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.
In the absence of legislation, the common law rule recognized in both federal
Some jurisdictions have reinforced the common law rule by enacting statutes expressly forbidding strikes by public employees.
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.
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).
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,
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.
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
Nor are we convinced that the retaliatory economic alternatives outlined in County Sanitation Dist. No. 2 sufficiently balance the bargaining positions of the government and its employees so as to warrant removal of the common law prohibition against strikes, particularly with respect to employees in essential services. As a practical matter, discharging striking public employees would waste their years of expertise and training and create obvious problems finding capable and trained replacements. While pay losses and adverse public sentiment might eventually cause strikers to return to work, such considerations often do not address the capacity of the government to carry on during an indefinite work stoppage.
Finally, we note that one of the significant factors in the California case was that the employees' collective bargaining agreement had expired, and, as a consequence, they were without any type of employment contracts. Even states that have extended to public employees a limited right to strike do not recognize the right if there is an existing employment contract between the public agency and its employee. In Illinois, for example, educational employees may strike only if: (1) they are represented by an exclusive bargaining agent; (2) mandatory mediation procedures have been unsuccessful; (3) a five-day notice provision has been satisfied; (4) the collective bargaining agreement has expired; and (5) the unresolved issues have not been submitted for arbitration. Ill.Ann.Stat. ch. 48, ¶ 1713 (Smith-Hurd 1986). See Minn.Stat. Ann. § 179A.18 (1987); Mont.Code Ann. § 39-31-307 (1975).
Here, the teachers have existing employment contracts.
We continue to emphasize, as other states have done,
Although in the past we have not hesitated to alter common law rules where we believed that the changing conditions of society required such a result,
Nor does our case law afford any support for the appellants' position. In City of Fairmont, supra, we held that a public employer has no common law right to seek damages against a union whose members peacefully picketed the employer's premises after the expiration of the collective bargaining agreement.
In Woodruff v. Board of Trustees of Cabell Huntington Hosp., ___ W.Va. ___, 319 S.E.2d 372 (1984), we recognized a public employee's constitutional right to distribute leaflets peacefully near the employer's premises in protest of the employer's decision to eliminate jobs.
In short, we decline to alter the common law judicially. Public employees have no right to strike in the absence of express legislation or, at the very least, appropriate statutory provisions for collective bargaining, mediation, and arbitration. In view of our legislature's silence on these complex issues, we decline to intervene.
We will briefly address several procedural errors asserted by the appellants.
The appellants question the propriety of a class action against JCEA. Suit was filed against JCEA, Betty Jo Walter, its president, and Thomas Lange, a JCEA member, individually and as representative of the class of "all other ... professional employees of [the Board] who are participating in a concerted work stoppage...."
We spoke at length about Rule 23 of the West Virginia Rules of Civil Procedure
See Robertson v. Hatcher, 148 W.Va. 239, 135 S.E.2d 675 (1964).
