By ruling last week that public workers have the freedom to strike, the California Supreme Court may well have set the stage for a highly charged political battle that could backfire on Republicans, who are determined to outlaw such strikes.
In its historic, 6-1 decision, the court ruled that public workers have a right to strike unless such an action would create a "genuine" and "imminent" threat to the public's health, safety or welfare.
Gov. George Deukmejian and many other Republican leaders immediately denounced the ruling as "outrageous," saying it takes away the right of elected leaders to govern. The three conservative members of the Los Angeles County Board of Supervisors--Mike Antonovich, Pete Schabarum and Deane Dana--said they would seek a statewide initiative to reverse the ruling if they cannot get the Legislature to do so first.
Indeed, Republican leaders in the Assembly plan Thursday to propose a constitutional amendment that would outlaw strikes by public employees and authorize the dismissal of workers who are absent without cause for more than five days.
However, getting the Democratic majority's support for a ban on public employee strikes will be close to impossible for the Republicans, so the initiative will be their only alternative.
Steven Merksamer, Deukmejian's chief of staff, says that, "if an initiative (on public employee strikes) were to appear on the ballot, it would enjoy substantial support," but he wouldn't say whether the governor would join the campaign.
Republicans considering the anti-strike initiative would do well to recall the election of 1958, when the party campaigned hard for passage of Proposition 18, a "right-to-work" initiative that would have outlawed union shop contract agreements. It suffered a devastating defeat.
For the first time in 70 years, Democrats gained control of the state Senate, Assembly and all six statewide constitutional offices. They now control all but the governor's post.
This year, however, conservatives might be tempted to launch an initiative battle for two reasons: They would like to put curbs on unions, and they might see such a campaign as another chance to attack Chief Justice Rose Bird, who faces reelection in 1986. She prepared a strong concurring opinion in the Supreme Court's ruling, written by Justice Allen E. Broussard.
While they might favor the initiative tactic, it could backfire on them because it would mean tampering with a basic American principle--the freedom of workers to strike.
The most dramatic example of such tampering was in August, 1981, when President Reagan fired more than 11,000 striking air traffic controllers and outlawed their union. His action presumably would have been allowed under the state Supreme Court ruling that held that strikes threatening the health, safety or welfare of the public are against the law.
Even though conservatives continue to lobby for laws to ban public workers' strikes, such laws seem to have little effect. Public sector strikes follow about the same pattern as those in private industry. In more than 95% of all labor negotiations, contract agreements are reached without strikes or lockouts.
Whether a union will strike in the public or private sector appears to depend less on anti-strike laws and more on the economy and the willingness of public officials and private managers to compromise.
For instance, in 1980, when all California lower courts were holding that public workers' strikes were illegal, there were 40 such actions. In 1982, when the state had budget surpluses and therefore more leeway in what it could pay public employees, there were only six.
In the United States, nearly one-fifth of all workers are employed by the government. Currently, only 11 states permit most public employees to strike. The rest are subject to the same no-strike rules that apply in Poland and other totalitarian countries.
One of the key reasons to prohibit strikes by public employees is the harm that they can cause the community. If the same logic is applied to privately operated utilities that provide communities with such necessities as gas, water and electricity, and to privately operated monopoly transportation services, and to critical military production, nearly 40% of the nation's workers could be deprived of the right to strike.
Although punishment for strike activity in totalitarian nations is almost always severe, unionists in the United States have also suffered jail terms, heavy financial penalties and, as with the air traffic controllers, loss of their jobs.
Even Deukmejian, who so harshly criticized the California Supreme Court ruling, seems to recognize the problem of enforcing bans on public employee strikes and apparently has mixed feelings about them.
At one time, he not only strongly opposed strikes by government workers but also opposed any alternatives, such as allowing disputes to go to binding arbitration. Two years ago, however, the governor said his "thinking on the subject had changed," adding that he would favor allowing disputes involving police and firefighters to go to binding arbitration.
This offer of an alternative, contained in a bill now pending before the Legislature, "would improve current collective bargaining laws, which do not work when an impasse is reached, and would reduce bad faith negotiating," the governor's legislative secretary wrote to local government officials on April 3, 1983, explaining Deukmejian's position.
However, Merksamer, the governor's chief of staff, said he doesn't believe that the governor would offer the same arbitration alternative to other public employees.
