Public employee strikes are underway in the Detroit Public Schools and at Eastern Michigan University. As is often the case in such disputes, the strikes are accompanied by heated and contradictory rhetoric from all directions. Under such circumstances, it is timely and instructive to look at what Michigan law actually says about such strikes.

Fortunately, the law is clear: These strikes are illegal and the courts are under an obligation to order school teachers and university faculty back to work.

For starters, strikes do not constitute free speech. State legislatures, therefore, are free to restrict its public employees from striking, and Michigan has done just that. The Public Employment Relations Act states explicitly that "A public employee shall not strike ..."

The law goes on to say that:

A public school employer may bring an action to enjoin a strike by public school employees ... in the circuit court for the county in which the affected public school is located. A court ... shall grant injunctive relief if the court finds that a strike ... has occurred, without regard to the existence of other remedies, demonstration of irreparable harm, or other factors. Failure to comply with an order of the court may be punished as contempt. In addition, the court shall award court costs and reasonable attorney fees to a plaintiff who prevails in an action brought under this subsection.

Clearly, under any fair reading of the law, public employee strikes are illegal in Michigan, and a judge is legally obligated to issue an injunction when they occur. Moreover, the school district is entitled to attorneys’ fees from the union for having to go to the trouble of involving the judiciary.

Courts, however, initially resisted this language out of a stated concern that the law creates a separation of powers issue — that is, the Legislature’s actions are binding the judicial branch. This was precisely a court’s stated concern in the ongoing Detroit strike, where the judge refused for days to issue an injunction and decided instead to hear evidence of potential harm to the school district if the strike continues — something clearly uncalled for by the statute. Only a judiciary that has lost its perspective could claim the law violates the separation of powers doctrine. It is the role of the Legislature to pass laws. It is the role of judiciary to apply these laws to the facts of individual cases.

The failure of the judiciary explains, in part, why strikes and threats to strike continue to occur. During negotiations in Holland in September 2005, a Michigan Education Association representative told The Grand Rapids Press that "There has been some discussion about the issue (striking).... Teachers would consider a walkout if the school board imposes an illegal contract." The Press reported that the union would consider "illegal" any contract that did not come about as a result of collective bargaining. Likewise, the Ironwood Education Association reportedly said that it was considering undefined "job actions" after rejecting a contract.

Unfortunately, even if the judiciary were to terminate a strike, it is still just the beginning of a school board’s problems. Before it can discipline teachers that took part in the illegal strike, the board must conduct hearings for every individual employee, and these findings are then subject to judicial review. Given the number of hearings required, it is difficult, expensive and time consuming for a school board to fire or otherwise penalize illegally striking employees. The existing penalties will not serve as a deterrent to public sector strikes until the Legislature gives school board’s a way to practically implement them.

During contract negotiations in Brighton, for example, enough teachers reportedly called in sick on May 5 to require the school district to cancel classes. Despite the school board’s perception that this action was an intentional sick-out, disciplinary procedures were dropped in order to come to an agreement on the contract. Making it even more difficult for school boards is the fact that if the Michigan Employment Relations Commission determines that the school district committed an unfair labor practice during negotiations, the commission may, despite the illegality of the teachers’ strike, order reinstatement of a teacher that was fired for striking.

Nationally, the number of teacher strikes has fallen from 241 in 1975 to 99 in 1991 to only 15 in 2004. With at least two public employee strikes underway, Michigan once again finds itself on the cutting edge of a trend it can ill afford to lead.

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Thomas W. Washburne is director of labor policy for the Mackinac Center for Public Policy, a research and educational institute headquartered in Midland, Mich. Permission to reprint in whole or in part is hereby granted, provided that the author and the Center are properly cited.