Tuesday, May 13, 2014
The NLRB is asking for amicus briefs on the issues in the Northwestern football players election case by June 26. It would be a great opportunity for those interested to weigh in.
h/t Charlotte Garden
Thursday, March 27, 2014
The Wall Street Journal's Law Blog has a helpful roundup of media commentary on the decision by the NLRB's regional counsel that Northwestern football players were employees and eligible to bargain collectively, which Jason and Jeff posted about yesterday. Jon Hyman, the Ohio Employer's Blog, offers his thoughts here. Tom Crane, San Antonio Employment law blog, has posted this. Former guest blogger, Joseph Mastrosimone (Washburn), offered his perspective earlier this year in this post at the Huffington Post.
If you prefer to listen to commentary, here is an interview of Joe Slater (Toledo) on the Scott Sands show on Toledo's WSPD.
In the scholarship category, Thomas Frampton and Nicholas Fram wrote A Union of Amateurs: A Legal Blueprint to Reshape Big-Time College Athletics, published in the Buffalo Law Review, outlining the case for the players. The article argues that oft-overlooked Seattle Opera case, affirmed by the DC Circuit, provides the strongest support for the players--and it was relied upon by the regional director in the Northwestern decision.
I'm sure many readers of the blog have also contributed to stories or have written on the subject--let us know. Post them in the comments or send me an email, and I'll add them to the list.
Wednesday, February 19, 2014
Faculty members at the University of Illinois at Chicago have called a 2-day strike, to last today and tomorrow, to help raise awareness of the contract negotiation issues with the trustees. See here for a general description, here for what many of the issues are, here for an opinion piece about the role of public higher education in a city with serious income inequality, and here and here for a description by some faculty members about why they are striking.
The issues sound very similar to issues at lots of universities, although somewhat magnified by the student population UIC serves: lack of sufficient numbers of faculty to serve a group of students at the lower end of the socioeconomic scale, many of whom are immigrants, may be first-generation college students, and may be working their way through school; lack of status, job protection, and sufficient pay for a good chunk of faculty; salary compression, stagnant pay, and a lack of other support for tenured faculty. On the other side are state budgetary pressures and a lack of public support for higher education.
These issues seem inseparable from other employment and wealth trends and whether there are such things any more as public goods. Has higher education always been this much of a mess, and I just didn't know because I didn't work there?
Tuesday, January 28, 2014
ESPN this morning reported that a group of college football players at Northwestern have filed a representation petition with the NLRB, seeking to be recognized for bargaining purposes. More stories here and here. Northwestern's response here, and the NCAA's here. Mike McCann (New Hampshire) weighs in here. The biggest hurdle for the players will be in demonstrating that they are employees for purposes of the NLRA, which ties into debates about whether college athletes in revenue generating sports should be paid and others.
Monday, January 13, 2014
Thanks to Stephen Diamond (Santa Clara) for bringing to my attention an interesting series of upcoming events. Santa Clara University School of Law's Center for Social Justice and Public Service is sponsoring a series of Spring Workshops entitled: Law and Labor in the Field.
The first workshop is January 30th and the last is March 27th. For the full schedule and program details, see here. Among the participants are Bill Gould (Stanford), Maria Ontiveros (San Francisco), and Ruben Garcia (UNLV).
The Workshop will be led by Stephen and will examine the relationship between legal institutions and farm labor in California, the United States and globally. Each session begins at 4:05 pm, Bannan 333, SCU School of Law, 500 El Camino Real, Santa Clara, CA 95053. Reception follows. Public welcome.
Tuesday, January 7, 2014
Friend of the blog, Mitchell Rubinstein of the Adjunct Law Prof Blog has an interesting post concerning the potential formation of attorney labor unions in Ohio.
Here is a taste:
A few years ago I wrote a short article about attorney labor unions. (Attorney Labor Unions article)
The point of that article is that attorneys are employees like anyone else. The rules are not any different simply because lawyers are involved.
There is a battle going on in Ohio whether Assistant Directors of Law for the Civil Division in the City of Cleveland are eligible for unionization. The issue boils down to whether or not these attorneys are public employees as that term is defined in the Ohio statute.
