Category Archives: AFSCME

Until Death Dues Us Part?

Source: Jim DeWan, Rockefeller Institute of Government, June 1, 2017

One of the most immediate impacts of Neil Gorsuch’s appointment to the Supreme Court may be on a case that could have a major impact on public employee unions right here in New York.

CASE OVERVIEW
This case, Janus v. AFSCME, deals with state laws that allow public employee unions to automatically withhold fees or dues from all represented employees’ paychecks, even those who are not members of the union. The plaintiff in the case, Mark Janus, is an employee of the state of Illinois. He is suing his union, the American Federation of State, County and Municipal Employees (AFSCME), because he believes the Illinois state law allowing AFSCME to deduct monies from his paycheck violates his First Amendment rights to freedom of speech and association. New York has a similar law on its books. Illinois and New York are two of 22 states that allow for arrangements under which all represented employees must make payments to a union as a condition of their employment, even if they affirmatively elect not to join the union….

The Entire Public Sector Is About to Be Put on Trial

Source: Naomi Walker, In These Times, Views, May 25, 2017

The Right’s assault on public-sector workers is an assault on the public sector itself.

Within the next year, the Supreme Court is likely to rule on the latest existential threat to workers and their unions: Janus v. AFSCME. Like last year’s Friedrichs v. CTA—a bullet dodged with Justice Antonin Scalia’s unexpected death—the Janus case is a blatant attack on working people by right-wing, moneyed special interests who want to take away workers’ freedom to come together and negotiate for a better life.
For years, the Right has been hammering through state-level “right-to-work” laws in an effort to kill public sector unionism; it would see victory in the Janus case as the coup de grace. ….

MLK’s Advice on Strike Strategy Still Relevant Today

Source: Rand Wilson, Labor Notes, January 18, 2017

…King’s strategic advice to the striking Memphis sanitation workers is still useful for workers seeking to improve their lives with direct action today:
– Once on strike, expand the struggle beyond the immediate company to its corporate allies and suppliers.
– Use boycotts and economic action to involve supporters.
– Transform the pain inflicted on strikers to pain inflicted on executives, board members, and investors.
– Be prepared to stay in the struggle one day longer with “dangerous unselfishness.”
– And perhaps most importantly, place the struggle in a larger context that challenges elected officials and government at every level to make America a better nation!

Time to Set New Priorities?

Source: José La Luz, New Labor Forum, Vol. 25 no. 3, September 2016
(subscription required)

I strongly disagree with Brother Richman’s assertion that the inadequate resources devoted to external organizing are the result of a conscious choice—strategic or tactical—made by labor leaders because they have opted instead to dedicate all or most of their union’s resources toward “winning better pay, working conditions, and rights for existing union members.”

It is entirely possible that many of these leaders have not even considered these two seemingly opposing priorities in the face of a sustained and escalating attack by corporate interests and their political allies. Many may simply be maneuvering to defend their unions by helping to elect a “friend” to the White House who could work with them to usher in a program of modest labor reforms and provide some needed oxygen to their embattled institutions.

It should be noted that although most unions are not spending enough on organizing, a few—such as the Service Employees International Union (SEIU), American Federation of State, County, and Municipal Employees (AFSCME), and the American Federation of Teachers (AFT)—have continued to spend on large-scale external organizing campaigns, such as efforts to organize home and child care workers or independent providers, and plants of foreign automakers in the south.

AFSCME’s Social Worker Overload: Digital media stories, union advocacy and neoliberalism

Source: Tara La Rose, Journal of Industrial Relations (JIR), Vol. 58 no. 4, September 2016
(subscription required)

From the abstract:
This article presents a case study analysis of Social Worker Overload, a digital media story created by the American Federation of State, County and Municipal Employees (AFSCME) and shared publicly using the social media site YouTube. This story uses worker testimonials to present a compelling story about the effects of neoliberalism on social care work in the field of child protection. This story illustrates how the Department of Children and Family Services (DCFS) in Washington State uses ‘evidence based practice’ discourses to limit the forms of knowledge that may be utilized in discussions of work overload and work design within the child protection system. Through the creation and sharing of a digital media story about their experiences, the workers present narratives demonstrating how these and other elements of neoliberalism limit the workers’ capacity to actualize the potential benefits of professional social work. Finally, the analysis considers the process of worker advocacy using digital media practices, highlighting the roll that unions play in facilitating this type of resistance.

