In a 1978 court case – General Drivers, Helpers, And Truck Terminal Employees, Local 120 and AFSCME Council 91 v. City Of St. Paul – the Minnesota Supreme Court, in an opinion written by Justice C. Donald Peterson [according to his obituary, the last justice to reach the office by popular election, in 1966], held that PELRA prohibits sympathy strikes by public employees in support of a lawful strike by members of other bargaining units of the same public employer. The court looked specifically at the statutory definition of “strike,” and (mis-)interpreted it: “[I]t 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.”

The court was divided, with a strong dissenting opinion by Justice George M. Scott [according to his obit, in 1960 he served as Hubert Humphrey’s campaign manager in a successful run for reelection for the U.S. Senate], joined by three other justices:

“I strongly disagree with the view of the majority that [PELRA] prohibits a sympathy strike of public employees in support of a lawful strike by members of other bargaining units of the same public employer.

“While it is true that our legislature placed certain threshold restrictions on the public employees’ right to strike which are not present in private sector labor relations law, it does not follow, as has been suggested, that once either of the two statutory prerequisites to a lawful public employees’ strike has occurred [that is, a violation of the employer’s duty to comply with a valid arbitration decision or a refusal by the employer to request binding arbitration when requested by the exclusive representative], the legislature intended to deprive public employees of any of the devices for mutual aid or protection, including a sympathy strike, available to their counterparts in the private sector. Historically, one of the most fundamental rights possessed by an employee or group of employees is the right to request and enlist the support of other employees …

“If, therefore, one public employee bargaining unit engages in a lawful strike after the public employer has taken one of the two actions set forth in subdivision 7, all nonessential employees of that public employer may come to the mutual aid and protection of the unit engaged in the strike by engaging themselves in a sympathy strike … Under a contrary rule, the purposes of PELRA would be greatly frustrated since in many instances the statutory right to strike would be rendered a nullity, a result I must conclude the legislature did not intend.”

This was also the position advanced by the unions. They may have wanted to avoid an argument that PELRA does not cover sympathy strikes at all, based on how the definition of strike is conditioned by its purpose, since in that case their legality would revert to a determination under Minnesota common law, and as the majority pointed out: “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).”

Just to note further that there may be a legislative project in the works for amending PELRA to affirmatively protect sympathy strikes, as suggested by the 2005 “Legislative Policies” document of the Minnesota School Boards Association, which includes: “2.27 – Opposes amending the Public Employee Labor Relations Act to permit employee ‘sympathy strike’ rights.”

Thanks for the invitation to help with leaflets. I would be happy to help in the drafting, but as I’m in Geneva, Switzerland, I wouldn’t be able to help with the distributing!

I agree with you that “protected” action is stronger than “not illegal,” and that the employer would probably be found under university rules to have “just cause” to fire people for absenteeism or abstention from duties, even if PELRA doesn’t forbid sympathy strikes but leaves them unprotected. I can’t think of a way around that (other than sheer mass power by all university workers and students), and perhaps that’s a good tactical reason for teachers to hold their classes but do so off-campus, rather than to respect the picket lines and cancel them.

I see from the U of M Labor & Community Strike Support Committee (uworkers.org/node/7) that this is the strategy being deployed.

I agree that Sullivan’s statement that doing so “presents potential accessibility and liability issues” is little more than scare-mongering. What he may be referring to is legally required access to classes by disabled students, and/or perhaps to liability under accident insurance policies that exclude coverage for work-related injuries sustained by university employees while off-campus. These are issues/precautions that could simply be worked out on an ad hoc basis.

In any case, there is precedent for holding strike-related, off-campus classes, such as the 2003 clerical workers strike:

http://www.hhh.umn.edu/img/assets/19684/case.pdf

“Faculty worked with the Strike Support Committee to find off-campus locations to hold classes so students would not have to cross the picket lines. In the first two days of the strike alone, 150 classes affecting 4,000 students in the Twin Cities were held off campus.”

It might be useful to try to find out how that experience went and what, if any repercussions, ensued.

