Public Employee Collective Bargaining – Questions for Attorney General Herring

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.

  1. 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?
  2. 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?
  3. 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?
  4. 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?
  5. What if anything does the law say about the method of breaking an impasse in contract negotiations between public employees and local governments?
  6. 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?
  7. Will multi-year public employee contracts be legal under Virginia law under constraints such as § 22.1-91. Limitation on expenditures; penalty?
  8. 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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29 responses to “Public Employee Collective Bargaining – Questions for Attorney General Herring

  1. Damn good questions! It seems pretty obvious that the solons in the General Assembly haven’t begun to think through the implications of the actions.

  2. James Wyatt Whitehead V

    Captain Sherlock could a local Commonwealth Attorney pursue the enforcement and consequences of the Code of Virginia on this matter? Do you think this letter from the Fauquier Education Association qualifies as a threat to work stoppage?

    • The local Commonwealth’s Attorney can seek a bill of indictment from a grand jury for any act or acts he thinks constitute a crime.

      I am not an attorney, so I will not venture an opinion of whether the Fauquier letter itself threatens a work stoppage. You can assume that they have lawyers that review such things before they are released.

      It was the interviews and reporting of the Fairfax County situation, not the formal joint letter from the teachers associations, that indicated that the three Fairfax teachers associations may have crossed the line. Informal communications in these matters can count.

      That is why I recommend the General Assembly members ask the Attorney General. He is required by Virginia law to provide an opinion.

  3. And what is teachers aren’t covered by insurance or benefits if they are infected? This is not just wrong, it is cruel.

    • Peter, this post simply asks our GA members to ask the AG what the law says. None of us I think wants to be surprised. There is ample time to change the law if necessary before May depending on his answers.

  4. 6) Are local schooboards required to meet to vote on in-person instruction requirements, or is Zoom acceptable?

  5. I guess you can always move more Chicago-like and allow the school board to be a taxing authority.

  6. These are interesting legal questions but moot policy points. The implications on congregate activities caused by COVID-19 have come to the fore in major league baseball. A number of Miami Marlins have been diagnosed with COVID-19. This set in motion a domino effect through the major leagues. First, the Marlins have to quarantine so many players that the club is allowed to postpone its next few games. This sidelines the Baltimore Orioles who were supposed to play the Marlins tonight. Meanwhile, the team the Marlins just finished playing, the Philadelphia Phillies, are quarantining as a precaution which sidelines their scheduled opponent, the New York Yankees.

    So, the regular season is three games old and four of baseball’s teams are watching from home for some period of time. And this is a professional sports league with lots of money, taking lots of precautions with a limited number of participants. There are fewer US major league players, across all teams, than students in the graduating class of Robinson High School.

    Now, what happens if the schools reopen? How long before there’s an outbreak and hundreds of students need to head home to quarantine?

    Open, close, in-school, at home, move freely, quarantine. Rinse and repeat.

    Is there any reasonable expectation that an opened school will not go through multiple iterations of outbreak, testing, contact tracing, quarantine and shutdown for “deep cleaning”?

    Don’t get me wrong. Distance learning is terrible for teaching K-12. But is there a realistic alternative? The Miami Marlins, Baltimore Orioles, Philadelphia Phillies and New York Yankees argue against that.

    As and aside, as a lifelong Baltimore Orioles fan, there is no truth to the rumor that the Orioles offered Anthony Fauci a contract in order to improve their bullpen.

    • yeah… sounds like the baseball players are taking a page from those Fairfax teachers, eh?

      These are young healthy guys (snowflakes) are getting spooked by MSM fear mongering, no?

      I mean, like Jim says…all these folks working in grocery stores, meat packers, etc… and here these panty-waists can’t dain to get their rumps on the playing field?

      sounds very “stirke-ish”


      But heckfire – if it’s too risky for ball players, we KNOW it’s too risky for teachers, right?

      • Once against kumquats and coconuts. Where is the law that prohibits private sector unions from threatening to refuse to play for health reasons? There may be a contractual provision but there is nothing in the United States Code to that effect.

        But there are provisions in Virginia state law prohibiting strikes by public sector employees. And if the Commonwealth doesn’t enforce them, why should anyone follow other state laws?

        I’m not arguing for any specific school opening plan. I suspect each school division in the state may have its own plan. But they all need to be in accordance with state law.

        • I agree but the teachers didn’t have to strike or even threaten to strike. All they had to do was was wait for the first student cohort outbreaks, tests, rescheduling of everything and quarantines. One outbreak at West Potomac High School among one student cohort and the school board had all the cover it needed to shut down.

          We’re arguing legal technicalities about a program that was going to end up with all virtual teaching anyway. At least through the Fall.

