Breaking the Law: Strike Bans and Labor Revitalization in the Red State Revolt

Introduction

The negative impact of U.S. labor law upon the trade union movement is well documented (for a recent overview, see Andrias and Rogers 2018). With the most draconian strike restrictions of any advanced capitalist democracy, the United States is out of compliance with most of the fundamental international standards established by the International Labor Organization (Weissbrodt and Mason 2014). “Labor laws in this country are formulated for labor to lose,” noted mineworker leader Richard Trumka before he became the head of the AFL-CIO (Burns 2013).

Faced with this repressive context, union leaders and scholars have put forward various influential approaches for how to reverse organized labor’s decline. One prevalent orientation is to search for creative ways to work around the law. Worker centers, for instance, have proliferated in recent years to provide a voice for low-wage workers (Cordero-Guzmán 2015). Others have argued that union revitalization is possible even within the existing legal parameters, for example, by adopting the “organizing model” pioneered by the Service Employees International Union or by establishing labor coalitions with community organizations to rebuild a broad movement for social justice (Tattersall 2005; Voss and Sherman 2000).

The results of these approaches for labor revitalization have fallen well short of their proponents’ expectations. Although the spread of worker centers, an increased focus on organizing the unorganized, and labor-community coalitions are welcome developments, writers such as Jane McAlevey and Joe Burns have shown that the results have been underwhelming for organized labor as a whole. ¹

Faced with the evident challenges of reversing the trade union movement’s fortunes under the existing legal regime, various labor leaders and academics have insisted on the central importance of labor law reform. While unions have mostly focused on lobbying for legislation such as the Employee Free Choice Act to facilitate workplace organizing, sympathetic scholars and labor lawyers have also raised the need to repeal the numerous legal restrictions on the right to strike (Andrias and Rogers 2018). The paradox facing all these legislative reform efforts, however, is that significant advances in labor law have generally been the result, rather than cause of labor upsurges. Yet the current legal context makes such a working-class movement exceedingly difficult within the existing institutional parameters.

With the major schools of thought on union revitalization at an impasse, a decidedly minoritarian current of organizers and scholars have put forward a more controversial argument: revitalizing the labor movement will require a willingness to take illegal strike action. These authors note that successes of the big private sector upsurge in 1930s, as well as the public sector strike wave in the late 1960s and early 1970s, frequently depended on breaking the law. Particularly given the further restriction of the right to strike in the ensuing decades, they argue that prospects for organized labor will remain bleak until workers and unions begin breaking out of the confines of U.S. labor law (see, for example, Burns 2011, 2014; McAlevey 2017). To quote Joe Burns, “it is not conceivable that the labor movement will be revived in any meaningful way without workers violating labor law, as their counterparts half a century ago did” (Burns 2014, 10).

Given the obvious risks of illegal workplace action, the top union officialdom in the United States has been unsurprisingly hesitant to either advocate or test this strategic option. Yet the public education strike wave that swept so-called red states in early 2018 has the potential to thrust this political question back to the fore of the labor movement’s strategic debates.

The following article provides a comparative analysis of how the early 2018 statewide education strikes in West Virginia, Oklahoma, and Arizona confronted the legal barriers to workplace action. ² I show that, under the initiative of radical rank-and-file leaders, the two most successful strikes—West Virginia and Arizona—consciously ignored their states’ legal prohibitions on public sector work stoppages. By systematically organizing school sites, and winning the support of students and parents, activists were able to help school employees overcome their fears about being fired or being subjected to other forms of legal intimidation. Eventually, educators struck and stayed out until they won major concessions from their Republican state governments. In the process, they also took major steps toward revitalizing their labor movements. Dense networks of rank-and-file activists were established, and formerly disconnected union members became active. Moreover, roughly 2,000 new members joined West Virginia’s public education unions and about 2,500 joined the Arizona Education Association (AEA) over the course of the struggle.

In contrast, Oklahoma’s walkout attempted to remain within legal parameters. Rather than build up workplace power in the direction of an unlawful strike, Oklahoma’s educator leaders—both among the rank-and-file and the union—sought to keep their walkout legal by relying on the sanctioning of the action by superintendents. The upshot was that Oklahoma educators placed themselves in a more unfavorable relationship of forces with district and statewide employers, facilitating the April walkout’s inability to continue after superintendents began withdrawing their support midway through the action. Although Oklahoma educators were able to wrest a considerable raise from Republican legislators, Oklahoma’s walkout—unlike in West Virginia and Arizona—was not felt by educators to be a clear-cut victory. Nor did the action in Oklahoma lead to an increase in the strength of organized labor: no rank-and-file networks were established and the Oklahoma Education Association (OEA), the state’s main educators’ union, did not increase its membership numbers.

In this paper, I rely on various data sources. I was on the ground in West Virginia, Oklahoma, and Arizona as a researcher during the strikes. In each of these states, the main rank-and-file leaders gave me access to their internal organizing meetings and closed Facebook groups. To supplement my personal observations and the abundant primary sources embodied in these Facebook forums, I subsequently interviewed over a hundred teachers, service personnel, organizers, students, union staffers and top officials, and superintendents. To corroborate their recollections, and fill in gaps, I have also made extensive use of the local press.

The Context

Although public education unions in West Virginia, Arizona, and Oklahoma have succeeded in beating back some of the Republicans’ worst attacks, they have largely been unable to reverse the decades-long offensive against the public sector and labor rights. Particularly since the 2008 recession, stagnant wages and dramatic cuts to school spending have been the norm.

One result of this austerity has been a deep teacher shortage. Instead of attracting qualified educators by increasing pay and improving working conditions, districts have turned to hiring emergency certified staff with no teaching degrees and little-to-no training. In Oklahoma, the number of such spots in the 2017-2018 school year stood at roughly 2,000; in West Virginia, the number was 725. Arizona’s shortage was even more serious, with 5,000 positions staffed by uncertified teachers.