I have a few further thoughts about PELRA, the weapon this management crowd seems hell-bent on (mis-)using, regardless of what it means or of whether solidarity action takes the form of a sympathy strike (respecting the picket lines and canceling classes) or holding off-campus classes:

— Management is making some wild and arguably illegal statements.

The Provost’s email that you have posted: “The Public Employment Labor Relations Act (PELRA) requires University of Minnesota employees to report to work in the event of a strike by another union.”

A similar one by a management lawyer, posted by Jesse Wozniak [http://thisblogkillsfascists.blogspot.com]:

“The Public Employment Labor Relations Act (PELRA) explicitly requires non-striking University of Minnesota employees to report to work in the event of a strike by another union.”

I can find no such language in the PELRA. It appears that they are referring to Subdivision 3 of section 179A.19:

“179A.19 ILLEGAL STRIKES.
…
Subd. 3. Presumption of strike. For purposes of this section, an employee who is absent from any portion of a work assignment without permission, or who abstains wholly or in part from the full performance of duties without permission from the employer on a day when a strike not authorized by this section occurs is prima facie presumed to have engaged in an illegal strike on that day.”

But under this clause the presumption (that abstention from duties constitutes an illegal strike) presupposes the occurrence of an illegal strike. Nowhere in the statute do I see an explicit ban on sympathy strikes, and from my perspective such a ban cannot reasonably be implied — again because of the way the statute explicitly includes purpose to narrow its definition of a “strike,” as well as the narrow scope of its definition of U of M “essential employees”:

“179A.03 DEFINITIONS.

“Subd. 7. Essential employee.

“For University of Minnesota employees, ‘essential employee’ means all employees in law enforcement, nursing professional and supervisory units, irrespective of severance, and no other employees.

“Subd. 16. Strike. ‘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.”

Sullivan’s statement might be accurate enough, except that he slips in the word “sympathy,” thereby turning it into wishful fiction:

“University employees who refuse to report to work as directed are considered under state law to be engaged in an illegal sympathy strike and are subject to discipline.”

In effect, these statements amount to forced labor and thereby arguably directly violate employee rights section 179A.06:

“179A.06 RIGHTS AND OBLIGATIONS OF EMPLOYEES.
Subdivision 1.
… Sections 179A.01 to 179A.25 do not require any public employee to perform labor or services against the employees’ will.”

… not to mention rights under the State Constitution:

Sec. 2. RIGHTS AND PRIVILEGES. … There shall be neither slavery nor involuntary servitude in the state otherwise than as punishment for a crime of which the party has been convicted.

I’m running out of room and will to have to file a separate comment to get the rest of my thoughts in …

Paul

Thanks for the invitation to help with leaflets. I would be happy to help in the drafting, but as I’m in Geneva, Switzerland, I wouldn’t be able to help with the distributing!

I agree with you that “protected” action is stronger than “not illegal,” and that the employer would probably be found under university rules to have “just cause” to fire people for absenteeism or abstention from duties, even if PELRA doesn’t forbid sympathy strikes but leaves them unprotected. I can’t think of a way around that (other than the exercise of grassroots mass power by all university workers and students), and perhaps that’s a good tactical reason for teachers to hold their classes but do so off-campus, rather than to respect the picket lines and cancel them.

I see from the U of M Labor & Community Strike Support Committee (uworkers.org/node/7) that this is the strategy being deployed.

I agree that Sullivan’s statement that doing so “presents potential accessibility and liability issues” is little more than scare-mongering. What he may be referring to is legally required access to classes by disabled students, and/or perhaps to liability under accident insurance policies that exclude coverage for work-related injuries sustained by university employees while off-campus. These are issues/precautions that can simply be worked out on an ad hoc basis.

In any case, there is precedent for holding strike-related, off-campus classes, such as the 2003 clerical workers strike:

http://www.hhh.umn.edu/img/assets/19684/case.pdf

“Faculty worked with the Strike Support Committee to find off-campus locations to hold classes so students would not have to cross the picket lines. In the first two days of the strike alone, 150 classes affecting 4,000 students in the Twin Cities were held off campus.”

It might be useful to find out how that experience went and what, if any repercussions, ensued.

