*1 * * * probable approximation fair future
еarning power impaired which has been or McGRATH, al., Gregory Appellants, et destroyed injury.” because of the Johnson Rosenblatt, Inc., 427, 430, v. D. B. agree 122 N.W.2d We Minnesota, al., et STATE statutory reference to “the last 26
that the Respondents. reasonably was construed to be weeks” No. 51626. employee in which was actu- last weeks relator, ally employed by without reference Minnesota. Supreme Court of which she did not to the summer months in Thus, work. we affirm the determination Nov. judge majority compensation Appeals employee’s of the Court of her
average work week on the date of injury
second was 35.35 hours. agree,
We cannot those multiplied properly
hours were the hour-
ly wage employee which was re- $4.16
ceiving on November determine weekly wage
her at that time. Minn.Stat. 176.011, (1980) expressly subd. 3 dirеcts wage computed by daily “be divid-
ing employee actually the total amount the employment
earned in such in the last 26
weeks, days the total number of which employee actually performed any * * (Em- duties of employment such added.)
phasis requires The statute thus employee’s daily wage be determined
by adding earnings her total in the last 17 year
weeks of the school to her 1975-1976 earnings prior
total in the 9 weeks to her
injury dividing in November 1976 and days
sum the total number of she period. Consequent-
worked in the 26-week
ly, finding employee’s we reverse the
weekly wage injury on the date of was
$147.05, finding computing weekly her
temporary partial compensation, disability compensation.
and the award of such We computation employee’sdaily
remand for 176.011,
wage pursuant subd. to section
findings recomputing weekly wage and her temporary partial disability
the amount of entitled,
compensation to which she is compensation.
entry of an award for such
Employee attorneys is awarded fees of
$400. part part,
Affirmed in reversed
remanded. *2 George
Lauhead & Morrow and T. Mor- row, II, Minneapolis, appellants. for Gen., Spannaus, Warren Atty. and Brad Gen., Engdahl, Sp. Paul, P. Atty. Asst. St. respondents. TODD, Justice.
Appellants security guards are at Following escape, State Prison. certain guards disciplined. appellants- were guards all January called sick on Following invеstigation by the attor- ney general, appellants disciplined were for abuse of privileges. griev- sick-leave A ance was filed on their behalf which was guards’ arbitrable under the union contract. time, litigation At the same was com- court, alleging menced in district various guards’ constitutional rights seeking damages and also under U.S.C. The trial court dis- ground missed the action on the of failure to exhaust administrative remedies and on ground the further that the defendant-state officials were immune from a suit for mon- etary damages. We affirm as to the ex- issue, haustion but reverse as to the immu- nity issue. Miller,
On Deсember
Robert
escaped.
inmate at
Prison
Be-
Stillwater
escape,
guards,
cause of the
a number of
here,
suspended
now
were
with-
Thereafter,
pay.
griev-
out
the union filed
suspended guards.
ances on behalf of the
guards
Most
disciplined
for the es-
cape were from the third wаtch which be-
rights
guard’s
and of the
p.
10:30 m.
p.
at 2:30 m. and ends at
gins
equal protection were also
Apparently
suspensions
these
caused ex- due
ninth,
feelings among
guards
alleged.
eighth,
and tenth caus-
tremely hard
allege
plaintiffs Dale and
up
who made
the third watch.
es of action
stewards,
shoр
Fogerty,
Duane
third watch
January
large
number of
On
violations of their
under the
suffered
the members of the third watch called
*3
PELRA,
agreement,
constitu-
and
and their
sick,
protest
sus-
allegedly in
for the earlier
process,
rights
speech,
to free
due
tional
pensions resulting from the Miller incident.
they
reрri-
were
equal protection
and
when
In order to determine whether
the
making
comments about
manded for
critical
in sick should be disci-
guards who called
of outsiders.
prison procedures in front
action,
factfinding
plined for that
investi-
alleged that
The eleventh cause of action
gation
place
January 14 and
took
between
McGrath,
Gregory
suf-
guards,
one of the
guards
inter-
1980. Each of the 22
was
rights under the la-
fered violations of his
Department
viewed
a member of the
of
rights
agreement
bor
and his constitutional
attorney gen-
Corrections and an assistant
equal protection when
process
to due
and
on
eral. The interviews were recorded
were made about his
disparaging comments
tape.
investigation
in the
The
resulted
dis-
supervisors.
