Loophole in collective bargaining bill could allow teacher strikes in Virginia

A recent national wave of teacher strikes had only a small effect on Virginia. But a proposal moving through Richmond could change that.

Teacher strikes could become a struggle for Virginia families should state lawmakers approve a proposal moving quickly through the General Assembly.

Last year, school districts across Virginia scrambled to accommodate teachers who participated in a one-day “march.” But Virginia’s law against strikes helped keep the disruption to that one day.

Under a collective bargaining bill pending in the Virginia General Assembly, that law might go out the window.

There’s a reason why many states, including Virginia, currently prohibit teacher strikes: they wreak havoc on children’s education and are disruptive to families, especially those who may struggle to find (or afford) child care for an extended stretch when their children are unexpectedly at home.

Omission in bill language could leave room for teacher strikes

Virginia’s House and Senate have adopted competing versions of a collective bargaining bill, which would insert government unions in between public employees and their employers.

State lawmakers may now move to work out their differences in what is called a committee of conference.

House Bill 582 is by far the more aggressive of the two and could lead to $4 billion in state and local tax increases. The Senate’s proposal is Senate Bill 939. It would open the door to mini versions of the House bill in communities across the state, and could also be read as allowing teachers to go on strike.

In fact, a representative from the Virginia School Boards Association raised this concern about SB 939 in a recent committee hearing.

It all comes down to a legislative omission. The Senate’s committee substitutes for SB 939 amend the statutory prohibition against collective bargaining, granting local governments the authority to allow collective bargaining with municipal and school employees. This is the meat of the bill. But because collective bargaining can authorize other forms of collective action, the bill also amends the existing prohibition against strikes by public sector employees to make it clear that these collectively bargaining employees still can’t strike.

That’s where the omission comes in.

The bill first defines which public employees can collectively bargain. That list includes “school board employees,” a group that includes teachers. The bill later defines the employees who can collectively bargain but cannot go on strike. School board employees are conspicuously absent from that list.

This raises questions about what kinds of strikes would be allowed.

One interpretation is that the broader provision already prohibits strikes regardless of bargaining status. But if that prohibition was indisputable, an amendment to the anti-strike statute would not be necessary in the first place. And if the new language is necessary, what it omits is at least as important as what it includes.

Senate Majority Leader Dick Saslaw, D-Fairfax, is the sponsor of the Senate bill. He insists it is not intended to allow teacher strikes. If that’s what he and his colleagues intend, they should insist on clarifying and strengthening the language should lawmakers enter a committee of conference to resolve their differences.

Otherwise, the provision could be put to the test in the worst way: by keeping kids out of school while the courts sort things out.

It’s also important to note that even if the strike ban stays in the law, that doesn’t mean it would be followed. Government unions could become emboldened to flout the law under either the House or Senate bill, which grant them broad new powers.

Laws prohibiting government union strikes do not always protect against public employees walking off the job. States such as Kentucky, North Carolina, Oklahoma and West Virginia have anti-strike statutes or case law prohibiting strikes, but have still seen walkouts at the expense of parents and children. In 2019, Kentucky let slide over 1,000 teachers engaging in an illegal “sick out” protest. And in West Virginia, superintendents closed schools so teachers could protest.

Nationwide wave of teacher strikes hit a number of states, including some with anti-strike protections

In 2018, a wave of teacher strikes disrupted schools in six states, with 373,000 school employees staging walkouts. In neighboring West Virginia, a two-week strike shut down schools across the state, keeping 250,000 students out of classrooms.

That 2018 wave shut down schools across the country – not just in West Virginia, but also in Arizona, Colorado, Kentucky, North Carolina and Oklahoma, even as many of those states have laws or court cases prohibiting strikes. In 2019, major cities like Chicago, Denver and Los Angeles saw large-scale walkouts. And even after the educators’ union won its desired concessions in West Virginia, they called a second strike in 2019, shuttering nearly every school in the state – not over wages, but over the possibility that the state might authorize public charter schools.

Thankfully, the wave only minimally touched Virginia, where strike prohibitions for public sector employees are given a little more weight and current law keeps collective bargaining from coming in between teachers, parents, children and schools.

If lawmakers don’t fix these bills’ problems in conference, that all could change.