I have a few further thoughts about PELRA, the weapon this management crowd seems hell-bent on (mis-)using, regardless of what it means or of whether solidarity action takes the form of a sympathy strike (respecting the picket lines and canceling classes) or holding off-campus classes:

— Management is making some wild and arguably illegal statements.

The Provost’s email that you have posted: “The Public Employment Labor Relations Act (PELRA) requires University of Minnesota employees to report to work in the event of a strike by another union.”

A similar one by a management lawyer, posted by Jesse Wozniak [http://thisblogkillsfascists.blogspot.com]:

“The Public Employment Labor Relations Act (PELRA) explicitly requires non-striking University of Minnesota employees to report to work in the event of a strike by another union.”

I can find no such language in the PELRA. It appears that they are referring to Subdivision 3 of section 179A.19:

“179A.19 ILLEGAL STRIKES.
…
Subd. 3. Presumption of strike. For purposes of this section, an employee who is absent from any portion of a work assignment without permission, or who abstains wholly or in part from the full performance of duties without permission from the employer on a day when a strike not authorized by this section occurs is prima facie presumed to have engaged in an illegal strike on that day.”

But under this clause the presumption (that abstention from duties constitutes an illegal strike) presupposes the occurrence of an illegal strike. Nowhere in the statute do I see an explicit ban on sympathy strikes, and from my perspective such a ban cannot reasonably be implied — again because of the way the statute explicitly includes purpose to narrow its definition of a “strike,” as well as the narrow scope of its definition of U of M “essential employees”:

“179A.03 DEFINITIONS.

“Subd. 7. Essential employee.

“For University of Minnesota employees, ‘essential employee’ means all employees in law enforcement, nursing professional and supervisory units, irrespective of severance, and no other employees.

“Subd. 16. Strike. ‘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.”

Sullivan’s statement might be accurate enough, except that he slips in the word “sympathy,” thereby turning it into wishful fiction:

“University employees who refuse to report to work as directed are considered under state law to be engaged in an illegal sympathy strike and are subject to discipline.”

In effect, these statements amount to forced labor and thereby arguably directly violate employee rights under section 179A.06 of PELRA:

“179A.06 RIGHTS AND OBLIGATIONS OF EMPLOYEES.
Subdivision 1.
… Sections 179A.01 to 179A.25 do not require any public employee to perform labor or services against the employee’ will.”

… not to mention rights under the Minnesota Constitution:

Sec. 2. RIGHTS AND PRIVILEGES.
… There shall be neither slavery nor involuntary servitude in the state otherwise than as punishment for a crime of which the party has been convicted.

— The AFCSME workers, through their strike website, are clearly asking for sympathy strike action from those university employees in a position to do so:

“HONOR OUR PICKET LINES by not entering U of M buildings beginning September 5 (unless you are legally or contractually required to do so).”

http://www.afscme3800.org/node/84

It also appears, from a manual for union members in an unrelated context, that AFSCME itself considers state law to prohibit sympathy strikes by public employees:

Questions & Answers Regarding a Strike, MEMBER SURVIVAL KIT, AFSCME Council 5, Hennepin County, Negotiations 2006 – 2007
http://www.afscmelocal34.org/member_survival_kit.pdf

“12. Q: Can other public employee unions honor picket line lines?

A: By law, these other unions cannot honor our picket lines. If their members wish to show support for us, they can help by picketing with us during non-work hours, making financial contributions, or donating food and beverages to our strike kitchen.”

This gives one pause, as it appears that AFSCME itself understands PELRA to forbid sympathy strikes by public employees … What are they seeing that we’re not?

— Short of a general strike and the exercise of mass power by all university employees and students in support of the AFSCME workers, my thought is that the next best thing would be for a few courageous martyrs to take solidarity action; take the discipline under PELRA; use the hearing procedures under Subdivision 6 of Chapter 179A.19 to challenge the dismissals, and get into court and try for a favorable interpretation of the statute on the question of whether the strike ban encompasses sympathy strikes.

