AFSCME strike would be illegal if, as AFSCME claims, there is no impasse

Illinois law provides state workers a right to strike – but only if a strike is legal. State workers represented by AFSCME can go on strike only if the union and the state are at impasse in contract negotiations – and AFSCME claims they are not.

If the American Federation of State, County and Municipal Employees launches a state worker strike in Illinois, those who go on strike could have a lot to lose. Besides lost wages, striking workers risk losing their jobs.

Illinois law governs when a strike of government workers can and cannot take place. If a union violates those rules, a strike could be considered “illegal.” And during an illegal strike, an employer can fire striking workers.

AFSCME’s claim that the union and the state are not at an impasse in negotiations presents an interesting legal quandary. If a court agrees with AFSCME that the parties are not at impasse, an AFSCME strike would be illegal. At the same time, AFSCME’s strike preparation is practically an admission that the parties are at impasse.

During the course of negotiations, AFSCME and the state entered into three separate agreements to negotiate in good faith, the last of which is still in effect. Under that agreement, AFSCME can strike only if the parties have reached impasse, or stalemate.

In November, the Illinois Labor Relations Board determined that the parties are at impasse. That meant Gov. Bruce Rauner could implement his last, best and final offer. It also meant that AFSCME, in turn, could strike.

But here’s the catch: AFSCME still argues that the parties are not at impasse and has appealed to multiple state courts to stop implementation of the contract. And, under the tolling agreement, AFSCME can’t strike if there is no impasse.

If AFSCME prevails and a court concludes the parties are not at impasse, AFSCME’s actions are still governed by the tolling agreement. That means any AFSCME strike that occurs would be in violation of that agreement. And it would be illegal.

At the same time, AFSCME’s strike vote undermines its lawsuits by acting, in effect, as an admission of impasse. AFSCME can’t strike if there isn’t an impasse, and AFSCME leadership is telling its members they “will be prepared to go out on strike” should leadership “issue the call.”

The situation presents a Catch-22 for AFSCME leadership. An AFSCME strike would either act as an admission that the parties are at impasse, or it would be illegal.

Either way, it is the employees AFSCME represents who have the most to lose by going on strike.