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Why teacher strikes aren’t legal, yet happen anyway

Law provides no penalty

OLYMPIA – Teacher strikers are not legal under Washington law. That doesn’t stop them from happening, although it sometimes stops them from continuing.

The problem with that law, say Republican legislators who have pushed unsuccessfully to change it, is there’s no defined penalty for breaking it.

The typical scenario when a school district’s teachers go out on strike goes like this: Teachers walk out. The district goes to court alleging that action is illegal. A judge agrees and orders the teachers back to work.

Sometimes they return to the schools, negotiations continue and eventually a contract is reached. Sometimes they refuse to comply with the judge’s order, the strike continues, the judge finds them in contempt and fines the union for each day they remain out. But negotiations continue and eventually a contract is reached.

State law allows government employees, including teachers, to form unions and bargain for wages and other working conditions. That law also says that while those employees can unionize “nothing…shall permit or grant any public employee the right to strike or refuse to perform his official duties.”

A 2006 opinion from then-Attorney General Rob McKenna said there’s nothing in state law, however, that sets out a penalty for such a strike. The Legislature probably could pass penalties, because federal courts have upheld penalties on federal employees for striking, that opinion said.

So far, the Legislature has not done that.

Several other states have penalties for teacher strikes, ranging from fines for the participants and their unions to a loss of a union’s right to represent those employees for two years, Jason Mercier, of the Washington Policy Center, said. In Washington, school employees considering a strike face a “no-lose situation,” he said in a recent e-mail.

Last May during the first special session of the Legislature, members of the predominately Republican Senate Majority Coalition introduced a bill that would bar school districts from paying teachers for the days they were on strike. The bill was prompted by one-day “strikes”, or demonstrations by teachers who were trying to generate public support for the Legislature to increase spending on public schools.

The proposal got a hearing in the Senate Commerce and Labor Committee, during which Democratic members of the panel walked out in protest and members of the policy center and the Evergreen Freedom Foundation, which opposes public sector unions spoke in support. The school administrators’ association said it would create a logistical nightmare to determine whether the teacher was sick, taking a vacation day or on strike. Representatives of the Washington Education Association and the state Parent-Teachers Association, as well as the state attorney general’s office, turned down invitations to testify.

The bill never received a committee vote needed to send it to the full Senate for consideration. It could be brought up again next year.


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