The issue of sympathy strikes by public workers – and their legality under PELRA – will be a recurring one. For instance, as already noted the issue came up for U of M faculty at the time of the 2003 clerical workers’ strike:

http://www1.umn.edu/usenate/tenure/03-11-17.html

“Notes, Tenure Committee, Monday, November 17, 2003

“2. Effect of Tenure on Treatment of Persons During a Strike.
Professor Akehurst noted that there had been a number of circular letters to faculty and department chairs about the way to deal with the impending strike by clerical workers. If someone refuses to cross a picket line, that could be an illegal strike and one could be dismissed immediately. That seems like a draconian response and he said he did not know if the sanction would be enforced. The facts have been conveyed to the faculty, however, so they know the risks. One faculty member maintained that he could not be fired because he has tenure. His thought, Professor Akehurst said, was that because the language about the illegal strike is state law, the law would trump the tenure code
… Professor Selzler said that people in a union have all kinds of laws governing them; the faculty [are] not in a union so the laws do not apply. Professor Akehurst pointed out that the state law (PELRA) covers both unionized and non-union employees and provides that one MUST cross a picket line if not on strike. The question is whether PELRA trumps the tenure code.”

— There is good legal precedent in other jurisdictions on this issue – well, at least in two cases in California:

Children’s Hospital Medical Center v. California Nurses Assn. (9th Cir. 2002) 283 F.3d 1188

Oxnard Harbor District (2004) PERB Dec. No. 1580-M, 28 PERC 56
http://www.perb.ca.gov/decisionbank/pdfs/1580M.pdf

Oxnard Harbor, for example, involved a negotiated Memorandum of Understanding that contains precisely the same “purpose” language in defining strikes as in the PELRA strike definition. In its decision the California Public Employment Relations Board found:

“In this case the parties’ intentions regarding the no-strike clause [of the MoU] is clear. The section states:

‘As used in this Section, ‘strike’ or ‘work stoppage’ means a concerted failure to report for duty, the willful absence from one’s position, the stoppage of work, or the absence in whole or in part from the full, faithful performance of the duties of employment for the purpose of inducing, influencing, or coercing a change in the conditions of compensation, or the rights, privileges or obligations of employment. [Emphasis added.]’

“Thus, a key element of any prohibited strike is that it be for the purpose of changing the conditions of compensation, rights, privileges or obligations of employment. This element is not present in SEIU’s sympathy strike. Rather, based on SEIU’s June letter to its members, it appears that the purpose of the strike was to show support for the ILWU whose previous support for SEIU had ‘helped to win many of the items’ in SEIU’s MOU.”

In Children’s Hospital, the California Nurses Association (CNA) and the hospital were parties to a CBA that included a general no-strike clause. When CNA gave notice of its intent to engage in a sympathy strike, the hospital sought injunctive relief, arguing the no-strike clause constituted a waiver of CNA’s right to engage in sympathy strikes. In rejecting the hospital’s rationale, the Court held:

“Since the Union’s waiver of the employees’ statutory rights must be clear and unmistakable, the extrinsic evidence must manifest a clear mutual intent to include sympathy strikes within the scope of the no-strike clause or else the clause will not be read to waive sympathy strikes. … A broad no-strike provision by itself is not sufficient to waive the right to engage in sympathy strikes if extrinsic evidence of the parties’ intent does not demonstrate that the parties mutually agreed to include such rights within the breadth of the no-strike clause.”

As an analogous inquiry in the case of a challenge to the PELRA strike ban, a Minnesota state court is likely to check the legislative history of Subdivision 16 of Chapter 179A.03 (defining “strike”), to see what, if any, light the record of the legislative debate sheds on the scope of the definition intended by the legislators when they enacted this clause.

It therefore might be useful as a preemptive exercise to make a quick trip to the Legislative Reference Library, 645 State Office Building: (651) 296-3398, and enlist the help of a research librarian to check on the legislative history of this clause.

— Another part of the calculus for this strategy is the predisposition of Minnesota state court judges. Are they known to have a pro- or anti-labor bias?

