by Doug Bonney
EXECUTIVE ORDERS THAT ACTUALLY DEPRIVED WORKERS OF THEIR RIGHTS: WHEN DIVISION 1287 WENT TO THE SUPREME COURT
Opponents of Governor Holden's Executive Order granting some collective bargaining rights to employees of agencies within the Executive Branch of the Missouri government have cried that the Executive Order will deprive state workers of their right to refrain from union membership and activities. Although these fears are unfounded, there was a time when Missouri's governors routinely issued Executive Orders that deprived Missouri workers of their most basic right: the right to strike. And a Kansas City union took the fight against those outrageous orders all the way to the United States Supreme Court and won. That union was Division 1287 of the Amalgamated Association of Street, Electric, Railway, and Motor Coach Employees, now know as Amalgamated Transit Union, Division 1287.
Back in 1961, the local bus system was run by a private sector company known as Kansas City Transit, Inc. The company operated 401 busses on routes in both Missouri and Kansas, had about 150,000 riders daily, and employed 950 people, 817 of whom were in the union's bargaining unit (including 640 drivers and 170 maintenance employees). The company and the union were parties to a collective bargaining agreement set to expire on October 31, 1961. In August, the parties began the process of negotiating a new agreement, but they could not agree and reached an impasse in their negotiations. After the old contract expired, 681 of the union's members voted to strike the company effective at midnight November 13, 1961. At the designated hour, the union members walked the job and threw up picket lines, which remained in place until November 15, 1961. During those two days, Kansas City had no public transit.
On November 13, 1961, after the union had voted to strike but before the strike had commenced, then Missouri Governor John M. Dalton issued two Executive Orders. In the first, Governor Dalton found that a strike against the company would jeopardize "the public interest, health and welfare" of citizens of Kansas City, Missouri, and he seized "the plants, equipment, and all facilities of the Kansas City Transit, Inc., located in the State of Missouri, for the use and operation by the State of Missouri in the public interest, effective 11:59 o'clock P.M., Central Standard Time, Monday, November 13, 1961." In the second order, Governor Dalton ordered that "All rules and regulations of the aforesaid utility governing the internal management and organization of the company, and its duties and responsibilities, shall remain in force and effect throughout the term of operation by the State of Missouri." The Governor took these actions pursuant to a state law known as the King-Thompson Act, which among other things permitted the Governor to take over public utilities when their labor relations problems posed a threat to the public welfare and which also prohibited the employees of such public utilities from striking after the state had taken over the utilities. The 1961 episode was the third time a Missouri governor had used the King-Thompson Act to interfere with a strike called by Division 1287. In 1950 and again in 1957, Executive Orders had effectively ended transit strikes in Kansas City.
The purported "seizure" of the company's assets was merely a paper transaction. The state never took over the ownership or the operation of the bus company, and the workers never went on the state's payroll. The state's only action on behalf of the company was to file suit in state court on November 15, 1961, asking a trial judge to order a halt to the strike. That same day, a Jackson County Circuit Judge issued a temporary restraining order against the strike and picketing, and the union discontinued its efforts that evening. Later, after a two day trial, the Circuit Judge entered a permanent injunction against the strike. At trial, the Chairman of the State Mediation Board candidly admitted that "So far as I know the company is still operating now just as it was two weeks ago before the strike." In fact, the company continued operating as it had before but without the bother of a strike or the accompanying incentive to return to the negotiating table to hammer out a mutually acceptable new labor agreement. As a result, the labor dispute that started the problems went unattended and unresolved.
The litigation dragged on for more than a year and a half after the trial court issued the restraining order and the employees returned to work. First, the union appealed the Circuit Judge's ruling to the Missouri Supreme Court, which issued a long opinion upholding the Governor's actions and the application of the King-Thompson Act to permit the usurpation of the employees' federal right to strike. In doing so, the Missouri Supreme Court tried to distinguish a 1951 case in which the United States Supreme Court had overturned a Wisconsin law that prohibited public utility strikes. The union appealed the Missouri Supreme Court's decision to the United States Supreme Court, which held as follows:
"The short of the matter is that Missouri, through the fiction of a 'seizure' by the State, has made a peaceful strike against a public utility unlawful, in direct conflict with federal legislation which guarantees the right to strike against a public utility, as against any employer engaged in interstate commerce. In forbidding a strike against an employer covered by the National Labor Relations Act, Missouri has forbidden the exercise of rights explicitly protected by [section] 7 of that Act. Collective bargaining, with the right to strike at its core, is the essence of the federal scheme. As in Wisconsin Board, a state law which denies that right cannot stand under the Supremacy Clause of the Constitution."
This case shows how government can use its power to rob workers of their hard won rights. Although the transit employees represented by Division 1287 are now public or quasi-public employees whose right to strike is curtailed, or at best in doubt, this history shows a proud history of a Kansas City union fighting for important principles and winning.
The facts set out in this piece are contained in the two reported court decisions on the litigation, which you can find at your local law library. See State of Missouri v. Div. 1287, 361 S.W. 2d 33 (1962) and Div. 1287 v. State of Missouri, 374 U.S. 74, 83 S.Ct. 1657 (1963).