Decision in Janus v. AFSCME Council 31

As expected, the U.S. Supreme Court has ruled in favor of the plaintiff in Janus v. AFSCME Council 31.

In a 5-4 decision written by Justice Samuel Alito and announced this morning, the court has ruled that public-sector unions may not charge fees from employees who are covered by collective-bargaining agreements but do not join the union. Unions are of course required to represent and negotiate on behalf of all members of the bargaining unit without regard to dues-payment status. Justices Elena Kagan (with Stephen Breyer and Ruth Bader Ginsburg) and Sonia Sotomayor dissented.

This decision does not change things immediately or directly for us, as Michigan adopted so-called “right to work” laws in 2013, so these rules already apply to us. However, the effects will be felt immediately in states that still have fair-share laws on the books. It also overturns over 40 years of established law in this country and creates new challenges for people who believe in working collectively to make sure everyone has a voice in the workplace.

The decision is also likely to embolden state legislatures to pass increasingly restrictive labor laws, and over time, it will affect unions nationwide, including ours, as the financing that comes from members and chapters to fund the support and organizational work of the national organizations, which we have long been able to take for granted but would sorely miss if it was gone, is likely to drop significantly in the next few years.

We will be receiving more information later today from the national AAUP, which is also scheduling an online townhall meeting with the leaders of AAUP collective-bargaining chapters. Extensive analysis will also become available over the next few days. For now, you can read the decision (including the dissents) here, and follow the links to some of this morning’s news coverage from the Washington Post, NPR, CBS, and USA Today. Initial analysis of the decision is available on SCOTUSblog.

We will continue to keep you informed as we learn more.

Guest post: Why Belonging to a Strong Faculty Union Matters

By Dr. Sally E. Hadden, Associate Professor of History
Western Michigan University

I’ve worked at three universities: One had no faculty union, one had a weak faculty union, and one has a strong faculty union. This is not the story of Goldilocks and the Three Bears, but your common sense may already be telling you that there’s only one university that fits “just right.” If you haven’t already guessed, having a strong faculty union makes a BIG difference. Let me give you a few examples to show you why.

At the university with no faculty union, I watched as my department chair gave raises to his friends and ignored everybody else. Teaching assignments and office space? More of the same. You can imagine how much sucking up occurred in his vicinity. Faculty protests barely registered on the administration’s radar. For example, when the administration implemented staffing cuts that completely closed the student writing center, no amount of faculty emails or phone calls made a difference. Junior faculty gatherings were unending discussions of job openings at other universities. It was clear the administration wanted servitors, not scholars, on payroll. How could I tell? The university made contributions to my retirement plan—but their contributions only vested after 7 years. Their not-so-generous contributions went into a fund that was not TIAA-CREF (meaning, no portability to other institutions), by the way. When I left this university after two years, I lost that money since it reverted to the university.

But I am glad I left, for the worst was yet to come. When the institution-with-no-union fell on economic hard times a few years later, the administration’s brainy solution to the problem was to fire about half of their untenured faculty. In the department I had worked in, of four untenured professors (two white men, one African American woman, and one Latina), guess who got fired? Hint: It was not the men.

At the university with a weak union, my working conditions improved somewhat. Contributions to my TIAA-CREF retirement fund by the university were guaranteed from Day One of employment. Grievance procedures existed, if a faculty member’s rights were infringed upon. Administrators routinely asked for faculty input before important new measures were implemented, like changing general education requirements or altering the library’s operating hours. Comparing University #2 to my first job was easy: This was a place with better working conditions!

However, in just a few years, I began to see that different problems existed at University #2. There were no cost-of-living raises for professorial salaries and the only method of ever hoping to get a raise was to publish research. I did well in this system for a few years, receiving three percent raises the years that my book or several articles came out. My friends who were excellent teachers but published little got nothing. It really was feast or famine, and if the administration allocated nothing for faculty raises in a year when your book came out, then too bad. Not surprisingly, the institution had terrible salary compression and inversion, not to mention a gender equity problem so bad that its female faculty sued the university and won.

I began to see the ways in which University #2 nickeled-and-dimed its faculty in ways that were insidious. We paid for parking “privileges.” What business gets away with charging its employees for coming to work each day? We had two health care options, Blue Cross and an excellent local HMO—but neither plan included vision or dental benefits. Clean teeth and glasses cost money every year. The university did not offer year-round payment of salaries earned during the academic year (what’s called “9 over 12” at other places), claiming that the bookkeeping and administration of this simple function would be too difficult. Why not? Because it provided administrators with a ready pool of faculty eager to teach in summer school, as their funds ran low. Summer school classes were paid at low rates, regardless of who did the teaching or how much expertise they had: They paid $2500 or $3000 a course, and I knew faculty standing in line to get those assignments because they needed the money.

