The right to strike has increasingly become a controversial topic in the recent past following growing debates on whether public employees’ strikes are legal or illegal. Although most states have recognized the need to grant public employees the right to strike, most of them employ injunctions to control the impact of such strikes. As such, modifications made on statutes and common laws have only granted limited rights to strike without expressly declaring complete authorization to strike. This paper aims to establish the various pros and cons associated with granting public employees a limited right to strike. The paper will look at the various impacts that this limited provision can have on the government, the public employees, and the wider public. It will also look at how granting limited rights to strike either promote or infringe various provisions made in constitutional amendments and statutes. The findings of this analysis have shown that granting public employees a limited right to strike promotes freedom and authority for the state to make rational decisions, eliminates possible interferences with the decision making and policy formulation process, improves overall wellbeing of the wider public, promotes positive public managers’ attitudes towards unions and their participation in collective bargaining, and eliminates interferences with the responsibility that the government has on the wider public. The paper has also outlined the various con factors associated with granting public employees a limited right to strike, which include reduced capacity to engage the federal employer in collective bargaining, reducing workplace democracy, limiting public employees’ capacity to defend their economic interests, exposing them to unjust dismissal and violating their freedom to voice their opinions or engage in associations.
Right to Strike
Strikes, which define acts of work stoppage resulting from employees’ collective refusal to work, are a common action taken in effort to express employee grievances. Strikes reflect organized employees’ efforts to exert a certain form of pressure on their employers as the final option in a negotiation process. Strikes, though widely misunderstood, have throughout history proven to be the best guarantee that negotiations in the work place will be effective. According to Charlotte (2009), an early activist, argued that strikes are important as they ensure that employees will enhance betterment of their situation when they exert their own economic power. Today, public employee union leaders stress that engaging in strikes is an important step through which they can bargain with the state. Just as strikes have been the only vital means for enhancing success for organized labor, employers have throughout history relied on labor injunctions as a legal means to respond to strikes (Hanslowe, 2012). They have particularly relied on injunctions to counter any possible economic losses that could result from strikes. While this has only acted as an aggressive means to shutter striking unions, strikes particularly among public employees have widely been perceived as being illegal. As such, public employees engaging in strikes as a means to enforce certain economic demands may be at a greater disadvantage compared to their counterparts in the private sector. This is because private employees engaging in strikes do not risk losing their employee status and they as well retain certain rights to reinstatement. In contrast, most courts have held that strikes among public employees are unacceptable, and hence, striking employees risk being discharged especially because they abandon terms of their employment (Craver, 2012). However, recent developments in public employment law have perpetuated some relief on labor unions thereby offering striking public employees limited rights to do so. Such provisions granting limited right to strike by public employees are however associated with certain advantages and disadvantages. This paper evaluates the pros and cons of granting public employees limited rights to strike.
Pros and cons of Granting Public Employees Limited Rights to Strike
Strikes among public employees have for a long time been perceived as being illegal and hence deserve to be suppressed. For example, during the early years of US history, employees engaging in strikes were deemed as conspirators that needed to be subjected to severe criminal penalties. This is however not surprising owing to the fact that most employees during this time were enslaved and hence were denied the any right to withhold their labor either individually or collectively. On the same note, United States, until 1865, did not support the constitutional right of employees to control their own labor. It as well did not recognize the constitutional right for employees to engage in concerted actions, which is to strike, as a way to support their economic demands (Hanslowe, 2012).
As traditionally stressed in the common law, employees in the public domain have been deprived of any right to strike particularly in instances where there is no statutory authorization. As explained by Charlotte (2009), courts as well as commentators have continually granted certain arguments explaining the need to deny public employees any right to engage in strikes. A basic argument issued is that any strike conducted by public employees is bound to interfere with operations as well as the activities of the sovereign, and hence, they should not be granted any right to do so. Another common argument issued is that public employers do not have any capacity to respond to the pressure instilled by the strike especially because employment terms in the public sector are usually formulated by the state as well as federal legislatures. Lack of market restraints within the public domain, which issue public employees unequal bargaining power, has also been used to justify the need to deny them the right to strike (Roseberry, 2014). Courts as well as commentators further base their explanations pertaining to why public employees should be denied any right to strike on the ground that they disrupt important government services.
