I’m a big Chumbawamba fan. I think they’re fantastic. One of their tunes, “I’m Not Sorry I Was Having Fun,” includes the line “I got that old time religion, where we still don’t cross the picket lines.” That’s a good religion.
Pickets are on my mind recently. The clerical workers at the university where I work and I think two other bargaining units as well may be going on strike at the beginning of the school year. I’m also supposed to be teaching. Last time there was a strike, many teachers moved their classes off campus to other locations as an act of solidarity with the strikers. I have a lot of reservations about doing that. In short, I don’t see how that differs from crossing the picket line.
Picket lines are economic, not geographic. The point is not to avoid walking past some people with signs. The point is to slow or halt production. If I teach a class across the street in a church or something, how is that any different from teaching class on campus? As I see it, that’s no different than a clerical worker sorting through applications at home instead of in the office. Production continues so, while that clerical worker wouldn’t walk across a line of people with picket signs, that clerical worker is crossing the picket line.
One thing I find unconvincing on the part of some of my coworkers is that we can make some difference by talking to our students about the strike, as in teaching about the strike as part of our job. Unless we’re talking to our students in order to convince them to participate in strike support (and succeeding in convincing them) then I don’t see this as mattering much. I mean, sure, if some people get their consciousnesses raised or whatever, well and good. But that’s a) something that could be done outside of classes and b) not something which impacts the strike whatsoever. Teaching about the strike may be good in all sorts of ways, but “it’ll help the strikers” is not one of those ways.
Another thing I find unconvincing is some idea of responsibility to the students. Of course teachers have responsibilities to students. So do the clerical workers who process their applications, and the technical worker who repair the buildings, and the librarians who handle the books, etc. Comparing the university with a hospital, say, the teachers are like the nurses (the graduate instructors and adjuncts more so, faculty are more like doctors). They have direct contact with the students and deliver the services that the institution exists to provide (ostensibly). But without the work of the others who make the place happen – janitors, cafeteria workers, shipping and receiving workers, etc etc, the institution would fail. The facility is an ensemble and produces as an ensemble. Responsibility is shared across that ensemble. If it’s okay for some units to not live up to their responsibility (that is, if the reasons for the strike can outweigh the moral obligation to those who receive the service) then it’s okay for all.
Two qualifiers here. First, I think nurses do bear a special responsibility in that if the janitors strike one day it won’t have the same impact on patient care. Put simply, a strike of nurses when there are patients in the beds could kill someone, and fast. The degree to which this is true for any unit is the degree to which that unit should be (has a responsibility to be) prudent in planning their strike. Generally the closer a unit is to providing direct care and the more medical in nature this care is, the more prudence is recommended. (The facility has more elasticity in responding to work stoppages – in terms of maintaining proper care – the further from direct medical care the work gets.) This prudent planning, however, is a matter of execution of the strike properly, not a matter of whether or not to strike. I believe it’s pretty standard that nurses going on strike give a lot of notice so the hospital begins to move patients elsewhere. That way the strike impacts the employer economically but not the patients in terms of health.
Second, I think there’s no analog to this in the university. That is, the hospital-university parallel doesn’t hold here. There is nothing as urgent in teaching as there is in medical care. So there’s not corresponding level of responsibility to be prudent in work stoppages in universities. Negative consequences of work stoppages to patients in hospitals would be pretty much the direct result of not getting medical care because the medical caregivers weren’t at work. Negative consequences of work stoppages to students in universities (like say delayed graduation) would be the result of decisions on the part of the administration, not the direct result of the work stoppage. The administration has the power to waive some requirements for students so that the strike doesn’t impact the students so negatively (in a way that hospital administrators do not have the power to waive illnesses and needs for treatment).
One of my co-workers said that under the university’s accounting system, the empty classroom with the lights on and so on will be counted by the university as an economic loss, so it’s not just symbolic to move classes. I want to be convinced by this (because I want an excuse to feel like it’s okay to not cancel my classes, because I’m very afraid of retaliation for canceling my classes) but I’m really not. It seems to me that teaching classes in another spot is continuing production in another spot, therefore it’s crossing the picket line. Maybe it’s crossing with an “I’m sorry, I do this under duress” sign or something, but big deal.
Hopefully all of this will be rendered needless because the strike and its difficulties will be averted by the university negotiating in good faith. But I’m really in knots over the thought of it happening and what to do. I want to keep my old time religion, as it were, but I want to keep my job. I need to talk it over with my wife. I’m not super happy in grad school anyway, maybe getting chucked out would provide me with the impetus to find something else to do. And then we could have a baby sooner rather than later and 15 years later we’d look at our kid(s) and say “oh, losing that third job for union related activity was the best thing that ever happened.” (My stomach lurches at the thought, I don’t want to do that again. Stupid cursed horrible bosses – vermin, filth, scum.)