The real villain in this piece was not the university, but state law, which made it difficult to organize a strong union. State law prevented the university from requiring faculty members to pay union dues automatically. Each individual had to choose to belong, and with salaries inverted, compressed, or on a shoestring, many of my colleagues chose not to pay those dues. This had terrible consequences. With union membership under 50 percent of all faculty, administrators claimed that anything the union asked for was not “representative” of all the faculty’s wishes. That allowed the administration to dismiss legitimate faculty issues and ignore our input, including requests for routine cost-of-living raises. News flash: Administration salaries always seemed to keep pace with inflation.

Changing jobs and coming to WMU brought me a number of financial benefits, both immediate and long-term. I reckon that vision, dental, and parking save me nearly $600 a year. My salary’s modest cost-of-living raises have made me the envy of my friends still teaching at University #2, where declining state appropriations have made raises of any kind a thing of the past. Those WMU raises have a positive impact on my retirement fund, too, since the amount of WMU’s contribution is tied to my base salary.

The benefits aren’t merely financial, though. Belonging to the WMU union has provided structure and certainty about my working conditions. I don’t have to wonder what the policy is when an untenured colleague becomes pregnant and wants to stop the tenure clock. I don’t have to hope that a co-worker with newly documented heart problems will be granted medical leave. I don’t have to dread a teaching schedule that could have me on campus teaching at night until 9pm and require me to be on campus at 8am the next morning. Clear guidelines creating a fair workplace give me certainty and peace of mind. It is hard to put into words how much I value these things.

The biggest benefit to me, though, has come in terms of community and collective morale. I remember colleagues from University #1, who had lived through decades of favoritism and arbitrary choices. They were worn down and despondent. At University #2, chronic low pay led many of my colleagues to “phone in” their teaching, giving only the minimum: If they weren’t being paid fairly, where was the motivation to give the job their all? Likewise, if research and creativity were not reliably rewarded, why bother? The number of smart people there who had “checked out” was staggering.

I contrast both of these situations with what I see around me at WMU. Here, I have colleagues who are engaged and constantly thinking about how they can make a difference in the lives of their students. We work hard to become better teachers and also better researchers and scholars. We celebrate each other’s discoveries and contributions. We take pride in doing a good job because we know it will be respected.

Being part of a community that respects its union members makes everyone hold their heads a little higher, whether it is in the lab, the practice room, or the classroom. If we are evaluated by fair standards, given a fair day’s work for a fair day’s pay, and treat one another with respect, everybody wins. Morale stays high, people want to do their jobs well, students get stellar instruction, creativity and discoveries flourish, and the university’s reputation continues to climb. I know why belonging to a strong faculty union matters—I see it every day at WMU.

Death of Supreme Court Justice Antonin Scalia and Implications for Friedrichs v. CTA

Image of Supreme Court of the United States

Post UPDATED on February 15, 2016. Click here to go directly to the update.

On January 11, 2016, the U.S. Supreme Court heard oral arguments in Friedrichs v. California Teachers Association, a case with serious implications for public-sector unions. The court’s decision was expected in late spring or early summer 2016.

With the sudden passing of Justice Antonin Scalia on February 13, a question on many minds is what will happen to cases on the docket for the current SCOTUS term. For union members and supporters, Friedrichs v. CTA is among the most pressing.

The central elements of Friedrichs v. CTA are explained in the national AAUP’s amicus brief, filed before the Supreme Court in November 2015:

The Supreme Court accepted two questions for review:

(1) Whether Abood v. Detroit Board of Education should be overruled and public-sector “agency shop” arrangements invalidated under the First Amendment; and

(2) whether it violates the First Amendment to require that public employees affirmatively object to subsidizing nonchargeable speech by public-sector unions, rather than requiring that employees affirmatively consent to subsidizing such speech.

During the oral arguments in January, questions and reactions by the SCOTUS justices hinted strongly that a 5-4 decision against CTA (meaning answers of “yes” to both of the above questions) would be the likely outcome.

On SCOTUSblog, constitutional law expert Tom Goldstein writes that

Votes that the Justice cast in cases that have not been publicly decided are void. Of course, if Justice Scalia’s vote was not necessary to the outcome – for example, if he was in the dissent or if the majority included more than five Justices – then the case will still be decided, only by an eight-member Court.

