State ex inf. Ashcroft v. Kansas City Firefighters Local No. 42

• Decision Date: 01 May 1984
• Docket Number: No. WD,WD
• Citation: State ex inf. Ashcroft v. Kansas City Firefighters Local No. 42, 672 S.W.2d 99 (Mo. App. 1984)
• Parties: 120 L.R.R.M. (BNA) 2450 STATE of Missouri, ex inf., John ASHCROFT, Respondent, v. KANSAS CITY FIREFIGHTERS LOCAL NO. 42, et al., Appellant. 33928.
• Court: Missouri Court of Appeals

Page 99

672 S.W.2d 99

120 L.R.R.M. (BNA) 2450

STATE of Missouri, ex inf., John ASHCROFT, Respondent, v.KANSAS CITY FIREFIGHTERS LOCAL NO. 42, et al., Appellant.

No. WD 33928.

Missouri Court of Appeals Western District.

May 1, 1984.

Motion for Rehearing and/or Transfer to

Supreme Court Overruled and Denied

May 29, 1984.

Application to Transfer Denied

July 17, 1984.

Joseph W. Moreland, Blake & Uhlig, Kansas City, for appellant.

John Ashcroft, Atty. Gen., Robert L. Presson, Asst. Atty. Gen., Jefferson City, for respondent.

Before SOMERVILLE, P.J., and SHANGLER and MANFORD, JJ.

SHANGLER, Judge.

This appeal is from a judgment taken by the State of Missouri against the membership of Kansas City Firefighters LocalNo. 42, an unincorporated association, as a defendant class.The petition was on a theory of tort to recover damages occasioned to the State by the activation of the National Guard to perform the function of the Kansas City Firefighters during a period of illegal strike.The court entered a judgment for compensatory [$128,782.72] and punitive [$25,000.00] damages.

The appeal questions (1) the validity of the action procedure which issued in judgment (2) the award of punitive damages against the association Kansas City Firefighters LocalNo. 42, eo nomine, (3) that the law imposes any duty upon public employees--answerable in tort for the breach--for consequences of a strike and (4) the reimbursement to the State Treasury for the expense of the militia in view of the provision of statute that such costs shall be paid from general revenues.

The judgment we review was rendered on a petition amended to plead a recovery in tort.It was a sequel to a judgment rendered on a petition of quasi-contract, but reversed by this court in State ex rel. Danforth v. Kansas City Firefighters Local No. 42, 585 S.W.2d 94(Mo.App.1979).That decision gave opinion that there was no proof that the militia services by the State of Missouri, albeit done in the discharge of a performance of duty owed by another [LocalNo. 42], were rendered with any expectation of pay--an essential element of the species of quasi-contract [Negotiorum Gestio ] asserted for recovery.The petition on remand was amended to plead that the act of strike by the Firefighters against the governmental employer was illegal and tortious, so that the call to the militia by the proclamation of the Governor to protect against the hazards of life and property created by the refusal of the Firefighters to function was a foreseeable consequence of that unlawful conduct and entitled the State of Missouri to recover damages.

The petition for damages, as was the petition on quasi-contract, was brought by the Attorney General for the plaintiffState of Missouri against thirteen [later reduced to twelve] named officers and executive board members as representatives of the defendant class: Kansas City Firefighters LocalNo. 42.The cause of action on the amended petition for tort, as on the original petition for quasi-contract, was submitted on stipulated facts, depositions and exhibits.

The salient evidence discloses that the Kansas City Firefighters LocalNo. 42 is an unincorporated association, and that at the time of the strike event, consisted of the enumerated members, all employed by the City of Kansas City as the municipal fire department.In August of 1973, LocalNo. 42 notified the City that a dispute and impasse subsisted between them [as defined in a Memorandum of Understanding executed earlier that year].The prominent disagreement was on the question of parity of pay between the municipal firefighters and policemen.The federal mediation was to no avail, nor did two successive fact-finding panels resolve the issue.The executive board of LocalNo. 42 concurred in the decision to strike the City or to a work stoppage tantamount to strike to commence on October 3, 1975.The majority of the board, president Shortino and secretary Walsh among them, recommended to the membership of the Firefighters union local that they vote a strike.The membership of the Firefighters met on September 30 and October 1, 1975, with some dissent, agreed to cease performance of the firefighter duty and to strike the city.The defendants Shortino and Walsh, president and secretary, released an open letter from LocalNo. 42 to the citizenry of the municipality of the intent to strike on the morning of October 3, 1975.