Despite these arguments, the US Supreme court has never specifically declared that all forms of public employee strikes are unlawful but has affirmed the need to enjoin federal employee strikes. As a result, recent developments within the court system have modified public employment law. This has in return seen most states modifying their statutes or common law to grant limited rights to strike although most of them have not expressly declared ultimate authorization of public employee strikes. Although the various jurisdictions authorizing public employee strikes by use of statutes do so in distinctive manners, they share certain unifying themes that are expressed in their respective statutes (Charlotte, 2009). For instance all statutes in different jurisdictions acknowledge to the fact that strikes undertaken by public employees have a high probability to endanger the wellbeing of the wider public. They thus respond to this possibility by allowing for injunction of public employee strikes that are likely to jeopardize the health, safety and wellbeing of members of public. The statutes are also designed in a manner that would reduce strikes by demanding for public employees to first engage in collective bargaining or engage in pre-strike mediation or resolution approaches before resolving to a strike. The statutes further aim to reduce the possibility of public employee strikes by setting a time limit within which a strike is not allowed including the duration after which a fact finder has issued a report or a notice (Craver, 2012). Despite the attempt by the statutes to reduce possible public employee strikes, it is obvious that they represent a common trend intending to shun the common law doctrine that previously prohibited public employees from engaging in strike. Today, more than twelve US states that had previously denied public employees any right to engage in strikes both through statutes as well as common laws have reversed such prohibitory rules thereby issuing the public employees limited rights to strike (Nkabinde, 2009).
Granting public employees limited right to strike is associated with various pro factors that have proven to benefit the government, the public workers as well as the wider public. One pro factor associated with granting public employees limited right to strike is that it eliminates interferences that might affect the responsibility that the government has to the wider public. According to Charlotte (2009), it is the role of the government authority to protect as well as perpetuate the rights of all people and not to single out or favor certain individuals at the expense of others. Issuing public employees unlimited right to strike is perceived as a favorable approach through which the government can perpetuate their interests at the expense of members of the wider public. For instance, public employees exploit provisions made under the right to strike clause to demand for government’s hearing on their constituents. This coerces the government to act on their behalf and address their various issues of concern, which may at times be to the detriment of the wider public. For instance, striking public employees may place demands on the government to increase their wages (Roseberry, 2014). This may in return require the government to increase taxes on other members of the public thereby affecting their economic wellbeing. As such, granting public employees limited rights to strike reduces their capacity to make detrimental demands on the government to address their constituents. This allows the government to balance the attention given to the wider public rather than serving demands placed by a group of individuals at the expense of others (Hanslowe, 2012).
Another pro factor associated with granting public employees limited right to strike is that it eliminates possible interferences with the public employer’s dominance in the decision making process. According to Charlotte (2009), allowing public employees to protest whenever certain demands are not met can interfere with the government’s decision making and the subsequent policy formulation process. The managerial purpose of the government may especially be interfered with when public employees use concerted actions such as strikes to coerce their employer to engage them in the decision making process. As such, the decision making process becomes a joint venture rather than exclusively remaining in the government’s domain. This means that the decisions made may greatly be biased thereby affecting the overall capacity by the government to fairly meet the various demands placed by members of the wider public. As such, limiting public employees right to strike can eliminate such interferences thereby ensuring that the wider public receives a fair consideration without any particular group receiving a fair hearing at the expense of others (Craver, 2012). On the other hand, allowing public employees unlimited to strike can affect the authority and flexibility that the government ought to enjoy during the decision making process. This is especially because the decision making process may solely be inclined towards meeting the demands and wants of the public employees. As such, the decision making process may end up being time consuming, cumbersome and sometimes frustrating and may eventually fail to accomplish the desired results. Limiting public employees’ right to strike can thus eliminate such implications thereby making the decision making process a flexible venture that can guarantee fruitful outcomes. Similarly, strikes can further infringe government’s authority in decision making by attracting public opinion in addressing the striking public employees’ issues of concern. As such, the wider public can influence the decision by the government to address the public employees’ issues of concern if they do not require a huge increase in public taxes (Robert, 2011). However, the general public can influence the government’s decision to decline the demands placed by public employees if such demands require large tax increments. This is especially because the number of taxpayers that are likely to gain from paying less towards supporting public services higher compared to the number of those that will benefit by paying more. As such, granting public employees limited rights to strike can eliminate public interferences thereby allowing the government to enjoy the much needed freedom and authority to make viable decisions that would eventually bear desirable results to address demands placed by striking public employees while enhancing overall wellbeing of the wider public (Charlotte, 2009).