crashcourse666 
Nothing at all useful to say here, other than sorry the situation is unfolding around you… 😦 We’ve had situations here in the past where people have cancelled their classes – sometimes without consequence, but sometimes with… It can make a large difference if staff are not acting individually when they do this – but you already know that… Are staff just making individual conscience calls, or is there any potential for a collective decision (and in contact with the potentially striking units)? Sorry I don’t have anything more meaningful to say… Hang in there…
Thanks NP. At this point there’s not a coordinated response, just individual decisions. We’re in informal contact with the potential striking units (clerical workers across the university, mostly). Teaching staff aren’t unionized and are largely disorganized and stratified (graduate instructors, ADB graduate instructors teaching more than one course, adjuncts w/ PhDs, tenure track faculty, and tenured faculty, plus divisions by department) beyond pockets of informal relationships. A second concern is for teaching assistants who may be required by faculty to cross the picket line and attend classes. A friend of mine suggested moving class to the picket line. He had like 5 different ways to spin that as academic work (an introduction to doing ethnography, introduction to doing personal interviews, illustrating a point about crowds and spaces or about work, etc). It struck me as a funny idea. We’ll see what happens.
take care,
Nate
hey Nate, just a word of encouragement here, nothing more. its funny that your situation makes me think of negri, but i’ll let that go. just let me say that I don’t think the university will take any action against you, neither the department, I think you have the freedom to do what you want. Going on strike in solidarity will allow you to bring the other grad students in line, if only for the sake of their conscience, or at least it will raise the stakes in your department.
good ole religion!
Tzuchien, nice to hear from you. I hope you’re right. If they do, can me and Ang come live with you in Paris?
xox,
Nate
ps- I hear A got laser eye surgery, is that right? Give her my best please.
of course, place should be so dignified.
and yes, but she got it like a year and a half ago.
Cool. I’ll tell Ang, maybe that’ll reassure her.
I never knew that about the eye thing, or maybe I did and completely forgot. I’ve thought about getting that (it’d save me money on glasses among other things) but I’m kind of intimidated at the thought of having something done to my eyes and at the potential recovery time.
take care,
Nate
Hmmn. To begin with, I quite agree and I like the way you put it: picket lines are economic and not geographic. So moving production off-campus is scabbing. (Yes, I understand there are economic reasons why people scab — need the money, fear of losing their job, etc. — but it’s scabbing nonetheless.) I mean, shit, why do we need globalisation, why do we even need bosses, if workers outsource their own work?!
And I also sympathise with your situation, but like the other commentators above, I don’t really know what you should do.
I just want to say, that all this again raises questions about industrial action against — you know what I’m gonna say, Nate, and you’re gonna hate it, and I’m not overly enamoured with the term either, so I’ll put it in quotes — “immaterial” labour. What’s successful strike action in the social factory? I don’t have answers to these questions, but it’s important we think about them. I’m not saying this is the case for these clerical workers, but it certainly is for teachers and nurses and others whose labour is so clearly reproductive. I’m certainly sick of people talking about “symbolic” actions (including strikes), intended to raise awareness without actually hurting anybody. I want to cause harm: to the boss and to capital, in general. So I think we need to think carefully about those *aspects* of our work we could refuse which would harm our employer whilst continuing to do the work which our patients or students benefit as human beings from. There’s a few great examples of transport workers continuing to operate trains/buses whilst refusing to collect fares or check tickets. As teachers we could continue to teach but refuse to grade.
There are still problems, of course, not least of which is that old chestnut: how do we organise to do this?
Anyway, good luck, Nate.
yo, theres little to no recovery time, an eye is a funny thing, but you can’t rub it for like… a week, I know you like to rub.
man, just got the fwd of the email between prof and student, etc. that shit is fucked! I loved it when he said something like “sheesh, why can’t you guys fuckin organize yourself” which is a great one-liner you gotta admit.
yea, let me know what’s up and fuckin tear that mothafuka up.
btw, I took the first part of the french test today… blood hell.
Few things convince me of the need for grad students to unionize more than this kind of question (low pay and low appreciation for all casualized academic workers is another big one).
I’m afraid that without an organized teaching staff, I don’t see how anything you do could be more than symbolic. Ideally, the grad students / TAs would not only be organized, but in a federation with the other campus unions. This way, your contracts could expire at the same time (in a recognized union) and your strikes & actions could be coordinated, with obvious benefits all around. Without a federation and simultaneously expiring contracts, even large-scale respect for picket lines would be a problem: as I understand it, the NLRA outlaws sympathy strikes, along with partial strikes, rolling strikes, and most other techniques that work.
I can only tell you what an organizer friend of mine said to his professor when he was scheduled to teach while the clerical & grounds-crew locals were striking, which was “Fire me if you want, I’m not teaching” (this was fall 2003, before the Bush NLRB ’04 decision to revoke employee status for grad TAs at private institutions; at private universities since then, the slight bit of good news is that we can’t be fired).
hi Tzuchien, Lucas, David,
Tzuchien don’t get me started on that email, it’s hard to be nice and I don’t want the potential headaches.