In its 50-page decision, the court majority dealt with all the arguments used against public employee strikes, including the "traditional justification that a strike by public employees is tantamount to a denial of governmental authority/sovereignty."
The court said that argument was "particularly popular in the first half of the 20th Century" and noted that even the liberal President Franklin D. Roosevelt stated that a strike of public employees "is unthinkable and intolerable."
But in recent years, the court said, the sovereignty concept has often been ridiculed as a vague and outdated theory based on the assumption that the "king can do no wrong."
All but one of the court's justices said this "archaic concept to justify a per se prohibition against public employee strikes is inconsistent with modern reality and should be hereafter laid to rest."
It is ironic that the conservatives, who normally would reject the "king can do no wrong" theory, are the most ardent advocates of letting government have the final say over the wages and working conditions of so many Americans.
Of the six justices supporting the right of public employees to strike, Chief Justice Bird dealt most forthrightly with the issue of freedom.
"The public reaction to the Solidarity strike revealed the strength of the American people's belief that the right to strike is an essential feature of a free society," she wrote, adding:
"Solidarity strikers proclaimed that the right to organize collectively and to strike for dignity and better treatment on the job were fundamental human freedoms. When the Polish government declared martial law and suppressed the union in December, 1981, Americans especially mourned the loss of these basic liberties."
Her colleagues said they were "troubled" by the constitutional issue of whether strikes by government workers can be outlawed. But they avoided the constitutional question and said they acted instead on grounds that the Legislature had failed to deal with the question. Thus, the majority only implied that they might rule against a legislated ban on such strikes on constitutional grounds.
Bird, though, never one to dodge a tough decision, complained that the courts have "danced a minuet around the issue."
She said: "The time has come to make explicit that which has so frequently been presumed. If the right to strike does, indeed, differentiate this country from those that are not free, then it must be given substance and enforced."
That will be a difficult argument for the conservatives to answer.
Farm Labor Battle Goes On
The battle between the Deukmejian Administration and Democratic legislators over the Administration's relaxed enforcement of the state's farm labor law is putting the Democrats in a strange position.
Usually, when the head of a key state government agency does not comply with the wishes of the Legislature, the lawmaking body sometimes retaliates by reducing the agency's budget or, perhaps, eliminating the salary of the offending agency's executive.
An Assembly Ways and Means subcommittee, chaired by Assemblywoman Maxine Waters (D-Los Angeles), has been holding extensive hearings in Sacramento for the past several days, and there is no doubt that the Democrats are very unhappy with the favoritism shown to growers by David Stirling, whom Deukmejian appointed as general counsel for the Agricultural Labor Relations Board.
The Deukmejian Administration isn't happy with the farm labor law that the ALRB administers, designed as it was to help protect farm workers against abuses by growers--political allies who contributed an estimated $1 million to Deukmejian's campaign.
The governor has already cut the agency's budget by a third. Last year, he also vetoed an additional $1 million that the Democrats appropriated to enforce existing court orders requiring payment of back wages to farm workers.
Last week, the Assembly subcommittee voted to appropriate an additional $1.2 million for the agency to help eliminate a backlog of cases being appealed by growers, who have been ordered to pay an an estimated $40 million in back wages. To show its anger with Stirling, the subcommittee eliminated all but $1 of the $4.2-million budget of Stirling's own general counsel's office.
Cooler heads prevailed on the Senate side, where a Finance subcommittee chaired by Alan Robbins (D-Los Angeles) also appropriated the $1.2 million for enforcement of the court order but restored Stirling's $4.2-million budget.
Many Democrats are not sure that they really want to threaten Stirling with budget cuts. They fear that the governor would like deeper ALRB budget cuts because he wants to avoid prosecuting any growers in advance of next year's election. As a result, the Democrats seem inclined to leave Stirling's budget intact until they see what Deukmejian does about the $1.2 million in extra enforcement funds.
If the governor vetoes those funds, then the Legislature might act to eliminate Stirling's budget, which would make the ALRB and the farm labor law itself totally ineffective. Already, the law has lost favor with its strongest supporter, United Farm Workers leader Cesar Chavez, who says that, under Stirling, it has become a "tool" of the growers.
Thus, the problem for the Democrats is how to preserve the 1975 farm labor law when the usual tactic of threatening to withhold budget money isn't much of a threat to the Deukmejian Administration.