— If the PELRA strike definition encompasses sympathy strikes, then why, for instance, did Independent School District 273, in Edina, feel the need to include an explicit reference to sympathy strikes, in addition to the same definitional language already found in PELRA, in the CBA it negotiated with the Minnesota School Employees’ Association?:

“Section 14.1 – Public Obligation.
… The exclusive representative agrees, therefore, that during the term of this Agreement, neither the exclusive representative nor any individual employee shall engage in any strike. For purposes of this section, the term strike shall mean concerted action in failing to report for duty, the willful absence from one’s position, sympathy strike, 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.”
http://www.edinacommunityed.org/Forms/ParaAgmt0608.doc

A further and separate issue to consider is whether in Minnesota there are common law prohibitions on public sector strikes; I think it’s unlikely but it’s something to take into account.

My apologies for getting carried away with my comments and for such a lengthy posting.

Paul

Do you want to help me make and distribute leaflets about this? It’d have to be done fast.

Also, you got any opinions on the claim to “liability issues”? I didn’t read the Provost’s email (management are liars, why bother?) until just now, several people today were commenting that they felt intimidated that they would be personally taking a legal risk if they took students off campus, that they would be personally liable. That sounds ridiculous to me. What do you think? Here’s the relevant excerpts:

“August 30, 2007
FROM: E. Thomas Sullivan, Senior Vice President for Academic Affairs and Provost
RE: Obligation to Hold Classes on Campus in the Event of a Strike

(…) Relocating classes off campus may make it difficult for students to get to their next class on time, or may otherwise cause inconvenience or discomfort, particularly if the class is an early morning or evening class. Removing classes to off-campus locations also presents potential accessibility and liability issues.

With these overarching principles in mind, you need to know that during a strike, every faculty member, graduate assistant, and employee who is scheduled to teach, is expected to hold their classes, and to hold them on campus as originally scheduled. The Public Employment Labor Relations Act (PELRA) requires University of Minnesota employees to report to work in the event of a strike by another union. University employees who refuse to report to work as directed are considered under state law to be engaged in an illegal sympathy strike and are subject to discipline. (…) Civil Service, P&A, and non-AFSCME bargaining unit employees are required by state law to report to their regular work location. They may register support for the strikers, but they must do so consistent with their legal and University obligations. Faculty, by law, face the same obligations. (…) If you have teaching assistants helping with labs or discussion sections, please share this memo with them. They face the same University and legal obligations.”

take care,
Nate

Lo and behold, it would appear that the PELRA strike ban does not actually apply to sympathy strikes (that is, strikes having the purpose of solidarity), by virtue of its very definition of what is a prohibited “strike”:

179A.03 DEFINITIONS.
Subdivision 1. General. For the purposes of sections 179A.01 to 179A.25, the terms defined in this section have the meanings given them unless otherwise stated.
…
Subd. 16. Strike. “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.”

University teachers who, purely out of motives of sympathy, refuse to cross the lawful primary picket lines of other university workers and abstain from their duties, would be striking for purposes of solidarity with the striking workers, not “of inducing, influencing, or coercing a change in [their own] conditions or compensation or the rights, privileges, or obligations of employment.”

“Q. Can employees who are not in the striking unit refuse to work in sympathy for the strikers?

A. No. Employees may not legally engage in a sympathy strike. The Public Employment Labor Relations Act (PELRA), which governs public sector labor relations, declares sympathy strikes to be illegal.”

The FAQ refers to section 179A.19, which prohibits strikes generally but is clearly not a specific “declaration” against sympathy strikes:

“179A.19 ILLEGAL STRIKES.
Subdivision 1. Other strikes illegal. Except as authorized by section 179A.18, all strikes by public employees are illegal.”

Glad you think we’re on the same page… but you must try and keep up “Turning the pages, we read”; or should it be: “Reading, we turn the pages”? Anyhow, I’m sure this would sound much better in Spanish

On “professionalism”, I think your gut feeling is correct. I think it’s part of a question of which way one faces, whether towards capital or towards the (working) class. When you say “we’re professionals”, I feel that you’re aligning yourself with capital. Whether this is simply because you’re using capital’s hierarchy to differentiate yourself from other workers, or whether there are other additional reasons I’m not sure, though.

Best
David