Declining working conditions did not automatically lead to collective action or collective organization. Before these 2018 movements began, labor organizations in West Virginia, Oklahoma, and Arizona were numerically weak or hollowed out. Union density among educators in Arizona in January 2018 was roughly 25 percent, 40 percent in Oklahoma, and 70 percent in West Virginia. ³ Even these numbers, however, do not capture the disconnect between most members and their union. In a Facebook debate on the role of unions, one Arizona educator gave voice to the widespread sense of skepticism toward organized labor:

When I started teaching in Somerton we had AEA reps who introduced us to AEA by saying “We are your union reps, the union doesn’t do much. Does anyone want to join or run it for us?” That was about the only mention of AEA for six years. Obviously, it has pushed my opinion in one direction. ⁴

Many teachers joined the unions primarily to receive legal services in case of disciplinary conflicts. West Virginia Education Association’s (WVEA) regional organizer Allen Stumps described the disconnect of members in the Mountain States, where the unions were relatively strong in comparison with Oklahoma and Arizona:

Prior to the push for a strike, it was very tough to organize. Membership was fine, but it was almost impossible to get anybody to come to a meeting or to participate in any kind of action whatsoever. We’d be happy if ten people would show up. ⁵

The difficulties of organized labor are, at least in part, rooted in this country’s particularly repressive legal context. In West Virginia, Arizona, and Oklahoma, public sector strikes are not legal, union membership is optional, and collective bargaining with school districts is exceedingly rare. ⁶

But it should be underlined that unfavorable labor law is not only a problem for unions in so-called red states. Many school employees as well as media commentators have mistakenly assumed that public sector strikes are not legal in West Virginia, Oklahoma, and Arizona because these were “right-to-work” states. In actuality, “right-to-work” laws do not address the question of striking or forming unions; rather, they allow workers in unionized workplaces to not pay union dues. Such laws are certainly anti-labor, and they have helped keep union membership numbers relatively low. But they are just the tip of the iceberg—labor law is stacked against all workers across the United States. In fact, teacher strikes are banned in most of the country: in only twelve states are they legal. And even in these exceptional areas, public sector work stoppages are often subjected to strong restrictions (Sanes and Schmitt 2014, 8).

Faced with this legal context, educators, like other workers, have been understandably reluctant to participate in actions that could potentially cost them the job upon which they and their families depend. Fear and resignation have mutually reinforced each other. Rebecca Garelli, a seventh-grade math and science teacher in Arizona, noted, “though people weren’t happy here, there was a real passive mindset. Coworkers kept telling me: ‘This is a right-to-work state, we can’t do anything.’” Similarly, Tulsa teacher Mickey Miller observed that “until very recently, Oklahoma teachers have been going without any hope, feeling like nothing could be done to change things. People would say, ‘It is what it is; it’s out of our power.’”

This pervasive sense of resignation was also the norm in West Virginia. By placing an exaggerated stress on the continuity of militant labor traditions in the Mountain State, mainstream media reporting on the strike has obscured just how hard it was to revive confidence in collective struggle and organization. “It’s true that we have a long tradition of unionism in West Virginia,” notes Charleston educator Olivia Morris. “But this was basically dormant until right before the strike.”

Most West Virginian teachers were initially highly skeptical about the potential for mass action, let alone an illegal work stoppage. In a January 13, 2018, discussion on the West Virginia Public Educators United Facebook page regarding prospects for a work stoppage, one skeptic argued,

I doubt you’ll get enough public employees to participate in a protest, let alone a strike. Many public employees in this state have limited to no collective bargaining rights and there’ll be repercussions, like job loss, for walking out. I’m afraid that you’ll see a situation where it would be very easy to state that the person abandoned their job.

To this, another member replied, “that fear runs deep for most teachers: It’s really going to hurt our chances of ever getting anywhere.”

Early Organizing in West Virginia and Arizona

In both West Virginia and Arizona, it took months of steady organizing and build-up actions to get educators to the point where they would be ready to risk taking an illegal strike action. The first steps were modest. In the summer of 2017, Emily Comer and Jay O’Neal—both educators in Charleston and members of West Virginia’s Democratic Socialists of America chapter—organized a teacher study group on Jane McAlevey’s No Shortcuts, a manual and manifesto for working-class strategy. “We decided to read No Shortcuts because we saw the state of organized labor in West Virginia: we keep losing, our unions are dying, and PEIA [the public employees’ health insurance program] keeps getting more expensive every year,” Comer recalled. “We were in agreement that if something didn’t change, we were done for basically. We also agreed that new life could be breathed into our unions—and that as rank-and-file members, we were strategically placed to lead that push.”

In late September, Comer and O’Neal established a Facebook group called West Virginia Public Employees United (referred to by teachers simply as the United page). The group’s primary purpose was to begin unifying and mobilizing school employees across the state’s three education unions, to fight back against low pay and fend off increased health care costs. Comer notes, “our goal was to do whatever it took to do beat back these attacks and fix PEIA. Realistically, we saw that this could very well could require a strike—or at least a credible strike threat.”

In the coming months, Comer, O’Neal, and their fellow moderators of the United page initiated dozens of build-up actions. These included encouraging teachers to attend Public Employees Insurance Agency (PEIA) hearings, filming confrontations with Republican politicians, building support for union meetings and union assemblies, crashing the governor’s “State of the State” address by raising an anti-corporate banner, organizing in-person meetings at the schools, calling for a statewide Red for Ed Day in which educators wore red T-shirts, and, finally, organizing “walk-ins” before school to build support among parents and students. Parallel to these actions, the Facebook group rose in membership from 1,260 in December 2017 to just over 20,000 by January 2018. Crucially, the movement was centered around a “common good” demand—affordable health care for all West Virginia public employees—capable of generating widespread public support.

Arizona’s escalation toward an illegal strike looked similar. It took place in a more compressed time frame, however, because political momentum was aided considerably by West Virginia’s precedent-setting example. Arizona’s movement, like that in Oklahoma, erupted in the first week of March under the direct inspiration of West Virginia’s walkout, which ended victoriously on March 6. As Garelli explains, “people in Arizona were scared to rock the boat—and then West Virginia happened. All of a sudden, the catalyst was there. ‘They’re doing it, why can’t we?’”

