Many educators in districts throughout the state may be facing a call by their local unions to go out on strike.  What should a conscientious teacher do? This is not simply a moral and ethical dilemma, but a legal one.  There are real and potentially severe penalties ranging from fines to imprisonment for the actions teachers take.

Northwest Professional Educators (NWPE), a nonunion, nonpartisan educators organization serving educators in WA, ID, and OR, believes that hardworking, quality educators deserve improvements in salaries and benefits.  However, NWPE does not support actions such as strikes and work stoppages that are illegal, harm children and families, and impair relationships within the schools and the community.  The problem calls for creativity and collegiality—not acts that break trust, break agreements, and break the law in Washington State.

Despite divergent views on the benefits of strikes, all educators deserve to know the facts and consequences of participating in a strike.  They also deserve to work in environments of mutual respect.  No one should face recrimination and harassment for exercising their conscience.        

To this end, a number of attorneys have assisted NWPE to provide the facts regarding the legality and potential consequences of participating in a strike.  Both union and nonunion educators will find the following information helpful.

Q1:      Are teacher strikes legal?          

 Washington state law RCW 41.56.120 specifically provides that, “Nothing contained in this chapter shall permit or grant any public employee the right to strike or refuse to perform his or her official duties.”  The State Attorney General’s Office issued an opinion in 2006 on the legality of public employee strikes, concluding that, “In Washington, state and local public employees do not have a legally protected right to strike.  No such right existed at common law, and none has been granted by statute.”  The State Office of Financial Management also clearly notes that state employees “are not permitted or granted the right to strike or refuse to perform their official duties.”  Washington state courts have backed up these determinations.  For example, in 2009, a Washington King County Superior Court judge granted the Kent School District  an injunction to end a teacher strike stating,  ". . . [teachers] have no protected right to strike under Washington law, and are currently engaged in an illegal strike against the District."

Q2:      I don’t want to strike.  I want to work at my school.  What should I do? 

I am not a union member:  Contact your administrator and tell him/her of your concerns and wishes.  Your administrator may advise that you not show up to work in order to prevent future problems with your colleagues.  There are also situations where if the administrator knows he/she has a group of teachers who want to work, it makes a difference in deciding whether they keep the doors open or not.  

I am a union member:  Let your administrator know your wishes—prior to a union vote if possible.  Cast your vote.  A small minority of members often make decisions.  As a union member, you are bound by the union’s constitution and bylaws including disciplinary action, which might include fines.  It is likely that the courts will not enforce the union’s constitution and bylaws since strikes by public school teachers are illegal in Washington.  However, the safest course is to make sure the union has a resignation letter from you before you cross any picket line.  You probably do not have to resign to avoid union fines for working, but resignation would make it certain that you could not lawfully be fined.  

Q3:     Can or should the local union enforce a walkout on a regular workday without first taking a vote of members?      

 It depends on the contract language but it may be an unfair labor practice and illegal.  Forcing members to engage in a walkout could also constitute a breach of the union’s duty of fair representation.

Q4:      I am not a union member. (I’m a religious objector or an agency fee payer.)  Should I be allowed to vote on whether our teachers strike?

If you are not a union member, then you do not have the right to participate in union meetings, discussions regarding a strike, or have the right to vote unless the union allows it.  Ask your union representative to show you IN WRITING where it excludes some members of the bargaining unit from participating in local bargaining discussions and votes on the collective bargaining agreement.  (Even if you are not a union member, you are a member of the bargaining unit.)   

Q5:      Am I obligated to attend union rallies or walk a picket line during a strike?  Can I work in my classroom or attend a professional development opportunity instead?

I am not a union member:  You should work in your classroom or attend a professional development opportunity if you are scheduled to do so.  Ask the appropriate administrator what opportunities will be available for those who choose not to participate in union strike activities.    
I am a union member:  As a union member, you are bound by the union’s constitution and bylaws including disciplinary action, which might include fines.  It is likely that the courts will not enforce the union’s constitution and bylaws since strikes by public school teachers are illegal in Washington.  However, the safest course is to make sure the union has a resignation letter from you before you cross any picket line.  You probably do not have to resign to avoid union fines for working, but resignation would make it certain that you could not lawfully be fined.

Q7:      If the district keeps schools open for nonteaching staff to work, can I work during a strike instead making it up later?      
You would likely have to make up the day along with all the other teachers.  However, check with your school administrator.  

Q8:      If the district closes the schools during a strike, can I go ahead and work it  as originally scheduled and not work on the “make up” days scheduled by the district?  Can the district force me to work the “make up” days instead of the regularly scheduled work day? 

 It is not recommended to work on days the District has deemed as nonworking days.  Doing so and then refusing to work on the make up day could result in discipline for insubordination. 

