Category Archives: AFSCME

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.” ….

Laws Enabling Public-Sector Collective Bargaining Have Not Led to Excessive Public-Sector Pay

Source: Jeffrey Keefe, Economic Policy Institute (EPI), Briefing Paper #409, October 16, 2015

From the summary:
Unlike many other countries, when the United States enacted its private-sector labor law, the National Labor Relations Act, in 1935, it did not include public employees within the same or similar framework for collective bargaining. Not until the late 1950s and 1960s did state and local governments grapple with a labor law to govern their rapidly growing public-sector labor forces. No state or local government chose to transplant the private-sector model of collective bargaining; instead they adopted some parts of it, chose to create no bargaining framework at all, or prohibited collective bargaining. This paper describes the rapid growth of labor laws that have enabled public-sector collective bargaining, and examines the effects of various labor law frameworks on public employee wages.
• Only 2 percent of the state and local public-sector workforce in 1960 had the right to bargain collectively. By 2010, that share had grown to 63 percent.
• While early on, many policymakers were concerned about the right to strike, a number of states did eventually extend the right to strike to more than 20 percent of public employees; however, all of these employees are in non–public safety positions. Thus the right to strike has not had catastrophic results in terms of threats to public safety or welfare.
• The right to strike has also not led to massive wage increases: Employees covered by the right to strike earn about 2 percent to 5 percent more than those without it.
• Public safety employees are effectively covered by binding interest arbitration, which has prevented strikes and has resulted in cost-effective and widely accepted settlements by the participants.
• This research finds no wage effect for public employees covered by collective bargaining attributable to binding interest arbitration when compared with mediation.
• Fact-finding, the most widely employed final dispute-resolution procedure, tends to favor the public employer, resulting in significantly lower wages for public employees, in the range of 2 percent to 5 percent less than other dispute resolution procedures.

Union security provisions, which require employees to contribute to the financial support of the union that has the exclusive right to represent them with respect to terms and conditions of employment, vary by state, locality, and various occupations.
• Dues checkoff, which is widespread in the public sector, has a small positive effect on wages, ranging from 0 percent to 3 percent; however, we suspect it has a major effect on union membership.
• Open-shop laws, which prohibit union security agreements, are associated with significantly lower public-employee wages, with estimates ranging from -4 percent to -11 percent, compared with no policy on union security.
• Agency-shop provisions, which require the payment only of a fee narrowly tailored to support a union’s collective bargaining activities, its contract enforcement, and employee grievance processing, are associated with significantly higher wages, ranging from 2 percent to 7 percent for public employees.

In summary, it is difficult to conclude that the relatively small wage effects of collective bargaining have led to serious distortions in the democratic process. Collective bargaining has resulted in higher public-employee wages in the range of 5 percent to 8 percent. There is some indication that collective bargaining has offset employer monopsony power in the public sector (Keefe 2015; Lewin, Kochan, and Keefe 2012), thus not producing excessive or distorted public-employee compensation, and has promoted internal equity (Keefe 2015, forthcoming).
Press release

Scott Walker’s Real Legacy

Source: Donald F. Kettl, Washington Monthly, Vol. 47 nos. 6/7/8, June/July/August 2015

What did the Wisconsin governor’s union busting actually accomplish for the “hardworking taxpayers” of his state? And what do his actions tell us about how he might govern as president? …..

….But let’s presume he does become the nominee. Walker’s triumph over the unions could continue to be a useful tool for him, not only in firing up the GOP base but also in reaching out to independents, 47 percent of whom take a dim view of unions, according to the same Pew poll, and even to persuadable Democrats. The 2016 elections will be a battle over the role of government in failing to spur a too-weak economy and boost stagnant incomes. The Democratic nominee will likely present herself (or, less likely, himself) as a champion of the middle class who will wrest control of government away from the big banks and other powerful corporate interests and use it to benefit average Americans. Walker will be armed with an equivalent reform narrative. The problem with government, he can say, is not just that it is too big, holds back private-sector growth, and robs us of our freedoms—the standard Republican view, which he tirelessly proclaims—but that it has been captured by its own employees, who run it for their own benefit, not the public’s. Just as he took on the unions in Wisconsin, he can say, so will he take on the bureaucrats in Washington, returning power back to “the hardworking taxpayers.”

So it’s worth looking carefully at Walker’s arguments for why he busted the state’s public employee unions. To what extent were those unions the obstacle to getting the state’s fiscal house in order—a key argument Walker made during the 2011 standoff? To what degree do state and local government employee unions drive government’s costs up and push its performance down?

Even more important is the question of how Walker’s experiences and management choices at the state level might translate at the federal level. Is a governor whose greatest accomplishment is the crushing of state and local government unions the right person to lead the government in Washington?….

