Archive: Jun 2018

  1. A Question of Legitimacy Looms for the Supreme Court

    Comments Off on A Question of Legitimacy Looms for the Supreme Court


    By Linda Greenhouse

    Contributing Opinion Writer

    Any day now, perhaps as soon as Thursday, the Supreme Court will issue a decision that more than any other case this term will reveal to us the heart and soul of the Roberts Court at the end of Chief Justice John G. Roberts Jr.’s 14th year.

    The case is Janus v. American Federation of State, County and Municipal Employees. It presents the question of whether the court will adhere to its 41-year-old precedent under which states can require public employees who object to joining a union to nonetheless pay their fair share of the union’s costs of the collective bargaining from which all employees benefit.

    I’ve just made a bold claim for a case that’s not at the top of most people’s Supreme Court watch lists. What about Trump v. Hawaii, the case on the validity of the president’s Muslim travel ban, also due for a decision in the coming days? That case is extremely important, of course, but here’s the difference: There was no way the court was going to avoid a case presenting fundamental questions of presidential authority. But Janus is a case, it’s fair to say, of the Supreme Court’s own creation.

    It arrived on the court’s docket a year ago at the court’s implicit invitation after three previous efforts by conservative justices to find a vehicle for overturning the old precedent had foundered. The leader of this effort, Justice Samuel A. Alito Jr., almost struck gold in January 2016 when the chief justice assigned him to write the opinion for a 5-to-4 majority in Friedrichs v. California Teachers Association. But then Justice Antonin Scalia died, leaving the court divided 4 to 4 and Justice Alito a vote short of his goal. Two months later, the Janus petition arrived.

    The basic argument in Janus is that the First Amendment should be interpreted to shield workers who don’t like their union from having to associate with it or lend support to its activities. The Supreme Court rejected that argument in 1977 when it decided Abood v. Detroit Board of Education, and it has rejected analogous arguments in other compulsory-fee situations, including state bar dues for lawyers and mandatory student association fees on public campuses. The underlying argument in support of these mandatory fees is the greater common good; the specific rationale in the labor context is that the presence of free riders, who enjoy the benefits of having a union while refusing to pay for the bargaining efforts that won them, is a threat to peace in the workplace.

    There’s no doubt that in the 41 years since the court decided the Abood case the First Amendment has morphed into a deregulatory tool that the justices of that earlier era would scarcely recognize. That trend has accelerated under the Roberts court. But my goal here is not to dive into First Amendment doctrine. Forgive my cynicism, but the attack on public employee unions has little to do with the Constitution and a whole lot to do with politics.

    It’s no secret that public employee unions skew Democratic. Teachers unions, in particular, give Democrats a lot of money, some $60 million alone during the 2016 election. It’s also no secret that as private sector unions shrink into near invisibility — 6.5 percent of the private sector work force was unionized in 2017 — unions still cover 34.4 percent of public sector workers, and public sector unions represent the future of organized labor. Take them down, and you remove a money engine for the Democrats and cast a big shadow over the future of organized labor itself.

    The point of the Abood decision, of course, is that workers who object to the union’s political activities don’t have to pay for them. But they do have to pay the fair-share or agency fee that covers the union’s costs for collective bargaining and representing individual employees; under federal labor law, unions have to represent everyone, members or not.

    The path of the Janus case to the Supreme Court exemplifies the politics of the issue. The case was initially filed in 2015 in Federal District Court in Illinois not by an Illinois public employee but by the newly elected Republican governor, Bruce Rauner. He is a former private equity executive with a personal fortune of $500 million who spent millions on a campaign in which opposition to organized labor played a substantial part.

    States are free to ban the agency-fee system or, for that matter, public employee unions entirely. But with both houses of the Illinois Legislature controlled by Democrats, Governor Rauner could not achieve his goals legislatively. It turned out that he couldn’t achieve them judicially, either; the Federal District Court threw him out for lack of standing; whoever the agency fee might be injuring, it wasn’t the governor.

    But the court then permitted three state workers, including Mark Janus, to rescue the lawsuit by intervening as plaintiffs. That was an unusual move by the court, since logically there was at that point no lawsuit remaining in which the three could intervene. On appeal, the United States Court of Appeals for the Seventh Circuit questioned the intervention, but allowed it and ruled against the new plaintiffs on the merits.

    Lisa Madigan, the state’s Democratic attorney general, joined with the union last summer in opposing the plaintiffs’ Supreme Court appeal. The union argued vigorously that the case was jurisdictionally flawed from the outset and that the Supreme Court therefore lacked the authority to hear it. Ordinarily, the justices shy away from a case that looks jurisdictionally sketchy. But this train had already left the station, and there was no stopping it this time.