          • TooManyTaxes

            Interestingly, Chairman Jeff McKay’s 7/28/20 update indicated the County will be opening a modified SACC (School Aged Child Care) program this fall to address, well, child care needs. How can that be done and no partial school opening cannot?

      • What’s happening in MLB was always part of the COVID-19 protocol agreed to before the start of the delayed season. Schools which reopen will follow a similar path by dividing students into cohorts which the school will try to keep separate from other cohorts. An outbreak in one cohort will send that cohort home for quarantine and testing. But the testing requires a minimum amount of viral material before it detects the virus. Therefore, some time must elapse before a negative test is trustworthy.

        There’s no mystery to this. It’s in the CDC guidelines. An exercise in applied common sense if you ask me.

        What nobody knows is how often cohorts will be quarantined and how many cohorts may be quarantined at any one time. There is also the question of whether some schools may stay relatively virus free while others will be in an ongoing cycle of close – reopen – quarantine – freely associate (at a social distance).

        Starting the year with onsite education as an option seems to make sense although the experience of MLB brings into question how effective that will be given the CDC’s cohort-based guidelines.

        I also expect that MLB’s procedures will work. The outbreak will be contained. The Marlin players will get better. The world will continue to spin on its axis. However, constant disruptions to the schedule may prove overly problematic. The regular 162 regular game season has already been shortened to 60. How many delays, postponements, etc can the league endure before the playoff and World Series schedules are jeopardized? The Cubs playing the World Series at Wrigley in January doesn’t sound too reasonable.

        • re: ” What nobody knows is how often cohorts will be quarantined and how many cohorts may be quarantined at any one time. There is also the question of whether some schools may stay relatively virus free while others will be in an ongoing cycle of close – reopen – quarantine – freely associate (at a social distance).”

          How can that be – all these folks are saying it’s safe and the teachers are malingering…

          testing seems iffy also. I don’t see the CDC saying they’ll guarantee testing for the schools. Nope. They’re totally on their own…

          Has anyone else seen this:

          Virginia creating COVID-19 dashboards to help inform school reopening decisions

          • You’re being intentionally dense again. I am not claiming that MLB is unsafe. It is safe because of the COVID-19 protocols in place. The schools would be safe too in my opinion given their protocols. The question is disruption. Are the protocols so disruptive that they negate the benefits of in-person teaching? That’s the question.

            As far as testing, I’d hope Northam finally has that under control. After months of failure I thought he finally had his act together. Maryland appears to have solved the problem.

          • well first, why do young healthy athletes need COVID19 protocols to start with?

            And second, what was the MLB or other sports “plan” if players did get COVID19? was it a “plan”?

            and Third – what is the “plan” for the schools if teachers or students get COVID19? Is there a “plan”?

            Fourth – can schools get timely testing like professional sports seems to be able to?

    • DJ, these are not moot policy points, because the questions have nothing to do with COVID.

      The answers will determine the issues with local option public employee collective bargaining that will need to be addressed by the General Assembly next year.

      • I agree to an extent.

        Your first question seems to imply that the school closings might be the result of an illegal act. That’s a stretch but who knows?. From that question, people might conclude that an illegal threat to strike could be undone by legal action and the schools forced to reopen (or the teachers who don’t report fired). In that case your first question does have something to do with COVID since that’s the basis for the potentially illegal action. My final point is that even if the teachers refusing to work in person could be forced back to school by a court of law threatening to fire them it wouldn’t matter to the parents or students. The school board can claim a changing situation and close the schools anyway. The second closure would be legal even if the first were not.

        Good luck with your questions. I understand their importance beyond the existing situation. Politicians in various states have secured votes and donations from public service union people by promising outlandish retirement benefits. These promises don’t break the bank immediately but do break the bank over time. The threat of a government workers’ strike is often all the cover the politicians need to sell the constituents out with deferred Christmas gifts in the pension system. Your recent article on Virginia becoming Illinois gains even more credence if Virginia allows collective bargaining for government employees.,just%20allow%20government%20worker%20strikes.

  7. A couple of charts to inform the discussion:

  8. FYI

    See below the full text of FDR’s letter to Luther C. Steward, President of the National Federation of Federal Employees, of August 16, 1937.

    My dear Mr. Steward:

    As I am unable to accept your kind invitation to be present on the occasion of the Twentieth Jubilee Convention of the National Federation of Federal Employees, I am taking this method of sending greetings and a message.

    Reading your letter of July 14, 1937, I was especially interested in the timeliness of your remark that the manner in which the activities of your organization have been carried on during the past two decades “has been in complete consonance with the best traditions of public employee relationships.” Organizations of Government employees have a logical place in Government affairs.

