This article appeared in the Spring 2018 issue of The Classroom Teacher.

Teachers and other educators in states like Oklahoma, West Virginia, Kentucky and Arizona are stepping out of the classroom in protest over salaries, rights and benefits. As Texas educators grow increasingly frustrated over those same subjects, some are beginning to ask what the options are in Texas. Can Texas teachers strike or schedule a sick-out? TCTA lawyers provide the legal perspective in this article.

Texas is a right-to-work state. Teachers are prohibited from engaging in collective bargaining. TCTA is not a union, is not affiliated with any national unions, and does not support collective bargaining. We believe that teachers are professionals, not “labor,” but also that in the absence of local bargaining, the state must provide a base level of adequate compensation and legal protections.

TCTA does provide legal services, access to professional liability insurance, and representation through lobbying activities and by assisting our members in their own advocacy. If TCTA is asked about our position on strikes or work stoppages by teachers, our responsibility is to provide a legal analysis of the legalities and risks of doing so.

Texas is a right-to-work state.

In 1947, Congress passed the Taft-Harley Act, which allowed states to pass laws to prohibit union-negotiated contracts from requiring all employees to join a union upon hiring. Such laws are known as “right-to-work” laws. That same year, Texas passed a right-to-work law, as well as a separate bill that prohibited public employees from going on strike or engaging in an organized work stoppage.

Some states allow union shops that require all employees to join the union; another type of collectively bargained arrangement is an “agency shop” in which employees are not required to join the union, but must pay the union an agency fee to compensate the union for providing representation and collectively bargaining contracts. A case challenging agency fees is currently pending in the U. S. Supreme Court, and could result
in the prohibition of this practice.

What is against the law?

State law provides as follows:

“Texas Government Code, Sec. 617.003. Prohibition on Strikes by Public Employees.

    (a) Public employees may not strike or engage in an organized work stoppage against the state or a political subdivision of the state.

    (b) A public employee who violates Subsection (a) forfeits all civil service rights, reemployment rights, and any other rights, benefits, and privileges
the employee enjoys as a result of public employment or former public employment.

    (c) The right of an individual to cease work may not be abridged if the individual is not acting in concert with others in an organized work stoppage.”

It would be fair to interpret a strike as a formal order to cease working called by a union. The question then becomes, what is meant by an organized work stoppage? Is a call for a work stoppage made collectively at the grassroots level and not organized by an existing union or labor organization an “organized work stoppage”? The answer is that there is no case law on this issue, so there is little guidance to tell us how a court might consider the variations on a strike. 

What about a “work to rule” or “work to contract” action? Teachers in other states have attempted this strategy at times. The educators vow to only fill the specific terms of their contracts; for example, serving the required workday hours but no more, not taking work home, etc. But because the standard Texas teacher contract includes a provision requiring “other duties as assigned,” districts/administrators that do not support the “work to contract” movement could still take employment action against a teacher who is not fulfilling all duties as assigned, even those that might be done outside of the normal workday.

What are the risks?

In Texas, the risks involved in participating in a strike or illegal work stoppage are high. To forfeit “all civil service rights, reemployment rights and any other rights, benefits, and privileges” earned from public employment is a draconian penalty. Oklahoma law, in contrast, does not prohibit collective bargaining. While it prohibits strikes, the potential penalty for engaging in a strike is the loss of compensation during the period of the violation. The organization calling for the strike could also lose its collective bargaining authority. It is also worth noting that at least in some of the states experiencing teacher strikes, the teachers continue to receive their pay while out of the classroom. Many administrators are in support of the walkouts and are closing schools during the strikes; in some cases, the lost days will have to be made up.

Some associations have asserted that participating in a strike in Texas could lead to loss of pension benefits. This is politically unlikely, although it is theoretically possible, as a pension is a benefit. Certainly, a teacher in Texas who takes a day or more of leave without following local leave policies could be subject to discipline up to and including nonrenewal, termination or certification sanctions.

What can we do? 

How then can teachers change the current political climate to bring needed change to compensation, benefits and working conditions? Teachers must become more politically active, voting for pro-education, pro-teacher candidates in school board races, Texas House and Senate races and other statewide and Congressional races. (Click here for more information on the 2018 elections.) 

Also keep in touch with both your House and Senate legislators, and contact them about important bills being considered by the Texas Legislature. Some groups fear the power teachers could have to influence lawmakers. We encourage you to be politically active and make this fear a reality.