Can someone please explain to me why the Tacoma School District doesn't just fire people who don't show up to work?
I am not saying teachers don't have an unalienable right to strike. Of course they do. We all do. But none of us have any right to keep our jobs if we don't show up for work. They won't work; the district needs them to work; so, why not just fire them and hire new teachers?
What am I missing?
Cross-posted on <pudge/*>.
Posted by pudge at September 21, 2011 05:27 AM | Email ThisI see no justification for a court to force employees back to work or punish them for not working. The law only says, no right to strike is granted by the law. But what is a "right to strike"? To many people, it means "the right to strike and to keep your job." My usage is, simply, "the right to strike," period.
Clearly, there is no former right. But also clearly, under our Constitution and the freedoms enumerated by our Declaration of Independence, the latter right must necessarily exist.
You will not find anything in McKenna's opinion that backs up the claim that employees have no right to protest their employer instead of showing up for work, in order to try to convince the employer to change his practices. And why would there be? If I have a right to life, liberty, and the pursuit of happiness, how can the government -- unless I am in the military, for example, where I've given an oath -- tell me that I must show up to work, or face penalties from the judicial system?
My life is my own, and I can do what I wish with my liberty, toward whatever pursuits I desire.
The government's only justified recourse is to take action against me in regard to my employment: withhold pay, or demote/suspend/fire me. To fine me or jail me as courts have done before ... I see no legal or constitutional justification for it. Do you?
I also don't see how this is much different from the health insurance mandate, frankly. Government has just as much right to force me to work as it does to force me to buy insurance (that is, none at all).
I realize I am going against standard conservative/Republican opinion on the subject, but I can't justify that standard opinion, so I don't hold it.
This seems very simple to me: you have no right to not be fired, but the state has no right to take action against you to force you back to work.
What is especially telling here is the Teachers are setting a law breaking example (whether you agree with the Judge or not) to their students. What justification do they have for insisting their students follow directions if they have demonstrated they do not themselves follow directions?
add it to the reasons why my family does not participate in government education.
Posted by: TedR on September 21, 2011 07:28 AMThey absolutely are not.
I'm fairly sure the districts have never come up with contingency plans to hire all new staff.
Then the people should fire their school district representatives and get people in there who can do the job.
I wonder how it would work anyway if new teachers are required to join the union upon being hired?
Well, that's requirement is obviously anti-liberty too, of course. Not that anyone cares.
BTW, I hope "standard conservative/Republican opinion" does not see government with that much power over individual work decisions either.
I see lots of conservatives and Republicans in favor of courts busting up strikes, even though I see no authority for the courts to do it.
TedR: What is especially telling here is the Teachers are setting a law breaking example (whether you agree with the Judge or not) to their students.
Even worse, they are telling lies to their students, saying they have a right to strike without losing their jobs, saying they are being treated unfairly, saying they "deserve" more money or benefits, etc.
Now, these might be valid opinions, but they teach these things as facts, which makes them lies.
If there is a contractual obligation by the teachers to work, and this appears to be the case according to the Judge ...
Even if that were the case -- and I've seen nothing in the contract that says it, have you? -- since when do courts have the right to enforce a contract by threats of fines or jail? If I sue you for violating our contract, the court can force you to compensate me for that violation, but shouldn't that be ALL the court can do?
My main issue is not as much with teacher strikes, but public safety worker strikes (firefighters, police, first responders, etc). There is larger compelling public interest in having these people on the job, and there should definitely be a remedy defined if they walk off. Kids can make up school days, there's little that can be done about the negative consequences of public safety workers not working.
Posted by: Palouse on September 21, 2011 08:39 AMThe teachers conducting an illegal strike have no such worry. They can strike, they can ignore a judge's order and they still get their contract, their days in the classroom, their time off, and their pay. They do not suffer any consequence of willfully violating the law.
This is what makes these strikes really wrong and is what sets the worst example to the kids.
Posted by: SouthernRoots on September 21, 2011 08:56 AMThe economics of public education in it's present form are just not sustainable in the long run when the product is declining in worth at a huge, and ever growing, cost.
This use of the word sustainable is textbook correct. Liberals have bastardized the word almost into meaninglessness.
Posted by: Hank on September 21, 2011 09:56 AMAgain, I see nothing illegal about the strikes. They seem perfectly legal to me.
And the remedy is suspending/firing/demoting/etc. the employees.
My main issue is not as much with teacher strikes, but public safety worker strikes (firefighters, police, first responders, etc). There is larger compelling public interest in having these people on the job, and there should definitely be a remedy defined if they walk off.
Suspending/firing/demoting/etc. Sure.