Like in West Virginia, Arizona’s rank-and-file teacher activists established a new grassroots network and Facebook page, Arizona Educators United (AEU), whose membership quickly shot up to over 25,000 in its first week of existence. To effectively help their co-workers gain political confidence and overcome their fears about legal repercussions, AEU’s leadership began with small workplace actions. After forming a Facebook group, their first action was to call a Red for Ed Day on March 7. Noah Karvelis—Phoenix music teacher, radical writer, and AEU media spokesperson—recalls the profound transformation that this action had at his workplace, like so many others in Arizona:

When we organized that first Red for Ed day at my school, it was a real hush hush whisper campaign to get it off the ground. People were still pretty scared to speak out and our district is notorious for being pretty complacent. But we ended up having 99 percent of educators decked out in red. That set the tone for the rest of year—we’ve done it every Wednesday since, as did most other schools.

Based on her experience as a participant in the successful 2012 Chicago teachers’ strike, AEU action coordinator Rebecca Garelli envisioned and coordinated a series of escalating actions aimed at empowering educators and building support among community members. Like in Chicago, AEU foregrounded demands on behalf of the broader community—in this case, the call for increased funding for students. Garelli also added some important tactics to the playbook. One of her personal innovations was to suggest that AEU establish its own “site liaison” network of teacher organizers, positions akin to the union “site reps.” The idea caught on, leading to the creation of a dense organizational infrastructure of roughly 2,000 AEU workplace representatives.

Another AEU innovation was to call on educators and allies to use erasable window markers to draw supportive messages on their cars, small businesses, and homes. By April, Arizona was awash in Red for Ed signs and decorated cars. “These might seem like modest asks,” Garelli explained,

but they helped overcome the fear factor and they helped people feel less isolated. You can’t just do this overnight. If you don’t have the confidence to do small actions, how are you ever going to be able to do a large job action?

Over the course of these activities, West Virginia and Arizona’s teachers began discussing the feasibility of a strike. Initially, the vast majority of educators were opposed to the idea. Understandably, many were concerned about losing their jobs or facing other disciplinary penalties for engaging in an illegal action. Karvelis recalls the situation in Arizona: “When we first started organizing, people on the Facebook group were really scared about even talking about the potential for a strike since it wasn’t legal.” The same was true in West Virginia, despite the state’s stronger traditions of labor militancy and the precedent of an illegal teachers’ strike in 1990. Lisa Collins, a teacher and union leader from Wyoming County, posted the following to the United page in January: “Teachers back then [in 1990] were fearless. We don’t have that today. What has happened to people?”

It took the concerted efforts of rank-and-file organizers to begin turning the tide. In West Virginia, the first mention of what some teachers referred to as the “s word” came on October 6, 2017, when Jay O’Neal posted news about the push toward a strike in Fresno, California. “We are settling for FAR TOO LITTLE here,” O’Neal’s post concluded. A skeptical educator replied that “WV teachers aren’t allowed to strike,” to which O’Neal responded, “true, but they did anyway in 1990 and it made a big difference.” Over the coming months, this basic debate was repeated thousands of times in a myriad of iterations online and in person.

One common argument raised by strike supporters was that the teacher shortage would make it difficult, if not impossible, for the district to fire strikers. Threats to move out of state, where pay was higher, were rampant. Nevertheless, advocates of striking in West Virginia were in a definite minority until February. Matt McCormick—a local union activist in Mercer County and a moderator of the United page—recalls the dynamic at his school:

For weeks, there were these constant get-togethers in hallways and in mailrooms, where we’d discuss what the hell was going on. Lots of folks were initially scared, but I kept on repeating that it was worth the risk. People started asking each other: “Would you go out if I go out?” There were some who initially said no, but they changed their minds—eventually.

McCormick similarly pushed the case for an illegal strike within the Facebook group. On January 13, for example, he insisted, “This won’t stop unless we are willing to walk off the job together . . . We have to be willing to disrupt the state’s ability to function.”

By starting threads about the lessons of the 1990 strike, O’Neal from early on also sought to help public employees consider the feasibility of an illegal work stoppage. As he posted on January 6, “I think if we could educate more teachers about what the [1990] strike actually did for teachers here, we might get a lot of people on board.” One of the key insights generated by these discussions was the centrality of involving support staff. “Striking again may not be such a bad idea,” posted a service employee who had felt obliged to cross the picket lines in 1990. “But everyone must stand together and imo [in my opinion], this includes non-professional personnel also.”

In Arizona, the case for breaking the law by walking out was bolstered by the inspiring example of success West Virginia. Once teachers and support staff began seriously considering the prospect of striking in March 2018, they quickly confronted the basic challenge at hand. On March 5, the first day of the AEU Facebook group, one teacher immediately stressed the centrality of unity: “We do need to be united or it won’t work. It has to be all or most. WV is a right to work state but because of the numbers of teachers that striked it worked.” In support, she received the following reply: “Unity is the key guys. If it’s just a few of us, they can pick us off one by one. But if we stand strong in the masses, they can’t do jack.”

By early April, after weeks of build-up actions jointly organized with the teachers’ union, the AEA, sentiment for a walkout was bubbling up across the state. Yet, under the moderating pressure of the union leadership, with whom they had forged an alliance, most leaders of AEU were reluctant to openly raise the call for a strike. Indeed, all AEU and union leaders in Arizona credit teacher Dylan Wegela—AEU’s site liaison coordinator, local union activist, and democratic socialist—for being the main strike advocate within the movement’s leadership.

From the first joint meeting of AEU and the AEA on March 7 onward, notes Wegela, “I was the only one bringing up the need for a strike—and I kept on getting shot down.” His orientation on this question stemmed from his convictions about the power of mass strikes:

I thought that a strike was the only way forward, because nothing else had worked. Electing Democrats didn’t work—all across the country they’ve also cut school funds. But strikes work. My argument was basically: “We can win. We’re the gears of the machine, if we stop showing up, everything shuts down.”

Karvelis later noted,

One person, Dylan, deserves 99 percent of credit for that [move towards a work stoppage] . . . If Dylan wasn’t in those meetings, it would have been a totally different thing.

It was only after 110,000 educators, parents, and students participated in walk-ins on April 11 that AEU finally decided to call for a work stoppage. Faced with this AEU decision, the union leadership adroitly decided to pledge its support for the action, despite its ongoing hesitations about the risks involved. Union president Joe Thomas, in a post-strike panel, was candid about the dynamic: “Unions—we’re cautious because we have to be here on the next day . . . But [Arizona Educators United] wouldn’t let us be cautious, which was good.” ⁷ In strike votes the following week—initiated by AEU with the support of the union—78 percent of educators voted to walk out beginning on April 25.

