Today, the Clark County Education Association, the union designated as the exclusive bargaining agent for teachers in the Clark County School District, will argue in district court that state laws barring strikes by public-sector unions are unconstitutional.
In so doing, the union will place its own duplicity on full public display. Why? Because it lobbied to get these laws enacted.
Foregoing the right to strike was part of a grand bargain made by public sector unions in Nevada in order to secure a binding arbitration procedure as part of the mandatary collective bargaining process.
Firefighter unions originally promoted this idea and originally secured legislation in 1977 that exchanged a binding arbitration procedure for striking rights. The basic argument was that a strike by firefighters officials would endanger the public safety and, whereas strikes are simply a means to gain leverage during contract negotiations, an arbitration process guarantees a union contract.
Even though a majority of states require public administrators to bargain “in good faith” with recognized unions toward a collective bargaining contract, there can be instances in which good faith bargaining still doesn’t result in a union contract.
The legal requirement to move to arbitration in cases of dispute is the only mechanism that guarantees a union contract.
As explained in a history of Nevada’s collective bargaining laws prepared by legislative staff, Nevada uses “final offer” arbitration, in which both parties submit their final offers in writing to an arbitrator who must evaluate the circumstances and select one or the other offer, which becomes binding on both parties. The arbitrator cannot split the difference.
Because arbitration gave so much additional leverage to firefighter unions, other public sector unions began to press for similar powers. In 1985, police unions exchanged striking for arbitration, and teacher unions followed suit in 1991.
In its contract negotiations last fall, the Clark County Education Association, or CCEA, was demanding an across-the-board pay increase of 18 percent, plus additional raises and bonuses for select groups of teachers.
To pressure the Clark County School District, or CCSD, to agree to these demands, the union began organizing “sickouts” at select schools that would force the district to close individual schools with no advance notice provided to parents and students.
CCSD filed for and was awarded an injunction in September, claiming CCEA was engaged in an illegal strike.
The union responded by filing a lawsuit Oct. 9, challenging the constitutionality of Nevada’s ban on strikes by public sector unions.
In its brief, the union argued this ban – language it once lobbied for – violates the freedoms of speech and assembly guaranteed by the First Amendment. It also claims the definition of what constitutes a strike is overbroad and cannot be interpreted by a person of “ordinary intelligence,” thereby infringing upon the union’s due process rights.
CCEA, which represents some 18,000 educators, does not argue that its binding arbitration powers should be rescinded. It simply wants one side of the deal it made to obtain these powers.
Beyond the obvious duplicity, the union’s claims are also legally deficient. As CCSD points out in its response, “state and federal courts across the nation universally hold that public employees do not have an inherent constitutional or fundamental right to strike.”
The CCSD brief cites dozens of state and federal cases that reach this conclusion. That’s because public employees are in a position of public trust.
As Nevada’s laws governing public-sector collective bargaining state: “[t]he services provided by the State and local government employers are of such nature that they cannot be duplicated from other sources and are essential to the health, safety and welfare of the people of the State of Nevada … [t]he continuity of such services is likewise essential and their disruption incompatible with the responsibility of the State to its people.”
Courts have continuously held that these special characteristics of public employment make it appropriate to curtail striking. In a similar vein, former Chief Justice Oliver Wendell Holmes once opined that a police officer “may have a constitutional right to talk politics, but he has no constitutional right to be a policeman.”
Progressive icon Franklin Delano Roosevelt went even further in his distinction between public and private employment, writing:
“All Government employees should realize that the process of collective bargaining, as usually understood, cannot be transplanted into the public service. It has its distinct and insurmountable limitations when applied to public personnel management. The very nature and purposes of Government make it impossible for administrative officials to represent fully or to bind the employer in mutual discussions with Government employee organizations. The employer is the whole people, who speak by means of laws enacted by their representatives in Congress.”
The unique attributes of public employment merit separate treatment and that’s why public employees are not subject to the National Labor Relations Act, which governs union activities in the private sector.
To attract and retain employees, legislators and administrators must offer attractive pay and working conditions, but 17 states don’t even require collective bargaining with teacher unions. Incidentally, most of those states boast higher student achievement than Nevada.
CCEA’s antics should be dismissed forthwith.