Twin Cities Unions Respond to Police Violence

Source: Alexandra Bradbury, Labor Notes, July 21, 2016

….Philando Castile, an African American man who was shot and killed by a police officer at a traffic stop July 6, was a member of Teamsters Local 320. The union issued a brief statement expressing grief over his death. It’s a public employees local, representing a handful of police officers—though not the one who killed him—as well as corrections officers, campus workers, city workers, bus drivers, and even public defenders, who often find themselves opposing police in court. The local hasn’t tried to engage members in protest, or even conversation, about racism or police violence. “Our union has traditionally not encouraged member dialogue on any issues—especially issues as complicated as the relationship between police officer union members and other union members,” said member Bob Kolstad….

….But other Twin Cities unions have been bolder. Hundreds of teachers, in town for their union convention, marched on July 19 to protest Castile’s killing; 21 were arrested. Last fall, members of AFSCME Local 3800 helped organize a rally, “Labor for Justice for Jamar,” after Minneapolis police shot and killed another African American man, Jamar Clark. Local 3800 represents clerical and technical workers at the University of Minnesota. President Cherrene Horazuk said many members there, too, had personal connections to Castile. Since his death the local has been encouraging members to attend protests and vigils—and to wear their union shirts, to show that this is a union issue. Horazuk said few members have opposed their local taking a stand. She believes one reason why is that, in its contract campaign, the union was already raising racial justice issues, such as the low wages of workers of color on campus, and Muslim workers’ fight to get religious holidays off. So, she said, “it doesn’t seem like it’s out of the blue.”…..

Internal Union Organizing Centered on Building Community

Source: Kris Rondeau, Negotiation Journal, Volume 31 Issue 4, October 2015
(subscription required)

From the abstract:
….In our unions — the Harvard Union of Clerical and Technical Workers (HUCTW), which represents support staff at Harvard University; the two State Healthcare and Research Employees’ (SHARE) union locals at the University of Massachusetts Memorial Healthcare and the University of Massachusetts Medical School in Worcester, Massachusetts; and the Union of Social Workers at the Cambridge Health Alliance in Cambridge, Massachusetts — the process of forging a pre-negotiating consensus is more about continuous organizing to build friendships than it is about preparing internally to bargain with management.

Internally, a union is never done organizing. Organizing — that is, talking and listening — happens every day. The thousands of stories that members share help them build community and develop friendships that bridge the differences among us. Unions initiate these conversations so that we may understand each other deeply. Special interests or identity politics are diminished because bridges and friendships have been built…..

Bargaining for the Common Good

Source: Joseph A. McCartin, Dissent, Spring 2016

….Two things made the Minneapolis People’s Congress particularly significant. First, it signaled a deep alignment of community and labor organizations, a potentially potent melding of their interests, organizational energies, and agendas that went well beyond the merely transactional forms of coalition-making that we have often seen between labor and community organizations in the past. Unions did not merely enlist community groups to support their contract campaigns; instead unions and their allies built a common agenda from the ground up. Second, this extraordinary gathering was the most fully articulated example of a growing phenomenon: unions and community partners collaborating to challenge twenty-first century capitalism, reviving democracy and government integrity in the process….. But the Minneapolis gathering was more than simply another iteration of an oft-repeated union tradition. It represented something new, a conscious effort to tie union-community mobilization to the function that lies at the very heart of unionism: collective bargaining. Since the rise of a routinized collective-bargaining regime—first in the 1940s and ’50s in the private sector, and then in the 1960s and ’70s in the public sector—collective bargaining had come to mean a binary negotiation between unionized workers and their direct employers. Although unions repeatedly sought community allies, they never tried to enlist them in a common effort to break out of the employer-union binary and bargain together on behalf of workers and their communities. The Minneapolis effort is a significant step in that direction…..