performance by
work
one of his
cipline
guards
of
sick-
of 18
for abuse
their
alleged that one
The twelfth causе of action
privileges.
leave
Erickson,
guards,
of the
Kenneth
was de-
taken,
disciplinary
the
action
After
was
rights
agree-
the
prived of his
under
labor
guards petitioned
the
their union to com-
rights
and his constitutional
to due
ment
grievance procedures
they
mence
and
also proсess
equal protection
when his sala-
brought
Ramsey County
this action in
Dis-
ry increase date was moved backward as a
appellants’ complaint
trict
The
in
Court.
for violation
discipline
result of
he received
alleged
on
district court
13 causes
action
prison’s inmate-handling rules. The
guards
behalf of both
and the
individual
alleges
guards
final cause of action
that the
disciplined guards
group.
as a
deprived
rights
under the
were
their
complaint alleged
guards
agreement
subjected
the
to “se-
that
labor
and were
rights
physical
psychic injury
vere
and ex-
deprived
had been
of their civil
under
law,
anguish, pain
suffering,
invoking
color of state
1983 treme mental
U.S.C.
humiliation,
(1976).
including
It
violations of the
but not limited to
Act,
good opinion
family,
Data Practices
loss of
friends and
Minnesota Government
(1980)
professional reputa-
and the
co-workers and of their
Minn.Stat.
15.1611-.1698
§§
* *
public
Employment
gеneral
Minnesota Public
Labor Rela-
tions before the
be-
(PELRA),
agree-
the labor
tions Act
179.- cause certain sections of
§§
Minn.Stat.
complaint
interpreted
the
Finally,
61-.76
the
al- ment were
so as to obstruct
leged
agreement
prosecution
agreement.
under
violations of the labоr
of claims
the
Department
force between the
of Correc-
judge
that all of
The trial
first concluded
guards.
tions and the
allegations
complaint clearly
the
allege
bargaining
The first four causes of action
that
came within the collective
Therefore,
judge
appellants’ rights
agreement.
were violated
the in-
reasoned
vestigation
required
appellants
conducted after the sick-out be-
should first be
grievance proce-
they
given
right
cause
were not
to exhaust the labor contract
Second,
judge
other due
dure.
the trial
stated
counsеl or notice of their
fifth, sixth,
acting in their dis-
rights.
respondents
and seventh causes
since
were
guards suspended cretionary capacity they were immune from
allege
of action
monetary damages. Finally,
escape
liability
after the Miller
suffered violations
judge
appellants
of thеir
under the Data Practices Act
the trial
concluded
under
had failed to state a cause of action
when the warden revealed their identities
Therefore,
ap-
to the news
Practices Act.
discipline they
received
Data
agreement
pellants’ complaint was оrdered dismissed.
media. Violations of the labor
dismissed,
After
gilding,
us,
the claims were
the mat-
this case involves
proceeded
ter
pursuant
arbitration
Kaufman,
paraphrase
Judge
Chief
in the
collective bargaining
ap-
Since
“meddling
task
“unwelcome”
in an in-
pellants
judicial
court
ask the
to tаke
notice
fray” among
tramural
two teachers un-
have
respondents
award and
included
ions and
board of
employ-
their
education
it in their
there
no reason
appendix,
seems
Roher,
ers.
Fuentes
519 F.2d
ignore
hearing
the award. After
exten-
(2
1975).
Cir.
evidence,
sive
the arbitrator concluded that
Appellants rely
Michigan
on two
Court of
privi-
abused
leave
had
their sick
Appeals cases which held
vindica
Therefore,
leges.
the arbitrator concluded
tion of a
right
need not await
respondents
just
had
cause to disci-
exhaustion
labor contract
pline appellants.
procedures,
Education,
Kewin
Board of
ISSUES:
(1975),
65 Mich.App.
N.W.2d
brief,
Appellants,
in their
have limited
and Barry
Department,
v. Flint Fire
*4
appeal
this
the following
to
issues:
602,
(1973).
