Student Writing Competition Runner-up Article: the Straight Jacket on Federal Employees' Right to Strike

• Jurisdiction: United States,Federal
• Author: By Luis Virgen
• Publication year: 2020
• Citation: Vol. 43 No. 1

Student Writing Competition Runner-Up Article: The Straight Jacket on Federal Employees' Right to Strike

By Luis Virgen

Luis Virgen is a third-year law student at Southwestern Law School and the runner-up to the 2019 Student Writing Competition of the Public Law Section.

Imagine you are a hard-working federal employee, and the sole provider for your family. You work hard pay your bills, but suddenly, there is a government shutdown. Your employer has deemed your services essential and tells you to come to work, but informs you that you will not be receiving your biweekly paychecks. Although you will eventually receive backpay when the government returns to full operation, that backpay will be split into multiple future paychecks. You know that if you resort to taking out a high-interest loans, borrowing against your retirement accounts, or incurring financial penalties for your missed bills during the shutdown, that backpay would not return you to the same financial position you were in before the shutdown. With your bills looming, what can you do?

According to Black's Law Dictionary, a strike is "an organized cessation or slowdown of work by employees to compel the employer to meet the employees' demand; a concerted refusal by employees to work for their employer, or to work at their customary rate of speed, until the employer grants the concessions that they seek."¹ Historically, the primary reason to go on strike has been to "over awe or intimidate [an employer] by mere force of numbers," as individual actions by employees have had little to no effect.²

In the United States, courts have found that federal employees in general do not have the right to strike because of reasons including: (1) strikes against the sovereign state are intolerable, (2) public services are essential, and (3) public employee unions would have both political influence and coercive power and this would lead to a distortion of the political process.³ However, these justifications are significantly flawed.

With respect to the first justification, strikes against the sovereign state have been considered intolerable because the government is considered the embodiment of the American people's will, and public employees have been entrusted to carry out its functions.⁴ Allowing public employees to strike would efface the public welfare.⁵ In Anderson Fed'n of Teachers, Local 519 v. Sch. City of Anderson, however, the Indiana Supreme Court expressed its opposition this justification.⁶ Justice DeBruler's dissenting opinion argued the sovereignty argument was unjustified because the strike was peaceful and minimally disruptive to the public.⁷

With regards to the second justification, public employees are often categorized as essential because their services are vital "to the health, safety, and welfare of the public."⁸ Courts have reasoned, "nothing is more dangerous to public welfare than to admit that hired servants of the state can dictate to the Government the hours, the wages, and conditions under which they will carry on essential services vital to the welfare, safety and security of the citizen."⁹ However, this justification is flawed because the provision of services to the public do not have to be a government function.¹⁰ For example, in San Francisco, the garbage collection is performed by Recology, a private company.¹¹ Similarly, other public services, such as utilities, administrative services, and road construction, could be performed by private employees, who have been found to have the right to strike.¹²

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With respect to the third justification, giving federal employees the right to strike could be in keeping with...