West Virginia Department of Highways workers went on strike in 1969. State schoolteachers struck in 1990, 2018 and again the following year.
For each strike there was always debate and disagreement over whether public employees could legally strike.
And each time, courts and legal opinions found that the strikes were illegal.
However, the issue has never really been fully settled. Attorney General opinions are not law. And some on the pro-strike side have argued that prohibiting walkouts violates their constitutional rights.
That brings us to the current effort in the West Virginia Legislature to put strong anti-strike language in the state code. Bills in both the House and Senate specify that any strike by a public employee is illegal.
The legislation also aims to close any wiggle room by disallowing public employees to use accrued time for a strike, preventing the state board from giving county boards a waiver for non-compliance, withholding pay for strike days, making a strike grounds for termination, and prohibiting extracurricular activities during a strike.
House and Senate Republicans are pushing the bill for two reasons:
First, they want to strengthen the prohibition against strikes by public workers by putting the specific language in code. The imprimatur of the law will eliminate any doubt as to whether a walkout is legal or illegal.
Second, I suspect some in the Legislature who are still fuming over the recent teachers’ strikes want to make clear, following the 2020 election where Republicans gained supermajorities in both chambers, just who is in charge.
AFT-West Virginia President Fred Albert views this bill, as well as bills expanding charter schools and creating education savings accounts, as retaliatory.
“In less than a week, the 2021 legislative session has been nothing but a barrage of attacks against public education and those who work in it,” he said.
However, even if the bill makes it into law, that will not necessarily preclude teachers and staff from striking again. The previous teacher walkouts were also unlawful, but there were no consequences, and the 9-day 2018 strike in particular demonstrated the unions’ power.
Any law is only as strong as its enforcement. Governor Arch Moore fired more than 2,600 highways maintenance workers in 1969 over their attempts to unionize.
Would 55 county school superintendents be willing to fire every teacher, cook, bus driver and maintenance worker if there were another statewide strike?
Ultimately, that question is more significant than what is, and what is not, in state code about public employee strikes.