West Virginia Attorney General Patrick Morrisey stated last week that West Virginia public school teachers “impending work stoppage” was “unlawful.” The support for this claim apparently rested on a 1990 case related to a prior teacher strike. The court explained:
“In short, we decline to alter the common law judicially. Public employees have no right to strike in the absence of express legislation or, at the very least, appropriate statutory provisions for collective bargaining, mediation, and arbitration.”
Jefferson Cty. Bd. of Educ. v. Jefferson Cty. Educ. Ass’n, 183 W. Va. 15, 21, 393 S.E.2d 653, 659 (1990).
A lot has been made of the decision, but even that case notes that a right to work stoppages or strikes could be created by statute. There is no statute that specifically addresses the scope or procedures for strikes or work stoppages by teachers, but that does not mean there is no statutory support for a right to strike or engage in a work stoppage.
There is interesting language in the current statute on school personnel related to salaries, wages, and other benefits that suggests work stoppages or strike are permissible. In at least three places the statute refers to a “concerted work stoppage or strike.” It is used in the context of seniority calculation (time out in such cases does not count) and use of personal leave. But, it does not say it is illegal or impermissible. See, e.g., W.V. Code § 18A-4-8g(c) (“Seniority of a regular or substitute service person does not continue to accumulate under the following conditions: (1) When a service person is willfully absent from employment duties because of a concerted work stoppage or strike . . . .”); § 18A-4-10 (3). (“Personal leave may not be used in connection with a concerted work stoppage or strike.”).
There are possible penalties for a variety of acts under the law. For example, W.V. Code § 18A-2-8. Suspension and dismissal of school personnel by board; appeal, provides: “(a) Notwithstanding any other provisions of law, a board may suspend or dismiss any person in its employment at any time for: Immorality, incompetency, cruelty, insubordination, intemperance, willful neglect of duty, unsatisfactory performance, the conviction of a felony or a guilty plea or a plea of nolo contendere to a felony charge.”
Still, the fact that the statute also carves out what cannot be done with personal leave time and limits use of work stoppage or strike time in calculating seniority suggests that loss of pay and/or seniority time may be the consequences of work stoppage or strike, which are clearly contemplated in some form. The potential consequences of a strike are not clear, and even where legal, strikes and work stoppages can lead to consequences. But given that the legislature knew how to use the words “work stoppage or strike” and did not reference them in either the model employment contract or any other place in the statute (including § 18A-2-8), there is a solid argument that strikes and work stoppages were contemplated and are thus allowed. (Again, penalties for doing so may apply, but that act itself is not illegal by statute, either.)
It is especially interesting that this statutory language did not exist in the statute when the Supreme Court of Appeals of West Virginia heard Jefferson City. Portions were added in 1991 (W.V. Code § 18A-4-10) and 1993 (W.V. Code § 18A-4-8g). This adds further support to the argument that strikes and work stoppages are currently allowed under West Virginia law. The legislature actively added language to the state law without any mitigating or limiting language other than to proscribe the impact of such an action on seniority or use of leave. The legislature did not add work stoppage or strike to the list of offenses that can lead to termination, nor did the law make any statement about a right to strike. The statute was changed simply to address a narrow impact of a work stoppage or strike.
Admittedly, there is a reasonable argument to the contrary: that legislature affirmatively could have said work stoppages and strikes are legal, and the failure to do so could mean that such actions remain improper. Still, the law reads more as legislation that contemplates an action (strike or work stoppage) and provides some rules that will apply to those who engage in that action.
At a minimum, the statutory changes after Jefferson City require more than a simple rubber stamp of that case’s analysis. The legal landscape has changed, and there are open questions created by those changes.