As of Sunday evening, it looks like BART employees will be going on strike again Monday morning for the second time in as many months.  Last month’s strike obviously caused a lot of disruption and anger among commuters in the bay area.  Last week there was an article in the SF Chronicle questioning why BART employees are even allowed to strike when transit workers in New York and San Francisco are barred from striking.  The article noted that “banning public transportation strikes or, specifically, a BART strike, would require state legislation that would certainly be opposed by labor unions and would probably not find a backer among the Bay Area delegation.”  That’s undoubtedly true.  Interestingly, the article quoted a BART spokesperson as stating that BART itself has never considered seeking legislation to prohibit its employees from striking.

The ability of public employees to strike is a fascinating issue and the SF Chronicle article only scratched the surface of it.  Nationally, only 13 states allow strikes by some or all public employees.  Those states are Alaska, California, Colorado, Hawaii, Illinois, Louisiana, Minnesota, Montana, Ohio, Oregon, Pennsylvania, Vermont, and Wisconsin.  (If anyone thinks I’m missing a state please let me know.)  The other 37 states either don’t recognize a legal right to strike or outright prohibit strikes by public employees.

California is one of the few states where the courts have recognized a right to strike.  Even so, the SF Chronicle article noted that San Francisco transit employees are barred from striking by the city charter.  However, that certainly is not common.  Indeed, other than SF transit employees, I don’t know of any other transit employees in California that are barred from striking.  Further, what the article didn’t discuss was that in exchange for not being able to strike, SF transit employees (as do all SF employees) have the right to submit disputes to binding interest arbitration.  In California, there are currently 23 cities and counties with some form of binding interest arbitration.  San Francisco is the only city or county that provides interest arbitration for non-safety employees.  So the ban on transit strikes in San Francisco is definitely the exception rather than the rule.

That brings up an interesting discussion point.  In my opinion, the more interesting question the SF chronicle could have posed is not whether BART employees should be barred from striking, but rather whether BART employees should be barred from striking in exchange for interest arbitration.  In many other states where public employees are barred from striking as part of the state’s collective bargaining law, the quid pro quo is the requirement that contract disputes be submitted to a binding arbitration panel.  That’s the way it is under the Taylor Act in New York, the other jurisdiction mentioned in the SF Chronicle article.

So while both San Francisco and New York prohibit transit strikes, they both offer unions interest arbitration in exchange.  In the public sector, I suspect most unions would be willing to agree to a bar on strikes in exchange for binding interest arbitration.  Historically, public employers were the ones opposed to such a quid pro quo.  But given the power BART unions have been able to wield, I wonder if they would rather have the right to strike over interest arbitration.  It would certainly be interesting to hear the positions of BART and the BART unions on such an agreement.

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