike by all nonessential city employees in all bargaining units because of an impasse involving only two bargaining units.⁶

Our interpretation of PELRA does not achieve an unprecedented result. The states of Oregon (Or.Rev.Stat. § 243.732) and Pennsylvania (Pa.Stat.Ann. title 43, 1101.1101) likewise provide that public employees (other than those engaged in a non-prohibited strike) who refuse to cross a picket line are deemed to be engaged in a prohibited strike. Those states accomplish that result by more specific language than our own statute, but PELRA, read in the light of its statutory development, no less clearly evinces a like legislative intent. What our legislature has withheld, it may of course at any time confer as it may determine to be in the public interest.

Affirmed.

1 . These clerical and technical employees are classified by statute as “non-essential” employees. It is only where the employees are “essential,” and therefore may not strike, that the employer must agree to arbitration. St. Paul Prof. Employees Assn. v. City of St. Paul, 303 Minn. 106, 226 N.W.2d 311 (1975).

2 . Some of the plaintiffs’ members refused to cross the picket lines, but others did not because of the city’s threat of disciplinary action. The record does not disclose whether any of the former were in fact disciplined.

3 . Quoted in Norwalk Teachers’ Assn. v. Board of Education, 138 Conn. 269, 274, 83 A.2d 482, 484, 31 A.L.R.2d 1133, 1138 (1951), and Head v. Special School Dist. No. 1, 288 Minn. 496, 508, 182 N.W.2d 887, 894 (1970), certiorari denied, 404 U.S. 886, 92 S.Ct. 196, 30 L.Ed.2d 186 (1971).

4 . Prior to enactment of PELRA, Minnesota statutes also prohibited strikes by public employees and provided that a striking employee’s position was terminated automatically by operation of law. Garavalia v. City of Stillwater, 283 Minn. 335, 168 N.W.2d 336 (1969); L.1951, c. 146, § 4 (repealed by PELRA, Ex.Sess.L.1971, c. 33, § 17).

5 . Laws 1973, c. 635, § 8.

6 . We acknowledge plaintiffs’ argument that because subd. 7 specifically excludes essential employees it follows that all nonessential employees are necessarily included in its second provision. The exclusion of essential employees is really of no relevance since in this dispute only nonessential employees are involved, who plainly must be involved in a certified impasse and refusal to arbitrate as a precondition to a lawful strike.