An Unlikely Union Victory in West Virginia

In the past couple of weeks, 35,000 school employees in West Virginia engaged in a 9-day strike.  Though they are not represented by a single union, all school employees in every county participated in the strike.  The teachers retained their solidarity, and won a 5 percent pay raise for all state public workers.  The teachers’ success was unexpected given the hostile legal environment for labor in West Virginia.

West Virginia prohibits government workers, including teachers, from engaging in collective bargaining.  It is also illegal for public employees to strike in West Virginia.  The teachers’ only means of bargaining is political pressure on the state legislature, which sets the terms of their employment.  Thus, the West Virginia teachers’ victory represents a rare and surprising success for the labor movement at a time when labor is under siege.

Last week, the United States Supreme Court considered the case of Janus v. AFSCME, which will determine whether government unions can continue to collect agency fees from all of the workers that they represent.  Like Janus, the West Virginia teachers’ strike also brings to light the role of public sector unions in our country.  To help me understand the West Virginia teachers’ strike, I talked with my colleague, Joe Slater.  The author of Public Workers: Government Employee Unions, the Law and the State, Joe is one of the foremost experts on public sector unions in the country.  The following is a transcript of our conversation:

Zietlow: Apparently the West Virginia teachers were not allowed to bargain collectively.  Why would they want to join a union?

Slater:  Public sector unions are not governed by the federal National Labor Relations Act, but by state laws which regulate public sector workers.  Around 10 states, including West Virginia, do not allow government workers to engage in collective bargaining. In those states, unions represent employees in other contexts.  They help their workers to assert their rights under other employment laws such as Title VII, the Fair Labor Standards Act and civil service laws.  Some unions also provide benefits, such as health insurance and pensions. In states which do not allow collective bargaining, unions tend to be smaller and weaker than in other states.  Nonetheless, some workers still join those unions.

Zietlow: How could the West Virginia teachers strike when West Virginia law prohibits public workers from striking?

Slater:  I do not know why the state of West Virginia did not sue to stop the teachers’ strike.  Most likely, state officials thought it would be politically costly to do so.  Also, there were no replacement employees who could have filled in for the striking teachers.

Zietlow:  In the Janus case, most observers think that the Supreme Court is going to strike down agency fees and weaken public-sector unions.  Public sector unions in West Virginia are already prohibited from charging agency fees.  Should we expect more massive strikes after Janus?

Slater:  Some people have argued that workers are likely to be more militant after Janus, and that the West Virginia teachers strike reflects this militancy.  However, I am skeptical.  Janus would effectively impose a “right to work” regime on public workers.   We’ve had a lot of historical experience with “right to work” laws, and by and large they have not radicalized labor.  Instead, right to work laws have weakened labor, and I expect Janus to do the same.

Also, teachers tend to be a reliably popular set of public workers.  Similar strikes in other states, involving other, less popular, public employees are unlikely to succeed.  Still, I never would have predicted that the West Virginia teachers would succeed, yet they did so against all odds.  Who knows what the future will bring? 

This blog entry was first posted on TheFacultyLounge.org on March 7, 2018.