This morning, on Facebook, I said that I was glad that the teachers would be ending their illegal strike tomorrow. But have Madison's teachers been illegally striking? After further research and reflection, I don't think they have been but I do think their actions came very close to a strike. A strict reading of the law kept their actions from being a de jure strike. I do believe that their actions constituted a de facto strike, however and violated the spirit of the law that allows public sector employees to unionize.
Wisconsin law governs public sector unions. Specifically, Chapter 111 governs Employment Relations. Subchapter I deals with keeping the peace, Subchapter IV deals with municipal employment relations, and Subchapter V deals with State employment relations.
Chapter 111.01 deals with the general goals of the law. One of the primary goals is to keep the peace between workers and employers, to the benefit of everyone else.
Industrial peace, regular and adequate income for the employee, and uninterrupted production of goods and services are promotive of all of these interests. They are largely dependent upon the maintenance of fair, friendly, and mutually satisfactory employment relations and the availability of suitable machinery for the peaceful adjustment of whatever controversies may arise. ... It is also recognized that whatever may be the rights of disputants with respect to each other in any controversy regarding employment relations, they should not be permitted, in the conduct of their controversy, to intrude directly into the primary rights of 3rd parties to earn a livelihood, transact business, and engage in the ordinary affairs of life by any lawful means and free from molestation, interference, restraint, or coercion.
It's pretty clear that one of the goals of allowing public employees to unionize was to ensure that disputes could be handled in an orderly way, without inconveniencing everyone who depends on the work that the state and municipal employees do.
As the law continues, Chapter 111.06 starts to lay out what "unfair labor practices" are, both for the employer (1) and for the employee (2). I'll quote some of the unfair labor practices, for employees.
(c) To violate the terms of a collective bargaining agreement, including an agreement to accept an arbitration award.
I'd argue that, per the terms of the CBA for Madison's teachers, calling in sick to attend a protest meet this definition of an unfair labor practice.
(e) To cooperate in engaging in, promoting or inducing picketing that does not constitute an exercise of constitutionally guaranteed free speech, boycotting or any other overt concomitant of a strike unless a majority in a collective bargaining unit of the employees of an employer against whom such acts are are primarily directed have voted by secret ballot to call a strike.
Given that no strike has been called, I think the teachers who -- by their absence -- forced schools to close have engaged in unfair labor practices towards their fellow teachers. The teachers are arguing that their actions are merely an exercise of constitutionally guaranteed free spech. I don't know that I agree. Not when a large minority of teachers are acting collectively, with the approval and encouragement of the union, to shut down the schools.
Now, let's move specifically to Subchapter IV, Municipal Employees. Section (1)(i) and (1)(j) make it clear that teachers are muncipal employees since they are employed by school districts. Section (1)(nm) defines a strike, for municipal employees.
"Strike" includes any strike or other concerted stoppage of work by municipal employees, and any concerted slowdown or other concerted interruption of operations or services by municipal employees, or any concerted refusal to work or perform their usual duties as municipal employees, for the purpose of enforcing demands upon a municipal employer. Such conduct by municipal employees which is not authorized or condoned by a labor organization constitutes a "strike", but does not subject such labor organization to the penalties under this subchapter.
What we had in Madison last week was a concerted stoppage of work by municipal employees for the purpose of enforcing their demands that the Governor alter the Budget Repair Bill. Because the unions didn't call a strike, the union itself isn't subject to penalties but individual teachers could be. Because the teachers were demonstrating against the State, not the municipal employer, their actions do not directly meet the definition of a strike.
Section (3)(b)(4) repeats the general prohibition against violating the current CBA. Section (4)(L) bans strikes by municipal employees.
Except as authorized under par. (cm) 5. and 6. c., nothing contained in this subchapter constitutes a grant of the right to strike by any municipal employee or labor organization, and such strikes are hereby expressly prohibited. Paragraph (cm) does not authorize any strike after an injunction has been issued against such strike under sub. (7m).
Section 7m lays out the process for ending a strike.
At any time after the commencement of a strike which is prohibited under sub. (4) (L), the municipal employer or any citizen directly affected by such strike may petition the circuit court for an injunction to immediately terminate the strike. If the court determines that the strike is prohibited under sub. (4) (L), it shall issue an order immediately enjoining the strike, and in addition shall impose the penalties provided in par. (c).
Individuals. Any individual who violates sub. (4) (L) after an injunction against a strike has been issued shall be fined $10. Each day of continued violation constitutes a separate offense. After the injunction has been issued, any municipal employee who is absent from work because of purported illness is presumed to be on strike unless the illness is verified by a written report from a physician to the municipal employer. The court shall order that any fine imposed under this subdivision be paid by means of a salary deduction at a rate to be determined by the court.
The Madison School District thought that these sections of law applied. They filed suit on Friday, in Dane County Circuit Court, to have the work stoppage declared a strike and to get an injunction against the strike. MTI, the local union, did argue that the stoppage wasn't a strike.
In court, MTI lawyer Lester Pines argued it was not a strike because the union made no demands against the district, a requirement for a strike under state law.
Instead, he said, teachers were exercising their First Amendment right to express their feelings about Gov. Scott Walker's plan to limit collective bargaining.
"To do so they may be subjecting themselves to discipline, to having their pay docked, but they are making that choice individually," Pines argued.
A hearing was scheduled for Monday morning but it was canceled / postponed when the teachers indicated that they would return to work on Tuesday.
I'm forced to agree that the teachers weren't technically striking, since they were protesting the actions of the State not the actions of the Madison School District. Morally, I believe the unions did engage in a strike. It didn't, quite, meet the legal definition of a strike but it came right up to the boundary. The State doesn't directly employ teachers but it does set the overall policy and rules for how school districts employ teachers. Thus, I think of the State as a related employer (a grandparent employer?). The arguments presented during the last 6 days of protest certainly sound like the arguments that striking employees would make against an employer. These demonstrations were done for the purpose of demonstrating the unions' power and attempting to force the government -- at all levels -- to agree to their demands.
I do believe the individual teachers are guilty of violating 111.70(3)(b)4. They're only innocent of violations to 111.06(2)(e) because their demonstrations were against the State instead of the municipal government.
So, I was wrong. Legally, the unions are clear. The individual teachers are guilty only of violating their own collective bargaining agreement.