Jefferson County Bd. of Educ. v. Jefferson County Educ. Ass'n

• Decision Date: 12 April 1990
• Docket Number: No. 19575,19575
• Citation: 183 W.Va. 15,393 S.E.2d 653
• Court: West Virginia Supreme Court
• Parties: , 135 L.R.R.M. (BNA) 2144, 61 Ed. Law Rep. 765 JEFFERSON COUNTY BOARD OF EDUCATION v. JEFFERSON COUNTY EDUCATION ASSOCIATION and Betty Jo Walter, its President; and XYZ, Being All Other Officers and Members of the Jefferson County Education Association; Thomas Lange, Individually and as Representative of the Class of all Other Unknown Persons Who are Professional Employees of the Jefferson County Board of Education Who are Participating in a Work Stoppage and Have Failed to Report to Their Work Stations at Facilities of Said Jefferson County Board of Education, on Behalf of Themselves and all Other Employees Participating in Said Concerted Work Stoppage.

Page 653

393 S.E.2d 653

183 W.Va. 15, 135 L.R.R.M. (BNA) 2144,

61 Ed. Law Rep. 765

JEFFERSON COUNTY BOARD OF EDUCATION v. JEFFERSON COUNTY EDUCATION ASSOCIATION and Betty Jo Walter,

its President; and XYZ, Being All Other Officers and

Members of the Jefferson County Education Association;

Thomas Lange, Individually and as Representative of the

Class of all Other Unknown Persons Who are Professional

Employees of the Jefferson County Board of Education Who are

Participating in a Work Stoppage and Have Failed to Report

to Their Work Stations at Facilities of Said Jefferson

County Board of Education, on Behalf of Themselves and all

Other Employees Participating in Said Concerted Work Stoppage.

No. 19575.

Supreme Court of Appeals of

West Virginia.

April 12, 1990.

Rehearing Denied June 7, 1990.

Syllabus by the Court

1. In the absence of legislation, the common law rule recognized in both federal and state courts is that public employees do not have the right to strike.

2. The right of public employees to bargain collectively, to have mediation and binding arbitration, and to strike are all matters best resolved in the legislative arena.

3. "While some constitutional protection is extended under the First Amendment to public employees to organize, speak freely and petition, it is clear that a public employer is not required to recognize or bargain with a public employee association or union in the absence of a statutory requirement." Syllabus Point 2, City of Fairmont v. Retail, Wholesale, & Dep't Store Union, AFL-CIO, 166 W.Va. 1, 283 S.E.2d 589 (1980).

4. "Whether the requisites for a class action exist rests within the sound discretion of the trial court." Syllabus Point 5, Mitchem v. Melton, 167 W.Va. 21, 277 S.E.2d 895 (1981).

5. The appropriateness of a class action under Rule 23(a) of the West Virginia Rules of Civil Procedure depends on a determination that the persons constituting the class are so numerous as to make it impracticable to bring them all before the court, that the named individuals joined will fairly insure the adequate representation of the class, and that the rights asserted against or on behalf of those making up the class are of the character specified in the rule.

6. The party who seeks to establish the propriety of a class action has the burden of proving that the prerequisites of Rule 23 of the West Virginia Rules of Civil Procedure have been satisfied.

7. " 'The granting or refusal of an injunction, whether mandatory or preventive, calls for the exercise of sound judicial discretion in view of all the circumstances of the particular case; regard being had to the nature of the controversy, the object for which the injunction is being sought, and the comparative hardship or convenience to the respective parties involved in the award or denial of the writ.' Point 4, syllabus, State ex rel. Donley v. Baker 112 W.Va. 263 [164 S.E. 154 (1932) ]." Syllabus Point 2, Severt v. Beckley Coals, Inc., 153 W.Va. 600, 170 S.E.2d 577 (1969).

Lawrence M. Schultz, Askin, Pill, Scales & Burke, L.C., Martinsburg, for Jefferson County Educ. Ass'n.

Grant Crandall, Crandall & Pyles and W.J. Arceneaux, III, Lewis, Ciccarello & Friedberg, Charleston, for Thomas Lange, et al.

Brentz H. Thompson, Hamstead & Associates, L.C., Charles Town, for Jefferson County Bd. of Educ.

Larry Harless, Charleston, for West Virginia Fed. of Teachers, AFL-CIO.

William B. McGinley, Charleston, for West Virginia Educ. Ass'n.

Bruce Ray Walker, Charleston, for Henry Marockie, West Virginia Bd. of Educ.

MILLER, Justice:

This case brings before us the legality of a public school teachers' strike. By order dated March 12, 1990, the Circuit Court of Jefferson County issued a preliminary injunction, at the request of the Jefferson County Board of Education (Board), prohibiting members of the Jefferson County Education Association (JCEA), a voluntary association of teachers, from continuing a work stoppage. ¹ The circuit court found that on March 8 and 9, 1990, Jefferson County public school teachers, most of whom were members of JCEA, had engaged in a strike to protest the failure of the governor and the legislature to enact a satisfactory wage and benefit package. The court below held that the strike was illegal and would result in irreparable harm to the public school system. The appellants contest these conclusions.