However, noting that “The most immediate and important implications involve [the] union case” (i.e., Friedrichs v. CTA), Goldstein adds that

If Justice Scalia was part of a five-Justice majority in a case – for example, the Friedrichs case, in which the Court was expected to limit mandatory union contributions – the Court is now divided four to four.

In those cases, there is no majority for a decision and the lower court’s ruling stands, as if the Supreme Court had never heard the case. Because it is very unlikely that a replacement will be appointed this Term, we should expect to see a number of such cases in which the lower court’s decision is ‘affirmed by an equally divided Court.’

He concludes that “A conservative ruling” in Friedrichs v. CTA “is now unlikely to issue.”

This means that at least for the time being, the lower court’s decision, in this case the U.S. Court of Appeals for the 9th Circuit, is likely to stand. In an expedited decision that the plaintiffs had sought in an effort to get the case before what they believed would be a sympathetic SCOTUS majority, the 9th Circuit affirmed in November 2014 a federal district court’s earlier ruling against the plaintiffs:

[T]he questions presented in this appeal are so insubstantial as not to require further argument, because they are governed by controlling Supreme Court and Ninth Circuit precedent. . . . Accordingly, we summarily affirm the district court’s judgment.

But now with an eight-member Supreme Court from which a 4-4 vote is likely, the 9th Circuit’s affirmation to uphold existing fair share rules and opt-out procedures will stand, at least for the time being.

UPDATE: Today (February 15, 2016), Tom Goldstein at SCOTUSblog writes:

Tie votes will lead to reargument, not affirmance

I previously wrote that cases in which the Supreme Court is divided four to four after Justice Scalia’s death would be “affirmed by an equally divided Court.”  I now believe that is wrong.  There is historical precedent for this circumstance that points to the Court ordering the cases reargued once a new Justice is confirmed.

Whether that precedent will be followed is not perfectly clear, because it is uncertain when a new Justice will replace Justice Scalia.  It could be as long as a year from now – well into the Court’s next Term.  But it is also possible there will be a new Justice when the Court returns from its upcoming summer recess.  Because the Court follows tradition when possible, I think the most likely outcome by far is that the Court will order the affected cases reargued next Term.

[…]

The practice of holding reargument is important for three kinds of cases that are now pending. First, in cases in which the more liberal side won in the court of appeals (for example, the Friedrichs union fees case), that side will be deprived of an affirmance by an equally divided Court. It could well lose if Justice Scalia is succeeded by another conservative.

Links to more information:

 

 

AAUP Response to Oral Arguments in Friedrichs v. California Teachers Association

The following is reposted from AAUP.com

AAUP Responds to Friedrichs Oral Arguments

Washington, DC — Today, the Supreme Court heard oral arguments in Friedrichs v. California Teachers Association, a case which threatens to reverse decades-old decisions allowing for the collection of fair share fees from public employees. The case has far-reaching consequences for American workers, students and the public. Fair share fees fund a range of activities that improve the quality of education and the wellbeing of students as well as educators.

Howard Bunsis, chair of the AAUP-Collective Bargaining Congress, said, “The Friedrichs case is an attack on workers’ rights to bargain collectively, an attack on workplace democracy, and an attack on the middle class. It is also a call to organize; attempts to divide us will not work.”

Rudy Fichtenbaum, AAUP president, said, “In higher education, strong unions not only promote quality education for students and economic security for educators, they protect academic freedom and shared governance. It is only fair for workers to pay their fair share.”

Risa Lieberwitz, AAUP general counsel, said, “As the AAUP/AFT joint amicus brief explains, collective bargaining, supported by the fair share agency fee system, significantly benefits the educational system.  Agency fee arrangements fairly balance the interests of nonmembers with the state’s and union’s interests in requiring them to pay their fair share of the costs of negotiating a collective bargaining agreement that benefits members and nonmembers alike.”

More information on the case and the amicus brief filed by the AAUP is available here.

The mission of the American Association of University Professors (AAUP) is to advance academic freedom and shared governance; to define fundamental professional values and standards for higher education; to promote the economic security of faculty, academic professionals, graduate students, post-doctoral fellows, and all those engaged in teaching and research in higher education; to help the higher education community organize to make our goals a reality; and to ensure higher education’s contribution to the common good. Founded in 1915, the AAUP has helped to shape American higher education by developing the standards and procedures that maintain the quality in education and academic freedom in this country’s colleges and universities.

