By Lise Gelernter (Member, National Academy of Arbitrators)

On March 4, 2021, the West Virginia Legislature approved a law that outlaws public employee strikes.  It states: “Public employees in West Virginia have no right, statutory or otherwise, to engage in collective bargaining, mediation, or arbitration, and any work stoppage or strike by public employees is hereby declared to be unlawful.”  S.B.11, § 18-45a(a)(2) (2021).  This part of the law codifies a 1990 decision of the West Virginia Supreme Court of Appeals in which the court concluded: “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 County Board of Education v. Jefferson County Education Association, 183 W. Va. 15, 21 (1990).

Despite its broad statement banning all public employee strikes, the new law appears to apply only to public school employees.  It amends Chapter 18 of the West Virginia Code, which is entitled “Education,” and is part of Article 5 of Chapter 18, which is entitled “County Board of Education.”  W. Va. Code Chap. 18, Art. 5.  It follows Section 18-45, which governs the “School Calendar.”  W. Va. Code § 18-45.  It appears that the Legislature was reacting to the 2018 West Virginia teacher strike in which 20,000 teachers and other school personnel walked off their jobs due to a long-simmering dispute over salaries.  The strike, which started on February 22, 2018 and lasted 15 days, ultimately led to the closure of all schools throughout the state during the last nine days of the strike. The school personnel returned to work once the Legislature enacted a bill providing for a 5% raise.  See Jess Bidgood, West Virginia Raises Teachers’ Pay to End Statewide Strike (NY Times 3/6/18), https://www.nytimes.com/2018/03/06/us/west-virginia-teachers-strike-deal.html (last visited 3/28/21);  The West Virginia Teacher Strike Was Rare, Militant And Victorious, Huffington Post (3/7/18), https://www.huffpost.com/entry/what-makes-the-west-virginia-teacher-strike-so-powerful_n_5a9db476e4b0a0ba4ad6f723 (last visited 3/28/21) Because West Virginia does not have a law authorizing collective bargaining for any public employees, there was no statutory mechanism in place to divert the dispute to contract negotiations, mediation or arbitration.

The new statute also authorizes penalties for striking employees, which the 1990 court decision did not have to address.  The law states specifically that “participation in a concerted work stoppage or strike . . . [is] a ground for termination.”  S.B. 11, § 18-5-45a(d).  If a County Board of Education nonetheless retains an employee who participates in an illegal strike, the County Board “shall withhold the prorated salary or hourly pay of each employee participating in the concerted work stoppage or strike for each day that such employee participates in a concerted work stoppage or strike.”  Id. (emphasis added).  The use of the word “shall” makes the withholding of pay mandatory; the County Board has no choice but to dock a striking teacher’s pay.

States banning public employee strikes is not uncommon.  Even in some states that have authorized collective bargaining for public employees, public employee strikes are illegal or limited.  Rebecca L. Marks, The New York State Taylor Law: Does One Size Fit All?,  48 Hof. L. Rev. 799, 818, n. 147 (2020); Jefferson County Board of Education, 183 W. Va. at 17-18.  Although West Virginia’s legislators already had a state court decision that made it clear that public employees have no right to strike, they made a political statement by enshrining it in law and also ensured that any future shift in legal thinking on the issue would not change the law in West Virginia.