    The desire of Government employees for fair and adequate pay, reasonable hours of work, safe and suitable working conditions, development of opportunities for advancement, facilities for fair and impartial consideration and review of grievances, and other objectives of a proper employee relations policy, is basically no different from that of employees in private industry. Organization on their part to present their views on such matters is both natural and logical, but meticulous attention should be paid to the special relationships and obligations of public servants to the public itself and to the Government.

    All Government employees should realize that the process of collective bargaining, as usually understood, cannot be transplanted into the public service. It has its distinct and insurmountable limitations when applied to public personnel management. The very nature and purposes of Government make it impossible for administrative officials to represent fully or to bind the employer in mutual discussions with Government employee organizations. The employer is the whole people, who speak by means of laws enacted by their representatives in Congress. Accordingly, administrative officials and employees alike are governed and guided, and in many instances restricted, by laws which establish policies, procedures, or rules in personnel matters.

    Particularly, I want to emphasize my conviction that militant tactics have no place in the functions of any organization of Government employees. Upon employees in the Federal service rests the obligation to serve the whole people, whose interests and welfare require orderliness and continuity in the conduct of Government activities. This obligation is paramount. Since their own services have to do with the functioning of the Government, a strike of public employees manifests nothing less than an intent on their part to prevent or obstruct the operations of Government until their demands are satisfied. Such action, looking toward the paralysis of Government by those who have sworn to support it, is unthinkable and intolerable. It is, therefore, with a feeling of gratification that I have noted in the constitution of the National Federation of Federal Employees the provision that “under no circumstances shall this Federation engage in or support strikes against the United States Government.”

    I congratulate the National Federation of Federal Employees the twentieth anniversary of its founding and trust that the convention will, in every way, be successful.

    Very sincerely yours,

    [To] Mr. Luther C. Steward, President, National Federation of Federal Employees, 10 Independence Avenue, S.W., Washington, D.C.

    Source: John T. Woolley and Gerhard Peters, The American Presidency Project, Santa Barbara, California.

  9. Eric the Half a Troll

    “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.”

    Actually, they certainly do have the right to threaten to refuse to work. Would you put them in jail if they say “you know, to hell with this job, it’s not worth dying over, if you open the schools, I’m not going to show up and you, suddenly, will have to figure out how to replace me. BTW, most of my associates agree with me. Think about that before you decide to put us in danger.”? Are you saying they don’t have a right to make such a public statement?

    By my layman’s read of the quoted law, they can’t even be terminated fir threatening to refuse to work. They actually have to strike or refuse to work before they are terminated.

    • I’m saying we need an opinion from the Attorney General. If they have the right to do that – threaten a strike – during contract negotiations, then no local government in its right mind would vote to give its employees permission to collectively bargain.

  10. These questions are all hypothetical. No teacher has broken the law. The law says an employee will lose her job if she “willfully refuses to perform the duties of his employment.” Since no school has started yet, no teacher has refused to perform her job, i.e. teach. They have threatened not to show up for in-school classes, but the law does not prohibit threats.

    The Commonwealth’s attorney would not be involved. This would not be a criminal matter.

    In addition to members of the GA, a county or city attorney may request an official opinion from the Attorney General. By the way, AG opinions do not have any legal effect. As some members of the GA used to say, it’s just one attorney’s opinion.

    Furthermore, everyone is getting ahead of themselves. No local government has exercised the option to engage in collective bargaining. In fact, they can’t do so until next July 1. Furthermore, I assume that, if a local government does exercise this option, it will specify which organization of public employees it will recognize in its collective bargaining activities.

    However, some of the questions are important. I have wondered what good it is to have the ability to engage in collective bargaining if one cannot strike. The strike is the ultimate leverage that unions have. Without the credible threat of a strike, public unions will have much less leverage in their collective bargaining. The Fairfax teachers have proved this. If Fairfax County decided to go ahead with in-school classes and a sizable number of teachers decided not to show up, the school system would have had a big mess on its hands. The school board could declare the teachers in violation of their individual contracts and fire them, but that would not do the system much good as far as conducting classes.

    • James Wyatt Whitehead V

      Thanks Mr. Dick. Good answers to important questions. You always do a good job of reeling the discussion back in. One thing that stands out in my mind is the new power the VEA and the local level education associations now possess. I don’t think the VEA really knew they had this kind of voice until now. When they speak now school board members and superintendents do indeed listen and form decisions around this input. That was not always the case in the past. It will be important to see which issues the VEA lends it’s new found bark towards.

  11. Employees can – and do – organize and act with or without unions or even collective bargaining.

    For instance, in Virginia, teachers actually sign contracts – and the contracts stipulate the conditions – and for many teachers, they are standard contracts that apply to many or all.

    Does anyone here remember the phrase “work to the rules”?

    It’s an interesting phrase that sort of indicates that sometimes teachers are actually doing MORE than the contract stipulates.


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