Opinion
No. ED90143
March 4, 2008
Appeal from the Labor and Industrial Relations Commission.
Gerald M. Richardson, for Employer/Appellant.
Larry Ruhmann, Richard Shinners, for Claimants/Respondents.
Introduction
St. John's Mercy Health System (St. John's) appeals from the Decision of the Labor and Industrial Relations Commission (Commission) finding that Claimants are not ineligible for benefits for any week claimed from December 12, 2004 through January 22, 2005. We transfer this case to the Missouri Supreme Court.
Claimants are registered nurses claiming unemployment benefits for the period from December 12, 2004 through January 22, 2005, when they were on strike from their employment at St. John's pursuant to the direction of their exclusive bargaining representative.
Factual and Procedural Background
In 1999, the National Labor Relations Board (NLRB) certified the United Food and Commercial Workers' Local 655 (Union) as the exclusive bargaining representative of the registered nurses employed by St. John's at St. John's Mercy Medical Center (Hospital). The Union and St. John's entered their first collective bargaining agreement (Agreement) in October 2001. The Agreement defined the terms and conditions of the employment of registered nurses employed at St. John's between October 23, 2001 and October 22, 2004. Among those terms and conditions, the Agreement included a "union security provision," which required the registered nurses employed at St. John's to join the Union and pay Union initiation fees and dues. The Agreement's union security provision required St. John's to fire any of its registered nurses that did not join the Union or pay its initiation fees and dues.
During the term of the Agreement, some registered nurses refused to become members of the Union or pay its initiation fees and dues. The Union notified St. John's that it must fire these particular nurses. St. John's refused to do so. The Union then pursued two grievances through the Agreement's grievance and arbitration procedure. The arbitrator decided both grievances in the Union's favor. After the first arbitration award, the Union and St. John's reached a settlement on May 5, 2003. In accordance with said settlement, St. John's paid its nurses' unpaid initiation fees and dues and the Union withdrew its request for St. John's to fire those nurses.
After the second arbitration award issued on April 2, 2004, St. John's advised the Union that it believed the award violated public policy and refused to fire the registered nurses subject to the arbitrator's award. The Union then filed a lawsuit in the federal district court to enforce the second arbitration award on April 23, 2004. On September 22, 2005, the district court upheld the arbitrator's award. St. John's appealed the district court's ruling to the federal appellate court. On May 1, 2006, the federal appellate court affirmed the district court's decision.
In addition to its pursuit of grievances through the Agreement's grievance and arbitration procedure, the Union filed a charge of unfair labor practices (ULP) with the NLRB, alleging that St. John's failed to bargain in good faith, because of its refusal to fire the registered nurses who refused to fulfill their union security obligations. An administrative law judge (ALJ) held a hearing on the ULP on September 14, 2004. On December 6, 2004, the ALJ issued his decision that St. John's had committed ULP by its refusal to fire registered nurses that disregarded their union security obligations. St. John's pursued exceptions to the ALJ's decision, which the NLRB ultimately rejected by its decision and order dated March 31, 2005.
The Union filed a total of 3 ULP charges against St. John's; here we address the third one.
St. John's then appealed the NLRB's decision and order to the United States Court of Appeals for the Eighth Circuit. On February 1, 2006, the Court of Appeals rejected St. John's appeal and affirmed the NLRB's ruling on the Union's ULP involving the Agreement's union security provision.
The specific events that caused the Claimants to file their claims for unemployment compensation benefits took place because of the expiration of the Agreement's term, on October 24, 2004, without the Union and St. John's having reached a successor agreement. The Union and St. John's extended the term three times with the last of those extensions ending on December 3, 2004. On December 4, 2004, the Union issued a notice of its intention to conduct a strike, beginning December 15, 2004. The strike began as scheduled and lasted until January 21, 2005.
The Union's representatives told the striking nurses that their strike involved an unfair labor practice strike and instructed them to file claims for unemployment compensation benefits. The striking nurses each pursued claims for unemployment compensation benefits for the period of December 15, 2004 through January 21, 2005. All striking nurses that filed claims received substantially the same determination from a deputy — that they were unemployed due to a strike, and ineligible for benefits because their participation in a strike had caused their unemployment. The nurses appealed the deputy's findings of ineligibility to the Appeals Tribunal, which reversed the deputy's determination, stating that the claimant nurses were not ineligible for benefits during the relevant time frame due to Section 288.040.6(2), in that St. John's had been found guilty of a prior ULP. The Commission affirmed the Decision of the Appeals Tribunal.
All statutory references are to RSMo 2004, unless otherwise indicated.
