Workplace Prof Blog

DC LERA: Collaboration between Immigrant Worker Centers and Unions

Thanks once again to Tequila Brooks for sending word of DC LERA's program Labor’s New Kids on the Block: Collaboration between Immigrant Worker Centers and Unions. It will be online, April 21, 2021, 11:00-noon. Here's a brief description:

Join DC LERA for a conversation between Dr. Ben Kreider, Policy Consultant, and Discussant Carlos Jimenez of the AFL-CIO about immigrant worker centers, new forms of organizing, and collaboration between immigrant worker centers and unions. Dr. Kreider will be presenting his dissertation research on the subject.

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Union Representation of NFL Players

DC LERA is hosting Understanding Union Representation for Professional Football Players: Mark Hyman in Conversation with Adam Richelieu of the NFLPA. It will be held Wednesday, December 16, 2020, 12:00 pm – 1:00 pm Eastern. There is no fee, but registration is required. Here's a description:

Join DC LERA for a conversation between Mark Hyman, Director of the Shirley Povich Center for Sports Journalism at the University of Maryland, and Adam Richelieu of the NFL Players Association – and one of the sport's leading experts on player compensation under the collective bargaining agreement – about Adam’s work behind the scenes to support players' rights. Adam will also tell a personal story, explaining his path from GWU graduate student to his current position.

Thanks to Tequila Brooks for sending this.

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AFL-CIO & SEIU File ILO Complaint Against U.S. Government

Thanks to Lance Compa for circulating this: The AFL-CIO and SEIU have filed a complaint with the ILO Committee on Freedom of Association against the Trump administration for violations of ILO standards on Freedom of Association in connection with the Covid-19 crisis in the workplace. Here is a Washington Post article on the complaint; here is the complaint itself.

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Union Density -- Including Public Sector -- Dropped Further in 2018

The Wall Street Journal reports today that data from the Department of Labor show union density continuing to fall. Total density in 2018 was 10.5%, down from 10.7% in 2017. Density in the public sector fell from 34.4% to 33.9%). Here's a link to the DOL BLS press release with links to the relevant tables; below is an excerpt from the WSJ article:

The overall rate of union membership in the U.S. fell last year, largely reflecting a decline in the rate of state employees’ unionization, according to the latest Labor Department data.

The union membership rate, or the percent of wage and salary workers who were members of unions, dropped to 10.5% in 2018 from 10.7% a year earlier, the Labor Department said Friday.

The decline stems mainly from a decrease in union membership among state employees, whose membership rates fell to 28.6% in 2018 from 30.3% a year earlier.

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Is L.A. Teachers' Strike a Harbinger of Things to Come?

Yes, says Erin McHenry-Sorber (Assistant Professor of Higher Education, West Virginia University -- and thanks to Paul Harpur for sending me the link). Here's an excerpt from her recent article in The Conversation:

The Los Angeles teachers strike suggests that the wave of teacher protests is not over.

Teacher strikes and work stoppages have been preceded by a nationwide teacher shortage that continues to grow across many states, which do not have enough certified math, special education, science, and in increasing cases, elementary teachers – to meet the needs of their students. In California 80 percent of districts reported a teacher shortage in the 2017 to 2018 school year.

Teacher shortages are most often blamed on low teacher pay, one of the commonalities across teacher strikes.  These shortages are arguably exacerbated by an increase in the “teacher pay penalty,” the term used to describe disparities in teacher salary compared to professions requiring comparable levels of education.

At the same time teachers find themselves increasingly undervalued, most states are still funding their public education systems at levels below that of the 2008 recession. This includes California, which is ranked 41st nationwide in per pupil spending when adjusted for cost of living. As long as public schools remain underfunded, the nation can expect to see more teacher strikes in other school districts and states in the near future.

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RIP Michael Martin, former Speaker of UK Commons and Champion of Unions

I was struck this weekend by the obituary in The Economist of Michael Martin, former Speaker of the UK House of Commons. His origins were solidly working-class -- an attribute all to rare on both sides of the Atlantic these days. Here's an excerpt from the obit:

[H]e was ... the first Catholic to be Speaker since Reformation times, when Thomas More, another saint, had done the job. His motto, in Gaelic, was “I strive to be fair”.

That was the essence of his job, and it was tricky. The Speaker could favour no party. But, like all Speakers, he was still a constituency MP. Since 1979 he had held a solid Labour majority in Glasgow Springburn. This was where he had first gone to work at “the Loco” [North British Locomotive Company, where he worked as a sheet-metal worker] at 15, with very little schooling. As a long-time shop steward and organiser for the engineering union, he had won the seat with hefty union help. His constituency was infested with heroin addiction, alcoholism, decrepit housing (his chief concern) and, as the old plants closed down, joblessness. He was mindful that he had joined the Labour Party and gone into politics to help working people.

...

What faced him on the other side was snobbery and disrespect. That rolling Glaswegian accent reminded southerners of pub brawls on Saturday nights. His posh diary secretary called him “Mr Martin”, not “Mr Speaker”. His private secretary, public school and Oxbridge, struck him as pompous. Both left. Because he was not too proud to ask his clerks for advice during debates, critics said he was floundering in his job. The parliamentary sketchwriters, the worst of the mockers, called him “Gorbals Mick”. That was brainless—he was from north of the Clyde, the Gorbals lay south. It also proved they were not fit to wipe the boots of Gorbals people.