A similar process had occurred two months earlier in West Virginia, where the rank-and-file also had to overcome the hesitancy of their union leaders. By mid-January, the United page and school sites across West Virginia were buzzing with talk about the feasibility of some form of job action. Until this time, the unions had done nothing to promote or facilitate this discussion—in fact, top WVEA officials had called O’Neal into their headquarters in October to request that he “work within the union” rather than the United page. In early January, they then called upon Matt McCormick to stop talking prematurely about a strike. “The feeling I got initially was that union leadership weren’t really interested in a strike, they were dragging their feet,” recalled teacher Eric Starr in Mingo County.

Aiming to provide information to their members about PEIA and the legal dangers of striking, union leaders and staffers fanned out across the state at the end of January. As American Federation of Teachers–West Virginia (AFT-WV) lobbyist Bob Brown stated to the press, a central purpose of these trips was “to figure out what’s going on” among the mobilized ranks (Quinn 2018a). Allen Stump, WVEA’s full-time organizer for southern West Virginia, explained the union’s message:

When we started hearing rumors about a strike, our agenda didn’t change. It was still that we just wanted to be informative: we weren’t going to discourage or encourage educators, we wanted them to have the facts, to know the best case scenario and the worst case scenario. I’d say, “In all reality, you may lose your job and there might not be anything we could do about it.” But at the end of the day, what I also told everybody was that “whatever you all want to do, we will help you organize, and we’ll support you, we’ll have your back. We’re not going to encourage or discourage, but we’re going to support.”

It is fitting that the initiative to move from words to deeds in terms of a work stoppage came from southern West Virginia, where a century-long tradition of labor militancy still looms large. The debates came to a head on January 23, when 250 Mingo County educators squeezed into Delbarton’s Carewood Center. Union staffers—Allen Stump (WVEA) and Brandon Tinney (AFT-WV)—began the meeting by informing the audience that statewide union leaders were against any immediate job actions. They also emphasized that educators could get fired for taking part in an illegal walkout.

“My co-workers were furious,” recalls Brandon Wolford, the militant local president of the Mingo WVEA chapter. Challenging his union superiors, Wolford spoke forcefully in favor of a walkout. So, too, did veteran teacher, Pamela Chapman, who had participated in the 1990 strike. She declared to the assembled educators:

I was on the line in 1990—I didn’t get fired, [pointing across the room] you didn’t get fired, you didn’t get fired, and you didn’t get fired. Nobody in here is going to get fired. We can do a blue-flu day [one day walkout]—I’ll be right there with all of you. But make no mistake about it, this will take a full-blown strike. If we want anything accomplished today, we will have to do it again just like we did in 1990.

In the face of this outcry, Stump, like his AFT counterpart, decided to cede to the assembled educators:

Who I am to argue with an entire county of workers? At least ninety percent wanted to walk out. One lady stood up and said to us, “Listen you all can either get behind us or get out of the way, because if you don’t, we’ll run you over.” So I mean what other choice did I have?

Mingo’s assembly closed with a decision to set up school-site strike votes for a one-day walkout on February 2. Four counties—Mingo, Wyoming, Logan, and McDowell—ended up walking out on February 2 and rallying by the thousands at the capitol.

In increasing numbers, rank-and-filers beseeched their unions to call a statewide strike vote. After a few days of continued hesitation, the union officialdom responded positively. Leaning on their significant organizational infrastructure and a newly invigorated membership, the unions jointly coordinated strike authorization votes in every school across the state. In mid-February, roughly 80 percent of educators statewide voted “Yes” to authorize their union leaders to call a strike.

These strike authorization votes in both states were met with immediate and sharp responses by Republican state leaders. In West Virginia and Arizona alike, high-ranking officials and politicians responded to the strike authorization votes with threats of sanctions against any employee walkouts. One week before West Virginia’s educators walked out, State School Superintendent Steve Paine issued the following declaration:

I am hopeful that action will be taken to prevent any disruption to students and classrooms. Work stoppages by public employees are not lawful in West Virginia and will have a negative impact on student instruction and classroom time. Families will be forced to seek out alternative safe locations for their children, and our many students who depend on schools for daily nutrition will face an additional burden. (Quinn 2018b)

West Virginia Attorney General Patrick Morrissey made a similar announcement:

[A] work stoppage of any length on any ground is illegal. Let us make no mistake, the impending work stoppage is unlawful. State law and court rulings give specific parties avenues to remedy such illegal conduct, including the option to seek an injunction to end an unlawful strike. (West Virginia MetroNews 2018)

This remained Paine and Morrissey’s position over the entirety of West Virginia’s strike, during which they repeatedly—and unsuccessfully—threatened educators to return to work.

In Arizona, the state’s response was even more strident than it had been in West Virginia. The particular vehemence of Arizona’s ruling circles likely reflects both the greater amount of time they had to prepare for a strike, Arizona’s long history as a deeply conservative bastion, and the close ties of key state leaders, including the governor, to the Koch Brothers and the right-wing American Legislative Exchange Council (Blanc 2018).

In such a context, it should come as no surprise that Arizona’s State Superintendent of Schools Diane Douglas spoke on numerous television and radio shows to discredit the strikers and intimidate them from walking out. On April 23, she declared, “I implore the teachers of Arizona not to do this and not to hurt our children and our families. The damage that can be done may be irreparable and in my opinion, that’s shameful” (Dale 2018). Hoping to prevent a walkout, Douglas hit the media trail in the days leading up to the strike to threaten educators with the loss of their teaching certificate if they struck: “A walkout is a nice term for it. It is a strike, plain and simple. And in Arizona, it is not legal for teachers to strike.” She also denounced those school districts that were going along with the movement, questioning “how a governing board can support an unlawful action legitimately” (Flaherty 2018a).

As noted above, local superintendents in both states played a more equivocal role than higher ranking state leaders. Yet, it was not the case that most school district leaders were either consistent or proactive backers of a work stoppage.

