Little support for striking public workers in state law

Striking faculty members at Rutgers University have thrust decades-old common law prohibitions on public worker strikes back into the spotlight.

The strike, now in its fourth day, has ground most of the university’s classrooms to a halt and seen negotiators from both sides cloistered in the Statehouse for hours on end. And while there have been some signs of progress, a legal threat made by university President Jonathan Holloway could see the workers fined or even jailed if negotiations grind to a halt.

The unions are seeking raises, pay equity, and job security guarantees for adjuncts and part-time lecturers, among other things.

In a March email to students, Holloway said worker strikes are unlawful in New Jersey. The three striking unions representing Rutgers faculty allege no such prohibition exists in New Jersey statute but concede judges have ruled prior walkouts unlawful.

Both things are true, but Holloway has the right of it.

The New Jersey Employee-Employer Relations Act affords private sector workers the right to strike but remains largely silent on public worker strikes, though it specifically bars law enforcement officers and firefighters from striking.

The state’s prohibition on public worker strikes exists in New Jersey common law backed by more than a half-century of court precedent that predates even the state’s 1947 constitution.

While discussing provisions on collective bargaining, constitutional convention delegate William J. Orchard offered — and then withdrew — an amendment that would have added provisions to the constitution explicitly barring public strikes because such strikes were already barred under state common, or general, law.

“Legal talent in this Convention, in whom I have the greatest confidence, have told me that striking by public employees is now forbidden by general law; that that general law applies to employees, public employees, in the State of New Jersey,” Orchard said on Aug. 20, 1947, according to records maintained by the New Jersey State Library.

Spelling out the prohibition in the constitution, Orchard said, would do little to change the law but could draw opposition to the convention’s work.

New Jersey courts have upheld those common law prohibitions in the intervening decades.

In 1967, the state Supreme Court ruled that Woodbridge teachers with unmet salary demands who had launched a strike against their district violated the law by launching their work stoppage, finding that a strike by public workers was effectively a strike against the public.

“When government undertakes itself to meet a need, it necessarily decides the public interest requires the service, and its employees cannot reverse or frustrate that decision by a concerted refusal to meet that need,” the high court said in its opinion.

A lower court had enjoined the strike, as is typical for New Jersey courts, and the striking teachers refused to return to work and were charged with contempt, which is also typical of public worker strikes.

Numerous cases in the intervening decades have followed the same pattern, including a 1977 Hoboken teachers strike, a 1991 Little Ferry teachers strike, and a 2001 Middletown teachers strike that found 228 jailed, among a host of others.

Rutgers University has so far avoided seeking an injunction to end the unions’ strike at Gov. Phil Murphy’s request, but union officials on Wednesday said they believe an injunction will come if bargainers do not reach an agreement by an unspecified deadline.

If the university seeks and obtains an injunction and if the unions continue to strike in defiance of such a court order, striking workers could face fines, jail time, and other sanctions, including probation.