Martin Luther King Was Assassinated On This Day in 1968—While Fighting For Unions

Source: Peter Cole, In These Times, Working in These Times blog, April 4, 2106

Today, April 4th, we remember the life and dreams of Dr. Martin Luther King, Jr. for on this day, in 1968, he was murdered by a white supremacist at the age of 39.

King literally died while fighting for a union, murdered in Memphis in 1968 while helping that city’s sanitation workers, a majority of whom were black, organize a local of the American Federation of State, County, and Municipal Employees (AFSCME). King had repeatedly visited the city in his final months to aid the organizing effort. The city’s elected officials were both racist and anti-union—no coincidence.

Though hardly unknown, King’s deep commitment to unions remains largely left out of the traditional telling of his story. Indeed, many do not know he championed multiple union causes in addition to fighting to end white supremacy. In fact, King devoted a large part of his short life to advocating that workers—whether African American or not—join unions, for one of his foremost goals was eradicating poverty. ….

Friedrichs v. California Teachers Association – amicus briefs

Source: OnLabor blog, 2015

In the run-up to oral argument in Friedrichs v. California Teachers Association — now set for January 11, 2016 — OnLabor will be reviewing some of the significant amicus briefs that have been filed in the case.

Friedrichs Reply Brief
Source: Juhyung Harold Lee, OnLabor blog, December 14, 2015

The petitioners have submitted their reply brief in Friedrichs v. California Teachers Association….

….The petitioners then go on to assail several of the other arguments raised in the respondents’ respective briefs, including the state’s interest in labor peace (pp. 16–19), concern for the effects of free riding (p. 20), and the burden imposed by the duty of fair representation (pp. 20–22).

As for the lack of record, the petitioners observe that the “Court has made many other important decisions on the basis of allegations in contexts identical to this one,” including in Abood. They also note that if the respondents wish to dispute a material fact, “they are welcome to litigate it on remand.”

The petitioners also attempt to dispose of the respondents’ arguments regarding stare decisis by arguing that the Supreme Court has never “deferr[ed] to prior precedent that erroneously eradicated a fundamental right.” Furthermore, the petitioners suggest, upholding Abood would be more disruptive to First Amendment doctrine than overturning it, and invalidating agency fees would have minimal impact on states’ public employment schemes.

Finally, with regard to the opt-out vs. opt-in question, the petitioners seek to distinguish cases where “individuals . . . have to affirmatively invoke constitutional rights” by insisting that those cases involved scenarios where the state “ha[d] no reason to suppose the recipient objects to the requested benefit.” In contrast, they argue, this case involves a scenario where a state is taking something that its employees presumably want to retain, i.e., money, and so an opt-out arrangement is impermissible.

Again, the reply brief is available in full here. Oral argument, as previously noted, is scheduled for Monday, January 11, 2016. The California Attorney General’s office (15 minutes), the union respondents (15 minutes), and U.S. Solicitor General Donald Verrilli (10 minutes) will argue on behalf of respondents…..

Friedrichs Amici Brief: State Public Policy Research Organizations
Source: Juhyung Harold Lee, OnLabor blog, December 9, 2015

As Professor Fisk previously observed, Justice Scalia’s concurring and dissenting opinion in Lehnert v. Ferris Faculty Association may provide some insight into how he will come out on the first question presented in Friedrichs. There, Justice Scalia rejected the Court’s application of a three-part test for identifying union activities that are chargeable to nonunion members. That test emphasized the “germane[ness]” of the activity to collective bargaining. Yet Justice Scalia called for the application of a “statutory duties” test, whereby charges to nonunion members “must at least be incurred in performance of the union’s statutory duties.” ….. Professor Fisk — as well as the union respondents in both their brief in opposition to certiorari (courtesy of SCOTUSblog) and their brief on the merits — cite this part of Justice Scalia’s opinion to illustrate not only how “the union’s statutory duty of fair representation creates the free rider problem,” but also how the statutorily created free-rider problem gives rise to the “compelling state interest” in requiring nonunion members to contribute their fair share of bargaining costs. Yet in an amici brief filed in support of the Friedrichs petitioners, a number of “state public policy organizations” attempt, among other things, to minimize the burden imposed by the duty of fair representation, and to distinguish the context of Justice Scalia’s Lehnert opinion from that of the present case. …..