Granting public employees limited right to strike is further important because unlimited rights can affect managerial attitude towards public trade unions as well as their ability to participate in productive collective bargaining. According to Craver (2012), various union characteristics may be associated with its constant likelihood to resolve in strikes, which may in return affect public managers’ attitudes towards the unions as well as their ability to engage in productive collective bargaining. For instance, certain union affiliations are known to be largely obsessed about their rights to strike and hence are likely to have little positive attitude towards participating in collective bargaining. This means that public managers may develop a negative impression towards engaging striking members of such affiliations in collective bargaining, which affects their overall ability to resolve work-related conflicts. For instance, public employees belonging to the teamster trade unions are known to have a more militant as well as aggressive attitude towards public managers (Hanslowe, 2012). Most public employees in such unions include non-professional blue collar workers that are more likely to take concerted actions such as strikes than professional white collar workers. This means that public managers dealing with employees affiliated to such unions may decline resolving to collective bargaining, which in return affects the conflict management process within the workplace. However, when public employees in such affiliations are only granted limited rights to strike, their options to engage in concerted actions are often suppressed and hence may not have any other alternative but to engage in collective bargaining. This may in return be beneficial to public managers because their fears pertaining to possible decline by striking public employees to sit back and engage in productive negotiations would be addressed (Nkabinde, 2009). Grating public employees a limited right to strike can further address public managers’ fears of dealing with a young trade union that may tend to be highly inclined towards a strike rather than engaging in collective bargaining. According to Roseberry (2014), a young trade union may not be patient to progress in a mature relationship with the public management, and hence may rush into concerted actions as an expression of their right to strike. This may affect the public managers’ attitude towards engaging them in a productive collective bargaining and hence may resolve to ignore the striking employees as well as overlook their issues of concern. As such, granting public employees in such a union only limited rights to strike can influence their cooperation to engage in a collective bargaining rather than resolving in concerted actions such as strikes.
An additional pro factor linked to granting public employees limited right to strike is that it eliminates possible damages that a strike can have on the overall wellbeing of the wider community through affecting their ability to access critical public services. According to Charlotte (2009), granting teachers unlimited right to strike can leave students stranded for being unable to access quality education while parents on the other hand face the dilemma of child care. Less qualified teachers may on the other hand be hired to substitute for those participating in a strike, which may further affect quality of education. For instance, Ohio went through the longest teachers’ strike in history that went on for more than ninety days in 1983. The strike resulted to serious problems that included serious animosity. During the strike, students suffered for lack of quality education as well as lost a great deal of learning time. As such, granting limited public employees’ right to strike can help prevent such implications thereby allowing students to enjoy their education rights while parents on the other hand see the positive outcomes resulting from the expenses they incur catering for their children’s education (Craver, 2012). Another strike that took place in Toledo in 1979 involved the police as well as the firefighters. The strike emanated from an impasse that resulted from negotiations revolving around wages and other fringe benefits. The impasse thus translated into a strike that perpetuated serious social implications, which included violence, chaos as well as looting. Although such chaos would have been avoided through collective bargaining, the public employees’ desire to exercise their right to strike saw them overlooking invitations to engage in collective bargaining, which in return affected their ability to refrain from taking concerted actions. Granting such public employees a limited right to strike would however have coerced them to cooperate in collective bargaining rather than resolving into a strike. This would have eventually benefited the wider public by protecting it from the impact of the social turmoil that resulted from the strike (Hanslowe, 2012).