The general requisites of a class action are stated in Rule 23(a). As we noted in Mitchem, supra, the appropriateness of a class action 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," which we termed the "numerosity" requirement,
Rule 23, which speaks of the right of the class to "sue or be sued," is available to join a class of plaintiffs as well as a class of defendants. The party who seeks to establish the propriety of a class action has the burden of proving that the prerequisites of Rule 23 have been satisfied. E.g., United Indep. Flight Officers, Inc. v. United Airlines, Inc., 756 F.2d 1274 (7th Cir.1985); Reed v. Bowen, 849 F.2d 1307 (10th Cir.1988); Rowan v. First Bank of Boaz, 476 So.2d 44 (Ala.1985); Darnall v. City of Englewood, 740 P.2d 536 (Colo. App.1987); Dunn v. Jenkins, 268 Ind. 478, 377 N.E.2d 868 (1978); Vignaroli v. Blue Cross of Iowa, 360 N.W.2d 741 (Iowa 1985); Kelly v. County of Allegheny, 519 Pa. 213,
Historically, we have held that in the absence of an authorizing statute or rule, an unincorporated labor association cannot be sued as an entity. City of Fairmont v. Retail, Wholesale, & Dep't Store Union, AFL-CIO, supra; State ex rel. Glass Bottle Blowers Ass'n v. Silver, 151 W.Va. 749, 155 S.E.2d 564 (1967). See West Virginia Secondary Schools Activities Comm'n v. Wagner, 143 W.Va. 508, 102 S.E.2d 901 (1958); West v. Baltimore & O. R. Co., 103 W.Va. 417, 137 S.E. 654 (1927). It has long been the rule, however, that suit may be brought on behalf of or against an unincorporated labor association by joining some of its members in a representative class action. E.g., Turnstall v. Brotherhood of Locomotive Firemen & Enginemen, 148 F.2d 403 (4th Cir.1945); Lowry v. International Bhd. of Boilermakers, Iron Shipbuilders & Helpers of Am., 259 F.2d 568 (5th Cir.1958); Benz v. Compania Naviera Hidalgo, S.A., 233 F.2d 62 (9th Cir.1956), aff'd, 353 U.S. 138, 77 S.Ct. 699, 1 L.Ed.2d 709 (1957). See 7C C. Wright & A. Miller, Federal Practice & Procedure: Civil § 1861 at 215 (1986). As we stated in Syllabus Point 2 of State ex rel. Glass Bottle Blowers Ass'n v. Silver, supra:
See City of Fairmont v. Retail, Wholesale, & Dep't Store Union, AFL-CIO, supra. Accordingly, the Board could bring a class action against JCEA by naming and serving one or more of its members
Here, the record indicates that school was cancelled in Jefferson County on March 8 and 9, 1990, when well over 300 of the approximately 400 teachers employed by the Board participated in a concerted work stoppage. The strike was called at a JCEA meeting on March 7, 1990, at which 268 of the 399 JCEA members voted not to go to work the next day. It appears that both Ms. Walter and Mr. Lange are teachers, employees of the Board, and members of JCEA. The Board sought injunctive relief against all of the teachers engaged in the work stoppage on the same ground, and all members of the class occupied the same position vis-a-vis the Board.
On this basis, the trial court concluded that the class action was appropriate under Rule 23(a). In view of the evidence of record, we cannot say that the lower court abused its discretion in reaching this result. Accordingly, we find no error in the court's decision to allow the Board to maintain a class action.
Lack of Evidentiary Hearing
The appellants also complain that no evidentiary hearing was held prior to the issuance of the preliminary injunction. Under W.Va.Code, 53-5-8 (1955), a preliminary injunction may issue if "the court or judge be satisfied by affidavit or otherwise of the plaintiff's equity."
This does not mean that a cursory affidavit is sufficient to support the issuance of an injunction. As we explained in State ex rel. Bronaugh v. City of Parkersburg, 148 W.Va. 568, 574, 136 S.E.2d 783, 787 (1964): "Any injunctive relief in these circumstances would be mandatory in nature, a harsh remedial process, used only in cases of great necessity and not looked upon with favor by the courts." (Citation omitted). See also State ex rel. Donley v. Baker, 112 W.Va. 263, 164 S.E. 154 (1932). We have uniformly held that in order to obtain a preliminary injunction, a party must demonstrate the presence of irreparable harm. Syllabus Point 4, in part, R.R. Kitchen & Co. v. Local Union No. 141, Int'l Bhd. of Elec. Workers, 91 W.Va. 65, 112 S.E. 198 (1922) ("[I]f the injury is irreparable within the legal sense of the term,... it affords ground for a preliminary injunction."). See also Hechler v. Casey, ___ W.Va. ___, ___, 333 S.E.2d 799, 805 (1985) ("Injunctive relief, like other equitable or extraordinary relief, is inappropriate when there is an adequate remedy at law.").
We recognized the necessity of a balancing of hardship test in Syllabus Point 2 of Severt v. Beckley Coals, Inc., 153 W.Va. 600, 170 S.E.2d 577 (1969):
"`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) ]."
