1. A Question of Legitimacy Looms for the Supreme Court

    Posted: Jun 25th, 2018


    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.

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  2. 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


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  3. The Political Landscape and the SAG Award

    Posted: May 7th, 2018

    The Political Landscape and the SAG Award

    by Les Berstein

    Dan Livingston, lead negotiator for the State Employee Bargaining Agent Coalition (SEBAC), addressed a crowd of over 60 faculty members on April 25 about the upcoming SAG award and the political landscape that affects collective bargaining.  He began his presentation by providing an overview of collective bargaining and its history in our state.  He explained how the results of SEBAC’s negotiations with the state are responsible for the healthcare and retirement benefits provided to us all.  He reminded the group that success in maintaining our benefits relies on active, effective, and functioning unions.

    Dan provided a rather detailed, factual, and sobering account of the ways that the current national and local political climate has led to substantial attacks upon and attempts to erode the protections afforded to state employees by collective bargaining.  Those include efforts to weaken unions in general and attacks upon the defined benefit retirement plans that have been in place for decades.  Dan’s comments resonated with many who have witnessed the vilification of state employees in the face of the state’s failures (since 1939 and before there were unions to fund the state employees’ pension plans.

    Dan explained how the current trends have manifested themselves nationally with, for example, the dismantling of public sector unions in Wisconsin and the expected decision in the Janus case currently before the United States Supreme Court.  The expected decision in that case could cripple unions by allowing people to receive the benefits of union representation without paying any dues or fees.  Alas, there is no free lunch.  Being forced to provide representation to members of a collective bargaining unit at no charge to them would diminish greatly the strength of unions.  Dan discussed how current trends threaten to roll back many of the gains made over the years, including, potentially, the gains made with regard to our own pensions and health insurance.  Our only recourse seems to be to remain united and committed to maintaining strong individual unions.

    The second part of Dan Livingston’s presentation focused on a history of the retirement plans offered to Connecticut State Employees, the general benefits and drawbacks of various options, and important changes that are occurring.  Those changes stem from the SAG award.  Briefly, the terms of that award are being implemented in a manner that affords many state employees the option of switching the retirement plan in they choose to participate.  Suffice it to say that the decision regarding whether or not to change plans is complex and must be made on an individual basis.  There is no “one size fits all.”  An FAQ on this topic can be found here. The FAQ attempts to answer common questions.  If you have a question not found in the FAQ, please feel free send it along to us.

    If you have not already done so, protect your current and future union benefits by signing a new membership form today!


  4. State Budget

    Posted: Oct 30th, 2017

    As you may know, the General Assembly passed a new and vastly improved budget.

    Your phone calls, emails, meetings with legislators, presentations, and attendance at rallies were impactful!

    This is what we can accomplish together!

    Thank you.

    Kevin Claffey
    UCHC-AAUP President

    Cindy Polinsky
    UCHC-AAUP Executive Director

  5. Union Dues Reduced

    Posted: Dec 3rd, 2016

    Dear Colleague,

    We are excited to announce that your dues/agency fee will be reduced. Our investment committee and treasurer made a recommendation to our executive council that this year’s budget could be executed with a lesser dues amount. As such the new budget, that was proposed at our annual meeting and overwhelmingly adopted by the membership calls for a reduction from 0.7% to 0.63%. Please check your paychecks dated February 3, 2017 (corresponding to the pay-period, January 6, 2017 through January 19, 2017) to make sure it reflects the reduction. Thank you.

    The UCHC-AAUP Team

  6. Volunteers for Government Relations Committee Needed


    Dear Colleague:

    We are inviting you to become part of an exciting opportunity! Article X II of the UCHC-AAUP constitution establishes the formation of a Government Relations Committee. “Government Relations” involves enhancing communication between elected officials and the union. It involves advocacy and monitoring of legislation that affects bargaining unit members. Most importantly, when ready, the new committee will focus on the legislature’s adoption of our new collective bargaining agreement. However, we would like to emphasize that government relations is distinct from political activity in that union is not endorsing candidates, contributing or campaigns, or serving in any electioneering capacity. Please let us know of your interest.

    Thank you.


  7. Latest SEBAC meeting

    Posted: Nov 28th, 2016

    · The administration requested to meet informally with SEBAC Leaders, and that discussion occurred

    · The parties plan to meet informally again

    · Union leaders will brief their leadership bodies and negotiating committees.

    · Further briefings and information will be available if discussions continue.