State By and Through Dept. of Highways v. Public Emp. Craft Council of Montana

• Decision Date: 09 December 1974
• Docket Number: No. 12765,12765
• Citation: 529 P.2d 785,165 Mont. 349
• Parties: , 88 L.R.R.M. (BNA) 2012, 76 Lab.Cas. P 53,549 The STATE of Montana, Acting By and Through the DEPARTMENT OF HIGHWAYS of the State of Montana, Plaintiff and Appellant, v. PUBLIC EMPLOYEES CRAFT COUNCIL OF MONTANA et al., Defendants and Respondents.
• Court: Montana Supreme Court

Page 785

529 P.2d 785

165 Mont. 349, 88 L.R.R.M. (BNA) 2012,

76 Lab.Cas. P 53,549

The STATE of Montana, Acting By and Through the DEPARTMENT

OF HIGHWAYS of the State of Montana, Plaintiff and Appellant, v. PUBLIC EMPLOYEES CRAFT COUNCIL OF MONTANA et al., Defendants

and Respondents.

No. 12765.

Supreme Court of Montana.

Submitted Nov. 18, 1974.

Decided Dec. 9, 1974.

Jack Holstrom argued and Daniel J. Sullivan appeared, Highway Legal Department, Helena, for plaintiff and appellant.

Hilley & Loring, Great Falls, Benjamin W. Hilley argued and Emilie Loring argued, Great Falls, for defendants and respondents.

JAMES T. HARRISON, Chief Justice.

This case involves a strike by approximately 285 teamsters operating engineers, machinists, laborers, and painters employed by appellant Montana Department of Highways to perform all highway maintenance functions on interstate, primary, and certain secondary roads in the Butte, Great Falls, Missoula, Bozeman, and Helena areas. These employees were responsible for the repair, reconditioning, and general upkeep of roughly 3,000 miles of roads. Their major duties were: removing snow and ice from the traveled surfaces and applying traction materials such as sand and chemicals; patching, resurfacing, and regrading road surfaces; repairing bridges and other highway structures; repairing, replacing, or installing snow fences, culverts, ditches, fences, traffic safety devices, signs and signals, guardrails, and traffic delineators within right-of-way limits; stockpiling traction materials for snow season use; repairing and maintaining roadside rest areas, litter barrels, and compsites; repairing and maintaining state motor pool vehicles, snow plows, road patrols, caterpillars, and other equipment utilized in appellant's maintenance operations; and performing services during emergencies, such as assisting stranded motorists, removing obstructions (over-turned vehicles, rock slides, etc.), and providing traffic control. Of necessity, these activities were performed on a 24 hour basis.

The strike by respondent Public Employees Craft Council against appellant occurred on January 21, 1974, and appellant applied to the district court of Lewis and Clark County the same day for a temporary restraining order prohibiting the strike. The district court granted appellant's request and scheduled a show cause hearing to determine whether the strike should be permanently enjoined. Respondent filed a motion to dismiss appellant's complaint, and a show cause hearing thereon was scheduled for March 28, 1974.

At the hearing on the motion to dismiss, the allegations contained in appellant's complaint-including those relating to disruption of highway maintenance programs and injury to the health, safety, and welfare of the traveling public-were admitted. It should be noted here, however, that the issues before us and discussed hereafter in this opinion, do not involve injury to the health, safety and welfare of the traveling public. Nevertheless, the district court granted the motion to dismiss and dissolved the temporary restraining order. Appellant appeals from that order.

There is but one issue: Did the district court err in determining that the maintenance employees of the Montana Department of Highways have the right to strike under Montana's Public Employees Collective Bargaining Act?

The portion of the Public Employees Collective Bargaining Act in dispute, section 59-1603(1), R.C.M.1947, provides:

'Public employees shall have, and shall be protected in the exercise of, the right of self-organization, to form, join or assist any labor organization, to bargain collectively through representatives of their own choosing on questions of wages, hours, fringe benefits, and other conditions of employment and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, free from interference, restraint or coercion.' (Emphasis added).

This language is almost identical to that found in the Labor Management Relations Act (Taft-Hartley Act), 1947, which at 29 U.S.C.A. § 157, provides:

'Employees shall have the right to self-organization, to form, join, or assist in labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection * * *.' (Emphasis added).

The phrase 'concerted activities' does not appear in any other Montana statute, and this Court has never been called upon to interpret it. The phrase first appeared in the Norris-LaGuardia Anti-Injunction Act, 1932, at 29 U.S.C. § 102; then in the National Labor Relations Act (Wagner Act), 1935, at 49 Stat. 449, 452; and again in the Taft-Hartley Act, 1947, 29 U.S.C.A. § 157.

Consequently, some forty years of federal interpretation is behind this language. The United States Supreme Court, as well as innumerable lower federal courts, has consistently held that 'concerted activities' includes strikes. Automobile Workers v. O'Brien, 339 U.S. 454, 70 S.Ct. 781, 94 L.Ed. 978; Bus Employees v. Wisconsin Board, 340 U.S. 383, 389, 71 S.Ct. 359, 95 L.Ed. 364; Weber v. Anheuser-Busch, 348 U.S. 468, 75 S.Ct. 480, 99 L.Ed. 546. These cases all involved state legislative attempts to limit the right to strike in the private sector. The Supreme Court found such efforts to be in conflict with the protections afforded by the Taft-Hartley Act and thus unconstitutional under the Supremacy Clause (Article VI) of the United States Constitution. In Bus Employees, the Supreme Court stated:

'We have recently examined the extent to which Congress has regulated peaceful strikes for higher wages in industries affecting commerce. International Union of Automobile Workers v. O'Brien, 339 U.S. 454, 70 S.Ct. 781, 94 L.Ed. 978 (1950). We noted that Congress, in § 7 of the National Labor Relations Act of 1935, as amended by the Labor Management Relations Act of 1947, expressly safeguarded for employees in such industries the 'right * * * to engage in * * * concerted activities for the purpose of collective bargaining or other mutual aid or protection,' 'e. g., to to strike."

Appellant contends that a different interpretation of 'concerted activities' ought to prevail here, since public rather...