Workplace Prof Blog

Wisconsin State Trial Court Invalidates Act 10 Anti-Collective Bargaining Law (updated)

Update (9/15/12): Here are some thoughts by myself and others in the Milwaukee Journal-Sentinel on how an appeal of the court's Act 10 decision might eventually unfold.

In a stunning turn of events, a state trial court in Dane County, Wisconsin (Madison) has declared null and void the anti-collective bargaining provisions, annual recertification provisions, and anti-dues check off provisions of Act 10 (the Wisconsin anti-collective bargaining law) under federal and state constitutional law.  The pension contribution provisions for Milwaukee were also struck down.  Here is the court's decision in Madison's Teacher Inc. v. Walker.

More specifically, the court found that Act 10 impermissbly burdened public sector union members' associational rights and free speech rights in collective bargaining and was in violation of equal protection under both federal and state constitutions. Additionally, the Court found that provisions requiring public employees to contribute to their pensions violated the Home Rule Amendment to the Wisconsin Constitution and the Impairment of Contracts Clause of both the Wisconsin and federal constitutions.

This decision will certainly be appealed and faces a frosty reception at the Wisconsin Supreme Court which has sided with Governor Walker on a partisan basis (4-3) in prior challenges to Act 10.

Things are about to get real interesting here in Wisconsin again.

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Secunda "Speechless"; Hell Freezes Over

An ABA Journal article quotes Paul Secunda (Marquette) as "speechless" that Judge Raymond A. Jackson of the Eastern District of Virginia ruled, in Bland v. Robertsy, that a public employee "liking" something or someone on Facebook is not protected First Amendment expression.  The article is ‘Like’ Is Unliked: Clicking on a Facebook Item Is Not Free Speech, Judge Rules.

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Secunda & Garcia Quoted in Garcetti Case

Congratulations to Paul Secunda and Ruben Garcia on being quoted in the post-Garcetti case of Ozols v. Town of Madison, 2012 WL 3595130 (D.Conn. Aug. 20, 2012).  Here's the critical language:

[I]t is questionably sound to deny public employees the right to speak about matters of great public concern. "'Government employees are often in the best position to know what ails the agencies for which they work.'" Id. at 429 (Souter, J., dissenting) (quoting Waters v. Churchill, 511 U.S. 661, 674 (1994)). By diminishing the protections available to employee-speakers, Garcetti makes employees “less secure in their ability to speak out against governmental fraud, corruption, abuse, and waste without facing retribution from their public employers.” Paul M. Secunda, Garcetti's Impact on the First Amendment Speech Rights of Federal Employees, 7 First. Amend. L.Rev. 117, 118 (2008).

The majority in Garcetti brushed away concerns about protecting employee whistleblowers by noting that other statutes would protect those employees from retaliation. But as the Garcetti dissent predicted, id. at 439–40, such speech often falls outside the narrow confines of whistleblower statutes. See Ruben J. Garcia, Against Legislation: Garcetti v. Ceballos and the Paradox of Statutory Protection for Public Employees, 7 First. Amend. L.Rev. 22 (2008) (detailing failures of statutory protections for government whistleblowers).

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Recently Published Scholarship: Toledo Symposium on Public Sector Labor Law

Public Sector Labor Law at the Crossroads Symposium

43 Toledo L. Rev. (2012)

• Joseph E. Slater, The Rise and Fall of SB-5: The Rejection of an Anti-Union Law in Historical and Political Context, 473.
• Ellen Dannin, Privatizing Government Services in the Era of ALEC and the Great Recession, 503.
• Matthew Dimick, Compensation, Employment Security, and the Economics of Public Sector Labor Law, 533.
• Charlotte Garden, Teaching for America: Unions and Academic Freedom, 563.
• William A. Herbert, The Chill of a Wintry Light? Borough of Duryea v. Guarnieri and the Right to Petition in Public Employment, 583.
• Anne C. Hodges, Southern Solutions for Wisconsin Woes, 633.
• Michelle T. Sullivan, Binding Arbitration as a Means of Settling Public Sector Union Contracts: A Process with an Image Problem?, 655.

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Mayor Bloomberg Advocating Violating the NY Taylor Law?