The City won round one in that the Ohio State Employment Relations Board held that the attorneys were not public employees because they act in a fiduciary capacity to public officals.
Read more about this interesting case and Mitch's observation in his post. Could be an important development for attorneys looking for more voice in the workplace.
Wednesday, December 25, 2013
Charlotte Garden (Seattle) and Matt Bodie (SLU) write to tell us that a group of labor law professors is submitting an amicus brief in support of the union and state respondents in Harris v. Quinn, currently pending before the U.S. Supreme Court. As many of you may know, the case is about whether Illinois may allow certain home health care workers to elect a union as their exclusive representative and require represented workers to pay an agency fee.
If you would like to see a copy of the brief in order to decide whether you would like to sign on to it, please contact Charlotte at email@example.com by Saturday, Dec. 28.
Monday, November 18, 2013
Joseph E. Slater (University of Toledo College of Law) has posted on SSRN his recent piece in the Hofstra Labor and Employment Law Journal entitled: The Strangely Unsettled State of Public-Sector Labor in the Past Thirty Years.
Here is the abstract:
This article, part of a symposium on the history of various areas of labor and employment law, gives an overview of public-sector labor law and labor relations in the past thirty years. The public sector has for decades been central to labor relations in the U.S.; increasingly, it has also acquired a high profile in the political world. Despite great successes in organizing by public-sector unions, public-sector labor law has long been in a state of tumult (including, but not limited to, high-profile laws passed in 2011 gutting the rights of such unions). Although by the 1980s, it seemed as if public-sector collective bargaining was widely (if not universally) accepted, and that it functioned fairly well, the next three decades featured surprising upheavals. Because there is so much variation within the public sector (it is mainly state and local law), there is no single story of the past three decades. This article discusses illustrative events in this period, events which helped shape the broader history of labor relations. It starts with early history of public-sector labor law, then moves to the last three decades. For the 1980s, it discusses two key (and contrasting) events of the early part of the decade: the crushing defeat of the PATCO strike, and the enactment of the Ohio public-sector labor statute. It then discusses some significant twists and turns in the 1990s. Moving to the twenty-first century, it discusses some (mostly positive) trends for public-sector unions in the first decade of the century, but then turns to the wave of anti-union legislation in 2011 and beyond — although even here, there are some developments in the other direction, e.g. union rights for TSA employees. These events feature defeats and victories over issues as basic as whether public employees should have the right to bargain collectively at all, and they have shaped the entire U.S. labor movement, including the public sector. The also show how public-sector labor relations remains a strangely unsettled issue. The final sections discuss the practical and theoretical policy issues at stake, and attempt to make some predictions for the future.
Joe is one of the preeminent public sector labor law scholar in this country, and I would highly recommend this very-readable piece to anyone who is trying to understand the on-going disputes over the place of public sector unions in American society. I have been front and center as far as the Wisconsin public sector union dispute is concerned since 2011 and am looking forward to reading Joe's piece in more depth to place my own experiences in historical perspective.
Wednesday, September 25, 2013
Freeman Guest-Blog Post: Death of an Adjunct Sparks Discussion on the Challenge of Precarious Employment in Higher Ed
I am happy to introduce below a very interesting guest post today by Harris Freeman (Western New England) on the tragic death of an adjunct faculty member at Duquesne and its labor and employment law implications. PS
This past weekend, NPR’s Weekend Edition ran a story on the death of Margaret Mary Vojtko, an 83-year old adjunct French professor at Duquesne University, and that school’s refusal to recognize the vote of its adjuncts to unionize. After 25 years of teaching French as an adjunct, Duquesne dismissed Vojtko this past spring; she was earning about $10,000 a year without benefits or health insurance. At the time of her termination, Vojtko, who was undergoing cancer treatment. supported the adjunct union backed by the United Steelworkers. In June, the Duquesne adjuncts, who comprise nearly half the faculty in the school’s liberal arts college, won a an NLRB-sponsored election. Duquesne immediately challenged the vote claiming that its status as a religious institution exempts it from any obligation to bargain with the adjunct union. The NLRB rejected the university’s position, and Duquesne has appealed. Editorials and news articles on Vojtko’s passing and the unionizing effort peppered the Pittsburgh media.
