Analysis

Between Victory in West Virginia and (Likely) Defeat Before the Supreme Court, Teachers Unions Find Themselves at Historic Crossroads

By Kevin Mahnken | March 8, 2018

Teachers and other public school employees rally at the West Virginia capitol. (Photo credit: Facebook.com/AFTWV)

Updated March 20

The recently settled statewide strike in West Virginia, resolved only after the legislature granted all public employees a 5 percent raise, was the most consequential victory for teachers unions in years. The spontaneity and coordination of the walkouts, especially in a state whose century-old heritage of union activism had seemed to be mostly extinguished, took much of the country by surprise.

Now organizers in Oklahoma are openly musing about launching a wildcat strike of their own if demands for a pay raise aren’t met soon, and Arizona teachers may be close behind. Both groups share many of the concerns that their colleagues expressed in Charleston last month. The average salary for West Virginia teachers was ranked 48th overall by the National Education Association, the country’s largest union. Oklahoma slotted in at 49th, and Arizona 43rd.

And yet even as activists in other states are donning red T-shirts and plotting their next moves, organized labor is bracing for what could be its most damaging setback in ages: the Supreme Court’s ruling in Janus v. AFSCME, which could end “agency fees” and strip unions of much of their financing and power. If the Court rules in the way most expect it to, the entire country will become a “right-to-work” jurisdiction for public employees, as West Virginia now is.

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So is it the best of times or the worst of times? Are teachers unions on the verge of a generational defeat, or a huge surge in organizing?

“The strike was, I think, an amazing event,” says Joseph Slater, a professor of labor law at the University of Toledo College of Law. “Public workers in West Virginia not only have no legal right to strike, but they have no right to bargain collectively. So I think it’s a reminder that sometimes unions can accomplish great things.”

Unrest in the public sector workforce — and particularly extended, statewide strikes — has been declining for decades following a period of extreme tumult in the 1960s and ’70s. That’s partially because unionized teachers, police, and government workers can’t always count on support from the public, which tends to cast a skeptical eye at their contracts and benefits during tough economic times.

The worst downturn in nearly 80 years, the Great Recession, preceded the latest and most damaging spate of anti-union measures. Since the 2010 midterm elections ushered in Republican governors and legislative majorities in statehouses around the country, six states have passed right-to-work laws, including West Virginia in 2016. In the two states where labor’s foes gained the most ground, Michigan and Wisconsin, union membership has steadily fallen.

The reversals have pushed some union members to consider drastic options. The West Virginia walkout wasn’t merely prohibited by state law; it began without the approval of the union’s own leadership.

“It’s a risk — these strikes are illegal,” says Slater. “The unions could be fined, and all the individual strikers could be fined. So it’s a risky tactic, but it does look like one that unions in other states are considering.”

If teachers in Oklahoma, Arizona, and elsewhere succeed in taking statewide action, they stand a good chance of having their demands met, if only because of the sheer disruption they could cause families. Parents in West Virginia struggled to secure childcare over the two weeks the strike was in effect, and the resistance of Republican legislators to voting on a salary increase eventually dissolved in the face of the teachers’ resolve.

“In West Virginia there are 20,000 teachers, and if they band together, it’s very difficult to do anything other than deal with them,” says Jon Shelton, a historian of labor movements at the University of Wisconsin—Green Bay and the author of a recent volume on teacher strikes.

“You can’t fire and replace 20,000 teachers. Even though it’s illegal [to strike in West Virginia], you can’t arrest 20,000 teachers. So even in places where the deck is kind of stacked against workers, there’s a serious practical impossibility of actually preventing them from striking.”

If public employees are feeling increasingly frisky, and they’ve rediscovered a tool that could help them win concessions from state governments, the question becomes: How will the impact of Janus be felt? Again, the Court’s 5–4 conservative majority signals almost certain union defeat. The only reason agency fees weren’t swept aside two years ago in the Friedrichs v. California Teachers Association case was the death of archconservative Justice Antonin Scalia.

One theory, advanced in The Washington Post by former union employee Shaun Richman, is that a comprehensive decision against agency fees could fuel the resurgence of radical labor tactics. Since most collectively bargained contracts employ agency fees as a counterweight to a no-strike clause, their elimination could result in more — and more unpredictable — strikes. With their backs against the wall and a critical source of funding demolished, Richman argues, teachers unions might splinter into ever more belligerent shards — some conservative, some leftist.

“It would not surprise me if some unions rev up the internal organizing, perhaps going so far as to demonize the employer, as a tactic to convince rank-and-file employees to maintain their union membership,” Martin Malin, a law professor and the director of the Institute for Law and the Workplace at Chicago-Kent College of Law, told The 74. “Union leaders may find it difficult to control that level of militancy. It could impede some very successful union-management partnerships that have worked for the good of employees and the public.”

The lead attorney for the union argued as much before the Supreme Court. “The fees are the trade-off,” said David Frederick, lead attorney for AFSCME. “Union security is the trade-off for no strikes … You can raise an untold specter of labor unrest throughout the country.”

That’s not an outcome Slater considers likely. He believes that, deprived of membership and revenue, unions nationwide will see their organizing capacity meaningfully diminished if the Court rules against them — just as they have in states like Wisconsin and Michigan.

The connection between ending agency fees and the prevalence of illegal strikes “doesn’t have a lot of historical support in places where we’ve seen states adopt right-to-work rules already,” he says.

Shelton, who has observed the aftermath of Gov. Scott Walker’s anti-union reforms from his university post in Green Bay, agrees that the outlook for teachers unions is unfavorable. But he adds that they have taken steps since Scalia’s death to cushion the blow.

Act 10 kind of came out of nowhere, and my sense is that unions in this state weren’t really prepared,” he says. “Because there was this expectation that the Friedrichs case was going to [overturn agency fees] in 2016, I know that unions have been recommitting to deep organizing drives. If this had happened two years ago, the devastation would have been much more severe.”

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Indeed, national organizations like AFSCME and NEA have recently dedicated enormous effort to persuading non-members to come aboard and encouraging existing members to sign “commitment cards” signaling that they will stick with the union even after the death of agency fees. Making a virtue of necessity, many have seized on the crisis to identify and cultivate new leadership structures in local branches.

“I’m not being Pollyanna-ish about this. I do think this is going to have negative consequences in the short term,” says Shelton. “But … it’s actually quite possible that in the long term, unions in states that traditionally had agency fees could become more democratic, particularly through alliances in the communities where they teach.”

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