Harris Freeman (Western New England School of Law) has this somewhat strange tidbit to share with us:

From the New York Magazine, 7-24-12: "Mayor Bloomberg Flirts with Violating the Taylor Law.":  

In the wake of the Aurora mass shooting, the New York magazine quotes Bloomberg as saying he does not understand why police across the U.S. do not stand up and collectively say 'We're going to go on strike' to highlight the safety issues for police posed by lax gun laws.   New York's Taylor Law plainly states that "no public employee or public employee organization shall cause, instigate, encourage, or condone a strike." 

I agree with Harris that it is hard to imagine a public sector union leader not getting into trouble for advocating this same thing. 

The linked article includes an interesting discussion of whether Bloomberg may not have violated the Taylor Law because he is an employer (who cannot "authorize, approve, condone or consent" to a strike) and not an employee.

Discuss among yourselves.

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ClassCrit V Workshop: From Madison to Zuccotti Park: Confronting Class and Reclaiming the American Dream

I am excited to share with readers of the blog information about the forthcoming ClassCrit V Workshop: From Madison to Zuccotti Park: Confronting Class and Reclaiming the American Dream (hyperlink leads to conference website). The conference is scheduled to take place in Madison, Wisconsin at the University of Wisconsin School of Law on November 16-17, 2012.  The audience participation sign-up deadline is October 15th.

More about the theme of the conference from its website:

This workshop, the fifth meeting of ClassCrits, takes on class and the American dream as its theme. The most quintessentially American trait may be our capacity to look past current misfortune and imagine a brighter future. Americans love a “rags to riches” story and have long believed that hard work and determination will pay off in the long run. Two years into a sluggish “recovery” from the Great Recession, however, many Americans have lost some of that earnest optimism. Faced with persistent unemployment, a nationwide foreclosure crisis, deep cuts to state and local budgets, and declining state support for public education, Americans are questioning the promise of upward mobility. Indeed falling backwards is now a recognized phenomenon affecting more and more of the “middle class,” arguably blurring the distinctions between the “middle class,” the “working classes” and “the poor.”

But, roused by economic insecurity and the political assault on workers’ rights, “ordinary” people from Madison to Zuccotti Park have taken to the streets to voice their dissent. Taking on the slogan “we are the 99%,” the protest movement has launched a national dialogue about income, wealth and structural inequality, race, gender and class divisions in society, and, fundamentally, what it will take to reclaim our vision of a good life. From Madison to Zuccotti Park: Confronting Class and Reclaiming the American Dream will therefore bring together scholars, economists, activists, policymakers, and others to critically examine both the relationships between and the complexities of class and inequality.

I am excited to be providing a paper on the Wisconsin Public Sector Labor Dispute of 2011 and its relationship to the demise of the Wagner Act model of labor and to recent, class-based movements like Occupy Wall Street. Other worklaw profs scheduled to present include: Brishen Rogers (Temple), Charlotte Garden (Seattle), Nancy Leong (Denver), Ken Casebeer (Miami), Matt Dimick (Buffalo), Jim Pope (Rutgers-Newark), and Ahmed White (Colorado).

This should really be a great conference, so be sure to attend if you will be in the area, or even if you need to jet-hop in!

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Alaska Supreme Court Recognizes Union-Relations Privilege

Mitchell H. Rubinstein, over at the Adjunct Law Prof Blog, sends along this important development in labor relations law from Alaska:

The Alaska Supreme Court recognized a union-relations privilege in Peterson v. State of Alaska, No. S-14233, ___P.3d___, 2012 WL 2947636  (Alaska, July 20, 2012). The Court held that "[b]ased on the strong interest in confidential union-related communications and statutory protection against unfair labor practices, we hold [the state labor relations act] impliedly provides the State's union employees a union-relations privilege."  The reasoning employed by the Court - that "the proper functioning of [a] mandatory grievance and arbitration system . . . requires some protection for confidential communications made for the purpose of facilitating the rendition of grievance-related representative services to the employee" and that recognizing a privilege "harmonizes [the state labor relations act]'s strong public policy in favor of contractual resolution of labor disputes with the civil discovery rules" - should be useful in other states and in other settings where this issue frequently arises.

I agree with Mich that this is a "major decision." And like him, I hope other states soon follow suit. For those interested in this topic, Mitch wrote a law review article on this topic a few years ago: Is a Full Labor Relations Evidentiary Privilege Developing?, 29 Berkeley Journal of Labor and Employment Law 221 (2008).

