In Michigan, both teachers strikes and school board lockouts are illegal under PERA:
"A public employee shall not strike and a public school
employer shall not institute a lockout. A public school employer does not violate this section if there is a total or partial cessation of the public school employer’s operations in response to a strike held in violation of this section."
A strike or lockout is not technically an unfair labor practice
Accordingly, as discussed below, a Michigan circuit court does have jurisdiction
to issue an injunction to end the strike by ordering the strikers back to work —
though the courts do not always do so. Strikes are a violation of PERA, with
specific penalties. In addition, PERA’s prohibition on strikes is not a
violation of an employee’s constitutional right to free speech.
Moreover, school boards are not required to bargain during a strike.
Though illegal, strikes by public employees in Michigan are not
In September 2006, approximately 7,000 Detroit teachers went on a multiday
strike when negotiators failed to reach a contract prior to the start of
classes. Nationally, the number of teachers strikes has fallen from 241 in 1975
to 99 in 1991 to only 15 in 2004.
The threat of a strike is also common. For example, during
negotiations in Holland in September 2005, an MEA representative told The Grand
Rapids Press, "There has been some discussion about the issue (striking). …
Teachers would consider a walkout if the school board imposes an illegal
contract." The Press reported that the union would consider "illegal" any
contract that did not come about as a result of collective bargaining.
Likewise, the Ironwood Education Association reportedly said that it was
considering undefined "job actions" after rejecting a contract.
When a strike occurs, PERA requires a school board to notify
MERC, which will then schedule a hearing within 60 days to determine if there
has been a violation. If MERC finds that there has been a strike, it will then
fine each striker an amount equal to one day of pay for each full or partial day
that he or she was engaged in the strike. This fine may be garnished from the
employee’s wages. The union itself is also subject to a fine of $5,000 for each
full or partial day in which a public school employee was engaged in a strike.
Before an alleged striker can be disciplined or terminated by
the school board, however, additional hearings and findings are required.
According to former National Labor Relations Board member Robert Hunter:
"Public employees facing discipline or discharge for allegedly unlawful strike activity are entitled to make a written request of the government employer within 10 days of being disciplined or scharged for a determination of whether their conduct actually violated PERA. Within 30 days after the employer’s final determination has been made, aggrieved employees have the right to have that determination reviewed by the circuit court to judge whether the decision is supported by sufficient evidence."
Accordingly, and given the number of individual hearings
required, it is difficult, expensive and time-consuming for a school board to
fire or otherwise penalize its striking teachers. For example, in Brighton,
enough teachers reportedly called in sick on May 5, 2006, to require the school
district to cancel classes. However, despite the school board perceiving this
action as an intentional sickout, disciplinary procedures were dropped in order
to come to an agreement on the contract.
Making it even more difficult for school boards is the fact that if MERC should
determine that the school district committed an unfair labor practice, MERC may,
despite the illegality of the teachers’ strike, order reinstatement of any
teacher who was fired for striking.
PERA does by its plain language provide that a court must issue
an injunction in the event of a strike and need not consider the question of
harm. Courts, however, have resisted this language out of a stated concern that
it creates a separation of powers issue — that is, it constitutes a case of the
Legislature binding the judicial branch. This objection was raised in the 2006
Detroit strike, where the judge refused for days to issue the injunction.[viii]
When strikes do occur despite the statutory penalties in PERA, a
school board is in a difficult situation. If the board can show that in the
course of the strike there is violence, irreparable injury or a breach of the
peace, then a circuit court will likely issue an injunction to stop the strike.
Nevertheless, at least one court has opined that where the only showing made is
that a district could not open on time, this was insufficient to support the
granting of an injunction to end a strike.
However, besides ending the strike, there is no remedy provided
to a school district for the recovery of damages from the union other than the
$5,000 per-day damages provided for under PERA.
In other words, PERA is the exclusive remedy against the union, and there exists
no common law cause of action in Michigan to recover damages from the union.
It must also be noted that, should a school board lock out its
teachers, each individual board member may under PERA become subject to a fine
of $250 per day, and the school district may pay $5,000 per day.
Though there are no reported cases on how far a court might go in this
situation, there is no provision in the law that requires distinguishing between
board members who supported the lockout and those who voted against it.
[viii] The 2006 Detroit teachers strike has been well-documented. See, e.g., The Detroit Free Press, September 7, 2006, A1 (discussing the court’s refusal to issue the injunction to stop the strike).
David Adamany: "The [1999 Detroit teachers] strike was an odd strike. The school district and the leadership of the [Detroit Federation of Teachers] agreed at the table to extend the contract for 10 days just as the school year was beginning. My advice to school boards and school negotiators is that if you need to negotiate the extension, make darn sure that you cancel classes on the morning of the meeting. In our case, it was the first day of school or the day before the first day, and teachers needed to be in their classrooms getting ready. We didn’t see that coming, and apparently the union leaders didn’t see that coming, because they didn’t ask us for any help. So I would make sure people were released from school with pay so that they could get to the meeting to vote for the extension. In this case, 20 percent of the members showed up, and we wound up on strike.
"I had three faculty strikes when I was president at Wayne State [University] and I had the teachers strike at the school district. I never hesitated to make my case in public. We didn’t choose an adversarial process, but once it was chosen, we should fully do our part to achieve a contract that was in the interest of students and taxpayers."