I have not seen the contract, but the Judge presiding over the case has and has ruled they must go back to work. My thinking is the contract must be such that they are obligated to work and striking is not an option under the current contract. I have no issue with this in this case since a contract is involved and this isn't simply a right to work situation.
Posted by: TedR on September 21, 2011 11:52 AM1 - Fire everyone who has not shown up for work.
2 - Declare the district to be non-union.
3 - Hire the out-of-work teachers at new (modified) rates.
4 - "Fired" teachers can apply, but they start at the bottom - just like all new hires.
As I understand it, there IS NO contract.
Yes, the judge ruled they have to go back to work, but I see no legal or contractural grounds for him doing so. They are free people. They don't have to work if they don't want to work. Forced labor is not a privilege of the state ... even if there is a contract. They could be sued or fired for breach of contract, but not forced to work. Not in a free country.
Douglas: right on.
1. Are they still under contract?
2. Is there a clause in the contract that prevents the school board from firing teachers for striking?
3. Is there a no-strike clause in the contract?
If yes to all three, how is the strike not valid, if the school district/employer gave them that right?
And no, McKenna's opinion is not legally binding on anything, in case anyone considers that a factor. It's an opinion. Judges though, subject to the limits of their authority over enforcing law on the books, are binding.
Posted by: Joe Szilagyi on September 21, 2011 02:22 PMFrom what I've read, the contract expired. Again, though, that doesn't matter to me in my main point: I don't see how a court can compel someone to work. To me this isn't about contracts.
Is there a clause in the contract that prevents the school board from firing teachers for striking?
Very doubtful, since that would imply a "right to strike." What district would even consider this?
Is there a no-strike clause in the contract?
Extremely doubtful. What union would even consider this?
If yes to all three ...
... if pigs fly ...
I don't think you mean that though. I think you mean "if Yes to 1 and 2 and No to 3."
And no, McKenna's opinion is not legally binding on anything
Sure. I said explicitly that I think it's wrong: I see no justification for the court taking action against employees who refuse to work. The district can fire them or take other action (assuming they are not contracturally disallowed, which seems the case, since there appears to be no contract), but the court has no business forcing them to work.
Judges though, subject to the limits of their authority over enforcing law on the books, are binding.
Yes, and I also think the judges are wrong. :-)
They can order it.
http://articles.latimes.com/2001/dec/05/news/mn-11843
The LA Times.
THE NATION Law: Judge uses the alphabet in sentencing the educators for ignoring a back-to-work order. He is up to the Cs.
December 05, 2001|JANET WILSON and JOHN J. GOLDMAN | TIMES STAFF WRITERSFREEHOLD, N.J. -- For the first time in 23 years, a judge took the extraordinary step of jailing teachers in New Jersey for criminal contempt when they ignored a court order to end a strike.
Amid tears and vows not to return to work until they received a new contract, teachers in Monmouth County's biggest school district Tuesday told Superior Court Judge Clarkson S. Fisher Jr. they would rather be behind bars than bow to school administrators they distrust in the central New Jersey suburb of Middletown Township.
The judge began sentencing teachers Monday in alphabetical order. Fisher reached the Cs on Tuesday and there are now 47 teachers in the Monmouth County Jail, where officials said they were being housed two to a cell.
"Everyone I know who has been in the courtroom has come out in tears," said Karen Joseph, a spokeswoman for the union. "The people who stand in front of the hall of records are in tears when they cheer the people who have to go in.
"There is this bucolic Christmas tree and Christmas lights and evergreens. . . . It's not a happy holiday season here. Every couple of hours, we have to watch people being taken to jail in handcuffs."
Posted by: Hinton on September 21, 2011 03:17 PMOf course if they have the right to order someone back to work, they have the right to jail them if they don't. But where is the right to order someone to work?
I'm not opposed to this, but I don't see how it could be done. The teachers won't accept demotions or suspensions, they just will stay on strike. If you fire them all, teachers in this state have to be licensed here (correct me if I'm wrong about this). It would take a long time and a lot of money to hire replacements and get them licensed, that it would essentially wipe out an entire school year. If that happened, good luck to whoever makes that decision in their next career. I suppose the legislature or governor could suspend the license requirement, but given that unions are their primary benefactor, that will never happen either.
Posted by: Palouse on September 21, 2011 04:04 PMAnd using that in Tacoma right now may send a message they really can't ignore.
Posted by: Hinton on September 21, 2011 04:12 PMThat would violate the core of the First Amendment, destroying one of the most essential liberties people have: to form groups with other people to express themselves toward whatever end they choose. "Congress shall make no law respecting ... the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."