Finally, Mitch comments: "Though this decision arose in the public sector, there is no reason why this decision would not be applicable to private employers. The policies behind the Alaska statute and the NLRA are virtually identical and the policies and need for the recognition of this privilege are certainly identical."

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Citizens United + Public Pensions = Compelled Speech

Or so says Benjamin Sachs (Harvard) in his New York Times essay How Pensions Violate Free Speech.  Here's an excerpt:

In its Citizens United decision, the Supreme Court held that companies have a First Amendment right to make electoral expenditures with general corporate treasuries. And they’ve done so, with relish, pouring millions into the political system.

What Citizens United failed to account for, however, is that a significant portion of the money that corporations are spending on politics is financed by equity capital provided by public pension funds — capital contributions that the government requires public employees to finance with their paychecks.

This consequence of Citizens United is perverse: requiring public employees to finance corporate electoral spending amounts to compelled political speech and association, something the First Amendment flatly forbids.

Contrast this situation with how the court treats political spending by unions. In many states, public employees are required to pay dues to a labor union. If the public employees union were to spend any of the money raised through dues on politics, the court has ruled, the dues requirement would amount to forced political speech and association. To prevent this First Amendment violation, the court has held that no union may use an employee’s dues for political purposes if the employee objects.

The same should be true for pension funds and corporate politics.

Hat tip to Joe Slater (Toledo) for posting a link to this article on facebook. 

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Herbert on The Chill of a Wintry Light: Borough of Duryea v. Guarnieri and the Right to Petition in Public Employment

Friend of the blog, Bill Herbert, just posted his latest article on SSRN: The Chill of a Wintry Light: Borough of Duryea v. Guarnieri and the Right to Petition in Public Employment. It is scheduled to be published by the University of Toledo Law Review.  

The article analyzes Borough of Duryea v. Guarnieri in the context of American public sector labor history, which includes a legacy of explicit prohibitions on public employees petitioning for improved working conditions and limitations on their right to freely associate for mutual aid and protection.

Herbert argues that in reaching its decision in Borough of Duryea, the Court overlooked the centrality of petitioning in public sector labor relations. The article closely examines the factual and the state legal background of the case to highlight the importance of statutory and contractual protections in public employment, and the pitfalls when those protections are abandoned in favor of constitutional litigation. Finally, the article examines the overlooked question of what enforceable constitutional rights remain for public employees if or when statutory protections and rights are eliminated or substantially curtailed.

Looks very interesting.  Check it out!

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Bodie on Knox Decision: Political Spending = Business Spending (by Unions as well as Corporations)

Cross-Posted at PrawfsBlawg by Matt Bodie (St. Louis/Notre Dame):

Earlier this week, the WSJ touted a new Manhattan Institute study showing that political contributions by corporations have a positive effect on the bottom line. The study found that "most firms, like most individuals, behave rationally and strategically in their spending decisions on campaigns and lobbying, devoting resources in ways that, they have reason to expect, will benefit the corporations themselves and their shareholders." And benefits do come, in the form of lower taxes, more favorable regulation, and earmarks that help the business. The authors calculate that these political benefits improve returns for shareholders by 2% to 5% a year.

It should not be a surprise that corporate political spending helps corporations. This recent study follows upon research by Jill Fisch on FedEx's political spending, which found that "FedEx has successfully used its political influence to shape legislation, and FedEx's political success has, in turn, shaped its overall business strategy." The WSJ uses the Manhattan Institute report to beat back critics of Citizens United who are looking to get corporations out of politics. The Journal opines:

Liberals have been trying to persuade CEOs and corporate boards to stop spending money on politics by claiming that it doesn't pay. But according to a new study by the cofounder of the Democratic-leaning Progressive Policy Institute, corporate participation in politics works for the companies and their shareholders. * * *

In a better world, corporations wouldn't have to devote money and time to politics. . . . But politicians have created a gargantuan state that is so intrusive that businesses have no alternative than to spend money to defend themselves and their shareholders from such arbitrary looting as the medical device tax in ObamaCare. Liberals want business to disarm unilaterally.

Oddly, neither the Journal nor the Supreme Court seem to understand these principles when it comes to unions.