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Oral Argument in Janus

Today, the Supreme Court heard oral arguments in Janus v. AFSCME, the newest in several decisions in which a bloc on the Court has attempted to strike down public-sector mandatory union fees (see here, here, and here for some of our earlier coverage). I'm going to go out on a limb and predict that this time is the charm. The 8 veteran Justices age no reason to think that they moved from previous positions, which results in a 4-4 split on this issue. The newer Justice Gorsuch was uncharacteristically silent during oral argument, but I'd be stunned if he doesn't vote with the conservative bloc to overturn Abood and find such fees to be unconstitutional. You can judge for yourself by reading the oral argument.

-Jeff Hirsch

Morantz on What Unions Do for Regulation

What do unions do for regulation? That's the subject of Alison Morantz's recent and timely review of the research literature: "What Unions Do for Regulation," Annual Review of Law and Social Science 13 (2017): 515-534. Here's the abstract:

The question of how organized labor affects the content, enforcement, and outcomes of regulation is especially timely in an era in which protective laws and regulations are being scaled back or minimally enforced and union membership is in decline. This article surveys literature from a wide array of regulatory domains—antidiscrimination, environmental protection, product quality, corporate governance, law enforcement, tax compliance, minimum wage and overtime protection, and occupational safety and health—in an effort to identify common findings on what unions do for regulation. Literature on the topic has taken up five questions: how labor unions affect the passage of protective laws and regulations; how they affect the outcomes that regulators target; how they affect the intensity of regulatory enforcement; the specific activities and channels of influence they use to influence regulated outcomes; and the role they play in self-regulation. Drawing on empirical literature from the domains listed, I review and analyze literature on each of these questions and offer several conclusions and suggestions for future research.

 

Morantz's main conclusion: There's a lot of support in the research literature for thinking that, "in most contexts, unions' tendency to strengthen workers' collective voice and mitigate market imperfections predominates their tendency to exert monopoly power and engage in economic rent-seeking." The best evidence of this comes from studies of how unionization strongly correlates with lower rates of serious and fatal workplace injuries. Some prior research also shows that unions tend to lower overall wage dispersion, which may indirectly reduce pay discrimination against women and racial minorities.

 

--Sachin Pandya

Herbert on the History of Higher Ed Collective Bargaining

Bill Herbert (Hunter College) recently did an interview with Radio Higher Ed: "A Primer on Unionization and Collective Bargaining in U.S. higher Education Institutions." According to the summary:

This primer on collective bargaining in higher education traces historical developments of unionization in public and private institutions as well as among tenure track, non-tenure-track faulty and graduate students. In the last five years, unionization activity has increased over 25% in the private sector, mostly in adjunct faculty units. While institutions can participate in voluntary collective bargaining activities, agreements in a formal collective bargaining context include clear rules applicable to the entire bargaining unit and enforcement mechanisms. The emergence of micro bargaining units (department level activity), and specifics of the unionization process are discussed. Specific unions that work with higher education institutions are named. Mandatory subjects in the collective bargaining process include salary, hours, healthcare, pension, professional development grievance, antidiscrimination, academic freedom, tenure, use of facilities, appointment and reappointment details, leaves, holidays, evaluations, personnel files, disciplinary actions, research and fellowship monies. Institutions may resist unionization due to flexibility limitations, institutional concept of shared governance and fiscal implications that may result from compensation negotiations. It is likely that unionization will continue to increase for non-tenure track faculty in the private sector. Regularity of access to faculty by students may be aided by collective bargaining.

Check it out!

-Jeff Hirsch 

 

Related articles

Taiwan Is Desperate for Fee-Paying, Mainland Chinese Students. That Could Be Bad for Academic Freedom

Michigan: Public University Student-Athletes are Not Public Employees

    As student football players at Northwestern University press forward with their case at the National Labor Relations Board, the Michigan legislature has amended its statute governing public-employee collective bargaining to exclude student athletes at Michigan’s public universities.  The amendment, now in effect, added the underlined text:

An individual serving as a graduate student research assistant or in an equivalent position, and a student participating in intercollegiate athletics on behalf of a public university in this state, or any individual whose position does not have sufficient indicia of an employer-employee relationship using the 20-factor test announced by the internal revenue service of the United States department of treasury in revenue ruling 87-41, 1987-1 C.B. 296 is not a public employee entitled to representation or collective bargaining rights under this act.

Michigan Complied Laws 423.201(1)(e)(iii).  (Although the text of this provision also excludes graduate student research assistants, a federal district court declared that exclusion to violate article IV, section 24, of the Michigan Constitution.  Toth v. Callaghan, 995 F. Supp. 2d 774 (E.D. Mich. 2014).)

 

--Sachin Pandya

NLRB Asks for Briefs in Northwestern Players Case

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

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Commentary on NLRB Northwestern decision

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.

MM

Faculty Strike at UIC

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? 

MM

Northwestern Football Players File Representation Petition with the NLRB

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. 

MM

Santa Clara Law Workshop Series: Law and Labor in the Fields

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.

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Rubinstein on Attorney Labor Unions

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.

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Request for LawProfs to Join Amicus Brief in Harris v. Quinn Labor Law Case

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 protected] by Saturday, Dec. 28.

PS

Slater on The Strangely Unsettled State of Public-Sector Labor in the Past Thirty Years

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.

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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.

HF

Death of an Adjunct Sparks Discussion on

the Challenge of Precarious Employment in Higher Ed

 

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. 

Volkswagen, UAW Consider German-Style Work Councils for US Plant

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."

PS