Evergreen State College should replace striking workers

May 30, 2013 

There is trouble in Red Square.

Over 50 union workers at The Evergreen State College are now on strike. Members of the Student Support Services Staff Union – primarily counselors, advisers, resident directors and other support staff – have been bargaining with TESC for over a year for increased pay and job security.

Ordinarily, this would all be well and good. But TESC is a state college, and TESC workers are public employees who do not have the same ability to strike that private employees do.

The reasoning for prohibiting public union strikes was eloquently summarized by Franklin Roosevelt in a letter to a prominent union leader in which he wrote, “Militant tactics have no place in the functions of any organization of Government employees ... . A strike of public employees manifests nothing less than an intent on their part to prevent or obstruct the operations of Government until their demands are satisfied. Such action, looking toward the paralysis of Government by those who have sworn to support it, is unthinkable and intolerable.”

Unsurprisingly, however, the Washington Federation of State Employees contends that these public employees may go on strike without running afoul of the law.

In an email update, the union argued that TESC “President (Les) Purce’s contention that state employee strikes are illegal is incorrect. State law doesn’t explicitly grant the right to strike, nor does it prohibit it.” It is worth noting that, in the version of the update later posted on the Federation website, the word “incorrect” had been changed to “incomplete.”

As it turns out, this backpedaling is warranted.

While it is true that state law does not explicitly and formally prohibit all public employees from going on strike, the cumulative effect of state law is to forbid any form of public employee strike.

In 2006, the State Attorney General’s Office released an opinion on public employee strikes. As a starting place, the opinion cites a 1958 State Supreme Court Case, Port of Seattle v. Int’l Longshoremen’s & Warehousemen’s Union, which noted “the general immunity of government from a strike” in common law. In other words, in the absence of a clear law permitting public employees the right to strike, the governing presumption is that they may not.

Furthermore, the law itself is not quite as vague as the Federation contends. There are at least three provisions of state law which explicitly prohibit certain types of public employees from striking. Even the statutes which grant collective bargaining rights to state and local employees include statements like: “Nothing contained in this chapter shall permit or grant any public employee the right to strike or refuse to perform his official duties.”

The Federation would have to do some interesting gymnastics to turn that into a justification for a strike.

Still, the more relevant question is not really whether TESC employees can strike, but how the college can respond if they do. State law provides no penalties for striking public workers.

While in some cases the courts have ordered striking teachers to return to work, in this case there is no need. In any other situation, if an employee walked off the job, they would be replaced. The same principle applies here.

While TESC employees are free to walk away from their jobs and go on strike without facing a specific legal penalty, they do so without the authorization or protection of law. Consequently, TESC administration can, and should, replace striking employees instead of permitting a precedent-setting disruption in state services.

Public employees are supposed to be public servants accountable to the taxpayers who fund them. No public servants should be permitted to hold state services hostage for the sake of their personal benefit.

Maxford Nelsen is the labor policy analyst for the Freedom Foundation.

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