In today's Knox v. SEIU, the Court again privileges the rights of represented employees to opt out--or rather, not to have to opt-out in the first place--from union political spending.  The Court clings to the trope that the union's political spending is somehow extraneous to the core services provided by the union to the represented employees.  But political spending is perhaps even more important to unions than it is to corporations.  I have posted before about SEIU's electoral activity, but it bears repeating--SEIU spent an estimated $85 million to help elect Barack Obama in 2008.  Although the Obama administration failed to get the Employee Free Choice Act passed, it did pass healthcare reform -- which was arguably more of a SEIU priority.  (See Chapter 9 of this book by Steve Early, entitled "How EFCA Died for Obamacare"). Former SEIU President Andy Stern had the highest number of oval office visits of any outsider--22--during the president's first six months in office.  Stern was not in there based on his individual perspicacity about the nation's various problems.  He was in there as president of the fastest-growing union in the U.S. -- one whose members largely worked in the health care field and would benefit from an expansion of health care benefits.

Knox v. SEIU concerns a "Political Fight-Back Fund" levied against represented employees, including nonmembers, to fund political activities in California. Two propositions were on the California ballot: Proposition 75, which would have required an opt-in system for charging members fees to be used for political purposes, and Proposition 76, which would have given the Governor the ability to reduce state appropriations for public-employee compensation.  In response to the petitioner's objection to the special assessment, an SEIU employee said, "we are in the fight of our lives," and it's easy to see the urgency.  If you accede to the principles that (1) employees can choose as a majority whether to have union representation, and (2) all represented employees need to pay for their representation, then political spending should not be excluded.  In an era where state governments are reconsidering collective bargaining rights for public sector unions, political spending is critical to the unions' very existence as businesses.  Unions need to have collective bargaining rights in order to bargain collectively on behalf of represented employees.

The majority's opinion in Knox v. SEIU assumes the distinction between collective bargaining expenses and political expenses without much discussion, other than an interesting block-quote from a Clyde Summers's book review.  (I would argue that all of Summers' examples don't really prove his or the Court's point.)  And at this point, not even the dissent questions the Hudson framework.  But it makes no sense.  Unions and academics should start fighting the framework: unions are businesses, and political spending is business spending.

I did see one glimmer in the Court's opinion, in the following passage:

Public-sector unions have the right under the First Amendment to express their views on political and social issues without government interference.  See, e.g., Citizens United  v. Federal Election Comm’n, 558 U. S. ___ (2010). But employees who choose not to join a union have the same rights.

The Manhattan Institute report, like the Wall Street Journal, recognizes that corporations are not merely "express[ing] their views on political and social issues" when they make political contributions.  They are fighting for their businesses.  The Court should not continue to disarm unions unilaterally in a post-Citizens United world.

SCOTUS Denies Cert in Briscoe v. New Haven

The City of New Haven can't seem to win for losing. The Supreme Court today denied cert. on Briscoe v. New Haven. You may recall that a couple of years ago when Ricci v. DeStefano was issued, the majority opinion had a particularly puzzling piece. This is what I said at the time: 

The last piece of the opinion that I am continuing to puzzle over is the second to last paragraph, where the Court makes this cryptic (to me) statement, providing the City with a defense to the disparate impact lawsuit it was afraid of:

If, after it certifies the test results, the City faces a disparate-impact suit, then in light of our holding today it should be clear that the City would avoid disparate-impact liability based on the strong basis in evidence that, had it not certified the results, it would have been subject to disparate-treatment liability.

I wasn't the only one puzzling. Michael Briscoe filed that disparate impact lawsuit, and while the trial court dismissed it pursuant to this puzzling language, the Second Circuit reversed, finding the claim not precluded by the Ricci case and finding that the Court's statement was mere dicta. Apparently the Supreme Court agreed by not taking the case on cert today. The City settled with the Ricci plaintiffs, I wonder whether it will figure out a way to settle on the disparate impace suit too, or we'll see yet more litigation on this.

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Wisconsin Recall Post-Mortem: Implications for Labor

As one of the few labor law professors here in the State of Wisconsin, and as a close election watcher, I think it is incumbent upon me to give my two cents on the meaning of the Walker recall election for the labor movement in Wisconsin and in the United States.

Although Governor Walker survived the recall with a 53%-46% margin, there are a number of points I wish to emphasize:

1) First and foremost, the Citizens United decision played a huge role.  Walker raised some $31 million for the recall (much from out-of-state billionaires like the Koch Bros) while Barrett raised only $ 4 million. Given the 8-1 disparity in spending, perhaps it is surprising that there was a not a bigger win for Walker.  Also, these numbers belie the sometime allegation of conservatives that unions are raking in huge sums of cash through union dues.  Citizens United primarily favors large corporate donors, plain and simple.

