Under the National Labor Relations Act, which governs private employees, both the union and the employer are required to bargain in good faith. The law does not assume, however, that all negotiations are conducted smoothly and result in agreement on a contract. The union may call a strike, and management may “lock out” its employees. In either case, work ceases; workers go without regular pay; and the company either finds replacement workers or endures a shutdown. In general, private-sector employers and employees are allowed to accept the risks and rewards of economic conflict.
In government, strikes and lockouts are generally considered an unacceptable risk. While some state collective bargaining laws allow strikes by nonessential government personnel,[*] PERA prohibits both strikes and lockouts without exception.
In most cases where negotiations reach a stalemate, PERA calls for the state to mediate the dispute, beginning with the appointment of a mediator by the Michigan Employment Relations Commission. When the employer is a school district, PERA also provides for a fact-finding process, which the parties may agree to enter. If these dispute resolution procedures fail to bring about an agreement, the employer may implement its final offer of settlement — often referred to as its “last, best offer.” (There is one important exception to the “last, best offer” rule: In case of contract disputes involving police and fire personnel, state law provides for binding arbitration.)
While PERA prohibits strikes, that prohibition has been flouted, most notably by unions representing schoolteachers. The remedies for illegal strikes have often proved inadequate: Court injunctions are defied, and striking workers have been able to wring concessions from their government employer before returning to work. For instance, in 2006, striking teachers in Detroit were able to limit concessions after an illegal strike. Unions have also used strike threats to pressure districts into using the Michigan Education Special Services Association as an insurance provider, or to prevent school districts from establishing employee contributions to health care costs.
Strikes remain a threat because the law provides inadequate penalties and inadequate enforcement mechanisms. The law provides no particular penalty for most government employees who engage in a strike, although school employees may be docked a full day’s pay (which may not be made up at the end of the school year) for every day on strike. The law also provides for a $5,000 penalty to be assessed against a union that calls a strike.
These penalties have proved inadequate. The fines are modest for union organizations that draw in hundreds of millions of dollars annually in membership dues, and individual teacher penalties are difficult to levy because each teacher is entitled to an individual hearing before a circuit court judge before being penalized.
Fortunately, strikes by teachers are less common than they have been in the past, but collective bargainers are subject to a wide range of pressures, and all of those pressures can affect the course of bargaining. Over time, a credible strike threat can cause a negotiator to make concessions he or she might not have made otherwise, even if a strike is never called. When the Legislature decided to include a strike prohibition, it is unlikely that it intended unions to be in a position to hold a strike threat over the heads of local officials. Even if strikes are rarely called, the failure of current law to provide an effective remedy is potentially a very costly vulnerability for local governments and taxpayers.
The solution is a stiffer penalty directed toward the party responsible for a strike. Collective bargaining in the government sector is a privilege, not a right, and an illegal strike is perhaps the ultimate abuse of the bargaining privilege. Hence, the proper penalty for striking is the withdrawal of recognition from the union: Abuse the privilege, lose the privilege. This penalty should be enforceable in court by any person affected by the strike, including parents of children enrolled in a school district, and should terminate for at least one year collective representation, bargaining and the collection of union dues.[†]
Although the rationale is different, this decertification penalty should apply even in the event of a “wildcat” strike — i.e., a strike undertaken by bargaining unit members without the approval of union officials. Even if union leaders oppose the wildcat action, union recognition is premised on the understanding that a majority of bargaining unit members support the union and wish to have it represent them. In a wildcat strike, the strikers’ support of the union itself is in serious doubt. Wildcat strikers are taking a precipitous and illegal workplace action in open defiance of their supposed representatives. At some point, it is the union’s responsibility to ensure that the persons it represents meet their legal responsibilities. If it cannot, it is entirely reasonable to conclude it has lost worker support and should forfeit its collective bargaining authority.
[*] Three examples are Ohio (see ORC 4117.14(D)(2)), Illinois (5 ILCS 315/17) and Minnesota (Minn Stats 179A.18).
[†] At the time of this writing, Michigan Supreme Court standing rules would allow this legislative expansion of standing.