Written for Bacon’s Rebellion by James C. Sherlock

The illegal but successful threats not to return to work by teachers associations in Fairfax County Virginia have forced Virginians to confront the issue of public employees’ willful refusals to perform the duties of their employment.

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.

Though you would not know it from their actions, Fairfax County school teachers currently are not permitted to bargain collectively. Even when the laws change next year to permit bargaining at local option, such tactics will be illegal.

Code of Virginia, § 40.1-55, both now and in 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.”

So, why do teachers in Fairfax County who have refused to perform the duties of their employment still work for Fairfax County Schools?

No word from Governor Northam or Attorney General Herring, who are charged with upholding Virginia laws.

The truth is that the threats worked and there will be no consequences.

Pending changes to Virginia public employee collective bargaining

Consider the implications of collective bargaining (§ 40.1-57.2. (Effective May 1, 2021)) by public employees of local governments if those governments next year “provide for or permit collective bargaining by a local ordinance or resolution”.

There is no provision in Virginia law for what will be done if collective bargaining does not result in an agreement even after mediation by the Department of Labor and Industry. What could go wrong?

In 1943, a New York Supreme Court judge held:

To tolerate or recognize any combination of civil service employees of the government as a labor organization or union is not only incompatible with the spirit of democracy, but inconsistent with every principle upon which our government is founded. Nothing is more dangerous to public welfare than to admit that hired servants of the State can dictate to the government the hours, the wages and conditions under which they will carry on essential services vital to the welfare, safety, and security of the citizen. To admit as true that government employees have power to halt or check the functions of government unless their demands are satisfied, is to transfer to them all legislative, executive and judicial power.

That remains true today.

Some states dominated by Democrats, most prominently Illinois, with public employees on one side of the bargaining table and elected officials on the other have effectively bankrupted their states because they have granted nearly unlimited pay and benefits raises to public employees, as reflected in their massively underfunded pension plans.

There are two major problems with collective bargaining by public employees.

1. In negotiations between a private company and its unions, both sides are dividing up the same pot of money, and thus equally motivated.  In negotiations between a public union and elected officials, it is not the elected officials’ money with which they are dealing.

2. Public-sector unions in Virginia will sit across the table negotiating with people they help elect, and not just with their votes.   Virginia has no limit on campaign donations to state officials. VPAP records that the American Federation of State County and Municipal Employees (AFSCME) has given over $2,316,000 to Virginia candidates, all of it to Democrats.

I support the right of public employees in Fairfax County and elsewhere to express their views.

I do not support their right or the right of any public employees to hold Virginians, including children and their parents, hostage by threatening to refuse to work in support of those views. Neither does Virginia law.

Now consider how the successful use of illegal tactics by the Fairfax County teachers will instruct all other public employee unions in Virginia — police, fire, EMS, public utilities workers, etc.

Welcome to Illinois.