    Thousands of teachers in Arizona rallied outside the Capitol on the second day of their walkout.CreditMatt York/Associated Press

    It’s now been six years since Justice Alito, in a case called Knox v. Service Employees International Union, first revealed his eagerness to find the right vehicle for overturning Abood and effectively issued an open invitation to anti-union forces to bring him the right case. It seemed an aggressive move then. It still does but, watching the world outside the Supreme Court, I have a different thought. Is it just possible that the court’s timing is off?

    Here’s what I mean. Remarkably, in the past few months, the public seems for the first time in years to be appreciating its public employees, especially teachers. Teacher walkouts in red states like West Virginia and Oklahoma received widespread attention and resulted in higher salaries. The winner of a competitive Republican primary for governor in Idaho pledged support for higher education spending and was endorsed by the teachers’ union.

    In Kentucky, pressure from teachers led the Legislature to block the governor from vetoing a budget that increased spending for public education. In Georgia, the Legislature fully funded the state aid formula for schools for the first time in years. A New York Times survey last month found that a majority of Republicans as well as Democrats favored increasing teachers’ salaries even if it meant raising taxes.

    So is it possible that just as the Supreme Court is about to take a hammer to the teachers’ unions, teachers are back in favor? A Supreme Court decision, needless to say, is not a popularity contest, nor should it be. At the same time, the court necessarily skates on thin ice when it comes as close as it has here to serving an agenda that is not the public’s but its own — and by a 5-to-4 vote.

    In 2005, Richard H. Fallon Jr., a constitutional scholar at Harvard Law School, published an article in The Harvard Law Review titled “Legitimacy and the Constitution.” He drew a distinction between what he called “legal legitimacy” and “sociological legitimacy.” His argument was extensive and subtle, and I can’t do it justice by boiling it down to a few sentences.

    As I understand the argument, it is that legal legitimacy — a governmental act or judicial decision that can be justified on strictly formal terms — is necessary but not sufficient. Something more, sociological legitimacy, is needed. As Professor Fallon defines it, “When legitimacy is measured in sociological terms, a constitutional regime, governmental institution or official decision possesses legitimacy in a strong sense insofar as the relevant public regards it as justified, appropriate or otherwise deserving of support.”

    Do those words speak to the Roberts court? As another term draws to a close, we should hope so, for the justices’ sake and for our own.

  2. A Supreme Court ruling for Janus would be judicial activism at its worst

    Comments Off on A Supreme Court ruling for Janus would be judicial activism at its worst

    Should courts have the power to impose wage cuts, shrink the economy and require private organizations to deliver costly services for free?

    Most people would probably say no. Yet this is what could happen when the U.S. Supreme Court issues its ruling in Janus v. AFSCME Council 31, expected sometime in June.

    At issue in Janus — a case that originated here in Illinois — are state laws that require public sector workers represented by unions to share in the cost of collective bargaining over their wages, benefits and working conditions through the payment of what are called “fair share” fees.

    “Fair share” fees are not union dues and cannot be used for politics or lobbying. They are limited to the direct cost of negotiating and enforcing employment contracts.

    Ever since, a network of well-funded interests has sought ways to reduce worker earnings by weakening the bargaining power of employees. Setting aside the income inequality that such an agenda accelerates, these interests have also had some success in convincing several Midwestern states to eliminate their fair-share fee payer laws.

    In Janus, a right-leaning Supreme Court is expected by one vote to nullify the laws of those 23 states, which could invalidate wording in thousands of state and municipal contracts. The change would be an extraordinary act of judicial lawmaking irreconcilable with conservative principles that publicly shame “judicial activism.”

    But what could this decision mean for 5 million affected workers, the economy and the labor movement?

    To answer this question, I recently partnered with the Illinois Economic Policy Institute to assess the potential impact of the court’s expected Janus ruling.

    This research, based on U.S. Census and Labor Department data, confirmed that public sector wages are universally lower in states without fee payer laws and unions are much weaker. In fact, wages in public service occupations already lag behind comparable jobs in the private and nonprofit sectors; Janus would exacerbate that pay penalty. And changes to laws related to public sector jobs disproportionately impact African-Americans, who are more likely to work in state and local government and more likely to be union members.

    The study concludes that if the court strikes down fee payer laws, the loss of bargaining power for 5 million affected public sector workers will translate to an average wage cut of about $1,800 per year. The corresponding loss of consumer spending could shrink the national economy by as much as $33 billion — and by more than $2 billion in Illinois alone. And union membership in affected states would drop by more than 725,000.