The NPR story went viral on social media, rekindling the longstanding criticisms of labor and many others in higher ed who raise a host of concerns regarding the ballooning number of adjunct faculty that are now essential to the running of most large colleges and universities. The numbers are stark. The American Association of University Professors reported in 2011 that 70% of college faculty worked outside the tenure track; in 1975 it was 43%. Part-time teachers in higher ed number more than 760,000 or about half of the non-tenured teaching faculty. NPR reports average yearly pay for adjuncts, professionals with Ph.Ds, Masters and J.D.s - often itinerant “roads scholars” teaching at multiple institutions – is between $20,000 and $25,000.
In this environment, adjunct organizing keeps gaining steam. This past spring adjunct organizing conferences sponsored by SEIU and the Steelworkers Union occurred respectively, in Boston, a veritable hub of the higher ed industrial complex, and Pittsburgh. In Boston, the home of 13,000 adjuncts, SEIU Local 500 is pursuing a city-wide, cross campus organizing strategy. Already, some larger state university systems, (e.g., University of Massachusetts) have accreted adjuncts into existing faculty unions and some small private colleges (e.g., New School for Social Research, New York; Emerson University, Boston and Georgetown, Washington D.C.) have recognized adjunct unions. In fact, SEIU Local 500 now claims that it represents the majority of adjuncts in the Washington D.C. area.
What may be new is that the current discussion of the work conditions facing adjuncts comes on the heels of a national dialog on the ills of precarious employment that keeps widening as a result of temps, part-timers, and other low-wage employees organizing and speaking out. In recent months, the major news outlets covered job actions and strikes by warehouse temps doing the grunt work for retailers in the global logistics sector and the coordinated protest strikes of low-wage workers employed at America’s ubiquitous fast-food outlets.
This information and these events provide much grist for the teaching mill in any workplace law course and a cautionary tale for all academics. In this context, recall that the ABA is considering removing the requirement of tenure for law school accreditation. The downward pull of precarious work in mainstream labor markets has a long reach that should cause all tenured faculty and others in the academy with some form of job security to take a closer look at what is happening at their law school, college, or university.
Monday, September 9, 2013
Thanks to Ron Turner (Houston) for bringing to my attention this article from The New York Times last week: VW and Auto Workers Explore Union at Tennessee Plan.
Apparently, Volkswagen is in the process of negotiating with the United Automobile Workers (UAW) at VW's Chattanooga, Tennessee plant on how to unionize the plant and create a German-style works council there.
A tidbit from the article:
The company would be the first German automaker to have such a council at a United States plant. A works council is a group of employees, including both white- and blue-collar workers, that meets with management on issues like working conditions and productivity.
But to avoid violating American labor laws, the plant would first have to be formally unionized, the company said . . . .
None of the foreign carmakers with auto plants in the South are currently unionized.
The part of the labor law that would be violated would be Section 8(a)(2) of the NLRA which does not tolerate employer domination or assistance of labor organizations. This provision makes employer-employee cooperation difficult in the union setting sometimes. This is not an issue in Germany and other countries where employer-employee cooperation inside and outside the union environment is much more common.
Needless to say, it will be interesting to see if this arrangement actually comes to fruition and whether it might provide a model for other manufacturing plans, auto and otherwise, for running a productive workplace with sizable employee input. Also good to see an open-minded employer not mindlessly fighting unionization at all cost and instead recognizing "them as a useful source of ideas from the shop floor and a vehicle to build consensus and employee morale."
Friday, August 9, 2013
In this regard, he has posted on his blog, Charles J. Morris on Labor Relations, a warm-up for that prospect. The post is entitled: Members-Only Collective Bargaining: Get Ready for an Old Concept for a New Use, and the full version of his post is available on Charlie's blog.
Here's a taste of Charlie's post:
It is especially important that the AFL-CIO and other participants in American labor relations become better acquainted with the concept of members-only collective bargaining because the National Labor Relations Board will likely be considering that process in the near future. Validation of this innovative process can be of immense help in getting American workers back on the road to a robust labor movement and a major expansion of collective bargaining that will help build a stronger middle class.