A similar test has evolved in the federal courts, as seen from the following passage from Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Bradley, 756 F.2d 1048, 1054 (4th Cir.1985):
Citing Blackwelder Furniture Co. v. Seilig Mfg. Co., 550 F.2d 189, 193-96 (4th Cir. 1977). See also University of Texas v. Camenisch, 451 U.S. 390, 101 S.Ct. 1830, 68 L.Ed.2d 175 (1981); Rafeedie v. Immigration & Naturalization Serv., 279 U.S. App.D.C. 183, 880 F.2d 506 (D.C.Cir.1989); Massachusetts Coalition of Citizens with Disabilities v. Civil Defense Agency, 649 F.2d 71 (1st Cir.1981); Freixenet, S.A. v. Admiral Wine & Liquor Co., 731 F.2d 148 (3d Cir.1984); Atwood Turnkey Drilling, Inc. v. Petroleo Brasileiro, S.A., 875 F.2d 1174 (5th Cir.1989), cert. denied, ___ U.S. ___, 110 S.Ct. 1124, 107 L.Ed.2d 1030 (1990); N.A.A.C.P. v. City of Mansfield, 866 F.2d 162 (6th Cir.1989); Ekanem v. Health & Hosp. Corp., 589 F.2d 316 (7th Cir.1978), cert. denied, 469 U.S. 821, 105 S.Ct. 93, 83 L.Ed.2d 40 (1984); Jensen v. Dole, 677 F.2d 678 (8th Cir.1982); King v. Saddleback Junior College Dist., 425 F.2d 426 (9th Cir.1970), cert. denied, 404 U.S. 979, 92 S.Ct. 342, 30 L.Ed.2d 294 (1971); United States ex rel. Citizen Band Potawatomi Indian Tribe v. Enterprise Management Consultants, Inc., 883 F.2d 886 (10th Cir.1989). See generally 11 C. Wright & A. Miller, Federal Practice & Procedure: Civil § 2948 at 430-31 (1973).
Several jurisdictions have, in the absence of express legislation, applied these principles to public teacher work stoppages and have cautioned against the precipitous issuance of a preliminary injunction without clear facts showing irreparable harm. E.g., School Dist. for City of Holland, Ottawa & Allegan Counties v. Holland Educ. Ass'n, 380 Mich. 314, 157 N.W.2d 206 (1968); Timberlane Regional School Dist. v. Timberlane Regional Educ. Ass'n,
In the present case, the trial court did not act precipitously. The initial hearing on the preliminary injunction was conducted on March 8, 1990. The court was advised as to the respective positions of the parties and requested briefs thereon. On March 12, 1990, the court issued a preliminary injunction which required those teachers participating in the work stoppage to return to their classrooms on March 15, 1990.
For the foregoing reasons, we affirm the judgment of the Circuit Court of Jefferson County.
McHUGH, J., deemed himself disqualified and did not participate in the consideration or decision of this case.
"Fla. Const. art. I, § 7; Fla.Stat. § 447.505 (1983); Ga.Code Ann. §§ 45-19-1 to -5 (1982); Tex.Stat.Ann. art. 5154c, § 3 (Vernon 1971) (public employees generally), art. 5154c-1, § 2 (Vernon Supp.1985) (police and firefighters); Va.Code §§ 40.1-55 to -57.1 (1981)."
See also 5 U.S.C.A. § 7311 (West 1980 & Supp. 1989).
Local 2238, Am. Fed'n of State, County & Mun. Employees, AFL-CIO, v. Stratton, 108 N.M. 163, 769 P.2d 76 (1989), is also inapplicable in that it dealt with the implied statutory right of public employees to bargain collectively and not a right to strike in the absence of a statute.
The appellants also assert that the March 12, 1990 order set a hearing date of April 12, 1990, for any further proceedings, including motions to dissolve the injunction. They note that W.Va. Code, 53-5-8, sets much shorter time limits for hearings on interlocutory motions. This provision does not come into play, however, until a formal motion for a hearing is made with notice to the other parties of record. There is no evidence that such a motion was made in this case.