Lucas, I’m in complete agreement. I’m a public employee so I’m under a state PELRA, not the NLRA. It really is just a matter of morality. I don’t want to care so much but I really, really hate the thought of not canceling classes. Any arguments I can make to rationalize not canceling classes – which I think may be correct arguments – don’t get at my gut feeling/moral intuition. The real issue of course is power and no action of mine right now (given the short time frame and the lack of organization at present) will really matter. But despite my wanting to just care about the power stuff, the moral thing really gets to me in this case.
Dave, I’m not convinced about the immaterial labor argument (I’m sure you’re shocked, right?) – nursing is immaterial labor and nurses wage successful strikes. The same goes for teachers in most types of schools other than universities (and in some universities too) I think it’s more a matter of how production is arranged (technical composition/industrial relations) rather than the labor process itself – the dispersal of people, lack of current relationships etc. Basically it’s the lack of (and difficulty of) organization, which isn’t due to the immaterial nature of the work but the dispersal of the workforce – the same could hold in say home-work/out-work on textiles.
take care,
Nate
Hey Nate,
We’ve started organising casual academic staff at Sydney Uni and I hear what you’re saying about some of the difficulties, although so far the results have been encouraging.
Like you say, collective is key: there’s not much material point in taking a personal moral stand unless you can bring the others along with you. But try as hard as you can to get your co-workers on side!
We have found marking to be an excellent point of leverage for casual academics. Partly that’s because of an Australia-specific point: it’s illegal to strike here outside the bargaining period for a collective agreement, but the relevant agreement specifies an hourly rate, leaving us free to negotiate the piece rate (i.e. how many words it is assumed we read per hour). But more broadly, marking is the part of the job everyone hates, so it’s easier to get a collective decision to refuse to mark than to refuse to teach, and arguably it gums up the system more.
hi Mike,
I’d love to hear more about this stuff in Sydney when youget a chance. I do think it’s possible to organize university employees and geographically dispersed employees who work all sorts of different hours and so on.
It’s the specific issue of this strike that’s the problem right now. We’re currently really disorganized, people aren’t around much right now (cuz term doesn’t start until September 4th so a lot of people are out of town and people aren’t on campus so it’s harder to find folk and meet up) which makes it hard to organize anything quickly, and the strike if it happens will begin on the 4th. The vote was yesterday, 72% vote to strike across the 3 units in question. Hopefully this is enough to bring management back to the table (it seems to me the smart move even if they really want to attack the union would be to bring folk back to the table until beginning of semester’s past then provoke a strike, this would also help tire the workers out because the anticipation wears on people – the last clerical unit strike was 3 or 4 years ago, 2 1/2 weeks long and very difficult).
As for the collective and moral thing, I get that in my head. My wife tells me that in general and re: university stuff I’d be better off if I got better at saying “fuck it” or “oh well” more often. Like, oh well, whatever we do right now will be small and merely symbolic, hence it’s not at all clear that it’s worth the risk to cancel class, so fuck it. But that doesn’t sit right. I really don’t like the idea of having a “the time I crossed a picket line” story. This’d be easier if I shared Tzuchien’s confidence that there wouldn’t be repercussions.
take care,
Nate
This could be another post, titled “… do you expect anyway?” but it’s faster to make this a comment.
I was ranting over breakfast this morning (as I’m wont to do in some cases, though less than I used to, and is I think often an index of my sense of futility) and my wife said to me basically a more tactful version “what do you expect? non-unionized people aren’t likely to step up and take a major risk for unionized workers who are striking. Sure, they should, but that’s another matter.” That’s a reasonable point. I quibbled with ‘non-unionized’ though. Unionized employees also take risks when they decide not to cross a picket line. It’s less the legal/formal question of unionization and more the substantive and informal matter of organization that determines how much of a risk it is to take this or that action. We’re disorganized. It feels like a big risk to cancel classes. If it didn’t, I wouldn’t be worried at the thought of canceling classes – just like I wouldn’t be worried about raising a student’s grade from a B+ to an A- or whatever.
What upsets me here, other than the simple issue of crossing the picket line, are a few things. One, I feel like some of my colleagues have a sort of implied idea of ‘university exceptionalism’, that there’s something different about our work vs others. (Intellectual/professorial responsibility to students like I said, or in some way that if we do our jobs and teach our students then we’re actually making a difference – particularly making a difference to the strike, like a sort of “if we cross the picket line we help the strikers”). Second, I find it frustrating to have some conversations about this in the idiom of the workplace/of the university. Third, I find the first frustrating in that I think it masks the real issue – and the real motivating issue I think – of power relations and fear and so on. If we can’t currently pull off an effective action (included in ‘effective’ is ‘we do not all get fired’) then we have to face that, the questions then are what would it take to get to where we could do that in general and specific short term action steps. Fourth, I’m frustrated with what feels like my inability to convey this stuff to my co-workers. It feels like for the most part they don’t want to have the discussion or engage these issues. This is in part because it’s mostly been all via e-communication because people aren’t around as term hasn’t started yet.
