by James C. Sherlock
As a consequence of the successful teacher revolt in Fairfax County, there are major legal questions which must be answered concerning the initiation of public employee collective bargaining in Virginia next spring.
In accordance with Virginia Code § 2.2-505, members of the General Assembly can request official opinions of the Attorney General. Private citizens cannot. I urge General Assembly members of both parties to submit the questions posed below.
Teachers associations in Fairfax County Virginia successfully employed threats not to return to work that resulted in a change to Fairfax County Schools policy.
From the Washington Post, “Teachers in Fairfax revolt against fall plans, refusing to teach in-person,” June 26, 2020:
“A day after one of the nation’s largest school systems announced its proposal for fall learning, teachers within Fairfax County Public Schools rose in revolt and refused to teach in-person, as the (previously announced by the school board) plan demands, until officials revise their strategy.”
Those actions force Virginians to confront the consequences under Virginia law of collective bargaining with public employees that will be legal starting in May of 2021. Some but not all of the possible issues are addressed here.
Legal Issues Raised
1. Consequences of public employee strikes or willful refusal to perform the duties of employment.
Code of Virginia, § 40.1-55, both now and in the revision effective May of 2021, is titled “Employee striking terminates, and becomes temporarily ineligible for, public employment’.”
“Any employee of the Commonwealth, or of any county, city, town or other political subdivision thereof, or of any agency of any one of them, who, in concert with two or more other such employees, for the purpose of obstructing, impeding or suspending any activity or operation of his employing agency or any other governmental agency, strikes or willfully refuses to perform the duties of his employment.” shall, by such action, be deemed to have terminated his employment and shall thereafter be ineligible for employment in any position or capacity during the next 12 months.”
Yet teachers who have refused to perform the duties of their employment as reported by the Washington Post still work for Fairfax County Schools.
Public employees have the right to make their views known. They do not have the right under Virginia law to hold Virginians, including children and their parents, hostage by threatening to refuse to work in support of those views.
If there are no consequences, then the legal ban in Virginia of strikes or refusal to work by public employees has little or no practical relevance.
2. Consequences if a public employee collective bargaining unit employs strike threats.
The Fairfax County issue raises implications for collective bargaining (§ 40.1-57.2. (Effective May 1, 2021)) by public employees if local governments next year “provide for or permit collective bargaining by a local ordinance or resolution.”
If collective bargaining is authorized by a city or county, and the bargaining unit for the public employees threatens a strike if its demands are not met, it is not clear what the consequences will be for the employees or their bargaining units.
3. What will happen if collective bargaining with public employees reaches an impasse?
Chapter 4, Labor Unions, Strikes, Etc., Article 4. Mediation and Conciliation of Labor Disputes, § 40.1-70 designates the Department of Labor and Industry as the state agency authorized to mediate and conciliate labor disputes. Yet the rest of Article 4 refers to labor disputes with public utilities. It is not clear that DOLI will be asked to mediate in disputes between public employees and local governments.
In addition, I can find no provision in Virginia law for what will be done if collective bargaining between government employees and local governments does not result in an agreement.
4. What are the consequences if local governments promise pay increases that they cannot fund due to balanced budget requirements?
Local governments are constrained to remain within budgets that balance. As example,
Title 22.1. Education » Chapter 8. Public School Funds » Article 1. State and Local Funds § 22.1-91. Limitation on expenditures; penalty.
“No school board shall expend or contract to expend, in any fiscal year, any sum of money in excess of the funds available for school purposes for that fiscal year without the consent of the governing body or bodies appropriating funds to the school board. Any member of a school board or any division superintendent or other school officer violating, causing to be violated or voting to violate any provision of this section shall be guilty of malfeasance in office.”
It is not clear how this constraint and others similar to it will permit contracting with government employees on pay issues until funds available “for that fiscal year” are known. It also appears that multi-year contracts are not possible under this constraint.
5. Can special taxes be used to fund employee contracts? Again using school as an example:
§ 22.1-102. Special tax for capital expenditures or payment of indebtedness or rent.
“For capital expenditures and for the payment of indebtedness or rent, a governing body may, in addition to the levy and appropriation required under the provisions of §§ 22.1-94 and 22.1-95, levy a special county tax, a special district tax, a special city tax or a special town tax, as the case may be, on all property subject to local taxation. Such levy or levies shall be at such rate or rates as the governing body levying the tax may deem necessary for the purpose or purposes for which levied, except that where the tax is for raising funds for capital expenditures the rate shall not be more than $2.50 on each $100 of the assessed value of such property in any one year.”
It is not clear from the language of the law whether employee contracts can be considered debt for the purpose of increasing property taxes.
Request for Opinions from the Attorney General
General Assembly members should request the following opinions from Attorney General Herring.
- Did the associations representing Fairfax County teachers violate Virginia law by declaring that the teachers they represent would refuse to teach in person and demanding policy changes? If not, why not? If so, are there any consequences for the teachers who authorized those associations to speak for them or for those associations themselves?
- Are the current laws sufficient to prevent threats of job actions — strikes or slowdowns, etc. — by employee bargaining units during contract negotiations? If so, what will be the legal consequences for public employees and their bargaining units after May of 2021 if a bargaining unit threatens illegal job actions during such negotiations?
- Is there any prohibition in Virginia law that would prevent negotiating units from asking and local governments granting as conditions of employment that tenured employees be protected from termination for anything but felony convictions?
- Will the Department of Labor and Industry be permitted or required to mediate contract disagreements between public employees and local governments? If so under what authority and conditions?
- What if anything does the law say about the method of breaking an impasse in contract negotiations between public employees and local governments?
- Under Virginia law, what will be the outcome if a local government promises pay increases that turn out to be insupportable due to budget constraints?
- Will multi-year public employee contracts be legal under Virginia law under constraints such as § 22.1-91. Limitation on expenditures; penalty?
- Under Virginia law, can contract obligations for pay increases for public employees be considered debt for purposes of levying property tax increases?
Absent the answers to those questions, local governments will not have enough information with which to vote to authorize public employee collective bargaining.
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