The need for such a process has been dramatically evidenced by recent work stoppages at various Wal-Mart and fast-food locations. Although those walk-outs represent commendable examples of courageous workers fighting back, they will inevitably be unsuccessful in achieving significant change. Despite their legitimate complaints, those low-wage workers have no effective mean to engage management in a dialogue about working conditions―much less in a consequential bargaining session that might significantly improve those conditions.
They obviously need a union; but in accordance with prevailing conditions under the National Labor Relations Act (NLRA or Act), union representation is virtually unavailable to them and to most other American workers. The sad fact is that Wal-Mart and other anti-union companies are almost always able to prevent their employees from achieving union representation. Many―if not most― nonunion companies routinely indoctrinate their workforce with anti-union rhetoric and frequently engage in aggressive conduct—both legal and illegal—to successfully discourage any support for workers organizing into groups for any purpose. Employment discrimination and discharges for union activity, and the fear of such retaliation, are commonplace.
As Charlie points out, this is the same piece that he submitted to the AFL-CIO in its search for new ways of rebuilding the labor movement and collective bargaining. Charlie is the master on this topic and I highly recommend that those looking for alternatives to increase worker voice in the American workplace give serious consideration to Charlie's proposals.
It is my pleasure to bring to the attention of the readers of this blog the recent launch of a new academic labor law blog, jointly run by Ben Sachs and Jack Goldsmith (both of Harvard Law). It is aptly titled: On Labor.
A little taste of the blog's aspirations from the "About" section:
On Labor is a blog by Benjamin Sachs and Jack Goldsmith devoted to workers, unions, and their politics. We interpret our subject broadly to include the current crisis in the traditional union movement (why union decline is happening and what it means for our society); the new and contested forms of worker organization that are filling the labor union gap; how work ought to be structured and managed; how workers ought to be represented and compensated; and the appropriate role of government – all three branches – in each of these issues.
It looks like there will also be some other contributors to the blog who are students at Harvard Law School.
There are already some very interesting blog posts up, including one on the forthcoming Supreme Court Mulhall case, which Ben says "could be the most significant labor law case in a generation."
Check it out!
Tuesday, May 7, 2013
Thanks to Charlotte Garden (Seattle) for passing on this interesting and under-reported story about a new case just filed in California which has the potential to drastically change the way public unions operate in that state. The case is Friedrichs v. California Teacher Association and the complaint can be found here.
Peter Scheer on the 1st Amendment News website writes in his post, New 1st Amendment Case Poses Existential Threat to Public Employees Unions:
In a scarcely-noticed lawsuit filed [April 29th] in federal district court in Los Angeles, a conservative nonprofit, the Center for Individual Rights, claims that California’s system for collecting union dues from government employees abridges free speech safeguards by compelling employees to subsidize union political advocacy and activities with which they disagree.
And in case you think this case is a non-starter in light of the U.S. Supreme Court's Abood decision, think again:
On first look, the suit looks like a loser because the challenged union practices were upheld in a 20-year-old US Supreme Court decision, Abood v. Detroit Board of Education. Nonetheless, on second look, the suit has a very respectable chance of succeeding because of a 2012 Supreme Court decision, Knox v. SEIU, in which five justices said, in effect, that the Abood decision was a mistake. Also, the plaintiffs are represented by Jones Day, one of the biggest and best law firms in the country, which wouldn’t have taken the case unless prepared to litigate all the way to the nation’s highest court.
In other words, another attack on the very existence of public unions, like we have already seen in Wisconsin, Ohio, and Michigan. The California public employee unions are extremely strong and willing to put the necessary money into this litigation to win, so it is anyone's guess what might happen. It might come down to the judicial make-up of the California Supreme Court when, and if, the case is appealed there (as it did with Act 10 and the conservative-leaning Wisconsin Supreme Court).
Thursday, March 21, 2013
One of my favorite bloggers on higher education, Dean Dad at Confessions of a Community College Dean, asks: Should a public college partner with a private company to train scabs? I'd encourage Workplace Prof Blog posts to read the entire post and to comment over at Dean Dad's blog.
