You could call it the strike that’s not a strike.
The “Blue Flu” is something different than the traditional labor strike. Hundreds of Memphis police officers and a smaller number of fire employees are calling in sick. Retirees and employees have protested the City Council’s recent cuts to health insurance coverage, and many people assume that’s what sparked the action. But no one knows for sure. Since the action began last week, none of the “sick” workers has stepped forward as a leader and presented a list of demands.
As of Thursday morning, 505 police officers were out sick, down from a high of 557 Tuesday. Sixty-one fire department employees were out, down from 65 Wednesday.
The murky situation makes it difficult for the city to apply any of the techniques it could otherwise use to end a strike, such going to court to seek an injunction or punishing the strikers. Even negotiating is hard.
City Chief Administrative Officer George Little said he asked the police and fire union leaders Wednesday to encourage their members to return to work. He described their response: “First of all that this was not an organized action, that they could not compel their membership to do so. That they actually have been encouraging their members to work while they work this out through council.”
Little said he still doesn’t know who’s organizing the mass sickout, and that creates special problems. “To the extent that this is spontaneous or decentralized, how do you negotiate with those individuals? How do you speak to those individuals’ concerns?”
The city might take legal action, arguing that the sickout violates a 1978 city ordinance that says any employee who participates in a strike automatically forfeits their job.
But Little asks the question — what strike leader, exactly, would the city sue?
“We’d have to have a basis to proceed. You’ve got to have somebody saying ‘Hey, let’s sick out,” Little said.
In some cases, courts can call witnesses to determine if an action is a true “wildcat strike” — an action organized without the approval of the labor union — or if the union or someone else was pulling the strings, said Greg Saltzman a labor expert at Albion College in Michigan.
A court can order public employees to go back to work. Leaders of a union that violated the court order could be charged with contempt of court and jailed, he said.
But here’s a problem: State laws, not federal laws, cover this type of dispute. And unlike more heavily unionized states like Michigan, southern states like Tennessee have few laws that address the situation.
“In our region, only Florida has a comprehensive and well structured body of public sector collective bargaining laws,” Bill Canak, a labor expert at Middle Tennessee State University, wrote in an email. “As my colleague Prof. Berkeley Miller and I wrote decades ago, lacking such an infrastructure, the result is ‘bargaining under the law of the jungle’.”
Timothy Taylor, an attorney for the police association, said he’s unsure what the city could do. “I’m curious myself as to what type of legal action could be brought,” he said.
Police strikes are rare and most states make them illegal, said Saltzman from Albion College.
Some observers in Memphis are calling for the city to punish the workers who are claiming sickness and the city has already announced stricter enforcement of existing sick leave policy. But heavy-handed discipline could backfire, said another labor expert, Marick F. Masters from Wayne State University in Detroit.
“Well, what are you going to do? Are you going to fire them all and then replace them? That would be very costly. Are you going to fine them all, dock their pay for a day? Are you going to challenge all of the sicknesses?”
Workers could claim that their sicknesses were real and challenge their firing through formal complaint known as a grievance. The city might find itself flooded with those claims, he said.
He said a far better way is to try to negotiate a settlement.
So far, that’s the approach the city has taken. Little said law enforcement is functioning more or less normally and that the city will keep talking with the unions, even though the sickout is not an official union action. Efforts to reach the police and fire union presidents were unsuccessful Thursday morning.
Little also reiterated that the administration is open to ideas for fixing the city’s financial problems. The City Council is also giving members of the public a chance to present alternate plans, starting at a meeting 8 a.m. Tuesday on the fifth floor of city hall.
©2014 The Commercial Appeal (Memphis, Tenn.)
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