I learned today that if you and at least one other person refuse to cross a picket line, then it can be legally protected as collective action. This warrants further looking into, I think.
hi Lucas,
Yes, it is worth looking into. Where did you hear that? It also depends on what industry and type of employer it is – I’m not covered under the NLRA, I’m under the Minnesota PELRA, for instance. I’m under the impression there’s not a right to respect a picket line for many/any US workers, so I’d be keen to hear more on this.
take care,
Nate
No, I agree: organisation is key! I certainly don’t believe the nature of the work — so-called immaterial versus material — determines everything else. But organisation in a particular workplace or sector isn’t insulated from the wider context, i.e. class-composition in general. And this is affected by the question of harm, i.e. who is harmed by the action? (And the answer to this does tend to be more ambiguous with “immaterial” labour, though there are many exceptions, transport and advertising being just two.) And re teaching and nursing, in the UK both teachers and nurse have great difficulty responding to accusations that they are harming their pupils/patients. But again, I agree there are many factors we have to look at.
hey Dave,
I think we’re on the same page then. I agree completely that no one’s in a vacuum. My impression is that in the US healthcare workers have done a better job than education and other social service workers, at saying that workers’ interests and consumers/client’s interests are the same — Like good staffing ratios and shorter shifts are better for nurses and for patients. The same holds for teachers and students at least to some degree but hasn’t been made as clear or as successfully argued. This is just a guess but my gut feeling is that the idea of professionalism doesn’t help, that it feeds insulating/isolating from others (part of why no one really cares about academic freedom or about doctors).
take care,
Nate
Nate,
Glad you think we’re on the same page… but you must try and keep up 😉 “Turning the pages, we read”; or should it be: “Reading, we turn the pages”? Anyhow, I’m sure this would sound much better in Spanish 😉
On “professionalism”, I think your gut feeling is correct. I think it’s part of a question of which way one faces, whether towards capital or towards the (working) class. When you say “we’re professionals”, I feel that you’re aligning yourself with capital. Whether this is simply because you’re using capital’s hierarchy to differentiate yourself from other workers, or whether there are other additional reasons I’m not sure, though.
Best
David
If you don’t cross – cancel classes – and there are direct consequences, how will the other staff who do cross respond? Would you get solidarity in any real way?
Not that it makes any practical difference, but I would like to comment about how the university’s lawyers, in the Office of Human Resources FAQs, have falsely portrayed the PELRA as singling out sympathy strikes in its strike ban, as if they wanted to convey the impression to university workers that the state considers action having solidarity as its purpose to be particularly offensive:
“Q. Can employees who are not in the striking unit refuse to work in sympathy for the strikers?
A. No. Employees may not legally engage in a sympathy strike. The Public Employment Labor Relations Act (PELRA), which governs public sector labor relations, declares sympathy strikes to be illegal.”
The FAQ refers to section 179A.19, which prohibits strikes generally but is clearly not a specific “declaration” against sympathy strikes:
“179A.19 ILLEGAL STRIKES.
Subdivision 1. Other strikes illegal. Except as authorized by section 179A.18, all strikes by public employees are illegal.”
This is a follow up to my previous comment. There may be a method to the madness of the administration’s propagandistic FAQs after all.
Lo and behold, it would appear that the PELRA strike ban does not actually apply to sympathy strikes (that is, strikes having the purpose of solidarity), by virtue of its very definition of what is a prohibited “strike”:
179A.03 DEFINITIONS.
Subdivision 1. General. For the purposes of sections 179A.01 to 179A.25, the terms defined in this section have the meanings given them unless otherwise stated.
…
Subd. 16. Strike. “Strike” means concerted action in failing to report for duty, the willful absence from one’s position, the stoppage of work, slowdown, or the abstinence in whole or in part from the full, faithful, and proper performance of the duties of employment for the purposes
of inducing, influencing, or coercing a change in the conditions or compensation or the rights, privileges, or obligations of employment.”
University teachers who, purely out of motives of sympathy, refuse to cross the lawful primary picket lines of other university workers and abstain from their duties, would be striking for purposes of solidarity with the striking workers, not “of inducing, influencing, or coercing a change in [their own] conditions or compensation or the rights, privileges, or obligations of employment.”
Paul, thanks for those. I find the legal idiom hard to wade through. It doesn’t seem to me that MNPELRA says sympathy strikes are illegal, but it doesn’t give a right to sympathy strikes either. It seems to me that the employer could choose to dismiss people for a sympathy strike. I think your argument is compelling that it wouldn’t legally be a strike, but the employer could just fire people for absentee-ism. It is true that “not legally protected” is more powerful than “illegal.”
Do you want to help me make and distribute leaflets about this? It’d have to be done fast.
Also, you got any opinions on the claim to “liability issues”? I didn’t read the Provost’s email (management are liars, why bother?) until just now, several people today were commenting that they felt intimidated that they would be personally taking a legal risk if they took students off campus, that they would be personally liable. That sounds ridiculous to me. What do you think? Here’s the relevant excerpts:
“August 30, 2007
FROM: E. Thomas Sullivan, Senior Vice President for Academic Affairs and Provost
RE: Obligation to Hold Classes on Campus in the Event of a Strike
(…) Relocating classes off campus may make it difficult for students to get to their next class on time, or may otherwise cause inconvenience or discomfort, particularly if the class is an early morning or evening class. Removing classes to off-campus locations also presents potential accessibility and liability issues.
