What would happen to union members, nonmember workers and the state if AFSCME strikes

Mailee Smith

Senior Director of Labor Policy and Staff Attorney

Mailee Smith
July 30, 2016

What would happen to union members, nonmember workers and the state if AFSCME strikes

A potential strike from the state’s largest government-worker union would be the first of its kind, and could cost its members the most.

The American Federation of State, County and Municipal Employees, or AFSCME – which represents approximately 35,000 Illinois state workers – is preparing to strike.

The union’s members have never gone on strike before, meaning AFSCME would be entering uncharted territory. As such, no one really knows what effect a strike could have.

But unfortunately, AFSCME appears to be instilling fear in workers, erroneously telling them they will face negative repercussions from the state – including the possibility of being fired – if they report to work instead of honoring the strike. Such misinformation could scare some members into choosing to strike.

John Terranova, the deputy director of the Department of Central Management Services, countered AFSCME’s claims July 16. Terranova explained in the State Journal Register that workers who remain on the job cannot be fired for showing up to work during a strike. Workers do not lose protections if they choose not to strike. AFSCME has since denied it ever told workers they could be fired if they refuse to honor the strike.

Regardless, strike rumors are flying. And AFSCME has not denied polling its members on their willingness to strike, which raises several questions about what really can happen if AFSCME strikes. For example, who would be affected? Does the strike affect AFSCME members and nonmembers differently? What can the governor do to keep the state operating? Will it affect the safety of Illinois residents?

Ironically, AFSCME members themselves may have the most to lose if AFSCME forces a strike.

Impact of a strike on AFSCME members

If AFSCME decides to strike, individual members will have a choice to make. An AFSCME member could honor the strike and not report to work, or he could break with the union and go to work. Either option carries potentially negative consequences for the member.

Striking AFSCME members – If an AFSCME member strikes, the state could replace the worker in order to keep the state operating. While Rauner has indicated the state would not fire striking AFSCME workers, there are circumstances in which a striking employee could be replaced permanently.

Whether or not a striking worker can be “permanently” replaced depends on what kind of strike is taking place. In general, there are two types of strikes: “unfair labor practice strikes” and “economic strikes.” For example, a strike protesting unsafe working conditions would be considered an unfair labor practice strike. On the other hand, a strike intended to force an employer to pay higher wages would be considered an economic strike.

Typically, workers participating in an “unfair labor practice strike” cannot be permanently replaced. The employer could hire temporary replacement workers in order to maintain operations, but the state would have to reinstate striking employees when the strike is resolved.

But employees participating in an “economic strike” could be permanently replaced. Replacement workers hired by the state to maintain operations during the strike can remain in those positions, even when an economic strike ends. A striking worker may not be reinstated immediately, because replacement workers are entitled to keep their jobs. There may be no available open positions for striking workers returning to work. Instead, a striking worker would be added to a preferential hiring list. When a position opens, a qualified employee on the list would then be given the option of coming back to work. But such an opening would not be guaranteed to occur in any particular timeframe.

If the potential AFSCME strike is determined to be an economic strike, any striking members could be out of work for an indefinite period of time. In the meantime, the state has estimated a striking worker would lose at least $8,000 a month in lost wages, additional health insurance contributions and state pension contributions. Striking employees would still have health insurance, but they would be responsible for the full cost – including that portion typically paid by the state.

Working AFSCME members – A member who chooses not to strike and crosses the picket line to work could be subject to disciplinary action by the union. Such discipline could involve fines or even being expelled from the union.

So contrary to AFSCME’s alleged claims, an AFSCME member who chooses not to strike will not face negative repercussions from the state – but he or she could be punished by AFSCME.

Impact of a strike on “fair share” payers (nonmembers)

So-called “fair share” payers are state workers who have chosen not to be union members. Because unions such as AFSCME have lobbied for and want a monopoly to represent all workers, fair share payers are still represented by unions and therefore are entitled to all rights secured in union-negotiated contracts. For example, Section 6(d) of the Illinois labor act, set forth below, specifies that the union is “responsible for representing the interests of all public employees in the unit” – not just member employees:

afscme illinois contract






The union must represent nonmembers fairly and without discrimination in all matters covered in the contract: collective bargaining, contract administration and matters affecting wages, hours, and conditions of employment.

While the fair share payer is still entitled to all the rights guaranteed under the contract, he or she is no longer subject to the union’s rules and disciplinary procedures. For example, the union would not levy a fine against a fair share payer for crossing a picket line.

As with AFSCME members, the effect of an AFSCME strike on a fair share payer depends on whether the worker honors the strike or reports to work:

Striking fair share payers – As with AFSCME members who strike, there is a chance striking fair share payers could be replaced indefinitely by the state if the strike is considered economic rather than on account of unfair labor practices.

Working fair share payers – Unlike AFSCME members who choose to go to work, fair share payers don’t receive union repercussions, as the union has no disciplinary authority over them. The union cannot penalize fair share payers for working during a strike. But working fair share payers can expect peer pressure from striking AFSCME employees.

Impact of a strike on Illinois residents

If AFSCME strikes, the state is free to hire temporary replacement workers to ensure state operations continue. In preparation, state agencies have already started developing contingency plans to keep the state running smoothly. The governor’s office has labeled contingency planning a “top priority.”

In addition, Illinois labor law places limits on which state workers can strike. Police officers, security employees at jails, paramedics in fire districts and fire fighters are prohibited under Illinois law from striking.

And even if a state worker does not fall into one of the specified categories, there are circumstances when a strike can be curtailed if it presents a “clear and present danger to the health and safety of the public.” If such a danger exists, the state can petition a circuit court to either stop the strike or put in place boundaries with which the strikers must comply in order to remove the danger.

To that end, the safety of Illinois’ residents will be protected even if AFSCME workers decide to strike.

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