In West Virginia, educators assumed from the start that the superintendents would not voluntarily agree to a work stoppage. The precedent of the 1990 teachers’ strike—an intensely contentious struggle marked by hard picket lines, in which workers attempt to physically prevent strikebreakers from crossing—loomed large. Indeed, the threats by leading state officials succeeded in scaring many educators, particularly in the lead up to the strikes. On social media and in break rooms, teachers expressed their worries about getting fired, suspended, or fined. As Mary Wykle, a West Virginian bus driver, explained, “up until the very day the strike began, we had no idea that the superintendents would end up shutting the schools and paying us by treating the walkouts like snow days.”

Yet, ultimately, the educators did not back down. Allen Stump explains that school employees across the state presented district leaders with an ultimatum:

Basically, we said to the superintendents: “We have over 90 percent of your employees announcing that they’re not coming in to work. So either you cancel school or you’ll have a bunch of students and nobody will be there—which would be a huge safety issue for the kids.”

Even the most supportive superintendents acknowledged that they were pressured from below to take action. Mingo County’s Don Spence, the first superintendent in West Virginia to agree to close his schools, explained why he had made this decision: “I saw the teachers’ unity and determination, that’s why I closed our schools. I didn’t set out to do anything, they did the work, they deserve all the credit. All I did was support.”

In parts of the state where superintendents were directly linked to the Republican Party machine, it often took a concerted struggle to force school districts to back down. For instance, the president of the Logan County Board of Education, Paul Hardesty, was a high-paid lobbyist for Governor Jim Justice. Logan County’s superintendent Patricia Lucas was similarly tied to anti-education forces; her son was the chair of the West Virginia Republican Party up through early 2018.

Logan County teacher Ashlea Bassham recalls that “we really weren’t supported by Hardesty and Lucas in the beginning.” In response to the first vote of school employees to walk out, the district sent a harshly worded robocall out to all parents describing the action as “an illegal, unauthorized employee walkout (work stoppage)” (WVOW Local News 2018). Only after a major public backlash did Hardesty and Lucas cede to the educators. Former AFT organizer Ryan Frankenberry notes that the statewide unity of the movement put even the most recalcitrant superintendents in a bind: “They saw the movement—and it was overwhelming. Superintendents knew that had a single one of them come out hard against the strike, everybody’s anger in West Virginia would have turned against them.”

The unity of teachers and support staff was another key factor making it difficult for superintendents to open the schools. Although the West Virginia strike is generally referred to as a teachers’ strike, Emily Comer notes that service personnel were pivotal to its success:

There’s been a common misconception that we won because we had the support of superintendents. But, really, we were able to win because we were able to shut the schools down. And we were only able to do that because we had everyone on board—custodians, cooks, bus drivers, teachers aides. Schools cannot run without them.

Breaking the law was not a decision easily undertaken. Months of organizing had been necessary to ensure educators that their co-workers would overwhelmingly join them if they decided to participate in a work stoppage. But once on strike, many educators embraced their defiance. Highlighting the long tradition of taking illegal action to win a righteous cause, many strikers made homemade signs saying, “Rosa Parks was not wrong.” On February 25, a teacher similarly posted the following to the United page: “The way I look at it, Rosa Parks and Martin Luther King Jr. took a stand, I’d be in great company [if the state tries to throw us in jail].”

Such arrests never came to pass because governmental officials ultimately never acted on their threats to impose an injunction. After nine days of closed schools—which included the strike’s transition into a wildcat action after the union leaderships attempted to end the walkout before an agreement was reached with the state—the Republican legislature caved and granted West Virginian educators, as well as all public employees, a 5-percent pay raise. The raise was the final victory in a range of important concessions won by the newly emerged educators’ movement, including a freeze on PEIA costs, the elimination of a proposal to make school employees wear a “fit-bit” health bracelet and financially penalize them for not meeting health metrics, as well as the defeat of bills allowing for charter schools and preventing automatic voluntary union dues deductions from paychecks.

In Arizona, the general course of events was similar. Intimidation by governmental officials in late April was ultimately not sufficient to force educators to backtrack from their strike plans. In a discussion on the AEU Facebook group, one Arizona teacher recalled,

As the walkout came closer and closer, tensions were running high across the state. Almost every educator I knew was nervous and unsure of what would happen. In the end though, we recognized that all history-makers must take courage and walk into the unknown.

Like in West Virginia, the superintendents were pressured from below from school employees to close the schools. As Dylan Wegela put it, “We called the strike vote—we didn’t consult with the superintendents about this ahead of time.” Most district leaders were public about this dynamic, as seen in the following April 20 letter to parents: “Scottsdale Unified School District does not want to see schools closed by a work stoppage. However, we may be forced to close individual schools due to staff shortages.” ⁸ The Deer Valley Unified School District’s stance was similar:

If a strike is planned, DVUSD will make every effort to avoid closing schools. We are currently working on plans to keep our schools open in the event of work stoppage. However, if we have too few staff members to safely hold school, we may be forced to close schools.

Numerous superintendents had attempted to intimidate employees from walking out. And once the strike began, many tried to pressure their staff to return to work. Within the charter schools, these efforts were largely successful. Indeed, one particular dilemma facing striking Arizona educators was the depth of school privatization in the state. About 17 percent of Arizonan students currently attend a charter school—more than three times the national average. Whereas educators in Arizona’s district public schools had some level of job security due to civil servant protections, charter employees were “at will,” making it much harder for them to go out (or stay out) on strike. Owen Kerr, a former charter teacher in Arizona, noted,

this is a grassroots efforts across the board in education, but it’s mostly led by those in the public districts. Rank-and-filers in the charters don’t have a real opportunity to express themselves—if they do, they’re out the door the next year. So district employees have had to be the movers and shakers.

Charter administrations were not the only forces within the school system actively attempting to undermine the strike. The Phoenix metropolitan district of Chandler, one of the biggest in the state, was in the vanguard of attempts to force educators back to work. On Thursday, April 26—the first day of the strike, when 75,000 educators and allies marched through Phoenix—Chandler’s superintendent unilaterally declared that schools would reopen the following Monday (Flaherty 2018b). It took a concerted pushback from below to reverse this decision, as Rebecca Garelli explains:

Chandler is a very large district and workers there were being pushed to end the strike faster than elsewhere. As early as Thursday, the district was trying to force people to work since the superintendent was in the pocket of the Governor.