Despite the various benefit that granting limited public employees limited rights to strike can have, it is obvious that the practice can perpetuate various con factors that can negatively impact different categories of people in the society. One con factor associated with granting public employees limited right to strike is that it denies employees the ability to fully defend their economic interests, which would in return improve their overall wellbeing within the workplace. As explained by Charlotte (2009), section 7102 in Title VII of the 1978 Civil Service Reform Act states that public employees will have complete right to establish, be part of or support any labor organization, engage in collective bargaining as well as participate in concerted activities for the purpose of promoting mutual support and protection. While this provision supports as well as protects employees’ right to engage in work stoppage through strikes, it ensures that they engage in lawful actions intended to further their economic interests. Limiting public employees’ right to strike however bleaches the provisions made in this section by violating their right to take part in concerted actions in defense of their economic interests. The provision further obliges employers to engage in peaceful negotiations through appropriate bargaining procedures with labor unions. Such unions ought to be selected by majority of employees hence representing interests of the majority (Craver, 2012). The provision also specifies the various labor factors that might require employers to engage in collective bargaining with unions, including remunerations, hours as well as working conditions. If employers fail to willfully engage in collective bargaining to address such work-related issues, employees may engage in concerted activities in expression of their grievances. As such, limiting their rights to strike indicates that they do not have enough capacity to express their grievances and hence are unable to fully defend their economic interests. Although work stoppages are known to interfere with public sector operations and activities, employees’ inability to fully protest against oppressive actions from the state limits its ability to respond to their grievances, which would eventually advance their overall economic interests (Robert, 2011). For instance, most public employees in various states that have only been granted limited rights to strike have only seen limited increment in fringe benefits that include total wages. For instance, public employees that have obtained union membership in Ohio have seen their total wages growing by 28% compared to non-union workers whose wages have grown by 39%. According to Nkabinde (2009), federal statistics gathered in 2006 show that public employees enjoying limited rights to strike, such as Pennsylvania, Hawaii and Ohio, have a less likely to benefit from health insurance, dental benefits, paid leave and participate in pension plans than those in states that have not placed any limitations to public employees’ right to strike.
Another con factor linked to granting public employees limited right to strike is that it exposes them to illegal dismissal. As explained by Roseberry (2014), sufficient evidence gathered from the US constitution shows that the first as well as fourteenth Amendments protect public employees’ right to association and participation in concerted activities through strikes. While this provision is not available for private employees, it protects the public employees’ right to engage in any form of association and concerted actions that would promote their interests. These amendments further restrict the state, which is their primary employer from undertaking unjust dismissals and only demands for it to simply ignore the striking employees and their organization. Provisions made under these amendments restrict the state from disciplining, demoting or even dismissing employees for participating in concerted actions unless such individuals express conducts such as poor performance, infringement of employment rules, gross misconduct as well as dishonesty, which justify various punitive actions (Robert, 2011). This means that public employees participating in a strike can, in a court hearing, present evidence as well as reasons proving why there is no basis for dismissal or other disciplinary actions taken against them. However, limiting their right to strike may limit their capacity to protest against the state in a court of law thereby suffering the consequences of unjust dismissal. Further provisions under the first amendment promote public employees’ right to strike and participate in concerted actions by protecting their freedom of speech as part of expressing their grievances. The amendment restricts the state from taking disciplinary actions such as dismissal against striking employees for expressing their views relating to issues of public concern unless such views affects the state agency’s ability to operate. However, limiting public employees’ right to strike restricts them from freely expressing their views as well as opinions on issues of public concern for the fear of facing certain disciplinary actions (Charlotte, 2009).
Further disadvantage of granting public employees limited right to strike is that it limits their ability to engage their federal employer into collective bargaining through certain leaders chosen by majority of the employees. Under provisions made in Title VII of the 1978 Civil Service Reform Act, public employees have the right to engage their employers in collective bargaining in respect to certain conditions of their employment. The right to strike obliges employers to engage in collective bargaining with labor unions in order to address various issues of concern both to individual employees as well as the wider public. Limiting public employees’ rights to strike however prevents them from coercing their employers into collective bargaining thereby limiting their ability to make productive demands that would address their situation as well as that of the wider public (Craver, 2012). Owing to the fact that employers may resist willful engagement in collective bargaining with their employees, provisions under Title VII among other state legislatures reserve the right for such employees to participate in a strike as a way of exerting greater pressure on their employers to take appropriate actions to address their situation. Limiting public employees’ right to strike however restricts employees from taking concerted actions such as work stoppage during a set time frame within which collective bargaining should take place. Such limitations further expose public employees to possible termination from federal employment if they take part in concerted actions such as strikes against their employer. Provisions under Title VII oblige the federal employer to willfully engage in collective bargaining with labor representatives or unions and apply terms that would enhance overall wellbeing of their employees (Hanslowe, 2012). However, limiting public employees’ right to strike indicates that they cannot proceed in taking concerted actions that include work stoppage when the employer fails honor his part of the pledge for fear of facing possible punitive actions.