2) I think that the result might have been more about the recall process then saying anything about Walker's agenda or labor's future.  Truth be told, a good segment of the Wisconsin electorate never bought into the idea that a recall was appropriate even if they were against Walker's policies (exit polls from Wisconsin show that 60% of voters think recalls are inappropriate except for malfeasance -- not just when you disagree with policies).   Indeed, when one considers that 19% of Walker voters (according to exit polls) were planning to vote for Obama in November, that makes a lot of sense if one considers that people do not like special process elections like the one we had last night.  So, in short, surviving a recall is not the same as winning an election.

3) Union voters came out in droves to vote (from 26% of electorate in 2010 to 32% of the electorate last night). Yet, and this is important, the labor vote was not monolithic.  Some 36% of union voters (again, according to exit polls) voted for Walker.  Many union members, especially those in the police and firefighter union are Republicans, so no surprise there. But there is anecdotal evidence tha some union members who did not approve of Walker's anti-labor policies, still voted for him in the recall, saying that a recall was not the appropriate process given the situation.  Again, the recall may be more about people being against special process elections than anything else.

4) Silver linings?  Two.  (a) Obama did very well in exit polls (winning 45%-38%) among the voters. Although Obama has been far from a great President for labor, he is still a much better option for labor types than Romney; (b) the State Senate flipped back to Democratic control which means even though the Senate has no planned sesssions for the rest of the year, Walker will be unable to hold special sessions to discuss right-to-work legislation and other conservative agenda items. However, elections occur in Nov. 2012 again for all state assembly seats and some state senate seats, and the important thing for Dems will be to hold the Senate majority for Jan. 2013. If they can, Walker's agenda will be dead in the water for the last two years of his governorship.

5) What does the recall mean for Walker?  Although some say he should be emboldened and bolstered by the victory, his victory speech last night sounded a conciliatory tone. Whether his words are sincere or they result from his realizing that he can't govern by fiat anymore, is anyone's guess.  He also might recognize that he is very much the target of a John Doe investigation and still may be indicted.  Either way, I doubt that he is a viable Vice President candidate given his pending legal issues, his polarizing nature, and the unlikelihood that Romney could win Wisconsin.

6) Finally, what impact, if any, does Walker's recall victory have on other states considering similar labor law reforms. Personally, I think the impact will be small. If anything, the lesson of Wisconsin is that one can get more bees with honey than vinegar. Although most of Walker's labor reforms remain in place (though legal challenges are still pending), Walker, and allied state Senators, have had to endure a year's worth of recall efforts that wasted their time and money.  For other Governors contemplating similar changes, the lesson should be not to go Walker's route if they want to avoid the problems that he has faced. One also has to remember that the Wisconsin recall did not take place in a vacuum and that just last November, Ohio voters resoundingly defeated an anti-collective bargaining bill. So, I think the ripple effects will be miminal in other states from this recall, given the totality of results across the states, and we won't know for sure how aggressive GOP Republican governors will be on the labor front until the voters have spoken again in November.

So, in all, not a good night for Democrats and their labor allies in Wisconsin.  A fatal blow? No. Unions, private and public, will live to fight another day. Union values are too important for many in Wisconsin and elsewhere in the country. And at the end of the day, 1.1 million Wisconsonites voted to recall one of the nation's most anti-labor, pro-corporate Governors in the country.

Am I making lemonade out of lemons? Perhaps. But it would be mistake to draw too many definitive conclusions for the labor movement or for the Presidential election in November based on the Wisconsin recall experience.

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Law Prof Sues Buffalo Dean for Discharge

The Spectrum reports:

On March 23, former UB Law Professor Jeffrey Malkan filed a civil rights lawsuit against Law School Dean Makau W. Mutua in the federal District Court of Buffalo. The suit alleges that two months after Mutua became dean in 2008, he illegally fired Malkan by violating Malkan’s right to due process under the 14th Amendment and barring Malkan access to a mandatory faculty review procedure.

Malkan, former director of the law school’s Legal Research and Writing program (LRW), alleges that Mutua failed to follow non-discretionary faculty review procedures required under Malkan’s contract with the school. The lawsuit also names the current vice dean for legal skills, Charles P. Ewing, who allegedly worked in conspiracy with Mutua to block Malkan’s access to a mandatory faculty grievance process, thus allowing Ewing to become director of the LRW soon after Malkan was fired.