So there was a lot of tension. Some teachers wanted to cave. Fortunately, folks on the ground were able to turn things around and keep the walkout going the next week. It also helped that I spoke with Chandler teachers and recommended that they hold out, “You should hold your ground—if you don’t want to go back, don’t go back.”

Elected officials also continued to intimidate the strikers. On Thursday, April 25, Republican House Whip Kelly Townsend issued a public statement threatening a class action lawsuit against strikers. And on Friday morning the conservative Goldwater Institute sent letters to every district superintendent, declaring that they would be subject to lawsuits unless they immediately opened their schools.

Numerous superintendents renewed their efforts to reopen schools, but the intimidation offensive generally failed to push educators back to work. As union president Joe Thomas later explained, in most districts, “superintendents were calling our local presidents asking if school was going to be shut the next day.” Despite the growing number of right-wing threats, educator strike turnout on Friday was huge and spirits remained high at the capitol’s rally.

In response to Arizonan strikers’ unforeseen resilience, at 6:00 p.m. on Friday, April 26, Governor Doug Ducey issued a press release that he had reached a deal with Republican lawmakers to give Arizona educators a 20 percent raise. While the governor tried to frame this as a personal legislative triumph, he was forced to acknowledge that the real tipping point was the strike:

the folks coming down to the state Capitol, making their voices heard, it helped me with other people I needed to get a budget passed, and that’s why we’re going to be able to introduce it on Monday and pass it soon after. (azfamily.com 2018)

In another significant concession, the proposed bill did not include Ducey’s original plan to fund such raise by cutting social services.

Arizona’s educators, however, were unwilling to take the governor at his word. The strike ultimately lasted up through Thursday the following week; striking teachers and support staff refused to return to work until the final pay raise bill was signed. In addition to boosting morale, the continuation of the strike until May 3 was also a key factor in making possible two major additional legislative victories. Faced with unprecedented public scrutiny, Republican lawmakers scrapped their proposed new tax cuts for the wealthy and they dropped their attempt to prevent a referendum on school vouchers from getting on the November 2018 elections.

What explains the reluctance of the state in West Virginia and Arizona to implement its legal threats? One common explanation was that these were superintendent-sanctioned “walkouts,” not real strikes. As we have seen, it is true that local superintendent and school board support was significant. By agreeing to close the schools, district leaders avoided hard picket lines and enabled full-time school employees to continue to get paid during the strikes, as they could make up the missed days later in the year.

But superintendent and school board support was decidedly more uneven than has often been described in the media. West Virginia and Arizona’s action were real strikes—and illegal ones at that. Whatever the personal inclinations of different district leaders, the initiative for the work stoppages always came from below. The schools only closed after workers first voted to shut them down.

In both West Virginia and Arizona, Republican state officials had more than enough legal justification to punish striking educators—work stoppages throughout U.S. history have been broken on much flimsier legal grounds. And despite the apparent support of some local superintendents for their employees, the state’s highest governmental bodies were clear about the illegal nature of these work stoppages.

Arizona Superintendent Douglas directly addressed the question of how to define these actions: “It is illegal to strike in Arizona, and by every definition I’ve read, this is a strike” (KTAR News 2018). She was not wrong. U.S. courts have generally followed the strict categorization of “strike” codified in the 1947 Taft-Hartley Act, that is, “any concerted stoppage of work by employees . . . and any concerted slow-down or other concerted interruption of operations by employees.” ⁹ Douglas openly rejected claims that teachers “didn’t strike” because “the [school] doors were closed” by local superintendents. She was not wrong to note that “the doors would have never been closed if the teachers didn’t vote to walk out” (Arizona Daily Sun 2018).

Another explanation of the government’s legal inaction was that the teacher shortage tied the politicians’ hands. According to this argument, which was shared by many in the teachers’ movement, the state could not take repressive action against educators because it had no one to replace them with.

It is certainly true that the shortage undercut many educators’ fears about getting fired. But even had there been no educator shortage, the sheer number of employees on strike would have made it very hard to fire all strikers. Moreover, state officials had many means to break the strikes other than mass dismissals, including the imposition of steep fines on individuals or organizations, union decertification, and firing (or jailing) the strike leaders. None of these measures, however, were imposed in Arizona or West Virginia.

It would appear that politicians avoided this route above all for political reasons. Repression risked emboldening, rather than intimidating, the strikers and their supporters. It also risked further alienating politicians from the public at large, which continued to overwhelming back the strikers.

Unlike in the corporate world, a large layer of employers in the public sector—governors, legislators, statewide superintendents, and local school board members—are generally subject to popular re-election, which tends to make them take public opinion more seriously. Given the educators’ widespread public support in these strikes, it is unsurprising that politicians and local superintendents (who are chosen by elected school boards) in the recent strike wave were reluctant to resort to legal sanctions. As one recent labor relations textbook drily notes, “Firing striking public employees can provoke more problems than officials want, and the real politics of public sector strike policy often diverge substantially from formal provisions in the statutes.” ¹⁰ This is not a new phenomenon. In the public employee upsurge of the 1960s and 1970s, the state also frequently found it difficult to impose legal penalties against well-organized and well-supported strikes (Burns 2014).

State officials were refreshingly upfront about the political reasons underlying their reluctance to resort to repression in early 2018. When asked in a post-strike press conference why he had not tried to impose an injunction, West Virginia State Superintendent Steve Paine’s reply was to the point. It only would have “added gas to the fire,” he acknowledged (Jarvis 2018). For her part, West Virginia teacher Emily Comer summed up the lesson of the strike wave as follows: “It doesn’t matter if an action is illegal if you have enough people doing it.”

Oklahoma’s Legal Walkout

Like in Arizona, Oklahoma’s movement erupted immediately in the wake of the West Virginia strike. Mickey Miller recalled how the mood among Oklahoma educators was transformed:

Oklahoma teachers have felt hopeless and powerless for years. So when I first heard about West Virginia, I didn’t think it would spill over for us. But teachers here started closely watching the strike. They began saying, “Wait a second, they did it there, they were able to get all counties to go out. Why can’t we do that here?”

