§89-12 Strikes, rights and prohibitions. (a) It shall be unlawful for any employee to participate in a strike if the employee:

(1) Is not included in the appropriate bargaining unit involved in an impasse; or

(2) Is included in the appropriate bargaining unit involved in an impasse that has been referred to arbitration for a decision.

(b) It shall be lawful for an employee, who is not prohibited from striking under subsection (a) and who is in the appropriate bargaining unit involved in an impasse, to participate in a strike under the following conditions:

(1) The requirements of section 89-11 relating to the resolution of disputes have been complied with in good faith;

(2) The proceedings for the prevention of any prohibited practices have been exhausted;

(3) The collective bargaining agreement and any extension of the agreement has expired; and

(4) The exclusive representative has given a ten-day notice of intent to strike, together with a statement of its position on all remaining issues in dispute, to the employer and the board.

Within three days of receipt of the notice of intent to strike, the employer shall submit its position on the remaining issues in dispute that are included in the statement transmitted by the exclusive representative with its notice of intent to strike. The board shall immediately release the information on the positions of the parties to the public.

(c) If any employee organization or any employee is violating or failing to comply with the requirements of this section, or if there is reasonable cause to believe that an employee organization or an employee will violate or fail to comply with such requirements, the public employer affected shall, forthwith, institute appropriate proceedings in the circuit in which the violation occurs to enjoin the performance of any acts or practices forbidden by this section, or to require the employee organization or employees to comply with the requirements of this section. Jurisdiction to hear and dispose of all actions under this section is conferred upon each circuit court, and each court may issue in compliance with chapter 380, such orders and decrees, by way of injunction, mandatory injunction, or otherwise, as may be appropriate to enforce this section. The right to a jury trial shall not apply to any proceeding brought under this section. [L 1970, c 171, pt of §2; am L 1980, c 252, §2; gen ch 1985; am L 2000, c 253, §101; am L 2001, c 90, §§7, 10; am L 2002, c 148, §6 and c 232, §4]

Case Notes

"Dispute" in subsection (a)(2) includes disputes not only with regard to initial or renewed agreement but also with regard to grievances. 54 H. 531, 511 P.2d 1080.

Subsection (c) does not require finding of irreparable harm as a prerequisite to relief for violation of subsection (a)(2). 54 H. 531, 511 P.2d 1080.

Injunctive relief under subsection (e) is available for violations of subsection (a)(2), notwithstanding the violations are also violations of contract under §89-13; applicability of chapter 380. 54 H. 531, 511 P.2d 1080.

Civil contempt for violating order enjoining strikes. 55 H. 386, 520 P.2d 422.

Strike settlement agreements are enforced in accordance with contract law. 60 H. 361, 590 P.2d 993.

Strike settlement did not have effect of condoning an illegal strike. 60 H. 361, 590 P.2d 993.

Board had authority to order union to implement the staffing of essential positions. 66 H. 461, 667 P.2d 783.

As plaintiff was designated an "essential employee", notice plaintiff received leading plaintiff to believe plaintiff could not strike was not a prohibited practice by employer. 87 H. 191, 953 P.2d 569.

Though designated as an "incumbent" employee, plaintiff was "essential employee" where plaintiff: (1) received notice by same means as essential employee; (2) was prohibited from striking; and (3) was subject to discipline for not working if scheduled to work during a strike. 87 H. 191, 953 P.2d 569.