Anya Kamenetz has a thought-provoking piece about the Milwaukee Area Technical College’s agreement to run welding programs for Caterpillar. Caterpillar is expecting a strike, so it wants the local technical college to train its managers and non-unit staff to be able to do union jobs if its welders walk off the job. MATC is responding to employer need, offering training in an employable skill and thereby supporting the local economy. Now the Steelworkers’ union is petitioning MATC to refrain from what it considers pre-emptive strikebusting. It’s an ugly, sticky issue.
There’s nothing objectionable about a technical college teaching welding. It has done that for years, and I assume has done it well. And there’s nothing unusual about a college contracting with specific private employers to run classes or training workshops for its employees. Community colleges have done that for decades. * * *
In this case, the union is essentially asking the college to take a moral position that training these workers in this skill at this time is wrong. * * * [T]hinking through the consequences of taking a self-consciously moral position gets complicated quickly. Suppose MATC told Caterpillar to go away. The governor of Wisconsin isn’t known for being particularly union-friendly; I can imagine severe political (and therefore budgetary) consequences for the college far beyond the loss of the contract. Something like that is going on now in Michigan, where some public colleges are trying to sign long-term contracts with unions to beat the “right to work” deadline, and legislators are threatening budgetary retaliation. * * *
Wise and worldly readers, what would you do? If you ran MATC, would you honor the union request, or would you run the program?
Friday, February 8, 2013
Improving the working conditions of all American workers must include considering the voices of one group traditionally underrepresented in union ranks and leadership — women. In this paper, I explore the interrelationship between women, unions, and women’s willingness to negotiate. Despite the tumultuous history of women’s involvement in the unionized labor market, women’s participation in unions is increasing relative to men. Recent studies also reveal that women significantly benefit from union representation, even more significantly than men. One reason for this disparity is that many women have not been very successful in negotiating on their own behalf. For many reasons explored in this paper, many women have been socialized to be uncomfortable negotiating for what they deserve. Thus, women benefit by participating in unions, where the negotiation is done on their behalf, and we should be encouraging women’s involvement in unions. Furthermore, women are still grossly underrepresented in union leadership roles. Because studies show that women are more likely to join a union when there are more women leaders, increasing the number of female union leaders should lead to an increase in women’s participation in unions. More women in leadership roles also has the potential to improve the overall success of the union, garner more attention to issues important to women, and bring a new perspective to union/management negotiation. Even though the negotiation literature suggests that women are often unwilling to negotiate on their own behalf, this paper will demonstrate they are very willing to and effective at negotiating on behalf of others. Finally, I will demonstrate how effective women can be as leaders and advocates when they work together to reach a common goal.
Wednesday, December 5, 2012
Congratulations to Michelle Miller and Jess Kutch, friends of the blog, who have just officially launched Coworker.org and its first official petition campaign on behalf of a fired Walmart worker in Arkansas.
Here is what I wrote about Coworker.org in my recent paper considering alternative models to the existing Wagner Model of labor law in the United States:
[Coworker.org] is an online platform that puts the power of collective bargaining into the hands of all workers, all over the world. It represents a scalable departure from traditional union organizing by providing ordinary people with online tools and training to organize their co-workers and advocate for changes on the job.
When coworker.org launches, it will be a petition-based internet service. The worker’s initial point of entry will be the creation of a petition centered on the change they would like to see in their workplace and would target their bosses. The process of procuring fellow employees to sign the petition would be how these employees would form their organizing committees going forward . . . [B]y using social media “share” functions on services like Facebook and Twitter, workers will be able begin to promote their workplace campaigns and gather coworker interest in the same workplace issues.
It is a fabulous idea which responds perfectly and timely to the challenges facing worker rights organizations in our global, mobile, and tech-savvy economy. Check out the site and if the spirit moves you, sign the petition to get the Walmart worker her job back!
Friday, June 22, 2012
Well, it's now been over a year and a hlaf since the Board ordered a hearing in which it indicated its desire to reconsider Brown University's ruling that grad students aren't employees under the NLRA. Today, the NLRB announced that it will in fact review this issue in two cases and has invited amicus briefs on the issue. The invitation for briefs lists these questions:
1. Should the Board modify or overrule Brown University, 342 NLRB 483 (2004), which held that graduate student assistants who perform services at a university in connection with their studies are not statutory employees within the meaning of Section 2(3) of the National Labor Relations Act, because they “have a primarily educational, not economic, relationship with their university”? 342 NLRB at 487.
