Thursday, December 15, 2005
In a previous post, I discussed the preliminary injunction a judge entered against a potential NYC Transit Strike. I though this unusual so I contacted two of my favorite public employment law experts and here's what they had to say about such an anticipatory labor injunction:
Joe Slater (Toledo):
I wouldn’t say they are unusual. I can’t speak to the specific case of TWU Local 100 and NYC today.
There are reported cases in which unions threaten to strike and employers ask for injunctions before the strike. See, e.g., the Idaho Supreme Court’s decision in School District No. 351, Oneida County v. Oneida Education Ass’n. (Idaho 1977), a featured case in the fine Grodin, Weisberger, Malin casebook.
In general, state laws in the past decade or two have trended toward making it somewhat easier for public employers to get injunctions against illegal strikes. For example, fewer state courts now allow the union argument that an employer who has not bargained in good faith has “unclean hands” and thus cannot ask for equitable relief.
Of course the political and practical questions often outweigh the legal rules in this area, as they frequently do in public sector labor law generally.
Marty Malin (Chicago-Kent) had this to say:
New York’s Taylor Law has some of the harshest anti-strike provisions of any public sector labor relations statute. The Taylor Law provides for injunctions, such as this one, a union’s loss of its dues check-off, and provides that striking employees are fined two days’ pay for every day on strike and the fine is collected by the employer. This is in marked contrast to the law in Illinois, where strikes by all public employees except police and firefighters are legal. The contract must have expired, there must have been resort to mediation and a five day notice of intent to strike must have been given. Then, the union is free to walk at any time and the strike may only be enjoined if it poses a clear and present danger to public health and safety. (In 21 years under the statutes you can still count the number of clear and present danger strike injunctions that have been issued on the fingers of one hand.)
If you’ll allow me to plug my study from the 1990s, see Marty Malin, Public Employees Right to Strike: Law and Experience, 26 U. Mich. J. L. Reform 313 (1993).
Thanks for the insights guys!