Q9:      Can my pay be docked if my school is open during a strike and I do not report to work?       

 Yes, it is possible; but it is up to the district involved.

 Q10:   What should I do to protect myself from harassment and violence if I choose not to participate in a strike?    

 Keep as low a profile as possible and attempt to maintain existing cordial relationships with your fellow workers.  Should you work instead of participating in the walkout, keep in touch with other employees who are working during the action, give each other support and share information.  Also, if you work during a strike, you might consider getting an unlisted telephone number, keep a diary of all strike-related threats and incidents of harassment and violence (who, where, what, when, names of witnesses, etc.), and take photographs of your private property, such as home and car, so that you can document any damage should you become a victim of union violence.  If you begin receiving harassing phone calls, you should consider installing Caller-ID and reporting all such calls to the police.

Q11:   What is the obligation of my school administration to ensure physical safety, professional security, and a non-hostile work environment for teachers who elect not to participate in an illegal work stoppage?  

Districts are obligated to provide a safe working environment for employees and students.  Failure to protect against harassment of teachers who refuse to participate in an illegal activity, who decline to act in a violation of public policy, could expose both the perpetrators and the district to civil rights charges. 

Q12:   What should I do if my choosing to work during a strike results in harassment  afterwards? 

If possible, tell the harasser that the behavior is unwelcome.  You should report all threats and incidents of harassment and violence to your employer and, if threats of or actual violence are involved, the local police.  Members of Northwest Professional Educators should contact NWPE.  If you are the victim of threatened or actual union violence, you may also notify the National Right to Work Legal Defense Foundation (800-336-3600) for free legal advice.

Q13:   What actions can the government take to ensure that the laws regarding strikes by Teachers are enforced?         

The Attorney General can file legal action prohibiting a planned strike with specified penalties if it occurs.  School boards can seek injunctions, or court orders that direct teachers to go back to work. If teachers defy the court order, the court can order penalties against the striking employees and the organizations that support the strike.  Parents and other taxpayers may also have standing to seek injunctive relief provided they contact the public attorneys responsible for enforcing the law first.  (This is called an ex rel action.)

Q14:   What position do other major education groups take on teacher strikes?       

Along with Northwest Professional Educators, the Washington Association of School Administrators, Association of Washington School Principals, Washington State School Directors Association, and the Washington State PTA all oppose illegal work stoppages.  Strikes not only harm children, they violate the basic tenets of fair collective bargaining. 

Conclusion:  Commentary on Compensation

Northwest Professional Educators views students as our highest priority.  We discourage strikes and work stoppages, because they interrupt students’ rights to an uninterrupted education focused on their needs.   NWPE encourages all teachers to fulfill their moral obligations to follow the law and put students first if faced with a strike. 

NWPE believes teachers deserve fair, appropriate compensation for their quality work.  It is important, however, to analyze the best means of achieving appropriate compensation and the best work environment.  Strikes and forced unionism have not resulted in teacher pay keeping pace.  Educator and niece of Martin Luther King, Jr., Alveda King, notes that, “Teacher pay has barely moved up for a generation. From 1970 to 1995, when adjusted for inflation, the mean teacher salary actually declined by a little more than 1 percent. And it was in the early 70s that the unions infiltrated the teaching trade. Yet, overall education spending has boomed.”  King adds, “Had the NEA and AFT simply kept our share of the education pie where it was in 1970, then today, the average teacher salary would exceed $65,000.”  She adds, “Much of the ‘union dues’ teachers pay doesn’t have anything to do with negotiating contracts or other services.”       

David Kirkpatrick, current editor of SchoolReformers.com and former president of NEA affiliate, Pennsylvania State Education Association, states that teachers’ “total salaries and benefits have been declining as a percentage of the full costs of public schooling. While it is often stated that teachers’ share of those costs is in the 70-80% range, that claim is incorrect. The higher range includes administrators, secretaries, custodians, etc. The teachers’ actual share has declined from nearly 60% in the 1960s to about 40% today as a national average.”

By their own admissions, union leaders have acknowledged that only 20-30% of union dues are dedicated to collective bargaining and workplace representation with the rest going towards partisan politics and other activities.         

Obviously, forced unionism has not improved teacher pay. NWPE supports a more modern approach to representation and advocacy without the partisan agendas and forced dues of state and national labor unions. Some fresh new approaches might include “local only” teacher unions, faculty senates, and “workers choice” which allows independent teacher bargaining for nonunion teachers.  Contact NWPE at director@nwpe.org, 800-3880-6973 for more information about teachers’ rights and options.

—Thank you to Shawn Newman (Olympia, WA, labor, education and civil rights attorney); La Rae Munk (AAE Director of Legal Services); and Milton Chappell (National Right to Work Legal Defense Foundation attorney), for their contributions to this document.

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