Malkan was fired from the law school because Mutua planned on eliminating the LRW program from the school’s curriculum, a position Malkan had maintained since 2000, the lawsuit alleges. In a letter to Malkan informing him of his termination, Mutua said the new Skills Program (created after the LRW’s termination and awarded Ewing) was an appropriate and legal substitution.

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Secunda on the Wisconsin Public Labor Dispute

Our own Paul Secunda (Marquette) will be speaking at the Centre for Labour Management Relations of Ryerson University in Toronto on April 16. From the school's website advertising the event:

The enactment in June 2011 of Wisconsin Act 10, legislation that eliminated most collective bargaining rights for most public employees in Wisconsin, did not necessarily follow from the economic conditions surrounding the global recession. The argument here is that it was a blatant power grab with political, social and economic implications. Governor Walker's claim that Act 10's anti-collective bargaining approach was required to balance Wisconsin's budget is belied by two unassailable facts.

First, there were a number of provisions in the law, including an annual union recertification requirement and an anti-dues checkoff provision, which had absolutely nothing to do with cost-savings.

Perhaps even more tellingly, when Act 10 was finally enacted by the State Legislature, Walker and his allies employed a legislative procedure which could only be utilized if Act 10 did not have any impact on state fiscal policy. In short, Governor Walker used the global economic crisis, and Wisconsin's budget situation more specifically, as a ruse to enact a punative bill against public sector unions.

Although unions and their allies have drafted, and continue to draft, procedural and substantive legal challenges to Act 10 based on state open meeting laws and constitutionally-based freedom of association and equal protections provisions, these legal challenges have so far been unsuccessful. If such efforts continue to be unsuccessful, it indeed may be a long time before any real public sector collective bargaining will be permitted in Wisconsin. The subsequent loss of workplace rights not only adversely impacts public sector workers, but also the citizens of Wisconsin who will be that much poorer for having to live in a society where internationally-recognized rights of association and collective bargaining are not taken seriously.

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Federal Judge Partially Strikes Down Wisconsin Act 10, the Anti-Collective Bargaining Bill

The Western District of Wisconsin issued its much anticipated opinion in WEAC v. Walker today on the constitutionality of Wisconsin Act 10, the public-sector anti-collective bargaining bill that was enacted into law last June after a monumental political fight. Of course, Act 10's passage continues to have ramifications as Governor Walker was officially subjected to a recall election today (after some 900,000 Wisconsites signed petitions to recall him), with an additional four Republican state senators and the lieutenant Governor also being subject to recall.

I just read this Act 10 decision and my conclusion is: good, but not great. Most of Act 10 survives on equal protection grounds, the court buying the Walker Administration's hard-to-believe argument that it only applies to non-public safety employees, and not public safety officials, because of concerns that public safety employees would be needed if the other public employees went out on strike (even though such strikes would be illegal under Wisconsin law).

Nevertheless, in a clear victory for the public-sector unions in Wisconsin, the onerous recertification and anti-dues check off provisions, that again only applied to non-public safety employees, were enjoined on both equal protection and First Amendment grounds. The cout found asolutely no connected between the Walker administration's purported justifications for treating these two groups of public employees differently and the need for these two punitive provisions. Indeed, the court goes out of its way to all but say that the Walker administration passed these provisions as political payback for those public safety unions that supported Walker in the 2010 election. 

Special kudos to friend of the blog, Joe Slater (Toledo), who was cited twice by the court.  Once for his contribution to the Marquette Law Review Symposium in 2010: Joseph E. Slater, Lessons from the Public Sector: Suggestions and a Caution, 94 MARQ. L. REV. 917, 927 n.65 (2011), and once for the affidavit he submitted on behalf of plaintiff unions, stating that not a single other state in the union had such an onerous recertification provision.

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Conference on Public Sector Bargaining Around the World

Steve Willborn sends us word  of this conference on Public Sector Bargaining Around the World:

On July 2, 2012, a one-day conference will be held in Philadelphia on public sector collective bargaining around the world. Leading scholars from the United States, Japan, France, Canada, Germany, Greece and Italy will discuss their public sector unions. Each country will be represented by a legal and a non-legal scholar. The conference has been organized by Matt Finkin from Illinois. Marty Malin from Chicago-Kent will be the legal scholar from the United States. The draft program is below.