Oklahoma’s walkout, however, ended up taking a significantly different course than both West Virginia and Arizona. One important reason for this disjuncture is that the inexperienced rank-and-file leader that came to head Oklahoma’s insurgent Facebook page pushed for a legal walkout organized in conjunction with friendly superintendents, instead of building up workplace power for an illegal strike.

On February 28, in an effort to seize the moment created by West Virginia, Stillwater teacher Alberto Morejon created the Facebook group Oklahoma Teacher Walkout—The Time Is Now! (TTN). Within hours, the membership of TTN had shot up to 18,000—within weeks, it had become Oklahoma educators’ central political and communications hub, with over 70,000 members. ¹¹ Virtually overnight, Morejon had become a political celebrity in Oklahoma and the rank-and-file’s most important leader by far.

Morejon had no previous activist experience, nor was he a member of the union. He ran TTN on his own as an individual, rather than using it as a platform for coalescing a rank-and-file network. Politically, he was a registered Republican—though he insisted that party labels mattered less for him than a demonstrated commitment to supporting teachers and improving Oklahoma’s public schools. In Morejon’s view, the establishment of a Facebook page to push for a walkout was a direct translation of the West Virginia experience. As Morejon explained, “we learned a lot from West Virginia, it set a precedent.” Yet the actual organizing approach initiated by Morejon differed in major ways from the militant base-building efforts of West Virginian—and, later, Arizonan—rank-and-file leaders.

Events moved quickly in early March. Instead of promoting escalating actions and organizing efforts in the direction of a strike authorization vote, Morejon on a March 3 Facebook post proposed that the walkout should begin the following April 2. Most responses on the Facebook page were enthusiastic; thousands voiced their approval in comments to his posts. Yet, Morejon did not suggest that the decision to stop work should be voted on at school by all employees. Instead, he relied on Facebook comments and periodic Facebook polls to get a rough sense of where educators were at.

This relative underestimation of organizational and action preparation went hand in hand with Morejon’s orientation to closely collaborating with the superintendents. In Oklahoma, like in West Virginia and Arizona, it is illegal to strike against the school board or superintendent, but were Oklahoma superintendents to proactively support a walkout, no legal action could be taken against the teachers. As Morejon announced to TTN on March 2:

the goal is to allow superintendents and school board members to discuss the possibility of a school shutdown/suspension until something is done . . . I will be organizing a day next week where everyone in this group will email their districts superintendent and school board members to ask them where they stand on this issue.

In early March’s rush of excitement, the problematic implications of this approach were appreciated by few Oklahoma educators. But without school-site votes to decide on a work stoppage, it remained unclear who had the ultimate authority to start or stop the action. As the course of the walkout would later demonstrate, the absence of such votes resulted in a very different relationship of forces between employees and superintendents—and between rank-and-filers and top union officials.

Looking back at this issue months later, speech pathologist Stephanie Price in Moore, Oklahoma, made the following self-critique:

I honestly feel like we gave too much power to the districts to determine our plan for us—we were basically waiting for our superintendents to give us permission to walk out. We allowed ourselves to sit back and wait to until we were told “Yes, you’re allowed to walk out.” We should have just said “We’re doing this.”

To be sure, organizing independently of—and, if necessary, against—superintendents would have subjected school employees to serious legal risks. A district-approved walkout, in contrast, avoided the threat of injunctions and firings. But one of the key lessons of West Virginia was precisely that if workers have the organizational strength, numbers, and political momentum, it is possible for illegal strikes to break the law and win.

Convincing Oklahoma educators—and pressuring their union—to engage in such a risky action, however, would have taken a concerted effort on the part of grassroots teacher leaders and their supporters. It would have also taken a considerable amount of time for organizers to test school employees’ strike readiness—particularly among support staff, for whom a walkout necessarily entailed greater financial and job security risks.

The OEA—the principal educators’ union—shared the same moderate political and strategic approach as its counterparts in West Virginia and Arizona. Despite their hesitancy to take militant action, OEA leaders were ultimately willing to cede to the ranks’ desire for a work stoppage. But, unlike in West Virginia and Arizona, Oklahoma’s union leaders were not pressured into supporting an illegal strike, because the rank-and-file leadership was not oriented to building toward an illegal strike.

After Morejon called for a walkout to begin on April 2, the union (after initially proposing a later date in May) ceded to the rank-and-file push initiated by TTN. OEA’s Associate Executive Director Amanda Ewing explained, “We decided: ‘It’s going to happen with or without us, so we need to help.’” In widely publicized March 7 video message, OEA President Alicia Priest announced that the union was calling for statewide school closures “beginning April 2—we will be at the capitol until a solution is passed and signed by the governor . . . Our members are ready to act now, so we are accelerating our strategy.”

Over the coming weeks, both the union and TTN sought to generate enthusiasm for the walkout, though neither was able nor willing to systematically build up site-based organizing. Three weeks, in any case, was very little time to cohere forces for a successful work stoppage.

On March 26, in a last-ditch effort to prevent the upcoming walkout, Republican legislators passed a pay raise for Oklahoma educators. But, like in West Virginia and Arizona, concessions by politicians on the eve of the work stoppage proved to be insufficient to head off the grassroots upsurge. Oklahoma educators were adamant about sticking with their planned action to win more school funding for students. Despite growing superintendent and OEA leadership hesitancy, the walkout began as planned on April 2.

Morejon and the OEA’s approach to organizing a walkout within the confines of the law had prevented the state from making any threats to fire or sanction teachers. Yet it also helped undermine the internal unity of the work stoppage, because only teachers could legally participate in a walkout if their superintendents voluntarily canceled school. Service personnel, in contrast, still had to report to work. The upshot was that schools remained open during the walkout (though students generally did not attend).

The vast majority of support staff reported to work for the entirety of the work stoppage. To quote OEA’s Amanda Ewing, “though they tried to support the movement in their districts, it was rare for support staff to attend the protests at the capitol; most ended up reporting to work each day.” The lack of participation by service personnel was a significant weakness. Price notes,

this really hurt the walkout, because think about how many paras and support staff there are in Oklahoma—that’s a huge loss of numbers. And in terms of solidarity, not having everyone participate in the action set up a sort of an invisible barrier between us.

