West Virginia public school teachers and service workers have demonstrated remarkable solidarity during work stoppages the last two years. Clearly, the nine-day strike in 2018 was a driving force behind an average five percent pay raise and a pledge by state leaders to try to hold down rising health insurance costs. This year’s two-day strike helped kill the controversial omnibus education reform bill.
In 1990, striking teachers and service workers shut down most schools in the state for 11 days. The walkout ended with promises of a three-year pay raise package and more input for teachers in school operations.
The strikes have been effective, but they have also been unlawful.
In 1990, then-Attorney General Roger Tompkins determined the teachers strike was illegal. In an opinion delivered to then-State School Superintendent Hank Marockie, Tomkins wrote, “There is no right to strike against the state. Thus, any concerted work stoppage by public teachers of this state is illegal.”
Tomkins relied on previous court cases for his conclusion, including a federal court ruling that upheld Governor Arch Moore’s decision in 1969 to fire striking public highways workers. The federal court found, “to permit a strike by public employees at any level is inconsistent with the orderly process and sovereignty of government.”
Just weeks after the 1990 teacher’s strike, the West Virginia Supreme Court ruled in Jefferson County Board of Education v. Jefferson County Education Association that the strike was illegal. “In absence of legislation, the common law rule recognized in both federal and state courts is that public employees do not have the right to strike,” wrote Justice Tom Miller
The Justice cited a California case (County Sanitation District 2 v. Los Angeles County Employees Association) that concluded, “Public employees provide essential public services which, interrupted by strikes, would threaten public welfare.”
Justice Miller also noted that he was relying on an abundance of case law because there was no specific West Virginia statute prohibiting public employee strikes, adding that such matters really should be up to the legislature, which brings us (finally) to the issue at hand.
The state Senate’s just-passed Student Success Act would put in state code that public employees have no right to strike. In addition, the bill says striking workers will not be paid for days missed and participation in a work stoppage is “a ground for termination.” County school superintendents would not be allowed to close school in anticipation of a strike or “to facilitate a concerted work stoppage or strike.”
Opponents of this provision of the bill contend this is retaliation for the strikes over the last two years. “I think the provision is basically an attack,” said Senator John Unger (D-Berkeley), adding that the provision interferes with the First Amendment rights of the teachers and service workers.
Senate Judiciary Chairman Charlie Trump (R-Morgan) disagrees. “In the last two years, we’ve had two (strikes), and it is interfering with the ability of children to get an education,” said Trump.
“This is not something that should be within local control, whether to have school or not. We have a duty to make sure we have school for every child in every county in the state when the law requires they should have school. The teacher unions do not set the calendar.”
UMWA President Cecil Roberts has even weighed in, accusing the Senate leadership of “union busting.” “Let me make this clear: If our state’s education workers believe they need to take to the streets once again, we will be there with them,” Roberts said.
Okay, but UMWA members are not public employees, and the case law is unequivocal; West Virginia public employees do not have a right to strike. The strike provision in the Student Success Act simply codifies what is already a significant body of common law.