With these overarching principles in mind, you need to know that during a strike, every faculty member, graduate assistant, and employee who is scheduled to teach, is expected to hold their classes, and to hold them on campus as originally scheduled. The Public Employment Labor Relations Act (PELRA) requires University of Minnesota employees to report to work in the event of a strike by another union. University employees who refuse to report to work as directed are considered under state law to be engaged in an illegal sympathy strike and are subject to discipline. (…) Civil Service, P&A, and non-AFSCME bargaining unit employees are required by state law to report to their regular work location. They may register support for the strikers, but they must do so consistent with their legal and University obligations. Faculty, by law, face the same obligations. (…) If you have teaching assistants helping with labs or discussion sections, please share this memo with them. They face the same University and legal obligations.”
take care,
Nate
Thanks for your comments, Nate.
Thanks for the invitation to help with leaflets. I would be happy to help in the drafting, but as I’m in Geneva, Switzerland, I wouldn’t be able to help with the distributing!
I agree with you that “protected” action is stronger than “not illegal,” and that the employer would probably be found under university rules to have “just cause” to fire people for absenteeism or abstention from duties, even if PELRA doesn’t forbid sympathy strikes but leaves them unprotected. I can’t think of a way around that (other than the exercise of grassroots mass power by all university workers and students), and perhaps that’s a good tactical reason for teachers to hold their classes but do so off-campus, rather than to respect the picket lines and cancel them.
I see from the U of M Labor & Community Strike Support Committee (uworkers.org/node/7) that this is the strategy being deployed.
I agree that Sullivan’s statement that doing so “presents potential accessibility and liability issues” is little more than scare-mongering. What he may be referring to is legally required access to classes by disabled students, and/or perhaps to liability under accident insurance policies that exclude coverage for work-related injuries sustained by university employees while off-campus. These are issues/precautions that can simply be worked out on an ad hoc basis.
In any case, there is precedent for holding strike-related, off-campus classes, such as the 2003 clerical workers strike:
Click to access case.pdf
“Faculty worked with the Strike Support Committee to find off-campus locations to hold classes so students would not have to cross the picket lines. In the first two days of the strike alone, 150 classes affecting 4,000 students in the Twin Cities were held off campus.”
It might be useful to find out how that experience went and what, if any repercussions, ensued.
I have a few further thoughts about PELRA, the weapon this management crowd seems hell-bent on (mis-)using, regardless of what it means or of whether solidarity action takes the form of a sympathy strike (respecting the picket lines and canceling classes) or holding off-campus classes:
— Management is making some wild and arguably illegal statements.
The Provost’s email that you have posted: “The Public Employment Labor Relations Act (PELRA) requires University of Minnesota employees to report to work in the event of a strike by another union.”
A similar one by a management lawyer, posted by Jesse Wozniak [http://thisblogkillsfascists.blogspot.com]:
“The Public Employment Labor Relations Act (PELRA) explicitly requires non-striking University of Minnesota employees to report to work in the event of a strike by another union.”
I can find no such language in the PELRA. It appears that they are referring to Subdivision 3 of section 179A.19:
“179A.19 ILLEGAL STRIKES.
…
Subd. 3. Presumption of strike. For purposes of this section, an employee who is absent from any portion of a work assignment without permission, or who abstains wholly or in part from the full performance of duties without permission from the employer on a day when a strike not authorized by this section occurs is prima facie presumed to have engaged in an illegal strike on that day.”
But under this clause the presumption (that abstention from duties constitutes an illegal strike) presupposes the occurrence of an illegal strike. Nowhere in the statute do I see an explicit ban on sympathy strikes, and from my perspective such a ban cannot reasonably be implied — again because of the way the statute explicitly includes purpose to narrow its definition of a “strike,” as well as the narrow scope of its definition of U of M “essential employees”:
“179A.03 DEFINITIONS.
“Subd. 7. Essential employee.
“For University of Minnesota employees, ‘essential employee’ means all employees in law enforcement, nursing professional and supervisory units, irrespective of severance, and no other employees.
“Subd. 16. Strike. ‘Strike’ means concerted action in failing to report for duty, the willful absence from one’s position, the stoppage of work, slowdown, or the abstinence in whole or in part from the full, faithful, and proper performance of the duties of employment for the purposes of inducing, influencing, or coercing a change in the conditions or compensation or the rights, privileges, or obligations of employment.”
Sullivan’s statement might be accurate enough, except that he slips in the word “sympathy,” thereby turning it into wishful fiction:
“University employees who refuse to report to work as directed are considered under state law to be engaged in an illegal sympathy strike and are subject to discipline.”
In effect, these statements amount to forced labor and thereby arguably directly violate employee rights under section 179A.06 of PELRA:
“179A.06 RIGHTS AND OBLIGATIONS OF EMPLOYEES.