I.

In the absence of legislation, the common law rule recognized in both federal ² and state courts ³ is that public employees do not have the right to strike. Although we have not had occasion to address the issue, the federal district court for the Southern District of West Virginia reached this conclusion in a case involving employees of the West Virginia State Road Commission who had gone on strike. Kirker v. Moore, 308 F.Supp. 615 (S.D.W.Va.1970), aff'd, 436 F.2d 423 (4th Cir.), cert. denied, 404 U.S. 824, 92 S.Ct. 49, 30 L.Ed.2d 51 (1971).

Some jurisdictions have reinforced the common law rule by enacting statutes expressly forbidding strikes by public employees. ⁴ In other jurisdictions, however, statutes have been enacted to ameliorate the common law rule. These statutes can be grouped into two broad categories. First are those which continue the prohibition against strikes, but permit union recognition, collective bargaining, and mediation procedures. ⁵

A second category of statutes permits a limited right to strike. The limitation usually involves granting the right to strike only to certain public employees or permitting the State to enjoin the strike where there is a significant risk to public safety, health, or welfare. This limited right to strike is usually available only after the employment contract has expired and collective bargaining and mediation have failed. ⁶

In West Virginia, we have no statutory provision governing the right of public employees to strike. The appellants, however, assert that such a right exists even in the absence of statute. They rely primarily on County Sanitation Dist. No. 2 v. Los Angeles County Employees Ass'n, Local No. 660, 38 Cal.3d 564, 214 Cal.Rptr. 424, 699 P.2d 835, cert. denied, 474 U.S. 995, 106 S.Ct. 408, 88 L.Ed.2d 359 (1985). ⁷

In County Sanitation Dist. No. 2, the California Supreme Court was called upon to alter the common law prohibition against public employee strikes. The court, in a plurality opinion, ⁸ outlined several of the policy considerations commonly cited in support of the common law rule:

"[T]he terms of public employment are not subject to bilateral collective bargaining, as in the private sector, because they are set by the legislative body through unilateral lawmaking.... [S]ince legislative bodies are responsible for public employment decisionmaking, granting public employees the right to strike would afford them excessive bargaining leverage, resulting in a distortion of the political process and an improper delegation of legislative authority. Finally, public employees provide essential public services which, if interrupted by strikes, would threaten the public welfare." 38 Cal.3d at 574, 214 Cal.Rptr. at 430-31, 699 P.2d at 841.

The court concluded, however, that two of these policy considerations no longer justified denying public employees the right to strike. The court pointed out that the California legislature had given public employees extensive bilateral collective bargaining rights. Consequently, there was no longer any reason to deny such employees the right to strike on the ground that their terms and conditions of employment were unilaterally established. 38 Cal.3d at 576-77, 214 Cal.Rptr. at 432, 699 P.2d at 842-43. The California court also disputed the assumption that the right to strike would give public employees undue leverage against the government, thereby distorting the political process. It pointed out that not all governmental services were essential and that there were alternatives to capitulation to unreasonable demands such as contracting out services or firing the strikers. Moreover, the court took the view that strikers might return to work voluntarily because of wage losses or public sentiment against the strike. 38 Cal.3d at 577-79, 214 Cal.Rptr. at 432-35, 699 P.2d at 843-45.

The California court conceded, however, that as to essential public services, there was still a need for limitations on the right to strike. ⁹ Consequently, the court abrogated the common law rule prohibiting public employee strikes and granted a qualified right to strike which "allows exceptions in certain essential areas of public employment (e.g., the prohibition against firefighters and law enforcement personnel) and also requires the courts to determine on a case-by-case basis whether the public interest overrides the basic right to strike." 38 Cal.3d at 586, 214 Cal.Rptr. at 439, 699 P.2d at 850.

We do not find this reasoning persuasive in our case. First, as we have already noted, a statutory scheme which accorded collective bargaining rights to a variety of public employees, including teachers, was already in place in California when the issue came before the court in County Sanitation Dist. No. 2. This legislation, parts of which had been enacted as early as 1961, recognized unions, authorized collective bargaining, and provided for resolution of bargaining impasses by mediation procedures. See Cal.Gov't Code §§ 3500-3549 (West 1980 & Supp.1990). The California court merely engrafted onto the legislatively mandated collective bargaining process the right to strike once the statutory process was exhausted.

In this state, however, we have no collective bargaining statute. Teacher pay is unilaterally set by the legislature, W.Va.Code, 18A-4-2 (1989), with the county boards of education given the right under W.Va.Code, 18A-4-5a (1989), to supplement the basic salary. Unlike California, we have no legislative safety net which enables the parties to proceed through a process of collective...