Abuse the privilege, lose the privilege
In response to reports that MEA is preparing to wage a statewide work stoppage as a protest against changes to the Emergency Financial Manager law, Representatives Paul Scott and Bill Rogers have introduced a two-bill package that increases penalties for striking teachers while streamlining the process of determining which teachers are subject to fines. In particular, striking teachers will put their teaching licenses at risk if the proposals are passed. The legislation is a positive step, but if the Legislature really wants to put an end to strike talk, there’s one more step that the state needs to take.
Among the many difficulties with enforcing the strike penalty is the need for individual hearings to determine whether a teacher took part in the strike. Individual school boards are likely to find themselves bogged down in hundreds, perhaps thousands depending on the size of the bargaining unit, of hearings and then have to repeat the process in the circuit courts.
The new legislation would relieve that burden somewhat; the school district would be allowed to consolidate employee hearings “unless the employee demonstrates manifest injustice from the consolidation.” But this is still only a partial remedy. Instead of hundreds of quick hearings, school boards (or the state superintendent of public instruction, who gains new anti-strike enforcement powers) will now be confronted with a single legal proceeding, albeit one with many defendants, who are likely to offer different explanations for why they were not involved in the strike, all of which will still need to be either verified or debunked.
As long as anti-strike penalties target teachers there will be risks that innocent teachers will be caught in the crossfire. An individual teacher may have scheduled vacation or been genuinely ill, or may have avoided work because of concerns about picket-line violence. If individual teachers are going to be held accountable, they have to be given a fair chance to defend themselves.
The best target for anti-strike penalties is the entity that usually orchestrates the strike: the union itself. The $5,000 per day fine against unions may sound stiff, but for MEA, with its $130 million budget, $5,000 is a pittance, the equivalent of about 20 minutes of the union’s year-round operations. And while a long enough strike against a large number of districts would definitely smart, the MEA’s power base — it’s authority as bargaining representative for teachers throughout the state and its power to collect mandatory dues from thousands of teachers who may or may not support the union’s positions — would be untouched. The union would almost certainly recover over time. And for a more typical strike against a single school district, this fine is, relatively speaking, still a pinprick.
The strongest penalty would hit the union where it hurts — by removing the union as representative of teachers for a substantial period. To ensure that the union does not attempt to resume bargaining authority under another guise, the bargaining unit involved in the strike should lose collective bargaining privileges for three to seven years. In the process, the union would lose several years of dues revenue, a penalty that will add up to millions in a large enough unit. (This penalty should be bearable though, as the union will no longer incur the costs of representing those same teachers.) This rule would make public-sector strikes radioactive, and there is no reason why it should be limited to public schools.
In addition, this penalty would simplify factual determinations greatly. A court would have one factual question to decide: was there a strike or wasn't there?
Union hyperbole aside, collective bargaining for government employees is not a fundamental right. It is a privilege that the state has offered to local employees in hopes that union representation would improve working conditions, morale, and last but not least the quality of public services. Illegal strikes represent the ultimate abuse, and the ultimate failure, of collective bargaining in government. The Legislature should not flinch from taking privileges away from unions that intentionally misuse them. "Abuse the privilege, lose the privilege" is a very sound rule.