….To what extent, then, did Walker’s crushing of the unions help Wisconsin’s “hardworking taxpayers”? The $3 billion he saved in his first term was certainly something. But that amounted to less than 1 percent of overall state and local government spending over that time period. Those savings came from the pockets of teachers and other public servants who are also taxpayers and whose compensation, by most measures, was not out of line. The law Walker signed didn’t contribute to the fiscal health of the state’s public pension fund. It provided management flexibilities that could ease school reforms down the road but that the governor himself hasn’t taken much advantage of. And, as we’ve seen, Walker could have won most or all of that $3 billion through tough negotiating without going for the jugular and virtually eliminating collective bargaining. Why, then, did he do it?

It’s tempting to portray the struggle over Wisconsin’s unions as a matter of high policy. In reality, however, it was the culmination of decades of increasingly fierce partisan wrangling that pitched the state’s Democrats, along with their union supporters, against resurgent Republicans and their allies in the business community…..

Labor at a Crossroads: The Case for Union Organizing

Source: Paul Booth, American Prospect, January 23, 2015

The labor movement has been growing while shrinking—growing through organizing.

he union movement is 3.5 million members smaller than 40 years ago, and the forces that brought that about are as energetically engaged and powerful as they have ever been.

From that undeniable fact, it has been wrongly concluded:
∙ Union organizing is impossible, futile, or a thing of the past
∙ The labor movement is dead, or dying
∙ The best hope for workers is through something different from trade unions and collective bargaining.

These conclusions are very disconcerting to this organizer. I am upset that there’s so little acknowledgement of the millions of workers who have risked much to try to unionize. Thousands are doing it today.

And so little acknowledgement of those who have done it and succeeded. They number a million and a half….

Open Shop Trend Makes Organizing “the Organized” Top Union Priority

Source: Steve Early, Talking Union blog, August 30, 2014

For many years, American unions have been trying to “organize the unorganized” to offset, and, where possible, reverse their steady loss of dues-paying members. In union circles, a distinction was often made between this “external organizing”–to recruit workers who currently lack collective bargaining rights–and “internal organizing,” which involves engaging more members in contract fights and other forms of collective action aimed at strengthening existing bargaining units.

Thanks to the growing success of corporate-backed “Right-to-Work” campaigns, these two forms of union outreach now greatly overlap. Virtually all labor organizations face the expanded challenge of recruiting and maintaining members in already unionized workplaces where the decision to provide financial support for the union has, for better or worse, become voluntary. (Some left-wing critics of “contract unionism” have long argued that automatic deduction of dues, by employers for their union bargaining partners, makes the latter overly dependent on management and less responsive to rank-and-file workers.)…

‘Flexibility’ Hits University of Wisconsin Custodians

Source: Jason Lee, Labor Notes, August 14, 2014

Glenn Khalar is ex-military, a vet. He’s worked at the University of Wisconsin-Superior for 16 years. He was raised in the area, and brought up his own family there. He loves Superior, and partially credits the university’s program to retrain and hire veterans for getting him his job. But despite his passion, dedication, and modest wage, his job could soon be gone. In May, the campus announced plans to cut half its graduate programs, and sent “at-risk” notices to all 26 custodians and grounds workers—meaning they could be laid off at any time, and their jobs outsourced. The bookstore was outsourced on July 1. Why? It’s the familiar refrain, budget cuts—and jobs like Khalar’s are the first ones to go. In their quest for financial stability in dire times, campus administrators seem to think eliminating his $12 an hour will make all the difference. … But what happens to custodians here isn’t isolated. It’s part of a trend to apply a market-based, private model to public higher education. And the danger is spreading south. The threatened custodians and grounds workers are members of AFSCME. They have held protests and begun an online petition against the layoffs. The AFT local representing faculty and staff is supporting them. …

Big Brother Unionism? The Landrum-Griffin Act and the Fight for AFSCME’s Future, 1961 – 1964

Source: Joseph E. Hower, Labor: Studies in Working-Class History of the Americas, Vol. 11 no. 2, Summer 2014
(subscription required)

From the abstract:
In this article, Joseph Hower examines the regulation of union elections by the Labor-Management Reporting and Disclosure Act (commonly known as the Landrum-Griffin act) through a case study of the American Federation of State, County, and Municipal Employees (AFSCME). Drawing on local and national union records and oral history transcripts, he reconstructs Jerry Wurf’s campaign for the union presidency (1961–64) and shows how Wurf and his dissident caucus were reluctant to invoke Landrum-Griffin’s protections, even in the midst of a fiercely contested election campaign, for fear that it would legitimize the anti-union intentions of the law’s architects. Instead, Wurf and the other dissidents turned the law to their own ends, holding out the threat of legal action to force incumbent president Arnold Zander to curb his worst excesses, while using his administration’s misdeeds to underscore their broader case for union reform. Narrowly defeated in 1962, Wurf managed to unseat Zander at the union’s 1964 convention. The successful challenge, a rarity in twentieth-century labor history, ratified a more militant vision of the union, setting the stage for AFSCME’s impressive growth during the second half of the twentieth century.