2. If the Board modifies or overrules Brown University, supra, should the Board continue to find that graduate student assistants engaged in research funded by external grants are not statutory employees, in part because they do not perform a service for the university? See New York University, 332 NLRB 1205, 1209 fn. 10 (2000) (relying on Leland Stanford Junior University, 214 NLRB 621 (1974).
3. If the Board were to conclude that graduate student assistants may be statutory employees, in what circumstances, if any, would a separate bargaining unit of graduate student assistants be appropriate under the Act?
4. If the Board were to conclude that graduate student assistants may be statutory employees, what standard should the Board apply to determine (a) whether such assistants constitute temporary employees and (b) what the appropriate bargaining unit placement of assistants determined to be temporary employees should be?
The notice also states that "[b]riefs not exceeding 50 pages in length shall be filed with the Board in Washington, D.C. on or before July 23, 2012. The parties may file responsive briefs on or before August 6, 2012, which shall not exceed 25 pages in length. No other responsive briefs will be accepted. The parties and amici shall file briefs electronically at https://mynlrb.nlrb.gov/efile. If assistance is needed in filing through https://mynlrb.nlrb.gov/efile, please contact the undersigned."
Much more to come on this later . . . .
Thursday, June 21, 2012
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.
The Supreme Court issued its decision in Knox this morning and went against the union in a 7-2 decision. It appears to mandate an opt-in system for special assessments and possibly dues increases (I haven't had time to more that skim the opinion, but there seem to be several questions left open). Two Justices only concurred, and would limit their decision to the holding that a union can't collect nonchargeable funds from employees who earlier objected to such payments. Here's the official summary:
1. This case is not moot. Although the SEIU offered a full refund toall class members after certiorari was granted, a live controversy re- mains. The voluntary cessation of challenged conduct does not ordi- narily render a case moot because that conduct could be resumed as soon as the case is dismissed. See City of Mesquite v. Aladdin’s Cas- tle, Inc., 455 U. S. 283, 289. Since the SEIU continues to defend the fund’s legality, it would not necessarily refrain from collecting similar fees in the future. Even if concerns about voluntary cessation were inapplicable because petitioners did not seek prospective relief, there would still be a live controversy as to the adequacy of the refund no- tice the SEIU sent pursuant to the District Court’s order. Pp. 6−8.
2. Under the First Amendment, when a union imposes a special as- sessment or dues increase levied to meet expenses that were not dis- closed when the regular assessment was set, it must provide a fresh notice and may not exact any funds from nonmembers without their affirmative consent. Pp. 8−23.
(a) A close connection exists between this Nation’s commitment to self-government and the rights protected by the First Amendment, see, e.g., Brown v. Hartlage, 456 U. S. 45, 52−53, which creates “an open marketplace” in which differing ideas about political, economic, and social issues can compete freely for public acceptance without improper government interference, New York State Bd. of Elections v. Lopez Torres, 552 U. S 196, 202. The government may not prohibit the dissemination of ideas it disfavors, nor compel the endorsement of ideas that it approves. See, e.g., R. A. V. v. St. Paul, 505 U. S. 377, 382. And the ability of like-minded individuals to associate for the purpose of expressing commonly held views may not be curtailed. See, e.g., Roberts v. United States Jaycees, 468 U. S. 609, 623. Close-ly related to compelled speech and compelled association is compelled funding of the speech of private speakers or groups. Compulsory subsidies for private speech are thus subject to exacting First Amendment scrutiny and cannot be sustained unless, first, there is a comprehensive regulatory scheme involving a “mandated association” among those who are required to pay the subsidy, United States v. United Foods, Inc., 533 U. S. 405, and, second, compulsory fees are levied only insofar as they are a “necessary incident” of the “larger regulatory purpose which justified the required association,” ibid. Pp. 8−10.
