Public Employees: No Right to Strike

1
Public Employees No Right to Strike

• President Franklin D --The employer is the whole
  people
• The punishment prescribed for violation of these
  statutes varies from none in several states to a
  fine of 5,000 dollars and imprisonment for one
  year in one state
• courts have denied the right to strike because of
  public policy
• sovereignty is inherent in the people
• To say that they can strike is the equivalent of
  saying that they can deny the authority of
  Government and contravene the public welfare.

2
Public Employees No Right to Strike

• A second theory set forth by the courts to
  justify strike injunctions is that a strike is
  unnecessary because the government employer is
  not seeking a profit.
• a government employee union can exert a grossly
  disproportionate pressure because of the type of
  services rendered
• argument that public strikes endanger public
  health and safety witness the New York
  Sanitation Department strike of 1967, in which
  10,000 tons of garbage per day piled up on the
  city streets.

3
Congress has expressly forbidden federal employee
strikes

• Congress has expressly forbidden federal employee
  strikes and has provided for quite stringent
  punishments for such actions. It is provided in 5
  U.S.C. ?7311 (1967) that "An individual may not
  accept or hold a position in the government of
  the District of Columbia or the government of the
  United States if he . . . (3) participates in a
  strike, or asserts the right to strike, against
  the Government of the United States or the
  Government of the District of Columbia. . . .
• Further, title 5 U.S.C. ?3333 (1967) requires
  that an individual who accepts government
  employment must execute an affidavit that he will
  not violate the anti-strike provision

4
Supreme Court

• Federal government control over the actions of
  its employees was protected by the Supreme Court
  in United States v. United Mine Workers of
  America.
• In United States v. United Mine Workers of
  America, the United States Supreme Court held
  that the Norris-LaGuardia Act did not encompass
  federal employees.

5
Section 2 of the NLRA

• public employees are specifically excluded from
  the National Labor Relations Act.

6
Section 2 of the NLRA

• bill's drafter had excluded government employers
  from NLRB jurisdiction to avoid a "debatable
  question
• House Report fails to identify the "debatable
  question," it probably concerned the conflict
  between the NLRA's guarantee of the right to
  strike and the notion that public employees
  should not enjoy such a right.

7
Section 2 of the NLRA

• Section 2 of the NLRA provides "'employer' . . .
  shall not include the United States . . . or any
  State or political subdivision thereof. . . ."
  the United States or any wholly owned government
  corporation, or any Federal Reserve Bank, or any
  State or political subdivision thereof "

8
contractor-employer an "employer" within section
2(2)?

• Right of Control Test --If the contractor-employer
  does not retain sufficient control over hiring,
  firing, wages, and working conditions, the Board
  deems it a nominal employer and considers the
  exempt government entity the true "employer" for
  labor relations purposes.
• Political Subdivision Test , an entity qualifies
  as an exempt political subdivision if it is
  either "directly created by the state so as to
  constitute a governmental arm," or "administered
  by individuals who are responsible to public
  officials or the general electorate.

9
contractor-employer an "employer" within section
2(2)?

• Joint Employer Tests whether the entities'
  operations were so integrated and whether the
  entities shared such joint control over labor
  relations
• Intimate Connection Tests --if the services they
  provided were "intimately connected" with the
  operations of the exempt entity

10

• statute legislatively grants public employees the
  right to strike. Eleven states (Alaska, Hawaii,
  Idaho, Illinois, Minnesota, Montana, Ohio,
  Oregon, Pennsylvania, Vermont, and Wisconsin)
  currently have this system. 37 The states that
  allow public sector strikes do so with some
  degree of control. Either by statute or by the
  courts' equitable power, strikes are allowed only
  in some instances. The right to strike is limited
  to public employees whose absence from their jobs
  would not immediately endanger the public
  welfare. 38

11
State common law

• Generally, the common law has regarded public
  employee strikes as illegal "per se." 21 This
  "per se" rule is simple and harsh.
• First, (sovereignty argument )a strike against
  the government is said to be tantamount to a
  denial of governmental authority. Second(public
  employment are established by the legislature the
  executive branch, cannot respond to strike
  pressure ), the terms of public employment are
  deemed not to be subject to bilateral collective
  bargaining because they are set by the
  legislative body. Third( excessive bargaining
  power, distorting the political process ), since
  legislative bodies are responsible for public
  employment decision making, allowing strikes
  would grant public employees excessive bargaining
  leverage, resulting in a distortion of the
  political process. Fourth(essential service ),
  public employees provide essential services
  which, if interrupted by employee strikes, would
  endanger the public welfare.

12
Illinois legislature

• Illinois legislature enacted two comprehensive
  collective bargaining statutes, one covering
  educational employees (the Illinois Educational
  Labor Relations Act or "IELRA") and the other
  covering state and local government employees
  outside the educational sector (the Illinois
  Public Labor Relations Act or "IPLRA")
• the IELRA and the IPLRA allow strikes by all
  employees except police officers, firefighters,
  paramedics, and security personnel.

13
Louisiana

• the Simon v. Jefferson Davis Parish School Bd.,
  289 So. 2d 511 (La. App. 3d Cir. 1974).
  Louisiana state public labor disputes provided
  the strike involves "non-essential" employees.
• THE LOUISIANA TEACHERS' TENURE ACT

14
Arkansas law

• Potts v. Hay and City of Ft. Smith v. Arkansas
  State Council No. 38, AFSCME AFL-CIO.
• Wilson v. Pulaski County Association of Classroom

15
California

• COUNTY SANITATION DISTRICT (No. 2) v. LOS ANGELES
  COUNTY EMPLOYEES ASSOCIATION