Despite the absence of support staff participation, the work stoppage begun on April 2 was initially relatively solid. Over 50,000 educators and allies participated in the largest of the capitol rallies. Yet the movement’s reliance on legal means through superintendent support eventually proved to be one of its major shortcomings.

Although most superintendents and school boards initially remained publicly supportive of the work stoppage, behind the scenes they were, to quote former OEA union organizer Nick Singer, “really seriously undermining the action—honestly, they were the biggest cowards.” By the end of week 1, with state testing looming, district leaders—including prominent presumed allies like Bartlesville’s superintendent Chuck McCauley—began systematically pressuring employees to return to work. Price recalls a similar dynamic:

Politicians were telling everybody “Look, you’re not going to get anything else, so just go home.” I feel like part of the reason we didn’t have the momentum to make them back down was that some superintendents started calling teachers back to work in the second week for state testing. This then sent a very clear message to other districts (and the legislature). It was like a domino effect. I think that if large districts hadn’t pulled out before the end of walkout was announced, we would have had momentum to really change things.

Resisting these pressures was possible—indeed, teachers in districts like Moore fought hard to stay out. But without strong workplace organizations, or the political precedent and authority generated by a rank-and-file strike vote, this task proved to be exceedingly difficult.

By Thursday, April 12, most urban districts remained closed and, according to polls, over 70 percent of the public continued to support the walkout. But in the absence of a clear lead from OEA or an organized effort from below, crowd numbers at the capitol were declining. So was momentum. The work stoppage had gone on nine days and Republican lawmakers still showed no signs of budging.

It was in this context that OEA officials abruptly called off the walkout at a Thursday evening press conference. Teachers across Oklahoma were outraged at OEA leaders. Hundreds dropped their dues, and social media was immediately filled by incensed teachers denouncing OEA for “betraying us” and “selling us out.” One of the most measured responses on April 12 came from teacher Gabrielle Price, who posted on Facebook that “I’m upset, I’m tired, I’m frustrated. I was used, I was thrown under the bus, and I was misrepresented.”

Hoping to replicate West Virginia’s wildcat action, Morejon called for the work stoppage to continue. But he lacked the organizational strength, and the walkout lacked the momentum, to materialize this possibility. By Friday, it was clear that the work stoppage was over.

Although most angry educators blamed the union leaders, a few teachers felt that the main reason for the walkout’s impasse was tactical decisions taken at the beginning of March. Stephanie Price made an important point:

I literally sat in my kitchen and cried when I heard OEA called off the walkout. I was so mad at OEA and Alicia Priest. But, looking back, maybe the main problem wasn’t OEA saying we’re done on April 12, but the other factors leading up to this decision. So I don’t blame OEA and Alicia Priest, but things could have been done differently—for example, if we had told districts from the beginning that were going out and staying out, whether they liked it or not.

As Price notes, the 2018 Oklahoma educator movement was limited virtually from inception by its commitment to working within legal parameters. Although the wage gain won by educators in Oklahoma was significant, the Sooner State’s experience on the whole illustrates why reviving organized labor is unlikely within the strict confines of repressive U.S. labor law.

Conclusion

For decades, labor leaders and sympathetic scholars have put forward a wide array of proposals for reversing the fortunes of the labor movement. Most have sought either to work around draconian legal restrictions or to reform these away through legislative efforts. This paper has examined the early 2018 statewide education strikes to test the feasibility of an alternative path to labor revitalization: illegal strike action.

Breaking the law was a central dynamic in the two most successful strikes of the 2018 red state revolt—that is, West Virginia and Arizona. Organizers systematically built up the school-site organization and momentum necessary to enable individual educators to take the risk of participating in an illegal strike. In contrast, Oklahoma’s legal work stoppage floundered, at least in part, because a legal walkout required that teachers rely on the support of their district employers, rather than their own independent organization. In addition, respecting the law undercut the potential for a united walkout of all school employees.

To be sure, the issue of breaching or respecting the law was not the only variable in the outcome of the strikes. Questions of Republican state official stances, union officialdom decisions, rank-and-file leadership experience, and preexisting union strength were also important factors. West Virginia’s work stoppage, for instance, benefited from relatively stronger public education unions and a real, if waning, tradition of labor militancy in the state. Yet one cannot necessarily ascribe the limitations of Oklahoma’s walkout to a less favorable political context. Arizona’s educators had an even weaker labor movement and faced an even more hostile state government, yet they won more from their state—and they achieved far more organizational gains—than their peers in Oklahoma.

This paper does not seek to imply that illegal strikes are some sort of political panacea. The risks involved are very real, particularly if attempted without strong public support generated through broad “common good” demands and consistent outreach efforts—or without the requisite workplace organizational strength. In this sense, it is important to consider the following 1968 quote from militant American Federation of State, County and Municipal Employees leader Jerry Wurf: “I have never been impressed with the injunction. If you got the power to win the strike, it’s academic. If you ain’t got the power, they are going to knock your head off anyway” (Burns 2014, 147).

Wurf was right to stress not only the possibilities for strikes to successfully break the law but also the dangers of striking without sufficient strength. One can point to numerous recent examples that confirm the latter danger. In 2005, for instance, a relatively poorly organized strike by New York City transport workers resulted in the jailing of their president, a US$ 2.5 million fine, and the end of automatic union dues deductions. The 2018 red state revolt also witnessed some similar, if more small-scale, setbacks. In late April, seven bus drivers in Georgia’s DeKalb County were fired after leading their co-workers in a three-day wildcat “sick-out” (Wilson 2018).

Although illegal workplace action is not a cure-all for the ills of organized labor, the experience of West Virginia, Oklahoma, and Arizona raises important strategic questions for workers, union leaders, and scholars across the United States. Decades of working within the parameters of an anti-labor industrial relations system has helped lead the trade union movement to its current impasse. Labor law reform is certainly necessary, but if history is any guide, it will become a feasible legislative possibility only after a concerted working-class upsurge. As such, rank-and-file workers and militant union officials today may need to reconsider the old adage of the Industrial Workers of the World: “Strikers are to disobey and treat with contempt all judicial injunctions.”