Subdivision 1.
… Sections 179A.01 to 179A.25 do not require any public employee to perform labor or services against the employee’ will.”
… not to mention rights under the Minnesota Constitution:
Sec. 2. RIGHTS AND PRIVILEGES.
… There shall be neither slavery nor involuntary servitude in the state otherwise than as punishment for a crime of which the party has been convicted.
— The AFCSME workers, through their strike website, are clearly asking for sympathy strike action from those university employees in a position to do so:
“HONOR OUR PICKET LINES by not entering U of M buildings beginning September 5 (unless you are legally or contractually required to do so).”
http://www.afscme3800.org/node/84
It also appears, from a manual for union members in an unrelated context, that AFSCME itself considers state law to prohibit sympathy strikes by public employees:
Questions & Answers Regarding a Strike, MEMBER SURVIVAL KIT, AFSCME Council 5, Hennepin County, Negotiations 2006 – 2007
Click to access member_survival_kit.pdf
“12. Q: Can other public employee unions honor picket line lines?
A: By law, these other unions cannot honor our picket lines. If their members wish to show support for us, they can help by picketing with us during non-work hours, making financial contributions, or donating food and beverages to our strike kitchen.”
This gives one pause, as it appears that AFSCME itself understands PELRA to forbid sympathy strikes by public employees … What are they seeing that we’re not?
— Short of a general strike and the exercise of mass power by all university employees and students in support of the AFSCME workers, my thought is that the next best thing would be for a few courageous martyrs to take solidarity action; take the discipline under PELRA; use the hearing procedures under Subdivision 6 of Chapter 179A.19 to challenge the dismissals, and get into court and try for a favorable interpretation of the statute on the question of whether the strike ban encompasses sympathy strikes.
The issue of sympathy strikes by public workers – and their legality under PELRA – will be a recurring one. For instance, as already noted the issue came up for U of M faculty at the time of the 2003 clerical workers’ strike:
http://www1.umn.edu/usenate/tenure/03-11-17.html
“Notes, Tenure Committee, Monday, November 17, 2003
“2. Effect of Tenure on Treatment of Persons During a Strike.
Professor Akehurst noted that there had been a number of circular letters to faculty and department chairs about the way to deal with the impending strike by clerical workers. If someone refuses to cross a picket line, that could be an illegal strike and one could be dismissed immediately. That seems like a draconian response and he said he did not know if the sanction would be enforced. The facts have been conveyed to the faculty, however, so they know the risks. One faculty member maintained that he could not be fired because he has tenure. His thought, Professor Akehurst said, was that because the language about the illegal strike is state law, the law would trump the tenure code
… Professor Selzler said that people in a union have all kinds of laws governing them; the faculty [are] not in a union so the laws do not apply. Professor Akehurst pointed out that the state law (PELRA) covers both unionized and non-union employees and provides that one MUST cross a picket line if not on strike. The question is whether PELRA trumps the tenure code.”
— There is good legal precedent in other jurisdictions on this issue – well, at least in two cases in California:
Children’s Hospital Medical Center v. California Nurses Assn. (9th Cir. 2002) 283 F.3d 1188
Oxnard Harbor District (2004) PERB Dec. No. 1580-M, 28 PERC 56
Click to access 1580M.pdf
Oxnard Harbor, for example, involved a negotiated Memorandum of Understanding that contains precisely the same “purpose” language in defining strikes as in the PELRA strike definition. In its decision the California Public Employment Relations Board found:
“In this case the parties’ intentions regarding the no-strike clause [of the MoU] is clear. The section states:
‘As used in this Section, ‘strike’ or ‘work stoppage’ means a concerted failure to report for duty, the willful absence from one’s position, the stoppage of work, or the absence in whole or in part from the full, faithful performance of the duties of employment for the purpose of inducing, influencing, or coercing a change in the conditions of compensation, or the rights, privileges or obligations of employment. [Emphasis added.]’
“Thus, a key element of any prohibited strike is that it be for the purpose of changing the conditions of compensation, rights, privileges or obligations of employment. This element is not present in SEIU’s sympathy strike. Rather, based on SEIU’s June letter to its members, it appears that the purpose of the strike was to show support for the ILWU whose previous support for SEIU had ‘helped to win many of the items’ in SEIU’s MOU.”
In Children’s Hospital, the California Nurses Association (CNA) and the hospital were parties to a CBA that included a general no-strike clause. When CNA gave notice of its intent to engage in a sympathy strike, the hospital sought injunctive relief, arguing the no-strike clause constituted a waiver of CNA’s right to engage in sympathy strikes. In rejecting the hospital’s rationale, the Court held:
“Since the Union’s waiver of the employees’ statutory rights must be clear and unmistakable, the extrinsic evidence must manifest a clear mutual intent to include sympathy strikes within the scope of the no-strike clause or else the clause will not be read to waive sympathy strikes. … A broad no-strike provision by itself is not sufficient to waive the right to engage in sympathy strikes if extrinsic evidence of the parties’ intent does not demonstrate that the parties mutually agreed to include such rights within the breadth of the no-strike clause.”
