Between Victory in West Virginia and (Likely) Defeat Before the Supreme Court, Teachers Unions Find Themselves at Historic Crossroads
Last updated on March 20th.
The recent statewide strike in West Virginia, which came to an end after the legislature granted a 5 percent raise to all public employees, was a significant win for teachers unions. The unexpected spontaneity and coordination of the walkouts, especially in a state with a long history of weakened union activism, caught many people off guard.
Now, organizers in Oklahoma are openly considering launching their own wildcat strike if their demands for a pay raise are not met soon, and Arizona teachers may follow suit. Both groups share similar concerns to those expressed by their counterparts in Charleston last month. The average salary for teachers in West Virginia ranked 48th in the country, according to the National Education Association, the largest union in the United States. Oklahoma ranked 49th, and Arizona 43rd.
However, even as activists in other states are gearing up for future actions and wearing red shirts as a symbol of solidarity, organized labor is preparing for what could be a major setback: the Supreme Court’s ruling in the Janus v. AFSCME case. This ruling could potentially put an end to "agency fees" and significantly diminish the financing and power of unions. If the Court rules as expected, the entire country will become a "right-to-work" jurisdiction for public employees, just like West Virginia.
So is this the best or worst of times for teachers unions? Are they on the brink of a crushing defeat or on the cusp of a major organizing surge?
"The strike was an incredible event," says Joseph Slater, a labor law professor at the University of Toledo College of Law. "Public workers in West Virginia not only lack the legal right to strike, but they also have no right to bargain collectively. So this serves as a reminder that unions can sometimes achieve great things."
Unrest in the public sector workforce, particularly in the form of statewide strikes, has been decreasing for decades following a period of intense turmoil in the 1960s and 70s. This is partly because unionized teachers, police officers, and government workers cannot always rely on public support, especially when it comes to their contracts and benefits during difficult economic times.
The worst economic downturn in nearly 80 years, the Great Recession, preceded the recent wave of anti-union measures that have caused the most damage. Since the 2010 midterm elections, which brought Republican governors and legislative majorities to statehouses across the country, six states have enacted right-to-work laws, including West Virginia in 2016. In Michigan and Wisconsin, the two states where anti-union forces have made the most progress, union membership has steadily declined.
These setbacks have pushed some union members to consider drastic measures. The West Virginia strike not only violated state law, but it also began without the approval of the union’s leadership.
"It’s a risk – these strikes are illegal," Slater says. "The unions could face fines, and the individual strikers could be fined as well. So it’s a risky strategy, but it seems like unions in other states are also considering it."
If teachers in Oklahoma, Arizona, and other states successfully take statewide action, there is a good chance that their demands will be met, if only because of the chaos and disruption it would cause for families. During the West Virginia strike, parents struggled to find childcare for the two weeks it lasted, and eventually, Republican lawmakers gave in to the teachers’ determination and voted in favor of a salary increase.
"In West Virginia, there are 20,000 teachers, and if they unite, it becomes very difficult to ignore their demands," says Jon Shelton, a historian of labor movements at the University of Wisconsin–Green Bay and the author of a recent book on teacher strikes. "You can’t simply fire and replace 20,000 teachers. Even though striking is illegal in West Virginia, you can’t arrest 20,000 teachers. So even in states where the odds are stacked against workers, there is a practical impossibility of stopping them from striking."
If public employees are becoming more emboldened and have rediscovered a tool that can help them secure concessions from state governments, the question is how will the Janus decision impact them? Once again, the Court’s conservative majority, which currently stands at 5-4, suggests that unions are likely to face defeat. The only reason agency fees were not abolished two years ago in the Friedrichs v. California Teachers Association case was due to the death of conservative Justice Antonin Scalia.
“It wouldn’t surprise me if certain labor unions intensify their internal organizing efforts, possibly even resorting to vilifying employers, in order to persuade their members to maintain their union membership," stated Martin Malin, a professor of law and the director of the Institute for Law and the Workplace at Chicago-Kent College of Law. Malin explained that union leaders may struggle to control such heightened militancy, which could hinder successful partnerships between unions and management that benefit employees and the public.
The chief attorney for the union also argued this point before the Supreme Court. David Frederick, lead attorney for AFSCME, explained, "The fees are the compromise. Union security is the compromise for no strikes…This ruling could potentially lead to widespread labor unrest across the country."
However, Slater, who believes that unions will experience a significant decrease in their organizing capabilities and resources if the Court rules against them, does not consider this outcome probable. He cites examples in states like Wisconsin and Michigan, where unions saw a decline in influence and capacity after being deprived of membership and revenue.
Slater argues that there is not much historical evidence to support a link between ending agency fees and an increase in illegal strikes, especially in states that have already adopted right-to-work laws.
Shelton, who has observed the consequences of anti-union reforms in Wisconsin, agrees that the future looks unfavorable for teachers unions. However, he notes that they have taken measures to mitigate the impact since Justice Scalia’s death.
"Act 10 came as a surprise, and I believe the unions in this state were unprepared," he explains. "But because there was an expectation that the Friedrichs case would overturn agency fees in 2016, I know that unions have been recommitted to thorough organizing efforts. If this had occurred two years ago, the devastation would have been much worse."
National organizations like AFSCME and NEA have recently made significant efforts to persuade non-members to join and encourage existing members to pledge their commitment to the union even after the elimination of agency fees. Many have utilized this crisis as an opportunity to identify and cultivate new leaders within local branches.
"I’m not blindly optimistic about this. I do anticipate negative consequences in the short term," Shelton admits. "However, in the long run, it is possible that unions in states known for collecting agency fees could become more democratic, particularly through partnerships within the communities where they operate."
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