Friedrichs Amicus Briefs: The Problem with Free Riders
Source: Juhyung Harold Lee, OnLabor blog, December 2, 2015

Two opposing views have emerged on the effect of free riders on unions’ capacity for collective bargaining and, relatedly, the state’s interest in exclusive bargaining. ….

….The Mackinac Center for Public Policy, which bills itself as a “Michigan-based, nonprofit, nonpartisan research and educational institute advancing policies fostering free markets, limited government, personal responsibility, and respect for private property,” has filed an amicus brief in support of petitioners in which it attempts to further “test[] the theory” that “there is an inextricable link between the state interest in preserving a viable exclusive bargaining agent for public-sector workers and permitting unions to charge agency fees to non-union members.” The Center had previously submitted a brief at the certiorari stage in which it determined that “the union membership rate among workers covered by a collective bargaining agreement . . . stayed relatively constant over time, showing no signs of the endemic free-riding that would weaken unions as exclusive bargaining agents.”….. Based on the SASS data — “which measures actual CBA coverage of union member teachers as well as their non-union colleagues” — the amici calculate “a much higher CBA free-riding rate than Mackinac reports.” The social scientists’ analysis further indicates “that under ‘open shop’ conditions, unions will clearly have less capacity in bargaining and services, gain less for the workers they represent, and lose significant membership as a result.” Consequently, unions’ ability to fulfill their duty of free representation will be seriously impaired…..

….On the other side of the ledger, however, is a trio of social scientists whose amici brief in support of respondents contends that “Mackinac’s measure of the incidence of free-riders is inaccurate, and grossly underestimates [free riding’s] extent.”

…[T]he Mackinac Center’s brief is available here, and the social scientists’ brief is available here.

Friedrichs Amicus Brief: United States
Source: Juhyung Harold Lee, OnLabor blog, November 19, 2015

Although federal employees are not directly implicated by the questions raised by Friedrichs, the U.S. Solicitor General has nonetheless filed an amicus brief asking the Supreme Court to preserve public-sector agency-fee arrangements in the states — arrangements which, as the Solicitor General observes, are derived from two federal statutes (the NLRA and Railway Labor Act). The Solicitor General begins by assailing petitioners’ contention that “conditions of public employment that advance a public agency’s interest as an employer are subject to ‘exacting’ scrutiny under the First Amendment”…..

Friedrichs Amici Brief: States for Respondents
Source: Juhyung Harold Lee, OnLabor blog, November 19, 2015

A number of states have also weighed in on the side of the Friedrichs respondents. In a brief submitted by the Attorney General of New York on behalf of twenty additional states and the District of Columbia, the amici emphasize their interest in “preserving the flexibility to structure public-sector labor relations that Abood [v. Detroit Board of Education] allows.” Part of that flexibility entails the ability to impose agency-fee requirements upon non–union members — requirements that have been essential “to ensuring a stable collective-bargaining partner with the wherewithal to help devise workplace arrangements that promote labor peace.”….

Friedrichs Amici Brief: States for Petitioners
Source: Juhyung Harold Lee, OnLabor blog, November 19, 2015

Dozens of states have now signed on to amici briefs in favor of either party. Supporting petitioners are eighteen states who contend that “collective bargaining in the public sector . . . does implicate matters of public concern.”

Friedrichs Amici Brief: Civil & Economic Rights Groups
Source: Juhyung Harold Lee, OnLabor blog, November 18, 2015

Over seventy organizations “committed to civil rights and economy opportunity” have filed an amici brief in support of the Friedrichs respondents. The coalition describes unions as “one of the most successful vehicles for providing economic and professional opportunities for American workers, and, in particular, for women, people of color, and lesbian, gay, bisexual, and transgender (‘LGBT’) workers”….