As an analogous inquiry in the case of a challenge to the PELRA strike ban, a Minnesota state court is likely to check the legislative history of Subdivision 16 of Chapter 179A.03 (defining “strike”), to see what, if any, light the record of the legislative debate sheds on the scope of the definition intended by the legislators when they enacted this clause.
It therefore might be useful as a preemptive exercise to make a quick trip to the Legislative Reference Library, 645 State Office Building: (651) 296-3398, and enlist the help of a research librarian to check on the legislative history of this clause.
— Another part of the calculus for this strategy is the predisposition of Minnesota state court judges. Are they known to have a pro- or anti-labor bias?
— If the PELRA strike definition encompasses sympathy strikes, then why, for instance, did Independent School District 273, in Edina, feel the need to include an explicit reference to sympathy strikes, in addition to the same definitional language already found in PELRA, in the CBA it negotiated with the Minnesota School Employees’ Association?:
“Section 14.1 – Public Obligation.
… The exclusive representative agrees, therefore, that during the term of this Agreement, neither the exclusive representative nor any individual employee shall engage in any strike. For purposes of this section, the term strike shall mean concerted action in failing to report for duty, the willful absence from one’s position, sympathy strike, the stoppage of work, slowdown, or the abstinence in whole or in part from the full, faithful and proper performance of the duties of employment for the purposes of inducing, influencing or coercing a change in the conditions or compensation or the rights, privileges, or obligations of employment.”
http://www.edinacommunityed.org/Forms/ParaAgmt0608.doc
A further and separate issue to consider is whether in Minnesota there are common law prohibitions on public sector strikes; I think it’s unlikely but it’s something to take into account.
My apologies for getting carried away with my comments and for such a lengthy posting.
Paul
Thanks for your comments, Nate.
Thanks for the invitation to help with leaflets. I would be happy to help in the drafting, but as I’m in Geneva, Switzerland, I wouldn’t be able to help with the distributing!
I agree with you that “protected” action is stronger than “not illegal,” and that the employer would probably be found under university rules to have “just cause” to fire people for absenteeism or abstention from duties, even if PELRA doesn’t forbid sympathy strikes but leaves them unprotected. I can’t think of a way around that (other than sheer mass power by all university workers and students), and perhaps that’s a good tactical reason for teachers to hold their classes but do so off-campus, rather than to respect the picket lines and cancel them.
I see from the U of M Labor & Community Strike Support Committee (uworkers.org/node/7) that this is the strategy being deployed.
I agree that Sullivan’s statement that doing so “presents potential accessibility and liability issues” is little more than scare-mongering. What he may be referring to is legally required access to classes by disabled students, and/or perhaps to liability under accident insurance policies that exclude coverage for work-related injuries sustained by university employees while off-campus. These are issues/precautions that could simply be worked out on an ad hoc basis.
In any case, there is precedent for holding strike-related, off-campus classes, such as the 2003 clerical workers strike:
Click to access case.pdf
“Faculty worked with the Strike Support Committee to find off-campus locations to hold classes so students would not have to cross the picket lines. In the first two days of the strike alone, 150 classes affecting 4,000 students in the Twin Cities were held off campus.”
It might be useful to try to find out how that experience went and what, if any repercussions, ensued.
I have a few further thoughts about PELRA, the weapon this management crowd seems hell-bent on (mis-)using, regardless of what it means or of whether solidarity action takes the form of a sympathy strike (respecting the picket lines and canceling classes) or holding off-campus classes:
— Management is making some wild and arguably illegal statements.
The Provost’s email that you have posted: “The Public Employment Labor Relations Act (PELRA) requires University of Minnesota employees to report to work in the event of a strike by another union.”
A similar one by a management lawyer, posted by Jesse Wozniak [http://thisblogkillsfascists.blogspot.com]:
“The Public Employment Labor Relations Act (PELRA) explicitly requires non-striking University of Minnesota employees to report to work in the event of a strike by another union.”
I can find no such language in the PELRA. It appears that they are referring to Subdivision 3 of section 179A.19:
“179A.19 ILLEGAL STRIKES.
…
Subd. 3. Presumption of strike. For purposes of this section, an employee who is absent from any portion of a work assignment without permission, or who abstains wholly or in part from the full performance of duties without permission from the employer on a day when a strike not authorized by this section occurs is prima facie presumed to have engaged in an illegal strike on that day.”
But under this clause the presumption (that abstention from duties constitutes an illegal strike) presupposes the occurrence of an illegal strike. Nowhere in the statute do I see an explicit ban on sympathy strikes, and from my perspective such a ban cannot reasonably be implied — again because of the way the statute explicitly includes purpose to narrow its definition of a “strike,” as well as the narrow scope of its definition of U of M “essential employees”:
“179A.03 DEFINITIONS.
“Subd. 7. Essential employee.
“For University of Minnesota employees, ‘essential employee’ means all employees in law enforcement, nursing professional and supervisory units, irrespective of severance, and no other employees.