Mich.App.
nevertheless address this case in a are constitutional, private-law, practice many rather than a of routine in sectors of sectors, Despite framework. its constitutional In in- industrial relations. these 442 638, 1398, 1409, L.Ed.2d 100 63 673 are S.Ct.
vestigatory interviews conducted Pachtman, in a preparation pending (1980) Imbler (quoting advocates v. infringement 984, 990, any 409, 421, arbitration without 47 L.Ed.2d U.S. 96 S.Ct. rights. protected employee (1976)). analysis Without immunity respondents type of which the case, investigation produced In this entitled, are factual determination discipline led to the which immunity, activity fits their within procedure. We no distinction nor do we see respon- holding court erred trial procedures find the used were violative of from suit based on the dents were immune employee rights. discretionary nature their activities.1 The fact that we decline interfere does confer with arbitration not proceed next to the burden of We upon right the arbitrator the decide con proof in such a factual consideration. As indi already stitutional issues. We have Supreme by the United States indicated cated that arbitrators are without such au Sparks, 449 U.S. Court in Dennis thority Minnesota. See Richfield (1980), L.Ed.2d S.Ct. 1215, Etc., Local No. N.W.2d claiming im “the is on thе official burden (Minn.1979). expressly We now hold this munity his entitlement.” to demonstrate irrespective be the rule in Minnesota with Although the Dennis case deals language In arbitration private parties, it seems clear liability of case, the normal where the constitutional intended to statement was Court’s nаture, general are of a application. making In general be one of *5 proceed. arbitrator is to The the factual determination of the official’s may be at raised good faith, may the court the fac consider judicial the time review of the arbitra legal tual findings and сonclusions case, tion determination. In this with an by arbitrator but is not bound these deter inappropriate stay attempt the arbitra v. minations. See Alexander Gardner-Den proceedings rejected tion by that was 36, 1011, Co., ver 415 94 39 U.S. S.Ct. court, may trial be constitutional issues L.Ed.2d 147 by considered the trial court on remand or part, part, Affirmed in reversed appeal, if from any, consolidated with an to the district court for further remanded findings. the arbitrator’s opinion. this proceedings consistent with 2. The trial court found the de rehearing is denied. petition for be fendants to immune under section 1983 a without factual determination. This 14, opinion August original filed on holding contravenes the decisions of the hereby 1981 is be and withdrawn. Supreme has United States Court which govern stated on numerous occasions that SCOTT, (concurring specially). Justice good a ment officials are entitled to faith I in the result reaсhed concur immunity from suit under section 1983. agree I do majority; not Navarette, 555, v. Procunier U.S. authority 855, may never have the arbitrator (1978) (qualified S.Ct. L.Ed.2d 24 decide constitutional issues. An arbitrator’s immunity prison officers). officials any authority type to decide Recently, finding the Court stated: “[0]ur depend scopе on the of the arbitra- predicated should immunity upon ‘was a If the parties tion indicate a inquiry immunity considered into the histor disputes clear to arbitrate of a con- ically accorded the relevant at com intent official ” dimension, mon law and the interests it.’ stitutional such matters should behind 622, v. of Independence, Owen be an arbitrator. As this U.S. determined hearing. may upon evidentiary 1. This factual be in the record or determination summary judgment a form of based on the Clearing court stated in v. Atcas Credit America,
Corp. of KOPPERUD, al., Norman A. et (1972): N.W.2d 448 Respondents, (1) parties If the evinced a сlear intent arbitrate a controversy arising spe- out of AGERS, al., Joe S. et defendants and contract, cific provisions of the the mat- party plaintiffs, Appellants, third ter is for the arbitrators to determine and DINNELL, Sr., Clyde al., et defendants (2) not the court. If the intention of the third-party plaintiffs, reasonably is debatable as to the clause, scope of the arbitration the issue of arbitrability initially is to be deter- FLABY, third-party Gerald mined subject arbitrators defendant, Respondent. party of either reserved under No. 50806. 572.19, 1(3, 5). (3) Minn.St. subd. If no agreement exists, to arbitrate Supreme either in Court of Minnesota. fact or controversy sought because the Nov. be arbitrated is not within scope contract, the arbitration clause of the
court may protect party interfere and being compelled
from (§ to arbitrate 572.-
09[a, b]).
Id. at
When the party state is a to a labor
contract, grievances are often raised as con-
stitutional issues. To hold that arbitrators
may never consider such issues would cir- public policy
cumvent the which favors ar-
bitration speedy resolution of dis-
putes without litigation. initial resort Layne-Minnesota Regents Co. v. of Uni- Minnesota,
versity of
N.W.2d 371
For this reason arbitrators should have
authority to decide constitutional issues if intent, indicate such an consist Atcas,
ent with our holding in supra. See of Brooklyn Center v. Minnesota
Teamsters Public & Law Enforcement Em
ployees Union Local No. 271 N.W.2d (Minn.1978).