Even FDR thought that unions were only appropriate for the private sector, not the public sector.
I don't believe he did. I think he said collective bargaining was a bad idea for the public sector, not unions. But even if he did, that doesn't imply they could or should be banned. Maybe that's what you mean, too: that public sector employees should not have the right to collectively bargain. I absolutely agree with that. If the government wishes to collectively bargain it may, but there is no right to do it.
But a union is just a group of people in a job who form an organization to address, in some fashion, their common interests. You can't ban that. You can only -- and should -- limit the extent to which government recognizes them. In particular, the NLRB should be disbanded and any law on the books that gives special rights to "organized labor" should be stricken from the books. Any union should only have special consideration in dealing with an employer if the employer chooses to grant such consideration, by contract or by formality. Government has no right whatsoever to force companies to deal with unions, and governments themselves should not deal with unions for their own workers.
Palouse: The teachers won't accept demotions or suspensions, they just will stay on strike.
Shrug. Fire them.
If you fire them all, teachers in this state have to be licensed here
It's an opportunity for new prospective teachers.
It would take a long time and a lot of money to hire replacements and get them licensed, that it would essentially wipe out an entire school year
A small price to pay. I mean that sincerely.
Hinton: I don't know where "The Right" to order them back to work actually is. I just know that they can, because they have.
Oh, come on. The government does a lot of things it's has no legal authority to do (for example, forcing people to buy health care, banning firearms, banning free speech, etc.).
If we're not going to hold accountable a public employee for child rape, certainly we are not about to hold Tacoma teachers accountable for an illegal strike.
Posted by: travis t on September 21, 2011 04:36 PM1) The teachers will come back to work on October 1st, if they don't then their health care benefits will not be paid. Once they get their first paycheck they may walk out again, however.
2) Teachers are public employees and legally cannot strike. The district did the proper thing and immediately sought and received a court order to put them back to work.
3) The district then did the wrong thing by not terminating the teachers when they violated the court order. Districts cannot have teachers who violate court orders teaching their kids. They should have started terminating them in alphabetical order as many as a single office worker could do in a day.
4) Parents should bring legal action against the teachers union for monetary damages....they should go after them for everything they have and more. Once parents can successfully sue a teachers' union, strikes will not occur.
5) Teachers are under contract.....each of them has a signed contract for this current school year. The negotiated agreement between the union and the district is over but by law it continues under current language. Each teacher has breeched their current individual contract and can legally be terminated.
Posted by: doug on September 21, 2011 08:32 PMThe issue is the negotiated agreement between the union and district that sets work environment. That agreement has ended and negotiations are ongoing to replace it.
Under current law, employees and the district must continue operations under the elapsed negotiated agreement until changes are made and agreed to. However, it is important to know that each teacher has a contract signed and in place for this school year.
The district can fire them, but it is too difficult to do in a large district as replacements aren't easily found. If they really wanted to put the hurt on them, they would start opening up small schools within the district with substitute teachers as they can find them (or extra administrators).
Once they open up school, then they don't have to make up the days, and those teachers will actually lose money, rather than live on their belief that if they delay school a month, then they just have to extend school a month.
Posted by: doug on September 21, 2011 09:31 PMI provided legal precedent where they had. The rightness or wrongness of such an order is irrelevant in response to your observation.
That a court has done this shows that it can be done. There's nothing to indicate (That I could find) that the court's decision to arrest these teachers was overturned or successfully appealed.
That I, a layman, don't know where the authority to do this rests does not mean that no such authority exists, because clearly, it does.
And yes, locking up the teachers compelled them both to return to work and do the work they were hired to do.
Correspondingly, it's likely they could be just as arrested in Tacoma on contempt charges, just as locked up... and just as compelled to go back to work.
And, BTW, the thought occurred to me that violation of a court order can and frequently does result in arrest.
So, if you're looking for the authority, perhaps you could look up "judicial discretion."
Posted by: Hinton on September 21, 2011 09:45 PMPlease show me a law that says that if a public employee refuses to show up for work, the government can FORCE them to work.
I'm with you that the district can fire them, and should. I'd probably start slow: fire a few people the first day, a few more the next, etc. But I see no justification that the government can FORCE them to work through a court order.
As to suing ... again, I don't see it. If I am a waiter, and decide to not show up for work, should the patrons of the restaurant get to sue me? I know it's not exactly the same, but the point is, I am simply an employee, and I can choose to not work whenever I want to, and I am not responsible for damages caused by me not showing up for work, and I cannot be forced to work. All you can do is take action against me at the job. I see no justification for anything else, unless the contract specifically allows for it (which seems extremely unlikely).
