A Teacher's Right to Strike: Arbitration's Quid Pro Quo
Fitzpatrick, Katherine J., Journal of Law and Education
In Kentucky, public sector employees have no inherent right to strike.1 And while Kentucky courts and their cases suggest a 'settled public policy' on the matter, the increase of threatened strikes by public school teachers in recent years indicates otherwise.2 Across the country, public school teachers meet increasing demands with marginal bargaining power. Strikes are an appealing, albeit illegal, means to generate press and public sympathy for the plight of teachers. This note addresses the arguments for and against granting public school teachers the right to engage in organized protests and strikes, and whether the Kentucky Supreme Court or legislature should recognize this right.
II. LEGAL BACKGROUND
In late September 2004, the Kentucky Education Association (KEA) threatened to call a strike in an effort to force the governor to support a healthcare package for teachers and their families.3 The Kentucky judiciary had ruled over twenty years prior, however, that public school employees did not have a constitutional, common law, or statutory right to strike.4
Under the common law, it is well settled that public employees do not have the right to strike or to engage in concerted work stoppages. The right to strike on the part of public employees is not protected by either the Federal or the Kentucky Constitution, nor has the legislature granted such right to public employees.5 The court, finding comfort in its earlier, related rulings, based its opinion on the nature of collective bargaining agreements and the applicable Kentucky statute.6 KEA eventually called off the strike when Governor Fletcher agreed to sign an insurance care plan acceptable to the organization.7 The threat of a teacher's strike was so alarming that legislators were forced to heel to the union's demands. This begs the question: What will happen the next time around? What should happen if the legislature cannot satisfy the needs of Kentucky's teachers?
In Jefferson Co. Teacher's Assoc. v. Bd. of Educ. of Jefferson Co., the Kentucky Court of Appeals addressed constitutional challenges to the state's ban on strikes by public school teachers, finding a reasonable basis for distinguishing between public and private employees.8 In that case, the Jefferson County Teacher's Association appealed a permanent injunction lodged against it by the local school board. The teachers argued that no irreparable injury was found to support the injunction and, moreover, that the statutory prohibition on strikes by public employees violated their constitutional rights.9 The court noted that at common law, teachers and other public employees do not have a right to strike.10 The court found that denying public employees the right to strike did not violate their due process or equal protection rights under the Federal or Kentucky constitutions.11
In another case, Board of Trustees of the University of Kentucky v. Public Employees Council No. 51, the Kentucky Supreme Court found that non-academic employees of the university did not have a right to strike despite operating under a negotiated agreement between their labor organization and the University of Kentucky.12 Though the workers in the case were non-academic, the court's treatment of their arguments regarding rights to negotiate labor contracts reflects the court's unwillingness to consider a change in the underlying common law rights of public employees. The university filed suit seeking a declaratory judgment to define its rights with respect to laborers and their union. The local chapter of the AFL-CIO, representing the workers, argued first that the Kentucky legislature had conferred the right to strike on all employees in the state with KRS 336.130, providing in relevant part:
Employees, collectively and individually, may strike, engage in peaceful picketing, and assemble collectively for peaceful purposes.13
The court, citing Jefferson County Teachers Association, found that the legislature intended an express exemption to the statute for all public employees whether federal or state. …