“Subd. 16. Strike. ‘Strike’ means concerted action in failing to report for duty, the willful absence from one’s position, the stoppage of work, slowdown, or the abstinence in whole or in part from the full, faithful, and proper performance of the duties of employment for the purposes of inducing, influencing, or coercing a change in the conditions or compensation or the rights, privileges, or obligations of employment.”
Sullivan’s statement might be accurate enough, except that he slips in the word “sympathy,” thereby turning it into wishful fiction:
“University employees who refuse to report to work as directed are considered under state law to be engaged in an illegal sympathy strike and are subject to discipline.”
In effect, these statements amount to forced labor and thereby arguably directly violate employee rights section 179A.06:
“179A.06 RIGHTS AND OBLIGATIONS OF EMPLOYEES.
Subdivision 1.
… Sections 179A.01 to 179A.25 do not require any public employee to perform labor or services against the employees’ will.”
… not to mention rights under the State Constitution:
Sec. 2. RIGHTS AND PRIVILEGES. … There shall be neither slavery nor involuntary servitude in the state otherwise than as punishment for a crime of which the party has been convicted.
I’m running out of room and will to have to file a separate comment to get the rest of my thoughts in …
Paul
I’m sorry for hogging up space here, but I would like to follow up on the previous comments with at least a partial resolution of the legal questions.
In a 1978 court case – General Drivers, Helpers, And Truck Terminal Employees, Local 120 and AFSCME Council 91 v. City Of St. Paul – the Minnesota Supreme Court, in an opinion written by Justice C. Donald Peterson [according to his obituary, the last justice to reach the office by popular election, in 1966], held that PELRA prohibits sympathy strikes by public employees in support of a lawful strike by members of other bargaining units of the same public employer. The court looked specifically at the statutory definition of “strike,” and (mis-)interpreted it: “[I]t is clear that failure to report for work because of refusal to cross a picket line (commonly termed a sympathy strike) is a ‘strike’ under PELRA.”
The court was divided, with a strong dissenting opinion by Justice George M. Scott [according to his obit, in 1960 he served as Hubert Humphrey’s campaign manager in a successful run for reelection for the U.S. Senate], joined by three other justices:
“I strongly disagree with the view of the majority that [PELRA] prohibits a sympathy strike of public employees in support of a lawful strike by members of other bargaining units of the same public employer.
“While it is true that our legislature placed certain threshold restrictions on the public employees’ right to strike which are not present in private sector labor relations law, it does not follow, as has been suggested, that once either of the two statutory prerequisites to a lawful public employees’ strike has occurred [that is, a violation of the employer’s duty to comply with a valid arbitration decision or a refusal by the employer to request binding arbitration when requested by the exclusive representative], the legislature intended to deprive public employees of any of the devices for mutual aid or protection, including a sympathy strike, available to their counterparts in the private sector. Historically, one of the most fundamental rights possessed by an employee or group of employees is the right to request and enlist the support of other employees …
“If, therefore, one public employee bargaining unit engages in a lawful strike after the public employer has taken one of the two actions set forth in subdivision 7, all nonessential employees of that public employer may come to the mutual aid and protection of the unit engaged in the strike by engaging themselves in a sympathy strike … Under a contrary rule, the purposes of PELRA would be greatly frustrated since in many instances the statutory right to strike would be rendered a nullity, a result I must conclude the legislature did not intend.”
This was also the position advanced by the unions. They may have wanted to avoid an argument that PELRA does not cover sympathy strikes at all, based on how the definition of strike is conditioned by its purpose, since in that case their legality would revert to a determination under Minnesota common law, and as the majority pointed out: “Under common law, a strike by public employees for any purpose was unlawful. Head v. Special School Dist. No. 1, 288 Minn. 496, 182 N.W. 2d 887 (1970).”
Just to note further that there may be a legislative project in the works for amending PELRA to affirmatively protect sympathy strikes, as suggested by the 2005 “Legislative Policies” document of the Minnesota School Boards Association, which includes: “2.27 – Opposes amending the Public Employee Labor Relations Act to permit employee ‘sympathy strike’ rights.”
Paul,
Sorry your comment got sent to moderation and sorry it took me so long to approve it, the blog didn’t notify me or else I missed it (my life’s been hectic lately, strike and all). Quick update – people are back to work under a contract offer that people are not happy about, we’ll see if they vote yes or not. They were out for almost 3 weeks — 13 work days. The final negotiation took 15 hours and it seems like management was not negotiating in good faith (the outside mediator apparently got angry with them during this), I don’t know if there’s a plan to follow up legally or no. When I get more time and decompress I plan to use some your comments here to start discussion about the lies and misinformation that management put out. I’ve already copied bits of your comments and sent them around on email, folk found them somewhat reassuring (most of us aren’t familiar with PELRA, something we need to remedy). More later…
take care,
Nate
Hi Nate,
Thanks for the update and for your comments. I’ve enjoyed being able to contribute to this discourse, and glad to know you plan to keep it going.
Paul