What would Chris Christie do here ? (probably as good of measuring stick against teachers unions as any governor).
Posted by: KDS on September 21, 2011 10:11 PMSame thing with a teacher's union, only in this case the teachers union may also be violating rico laws.
I'm not sure which RCW it is, but the law actually specifically denies as a 'right' for a public employee to strike. They do not have that right, the RCW (would be around 41.50ish I would gather) specifically denies them that right. As a result the judge can order them back to work.
In fact, if a teacher then gets sick and can't possibly show up to work, they would be at the mercy of the district and judge, as they have to follow the court order.
I guess you could be arguing from an anarchist point of view, just saying that they can't force them to work, that the rule of law is nothing without force and a gun. However, I am only arguing from a legal standpoint...theoretically the judge can and did order them back to work, yes the judge doesn't have an army, but they must...now they can be at risk in civil court as well.
Any parent that already has a vaction planned and paid for, should sue and would win.
Posted by: doug on September 21, 2011 10:19 PMEducation is not a proper function of government and in fact it is a violation of our rights as its funding is expropriated from us. Public education should be promptly abolished and the schools sold. The plague of city wide teacher strikes will also come to an abrupt end.
Remember that public education is not an inevitable fact of nature like the sun rising every day. It is a man made institution that can be modified or eradicated.
Public and private employees are different. As the government gives protections to workers of private employers, they can choose to not give those protections to their own employees. The government frequently doesn't have to follow the rules it sets for others.
No government employees should be allowed to strike. They are being paid by other government employees. There is an inherent conflict of interest there. The only way the taxpayers can even marginally be protected from exploding public employee costs is by limiting the powers of government workers to decide how much to pay government workers.
Saw one teacher on the picket line carrying a big prop ball and chain. Oh yeah. Those teachers are SO working in a chain gang. My heart bleeds for the guy. Yeah.
Hairy
Posted by: Hairy Buddah on September 21, 2011 11:37 PMYou're not answering the question: where in the law is the government granted a right to force public employees to work if they choose to not work?
You can talk all you want about contracts, but that's just begging the question: even if their contract says they will work, where is it written that if they don't, the government can force them to work, rather than some other remedy, such as firing? No, Sally, you cannot be mandated to fulfill your obligations in a contract: you can only be forced to EITHER fulfill those obligations OR compensate the other party in another way.
And the fact that the law says they have no "right to strike" does not make the strike illegal, and does not mean they can be forced to work. It just means their jobs are not protected if they choose to strike. That's all.
I find it troubling that so many here on the right think government has the legitimate authority to force free people, who have not broken any laws nor been found liable in a civil judgment, to do anything.
You are missing the main point, and that is that this is a huge lot of teachers who are intentionally not showing up for work, and are collaborating to cause damage to the school district so that they might be blackmailed into giving them more money.
Damages when shown would easily be granted by a court.
Posted by: doug on September 22, 2011 08:27 AMIf a court orders you to watch MTV for 24 hours in a row, even though you've never been found guilty of a crime or had civil judgment against you, and you refused this unlawful court order, the judge could find you in contempt. But that doesn't justify the court order. You are completely skipping over the part where a civilian court has no legal authority to order anyone to work. We banned slavery well over 100 years ago.
And no, I am missing no point. I defy you to show me anything in the contract that says the teachers are liable for damages caused by not doing anything.
I don't think the fines were actually levied against the union, so the judge doesn't seem to be interested in enforcing his own order.
hmmmm where have we seen this before?
Even sicker is the union threatened the judge with public retaliation if he did enforce the fine.
Posted by: andy on September 22, 2011 08:56 AMWhy would liability for damages need to be in a contract? If only it were that easy, I could spend the rest of my life not worried about being sued at all, because I've never signed a contract that says I could be liable.
If I had a contract as a state worker to watch MTV 24 hours a day, and if that contract was legally entered into, and if perchance I decided that I wasn't getting paid enough in the contract I signed to do such duty, then I went about on strike as a public employee, yes, a judge could order me to fulfill my contract.
However, as a bow to you, that in of itself wouldn't be the end, I could in turn refuse to fulfill the contract. However, it is the responsibility of the judge to ensure that the state employee fulfills his contract, once petitioned to do so (just as it is their responsibility to do the same in private contract conflicts).
The judge, having ordered them to fulfill their contract, then being rebuffed, should have ANNULED all of those teachers' contracts. The judge has the power to declare forfeit the obligations of both parties under contract due to the actions of one party.
The judge does not have the authority to 'Fire' the teachers, but does have the authority to declare the individual contracts null.
