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.
government, strikes and lockouts are generally considered an unacceptable risk.
While some state collective bargaining laws allow strikes by nonessential
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.[†]
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.