Section 288.040.6(2) provides: "Stoppage of work" as used in this subsection means a substantial diminution of the activities, production or services at the establishment, plant, factory or premises of the employing unit. This definition shall not apply to a strike where the employees in the bargaining unit who initiated the strike are participating in the strike. Such employees shall not be eligible for waiting week credit or benefits during the period when the strike is in effect, regardless of diminution, unless the employer has been found guilty of an unfair labor practice by the National Labor Relations Board or a federal court of law for an act or actions preceding or during the strike.
Points on Appeal
In its first point, St. John's claims the Commission erred in ruling the Claimants were not ineligible for benefits, because the record lacks the necessary threshold determination by a deputy that the Claimants were eligible for benefits as either partially or totally unemployed as required by Section 288.040.1, requiring remand to a deputy for such determination.
In its second point, St. John's claims the Commission erred in ruling the Claimants were not ineligible for benefits, because of its unconstitutional construction of Section 288.040.6(2), in that it found that the statute allowed an award of unemployment compensation benefits to the individual striking nurses despite the absence of any evidence that a prior unfair labor practice finding by the NLRB and an appellate court had any causal connection to the nurse's decision to strike against St. John's.
In its third point, St. John's asserts that the Commission erred in ruling the Claimants were not ineligible for benefits, because Section 288.040.6(2) unconstitutionally exempts striking employees of employers with prior unfair labor practices from disqualification from unemployment compensation benefits. St. John's argues that such disqualification violates equal protection of the laws because it lacks any rational basis and the exemption serves no legitimate governmental interest.
Jurisdiction
Our state constitution vests the Missouri Supreme Court with the exclusive jurisdiction to decide cases in which the validity of a state statute is challenged. Mo. Const. Art. 5, Sec. 3; Lopez v. Three Rivers Elec. Co-op., Inc., 53 S.W.3d 117, 119 (Mo.App.E.D. 1999); Alumax Foils, Inc. v. City of St. Louis, 939 S.W.2d 907, 912 (Mo.banc 1997). If we do not have jurisdiction, our constitution mandates transfer to the appropriate court. Mo. Const. Art. 5, Section 11. If, however, the constitutional issues are not preserved for appellate review, then we retain jurisdiction of the case. Lopez, 53 S.W.3d at 119; State v. Bowens, 964 S.W.2d 232, 236 (Mo.App.E.D.1998).
I.e., we would retain jurisdiction over the non-constitutional issue presented in the case. The unpreserved constitutional issues would be dismissed as not preserved.
Constitutional issues must be raised at the first available opportunity or else they are waived. Lopez, 53 S.W.3d at 119. Here, St. John's attacked the constitutional validity of Section 288.040.6(2) at its first opportunity to be heard, i.e., at the Appeals Tribunal. It also presented its position on the constitutional issues to the Commission. As such, the constitutional issues have been preserved.
We next examine whether St. John's claim that Section 288.040.6(2) violates its right to equal protection of the laws is real and substantial. Lopez, 53 S.W.3d at 120. We find that it is. Citing Ohio Bureau of Employment Services v. Hodory, 431 U.S. 471, 489 (1977), St. John's maintains that the Commission's interpretation of Section 288.040.6(2) and Section 288.040.6(2) on its face is irrational, overly broad, and unconstitutional in that the equal protection provisions of the federal and state constitutions require any criteria by which a statute draws a distinction between favorable and unfavorable treatment to bear a rational relationship to a legitimate governmental interest, and here, Section 288.040.6(2) fails that test, because there is no requirement in its language, or as applied, that the prior ULP bear any causative connection to the strike. St. John's maintains that the Commission's decision applying the exemption to the striking Claimants without finding any causal connection between the reasons for the strike and the prior ULP findings against St. John's deprives the Commission's interpretation of Section 288.040.6(2) of the necessary rational basis. We find that this argument is not merely colorable.
When an appellate court is without power to decide one of the issues on appeal because that issue seeks the determination of the validity of a statute, then the appeal is properly lodged in the Supreme Court, which is the only court having jurisdiction over all issues in the case.Lopez, 53 S.W.3d at 120, citing State ex rel. Union Elec. Co. v. Public Service Com'n, 687 S.W.2d 162, 165 (Mo.banc 1985). As such, since we lack jurisdiction of the constitutional issues in this case, we order the whole case transferred to the Supreme Court.
Conclusion
The case is ordered transferred to the Supreme Court of Missouri pursuant to Mo. Const. Art. 5, Section 11.
Mary K. Hoff, P.J., and George W. Draper III, J., concur.