Posted by: doug on September 22, 2011 04:39 PMNot showing up for work is not generally considered harm. In this country, all employment is, by default, at will. I see no grounds in common law or statute for suing for damages because someone doesn't show up for work.
If I had a contract as a state worker to watch MTV 24 hours a day, and if that contract was legally entered into, and if perchance I decided that I wasn't getting paid enough in the contract I signed to do such duty, then I went about on strike as a public employee, yes, a judge could order me to fulfill my contract.
On what basis? Where is it written that he can compel you to do so, instead of forcing you to provide compensation?
it is the responsibility of the judge to ensure that the state employee fulfills his contract, once petitioned to do so
Again, I don't care about that. I am only talking about the order, not what he can or should do once the order has been ignored. Of course he can compel people to comply with an order; but does he have the right to give such an order in the first place? I say no.
There is no mechanism that a judge can force me to provide compensation....in fact the judge can only require me to fulfill my contracted obligations. It is only at the point that it is determined that I did not fulfill my obligations can a judge then require of me compensation. Until that point, the judge can ONLY require me to fulfill my contracted obligations (in this case the work I or the teachers promised to perform).
That is the only order that a judge can do in the first place. If the judge rather ordered them to provide compensation, no appeals court in the land would back the judge up....first there must be a determination that the employees didn't fulfill their obligations, and evidenciary, that cannot happen for some time. At the point in time the district went to the judge the only action the judge could legally and constitutionally do, was order the teachers to fulfill their contract and it this case that order had to be to return to work under their current contract.
I disagree that the judge could not give that order, it seems that is the only possible lawful order that could be given.
Posted by: doug on September 22, 2011 05:21 PMContracts are enforced by courts all the time, the court can order fines be paid, restitution be made, even specific acts be performed. If the court's orders are not followed, then contempt penalties can be enforced.
Hairy
Posted by: Hairy Buddah on September 22, 2011 09:58 PMIf I don't get a raise at work, I don't whine about it, and refuse to work (which would, and should get me fired). Instead, I either work harder, and/or find a job elsewhere that will pay more.
Posted by: Proteus on September 23, 2011 11:08 AMPudge replies: "Then the people should fire their school district representatives and get people in there who can do the job."
I weigh in (albeit a bit late): Pudge, dude, did you stop and think about the fact that Tacoma is the third-largest district in the state, and (sadly) a huge majority of the teachers defied the court order and stayed on strike? Do you have any idea how long it would take the district to hire something on the order of 1,000 teachers or more, or where they would find that many qualified individuals on short notice?
"(27) 5) Teachers are under contract.....each of them has a signed contract for this current school year. "
Uh, no. You're entitled to your own opinions, but not your own facts. At the time they voted to go on strike, the Tacoma teachers did not have a contract for the 2011-2012 school year.
And in (30) you say, "Every teacher signed a contract in June or July for this year" but you're just making this up. NO THEY DID NOT YET HAVE CONTRACTS FOR THE CURRENT SCHOOL YEAR.
Each individual teacher has to be under contract to perform work in the classroom, and work was done this year prior to the strike. It is the law, both state and federal.
There are individual teacher contracts which are signed by the district and teachers during the early summer right after the previous school year ends. Then there is a NEGOTIATED AGREEMEENT between the union and district that sets work conditions. Each teacher has been under contract since June or July, the NEGOTIATED AGREEMENT usually ends after the school year every two or three years and it is that which is out of date.
By state law, the conditions set forth in the NEGOTIATED AGREEMENT continue for up to one year after the official end date, or until another agreement is reached. If that doesn't happen, then the district may implement it's best offer, despite what the union says....(assuming no unfair labor or bargaining practices ocurred to that point.)
Posted by: doug on September 25, 2011 07:46 AMYes.
Did you stop and think about the fact that strikes cost the state and the students millions, and that the ONLY real recourse is firing/suspension/etc., and that if the school districts don't take such action then we will continue to see more and more costly strikes?
Yes, it would be hard. I know there's a lot of comments here and I don't expect you to read them all, but I did say that the district should probably start slowly and just fire some of them at first, and then continue until the strike ended or everyone was fired, instead of firing them all at once. And I would certainly fast-track re-hiring of the teachers should the strike end. And I realize it wouldn't mean they would magically find more teachers on short notice. But it would help prevent future strikes, I guarantee you that.
Public Employee Unions are angry selfish collectivists who put their protected, overpaid boondoggles ahead of the freedom and well being of their fellow Americans.
Posted by: Jeff B. on September 25, 2011 10:11 AMI dont havea "right " to strike.
I strike and I lose my job and I get sued.
signed,
Doc.