(b) When a State establishes an “agency shop” that exacts com- pulsory union fees as a condition of public employment, “[t]he dis- senting employee is forced to support financially an organization with whose principles and demands he may disagree.” Ellis v. Railway Clerks, 466 U. S. 435, 455. This form of compelled speech and associ- ation imposes a “significant impingement on First Amendment rights.” Ibid. The justification for permitting a union to collect fees from nonmembers—to prevent them from free-riding on the union’s efforts—is an anomaly. Similarly, requiring objecting nonmembers to opt out of paying the nonchargeable portion of union dues―rather than exempting them unless they opt in―represents a remarkable boon for unions, creating a risk that the fees nonmembers pay will be used to further political and ideological ends with which they do not agree. Thus, Hudson, far from calling for a balancing of rights or in- terests, made it clear that any procedure for exacting fees from un- willing contributors must be “carefully tailored to minimize the in- fringement” of free speech rights, 475 U. S. 302−303, and it cited cases holding that measures burdening the freedom of speech or as- sociation must serve a compelling interest and must not be signifi- cantly broader than necessary to serve that interest. Pp. 10−13.
(c) There is no justification for the SEIU’s failure to provide a fresh Hudson notice. Hudson rests on the principle that nonmembers should not be required to fund a union’s political and ideological pro- jects unless they choose to do so after having “a fair opportunity” to assess the impact of paying for nonchargeable union activities. 475 U. S., at 303. The SEIU’s procedure cannot be considered to have met Hudson’s requirement that fee-collection procedures be carefully tailored to minimize impingement on First Amendment rights. The SEIU argues that nonmembers who objected to the special assess- ment but were not given the opportunity to opt out would have been given the chance to recover the funds by opting out when the next annual notice was sent, and that the amount of dues payable the fol- lowing year by objecting nonmembers would decrease if the special assessment were found to be for nonchargeable purposes. But this decrease would not fully recompense nonmembers, who would not have paid to support the special assessment if given the choice. In any event, even a full refund would not undo the First Amendment violations, since the First Amendment does not permit a union to ex- tract a loan from unwilling nonmembers even if the money is later paid back in full. Pp. 14−17.
(d) The SEIU’s treatment of nonmembers who opted out when the initial Hudson notice was sent also ran afoul of the First Amendment. They were required to pay 56.35% of the special as- sessment even though all the money was slated for nonchargeable, electoral uses. And the SEIU’s claim that the assessment was a windfall because chargeable expenses turned out to be 66.26% is un- persuasive. First, the SEIU’s understanding of the breadth of chargeable expenses is so expansive that it is hard to place much re- liance on its statistics. “Lobbying the electorate,” which the SEIU claims is chargeable, is nothing more than another term for support- ing political causes and candidates. Second, even if the SEIU’s sta- tistics are accurate, it does not follow that it was proper to charge ob- jecting nonmembers any particular percentage of the special assessment. If, as the SEIU argues, it is not possible to accurately determine in advance the percentage of union funds that will be used for an upcoming year’s chargeable purposes, there is a risk that un- consenting nonmembers will have paid too much or too little. That risk should be borne by the side whose constitutional rights are not at stake. If the nonmembers pay too much, their First Amendment rights are infringed. But, if they pay too little, no constitutional right of the union is violated because it has no constitutional right to re- ceive any payment from those employees.
Monday, April 2, 2012
The editors of the American University Labor and Employment Law Forum Symposium invite everyone to attend their 2012 Symposium: Labor Movement 2.0: The Role of Organized Resistance in the 2012 Elections.
The Symposium is scheduled for next Monday, April 9, 2012 from 9 am - 3 pm at the American University Washington College of Law, 4801 Massachusetts Avenue, NW, Room 603, Washington, D.C.
From the conference flyer:
A timely examination of the fight for workers’ rights and the critical role of political action, through unions and grassroots community organizing. Political action has been used to establish wage floors and hours ceilings, provide for workers’ health, safety, and long-term security. The other side of the coin reveals that it has also been used to limit workers’ abilities to negotiate the terms of their employment. How will political action via unions, PACs and grassroots community organizing impact the current status of the American worker in 2012?
Up to four and a half (4.5) CLE hours will be applied for as requested to different states, for a charge of $220.00. To register, go to https://www.wcl.american.edu/secle/cle_form.cfm and choose the event from the drop down menu.