Friedrichs Amicus Brief: National Right to Work Legal Defense Foundation
Source: Juhyung Harold Lee, OnLabor blog, November 18, 2015

In September, the National Right to Work Legal Defense Foundation submitted an amicus brief in support of the Friedrichs petitioners’ position that Abood v. Detroit Board of Education should be overturned. The organization first points to Justice Alito’s criticism of Abood in Harris v. Quinn to argue not only that “collective bargaining with government is a political activity,” but also that “Abood is unworkable in practice.” It then proceeds to focus on a “single, dispositive point: the power of exclusive representation is a great benefit to unions that assists them with recruiting and retaining dues-paying members.”….

Friedrichs Amici Brief: AFL-CIO & AFSCME
Source: Juhyung Harold Lee, OnLabor blog, November 16, 2015
In the run-up to oral argument in Friedrichs v. California Teachers Association, OnLabor will be reviewing some of the significant amicus briefs that have been filed in the case. On Friday, several of the country’s largest unions filed amici briefs in support of the respondents in Friedrichs. The AFL-CIO and AFSCME mount a largely doctrinal defense of agency-fee arrangements in their joint brief: ….

Friedrichs Amici Brief: AFT & AAUP
Source: Juhyung Harold Lee, OnLabor blog, November 16, 2015

The AFT and AAUP also filed an amici brief for the Friedrichs respondents on Friday. In contrast to the AFL-CIO and AFSCME, the AFT and AAUP focus more so on the practical implications of overruling Abood than on Abood‘s doctrinal footing. First, the amici direct the Court’s attention to the fact that fair share fees “fund a wide range of . . . activities that promote the state’s compelling interest in providing students a high quality education and directly benefit nonmembers like petitioners”….

Friedrichs Amici Brief: Constitutional Law Professors
Source: Juhyung Harold Lee, OnLabor blog, November 16, 2015

…Back in September, eight constitutional law scholars lent their names to an amici brief in support of petitioners (the Judicial Education Project and the Center for Constitutional Jurisprudence also signed on the brief). The brief echoes petitioners’ characterization of Abood v. Detroit Board of Education as an “outlier” for “plac[ing] the ‘common cause’ of the public employee union over the First Amendment interests of the dissenting employee to justify compelling payment of an agency fee to subsidize the union’s First Amendment activity.”…

Union Respondents File Brief in Friedrichs
Source: Juhyung Harold Lee, OnLabor blog, November 6, 2015

The union respondents in Friedrichs v. California Teachers Association have now filed their brief as well, which is available here. The respondents call for Abood v. Detroit Board of Education to “be reaffirmed because it correctly respects public employers’ prerogative to manage their workforces to ensure the efficient provision of public services to their citizens.” As did the California Attorney General in her brief, the unions focus on the state’s interests as an employer relative to employees’ First Amendment rights:… The full union respondents brief is available here. Petitioners’ brief, which was filed in September, is available here; their reply brief is due in mid-December, with oral argument to follow early next year.

Friedrichs Amici Brief: Corporate Law Professors
Source: Juhyung Harold Lee, OnLabor blog, November 6, 2015

Earlier today, an amici brief in support of the Friedrichs respondents was submitted on behalf of nineteen corporate law professors. The brief — which is available for download here through SSRN) — is intended to “assist[] the parties and the Court in understanding corporate law and the rights of shareholders, insofar as that law and those rights are relevant to the questions presented in this case.” Although at first glance, Friedrichs may not appear to implicate questions of corporate law, amici observe that the Supreme Court “has often looked to the rights of corporate shareholders in determining the rights of union members and non-members to control the union’s use of their funds for political spending, and vice versa” (this point of comparison may be familiar to those of you who have read Prof. Sachs’s article on the political opt-out rights of union members vis-à-vis corporate shareholders).

California AG Files Brief in Friedrichs
Source: Juhyung Harold Lee, OnLabor blog, November 6, 2015

The office of California Attorney General Kamala Harris has filed its brief in Friedrichs v. California Teachers Association. The brief, which is available here, begins by asking the Supreme Court to reject petitioners’ contentions that the “Court erred in deciding Abood [v. Detroit Board of Education], and that California may not use mandatory agency fees as part of a structure for managing public-sector labor relations.” ….