Media Contact:
Risa Lieberwitz, AAUP General Counsel, (607) 592-5662, rlieberwitz@aaup.org
Howard Bunsis, AAUP Collective Bargaining Congress Chair, (734) 487-1070, hbunsis@gmail.com
Publication Date:
Monday, January 11, 2016

Click here to read an analysis of today’s oral arguments on SCOTUSblog.

Click here to read the transcript of today’s arguments.

Click here for our previous post on the WMU-AAUP blog re. Friedrichs v. CTA.

A decision on the case is expected in June.

SCOTUSblog preview: New threat to public-sector unions

An analysis posted today on SCOTUSblog previews arguments to be presented next week in Friedrichs v. California Teachers Association, a case that could have serious implications for public-sector unions:

Next Monday, January 11, when the Supreme Court returns from its holiday recess, it will devote an expanded argument to a case that has made unions which represent government workers deeply fearful for their financial future and their public stature.  A significant blow to their treasuries could come if non-union workers are able to turn broad hints by the Supreme Court into final victory in Friedrichs v. California Teachers Association.

Read the full SCOTUSblog post here.

This excerpt from the AAUP’s amicus brief explains the questions that the Supreme Court will take up:

The Supreme Court accepted two questions for review: (1) Whether Abood v. Detroit Board of Education should be overruled and public-sector “agency shop” arrangements invalidated under the First Amendment; and (2) whether it violates the First Amendment to require that public employees affirmatively object to subsidizing nonchargeable speech by public-sector unions, rather than requiring that employees affirmatively consent to subsidizing such speech.

The AAUP amicus brief can be read in its entirety here.

A decision on the case is expected in late spring or early summer.

WMU-AAUP passes resolution opposing repeal of Michigan’s prevailing wage laws

The WMU-AAUP has passed the following resolution in an electronic vote by the faculty, concluded on June 25, 2015, with 94.5% voting to approve.

Click here to read more about the process leading up to the faculty vote.

Click here for more information about the repeal bills and links to additional information about prevailing wage laws, including scholarly studies on economic impacts that informed the language of the resolution.

APPROVED: WMU-AAUP Resolution Opposing Repeal of Prevailing Wage Law

WHEREAS our investigation into potential costs and benefits shows that there is strong evidence presented by labor and employment economists that repealing prevailing wage laws results in adverse economic impact to workers and families;

Whereas researchers have documented significant losses in earnings for workers in states that repeal prevailing wage laws and project similar losses in states considering repeal;

Whereas average total compensation for all workers is higher in states with prevailing wage laws than in states that have never had prevailing wage laws or have repealed them;

Whereas economists forecast significant job losses in states considering repeal of prevailing wage laws;

Whereas lost wages in the construction industry cause ripple effects throughout the state’s economy, including adverse economic effects for citizens in non-construction sectors;

Whereas states that repeal prevailing wage laws experience decreased income and sales tax revenues;

Whereas repeal of prevailing wage law would result in substantial direct and indirect costs to the citizens of Michigan that would far outpace any theoretical savings that repeal proponents claim would accrue;

Whereas occurrences of occupational injuries are significantly higher in states without prevailing wage laws, causing economic hardship to families and economic costs to the state in the form of increased worker compensation claims;

Whereas construction costs in states without prevailing wage laws are comparable to or higher than those in states with prevailing wage laws;

THEREFORE, BE IT RESOLVED that the Western Michigan University chapter of the American Association of University Professors opposes the repeal of Michigan’s prevailing wage laws.

Negotiations Kickoff Event April 17

Thursday, April 17, 8:30-10 a.m.
Montague House (814 Oakland Drive)

Join us for coffee, donuts, and good company and send the team off in style.
We’ll walk the team across the street to Walwood Hall at 9:15.

On Thursday, April 17, the Board-appointed faculty at Western Michigan University will be the first permanent faculty at a 4-year institution in Michigan to negotiate a new contract under the so-called “right to work” laws.

We have an outstanding team, and they are incredibly well prepared, but our leverage is in our numbers. We need a big turnout on Thursday to support the team and make it clear that we are not playing around when it comes to our university and our professional lives. Be there. Invite colleagues. Do it. This is your future we’re talking about.

Bargaining-unit members, their families, faculty retirees, WMU students and alumni, and WMU-AAUP allies are invited.

team_picClick on the event flier below to enlarge.

2014_Negotiations_Kickoff_flier