The day before that threatened action, the City obtained a temporary restraining order to prohibit the firefighters from the strike.That order notwithstanding, the firefighters struck.The firefighters refused to report for duty, refused to respond to fire alarms, and refused to maintain the equipment.The executive board, as prelude to the strike action, sought and received commitments from other area professional firefighters not to enter the city limits to deal with fire or other emergency.Thus, from October 3, 1975, the city was without recourse to a professional firefighter force adequate to the protection of the life and property of the city populace of 490,000 persons.On the morning of the strike, the fire stations were secured by members of the municipal police department and the police vehicles were equipped with fire extinguishers.

This condition of emergency was reported to the Governor of Missouri by the city officials and on October 3, 1975, by proclamation, the Governor ordered the state militia into emergency duty under the authority of § 41.480, RSMo 1978.The strike ended on October 7, 1975, and the service of the militia ended concurrently.The militia incurred $128,782.72 in expenses during that emergency period, and those obligations were met from the gross sum of $500,000 appropriated by the General Assembly for such emergency purposes.The State of Missouri sued for reimbursement from the union membership as well as for an award of punitive damages.The court responded in judgment.

The amended petition sounds in tort--the tort of intentional wrong.The labor union defendants contend that the judgment rests neither on any developed principle of common law nor of statutory right.They urge, rather, that reasons of sound policy compel a court to remain neutral between protagonists in the public employment sector, and that to fashion a remedy in damages as redress for consequences of concerted employee activity inevitably embroils a court in an intricate competition of interests more tractable to the legislative function.They posit, in effect, that any damage from public employee strikes, albeit an unlawful activity, is damnum absque injuria unless such a liability is imposed by positive legislative act.The plaintiffState of Missouri asserts that strike by public sector employees is unlawful both under the common law and statute[§ 105.530] and that each engenders a remedy for damages: the traditional forms of action from the one, and the implied right of a civil redress from the other.

The early common law treated concerted worker activity to raise wages first as a criminal conspiracy, and then as a civil conspiracy, and so unlawful per se.The theory, in that era of laissez-faire, was that although a combination of capital for the purpose of trade and competition was a legitimate end, a combination of workers to raise wages was a harm to the employer, and so was an unjustified activity.That view, however, never took hold in American courts.M. Forkosch, A Treatise on Labor Law, Chapter IX(2d ed. 1965).It was the forceful opinion rendered by Chief Justice Shaw in Commonwealth v. Hunt, 45 Mass. (4 Met.) 111(Sup.Jud.Ct.1842), rather, which announced the authoritative principle, now uniformly held in our courts, that a labor union is per se a lawful concert, and may pursue measures for self-betterment of the members even at the expense of the gains and profits of the employer.The legality of combination, therefore, is no longer impaired by worker self-interest pursued at the expense of the employer, unless the object of the activity or the means used are not lawful.Adams Dairy v. Burke, 293 S.W.2d 281, 288(Mo.1956).The right of workers "to organize and to bargain collectively through representatives of their own choosing" to gain these ends is now conferred by the Bill of Rights of the Missouri Constitution of 1945[Article I, § 29].That provision however, applies only to employees in the private sector, and not to public employees.Sumpter v. City of Moberly, 645 S.W.2d 359, 361(Mo. banc 1982).The public employees may require the governmental employer to "meet, confer and discuss" proposals as to terms of employment, but not to agree.[Public Sector Labor Law§ 105.520, RSMo 1978];State ex rel. Missey v. City of Cabool, 441 S.W.2d 35, 41[2-5](Mo.1969).

The early common law, as a cognate to the theory of conspiracy, also prohibited strikes against any employer, private or public.Note, Private Damage Actions Against Public Sector Unions for Illegal Strikes, 91 Harv.L.Rev. 1309, 1310, n. 5(1978);R. Gorman, Basic Text on Labor Law 1-2(1976).That restraint was ameliorated as to private employees by the Clayton Act in year 1914, and the principle has since become a general tenet of labor law.1 Lab.L.Rep.(CCH)p 1426(1972).Thus, the members of a union may use strike, picket, boycott, or other peaceful means in concert to gain a lawful employment objective.Fred Wolferman, Inc. v. Root, 356 Mo. 976, 204 S.W.2d 733, 735(Mo. banc 1947).The common law rule that public employees may not strike, however, continues to obtain.A preponderance of the jurisdictions, the federal government and Missouri among them, rather than annul, have confirmed the common law prohibition by legislative enactment.Note, Damage Liability of Public Employee Unions for Illegal Strikes, 23 B.C.L.Rev. 1087(1982).Thus, § 105.530 provides: "Nothing contained in sections 105.500 to 105.530[the Public Sector Labor Law] shall be construed...