This program is being bsponsored by the US and Canadian Branches of the International Society for Labor and Social Security Law and by the International Association of Labour Law Journals. (By the way, you should join the US Branch of the ISLSSL. It’s inexpensive, includes a subscription to the Comparative Labor Law & Policy Journal, and provides great opportunities to network with overseas colleagues.) The program is being offered in conjunction with the 16th World Congress of the International Labour and Employment Relations Association, which will be in Philly from July 2-5. www.ilera2012.com. As a result, this will be a good set of events to meet lots of interesting people from around the world.

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Zelinsky on Pension Underfunding

Ed Zelinsky has just posted, on OUP log, Public pensions, private equity, and the mythical 8% return.  As I've mentioned here, I believe that public pensions are headed for an epic disaster, and grossly inflated rate-of-return esxpectations are a big part of the problem.  Here's a teaser for Zelinsky's essay:

Public pension plans should not invest in private equity deals. These deals lack both transparency and the discipline of market forces. Private equity investments allow elected officials to assume unrealistically high rates of return for public pension plans and to make correspondingly low contributions to such plans. This is a recipe for inadequately funded pensions, an outcome good for neither public employees nor taxpayers.

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Arizona's Trying to Kill Labor

Laura Cooper (U. Minn.) sends word of a legislative effort afoot in Arizona to eviscerate public-sector collective bargaining.  Here's the story from NPR:

Labor unions plan to rally in front of the Arizona State Capitol on Thursday afternoon to protest four bills quickly moving through the state Legislature that could make last year's Wisconsin labor laws look modest by comparison.

Three of the four bills restrict the way unions collect dues and the way workers get paid for union activities. The fourth bans collective bargaining between governments and government workers: state and local. Unlike Wisconsin, it affects all government employees, including police and firefighters.

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Arizona Public Pension Changes Found Unconstitutional Under Contracts Clause

Last year, I published a piece in the Hofstra Labor and Employment Law Journal titled: Constitutional Contract Clause Challenges in Public Pension Litigation.  The premise of the paper was that Wisconsin and other states risked having their law seeking to reduce public employes ruled unconstitutional under the contracts clause of the federal and states' constitutions.

Now there is a case in point.  On February 1st, a trial court in Arizona found unconstitutional under the federal and state constitution contracts clause an Arizona law which sought to increase employee pension contributions under the state retirement system for public employees. In Barnes v. Arizona State Ret. Sys., Ariz. Super. Ct., No. CV-2011-011638, 2/1/12, the Arizona court said that an Arizona law that altered te proportionate share of state employer/employee retirement contributions was unconstitutional, at least as applied to those workers who were already paying into the system.  This was so because law breached the contract with the state without sufficient cause.  Budgetary problems alone are not considered sufficient reason for breach such a contract.

More specifically, “[t]he Court [found] that such an interference with the Plaintiffs' contractual relationship is unconstitutional pursuant to the contract clause of the Arizona and U.S. Constitution. The unilateral contract modification effectuated by S.B. 1614 not only violates the U.S. and Arizona Constitutions, but also runs afoul of well-established legal precedent unique to our State,” the judge wrote.

Although such rulings are still specific to the peculiarities of state constitutional law and also based on prior public pension litigation, this Arizona case should service notice to state legislators around the country who believe that they can balance state budget deficits by undermining public employees' public pensions.

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Call for Papers for American University Law Labor and Employment Law Forum

Lauren Khouri, Senior Content Editor of the American University Labor & Employment Law Forum writes to tell us that the Forum is issuing a paper call. The paper call is attached here.

Here are som details of the paper call:

The Labor & Employment Law Forum is seeking articles for publication on the following topics:

1) Employee Benefits, including:
• The effects of ‘Don’t Ask Don’t Tell’ repeal;
• The possible Defense of Marriage Act (“DOMA”) repeal;
• The ramifications of the Patient Protection and Affordable Health Care Act;

2) Politicization of the labor movement, including:
• Occupy Wall Street;
• The impact of the Citizen’s United decision on the Labor Movement;
• The continuing attack on Public Sector workers;
• Community organizing and the labor community

3) Paid Sick Days, including:
• The national paid sick day movement
• The effect of paid sick leave on women and children

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