Another disadvantage of granting public employees limited right to strike is that they only acquire limited procedural protection to engage in legal concerted actions. Owing to the fact that most striking public employees have a property interest in continued employment, provisions in the Fourteenth Amendment of the US constitution provides them with pre as well as post-discharge procedural protections. These procedures are usually important because they are always taken into consideration when a court system is establishing whether a strike undertaken by public employees is legal or illegal. Although it is unclear the extent to which the procedures can shield individuals participating in illegal strikes from discharge, they ensure that individuals participating in legal strikes do not face unfair discharge (Craver, 2012). However, limiting their right to strike can limit their ability to enjoy procedural protection, which may expose them to unfair discharge upon any participation in a strike. According to Nkabinde (2009), the mere fact that a public employees show interest in continued employment is sufficient evidence indicating that his/her participation in a strike is for the wider public concern and hence deserves sufficient procedural protection. As such, public employees deemed to engage in a legal strike are entitled to procedural protection during the entire striking process. However, granting public employees limited rights to strike denies them sufficient procedural protection regardless of whether their participation in a strike was for the wellbeing of the wider public or not.
Another con factor associated with granting public employees limited right to strike is that it limits workplace democracy, which reduces employees’ sense of belongingness within the organization in which they serve. A suitable example of this limitation can be drawn from South Africa, which has a detailed Constitution with provisions to protect public employees’ right to fair labor practices that include forming trade unions as well as participating in concerted activities such as strikes. According to Charlotte (2009), South African federal employment history was characterized by drastic exploitation of employees with the apartheid empire primarily thriving on cheap labor. As such, the right to strike clause was integrated in the country’s Constitution but did not expressly include employers’ right to lock their employees out of certain situations. The Labor Relations Act (LRA) was further put into play in 1996 and it aimed to protect public employees’ right to engage in concerted actions that include strikes as well as participation in trade unions. As such, both the South African constitution and LRA have established conciliatory, mediation and arbitration bodies that enhance arbitration and resolution of work-related conflicts. Under the right to strike clause, the state is prohibited from engaging employees in unfair dismissal particular when it is founded on their expression of labor rights such as participation in a strike (Roseberry, 2014). As such, granting public employees limited right to strike interferes with such provisions intended to promote their workplace democracy. This means that public employees cannot be able to participate in conciliatory, mediation and arbitration activities intended to address work-related conflicts and can only face severe punitive actions when they protest against various conflicts. On this note, public employees enjoying limited rights to strike have only been converted them into “collective beggars” as most of their rights are often be overlooked while on the other hand continuing rendering their services for the betterment of the sovereign. Granting public employees limited right to strike has thus opened only a small avenue through which they can defend their situations in attempt to improve their overall wellbeing. This is because if the employer declines engaging in collective bargaining or fails to address employees’ issues of concern, public employees may not be in a position to use concerted actions to coerce him to engage in fruitful negotiations. This means that limited right to strike denies public employees the opportunity to voice their concerns and contribute towards solving their problems through forceful negotiations (Craver, 2012).
The right to strike particularly in the public sector is a widely debated topic in the public domain in various states of the world. This is because most states have for a long period of time perceived public employee strikes as being illegal particularly because of the various implications that they are likely to perpetuated against the government, public managers as well as the wider public. Many states around the world have however made keen consideration on this issue and have as a result amended their statutes as well as the common law to issue public employees limited rights to strike. The various benefits associated with this provision is that it curbs possible interferences with state sovereignty, enhances state dominance in the decision making process, promotes social stability and improves public managers’ attitude in engaging public employees in productive collective bargaining. Various con factors associated with granting public employees limited rights to strike include suppressing their freedom to voice their opinions or engage in associations, exposure to unjust dismissal, violates workplace democracy and reduces chances collective bargaining in effort to protect their property interest in continued employment.
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