    But there are likely to be other effects.

    Labor unrest is chief among them. The school walkouts that have recently come to West Virginia, Oklahoma, Arizona and North Carolina — and the poor pay and working conditions that precipitated them — each occurred in states without collective bargaining laws for public sector employees permitting fee payer provisions.

    Ultimately, we don’t require lawyers, doctors, accountants or large corporations to provide services for free. We don’t forbid them from using the fees they do collect for political purposes. Yet when it comes to unions, the courts apply a very different standard.

    Janus could take this double standard to an entirely new level by effectively forcing wage cuts on 5 million workers and shrinking our nation’s economy.

    If that’s not judicial activism at its worst, what is?

    Robert Bruno is a professor of labor and employment relations at the University of Illinois at Urbana-Champaign and serves as director of the University’s Labor and Education Program and the Project for Middle Class Renewal.

    Copyright © 2018, Chicago Tribune


  3. Wage-increases, retirement, and benefits at risk: Supreme Court Ruling Pending

    Comments Off on Wage-increases, retirement, and benefits at risk: Supreme Court Ruling Pending

    The future of your union and collective bargaining rights over wages, hours, and working conditions are at stake and we need your help. We are asking everyone to sign this new membership form, if you haven’t done so already. You can fill out the form and sign it electronically or print it and send it back. We’d be happy to pick up the completed form from you.

    In the upcoming days/weeks, the Supreme Court will announce its decision in the Janus Case.

    As you may know, a ruling in favor of Janus could weaken unions by preventing unions from charging an ‘agency fee’ to those who do not want to be members. Agency fees cover the costs of services provided by the union to members of a bargaining unit.  The problem is that the decision would require unions to represent fully all members of a bargaining unit, regardless of whether they pay dues or not. Such a decision is supported by interests intent on destroying unions, quashing our collective voice, and eroding our wages and benefits.

    We need to stand together now so that we can continue with our important work representing members to ensure fair and competitive wages, hours and working conditions. We are asking that you sign our new membership form that provides members with an annual window to withdraw from the union, in compliance with the anticipated ruling. Signing this new card is a proactive way to indicate your support of the UCHC-AAUP.  Union dues will remain the same at less than 1% (0.63%) of gross pay up to $250,000.

    A short summary of UCHC-AAUP benefits and accomplishments:

    • Our UCHC-AAUP faculty union has been in place almost 10 years and serves as a means for faculty to have a voice in UConn Health decisions and to provide the strength of many voices to negotiate salaries, benefits, and general working conditions.
    • The UCHC-AAUP developed and negotiated a unique equity-adjusted compensation plan that has successfully increased base pay (on average more than 2.7%/year over ten years) and significantly reduced wage inequities, while maintaining a system for merit-based wage increases and/or bonuses. Before we formed the union, there were large inequities in faculty salaries.
    • In addition, as a result of our negotiations: 1) This July, everyone will receive a $2,000 bonus; 2) In April 2018 longevity payments will be made to for those who are eligible; 3) One extra day of vacation will be given to clinicians who participated in EPIC training.
    • In July, 2020 and again in July, 2021, we will receive a 5.5% increase in our equity fund, which will be distributed in the form of wage increases and merit.
    • The UCHC-AAUP, as member of the state coalition of employee unions (SEBAC), has also negotiated protection for pensions and retirement benefits as well as ongoing health insurance. Please see an update of the SAG award FAQ here.
    • The UCHC-AAUP represents bargaining unit members in employment-related matters. Your union contract has important protections for your wages, hours and working conditions. Please find the union contract here.
    • The union leadership is deepening our communications network by asking people to be liaisons in each department. We will also be bringing together constituent councils to work on issues of common concern. If you would like to be a liaison or participate in the councils, please let us know.
    • We had a substantial legislative presence this year, supporting a fair budget and protecting collective bargaining rights.

    These protections and benefits cannot be maintained without committed dues-paying members!

    We must maintain solidarity in the upcoming months. Not only is the UCH facing the formation of a public/private partnership, but there will be attacks on collective bargaining, our pensions, and health insurance during the legislative session. Additionally, national groups intent on destroying public employee unions will be gathering data so they can take advantage of the Janus decision by sending letters urging people to abandon their unions. (An Illinois organization already asked UConn for data about union members last week!)

    Stand together so that we can continue to have a voice! Please sign our new form today!

    Please contact us if you have any questions at all.

    Kind regards,

    Kevin Claffey and Cindy Polinsky