Category Archives: Labor Unions

Revitalising young workers’ union participation: a comparative analysis of two organisations in Quebec (Canada)

Source: Mélanie Dufour-Poirier and Mélanie Laroche, Industrial Relations Journal, Volume 46 Issue 5-6, November 2015
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From the abstract:
This paper examines how two trade union organisations in Quebec (Canada) manage to integrate issues of concern to young members (30 years old and under) and spur changes in their agenda, structures and practices. Between 2009 and 2014, 25 interviews were conducted in these two organisations, while 41 focus group discussions were held with more than 430 members. We contend that improving young members’ feeling of belonging to the union, enhancing internal network density and implementing more participatory forms of democracy are key elements when it comes to increasing their participation. Our findings reveal that unions must dare to integrate young members, without seeking to mould them to fit with the values and practices they deem to be outdated. It means not only training young members to carry the necessary message to their peers but also allowing them to challenge the strategic orientations suggested therein.

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.” ….

Criminal Labor Law

Source: Benjamin Levin, Berkeley Journal of Employment and Labor Law, 2016, Forthcoming

From the abstract:
This Article examines a recent rise in suits brought against unions under criminal statutes. By looking at the long history of criminal regulation of labor, the Article argues that these suits represent an attack on the theoretical underpinnings of post-New Deal U.S. labor law and an attempt to revive a nineteenth century conception of unions as extortionate criminal conspiracies. The Article further argues that this criminal turn is reflective of a broader contemporary preference for finding criminal solutions to social and economic problems. In a moment of political gridlock, parties seeking regulation increasingly do so via criminal statute. In this respect, “criminal labor law” should pose concerns, not only for scholars concerned about workplace democracy, but also those focused on overcriminalization and the increasing scope of criminal law.

Friedrichs: An Unexpected Tool for Labor

Source: Heather M. Whitney, New York university Journal of Law & Liberty, Forthcoming, this version: November 6, 2015

From the abstract:     
In this piece I make three claims: (1) once Abood is overturned, the exclusive bargaining regime itself violates the First Amendment rights of unions; (2) “right to work” regimes do not exact a takings from unions (a departure from my earlier view), and; (3) Friedrichs and other cases like Knox and Harris, while commonly understood as contributing to the decline/death of labor, may in fact be mobilizing a more politically conscious (and potentially radical) form of labor.

How the Friedrichs v. Calif. Teachers Association SCOTUS Case Could Actually Be a Boon for Unions
Source: Shaun Richman, In These Times, Working In These Times blog, December 11, 2015

How do we ensure the next generation of workers isn’t worse off than the last?

Source: Thomas Kochan, The Conversation, December 10, 2015

…The central challenge we face is to update our employment policies to catch up with changes in the economy, workforce and employment structures. How can we do it?…

Here are three of the tough questions that need to be front and center in these discussions, each of which will call for big changes in labor, business and government strategies.
How do we rebuild worker bargaining power?….
How do we get more employers to take the high road?….
How do we end 30 years of labor policy gridlock?….

On the Road to Nowhere: Uber drivers are getting creative in their fight for basic workplace rights

Source: Steven Greenhouse, American Prospect, Winter 2016

….Uber has also become the foremost symbol of the on-demand economy, with a super-convenient app that consumers love because it often gets them a car faster than it takes to find a taxi. The company sees and depicts itself as offering a cool, new, flexible employment model that is being copied by other companies, including Lyft, Handy (housecleaning), Caviar (food delivery), Postmates (on-demand delivery), Washio (dry cleaning), and Luxe (parking your car).

To many, however, Uber has become the foremost symbol of something else—something unlawful. Many labor advocates view Uber as the leading practitioner of illegal worker misclassification because it insists that its 400,000 U.S. drivers are independent contractors rather than employees. Uber says its drivers—it calls them “partners”—are their own bosses who have the flexibility to drive whatever hours they want and even drive for competitors like Lyft and Sidecar…..

How Walmart Keeps an Eye on Its Massive Workforce – The retail giant is Always watching.

Source: Susan Berfield, Bloomberg Businessweek, November 24, 2015

In the autumn of 2012, when Walmart first heard about the possibility of a strike on Black Friday, executives mobilized with the efficiency that had built a retail empire. Walmart has a system for almost everything: When there’s an emergency or a big event, it creates a Delta team. The one formed that September included representatives from global security, labor relations, and media relations. For Walmart, the stakes were enormous. The billions in sales typical of a Walmart Black Friday were threatened. The company’s public image, especially in big cities where its power and size were controversial, could be harmed. But more than all that: Any attempt to organize its 1 million hourly workers at its more than 4,000 stores in the U.S. was an existential danger. Operating free of unions was as essential to Walmart’s business as its rock-bottom prices…..

Internally, however, Walmart considered the group enough of a threat that it hired an intelligence-gathering service from Lockheed Martin, contacted the FBI, staffed up its labor hotline, ranked stores by labor activity, and kept eyes on employees (and activists) prominent in the group. During that time, about 100 workers were actively involved in recruiting for OUR Walmart, but employees (or associates, as they’re called at Walmart) across the company were watched; the briefest conversations were reported to the “home office,” as Walmart calls its headquarters in Bentonville, Ark…..

….The details of Walmart’s efforts during the first year it confronted OUR Walmart are described in more than 1,000 pages of e-mails, reports, playbooks, charts, and graphs, as well as testimony from its head of labor relations at the time. The documents were produced in discovery ahead of a National Labor Relations Board hearing into OUR Walmart’s allegations of retaliation against employees who joined protests in June 2013. The testimony was given in January 2015, during the hearing. OUR Walmart, which split from the UFCW in September, provided the documents to Bloomberg Businessweek after the judge concluded the case in mid-October. A decision may come in early 2016….

Which Parts of Their Collective Bargaining Agreements Do the Friedrichs Plaintiffs Oppose?

Source: Andrew Strom, OnLabor blog, November 24, 2015

The theory of the Friedrichs case is that requiring the plaintiffs to pay fair share fees imposes a “severe and ongoing infringement” of their rights to free speech. Their Complaint asserts that each plaintiff “objects to many of the unions’ public policy positions, including positions taken in collective bargaining.” The fair share fees that are at issue in the case do not go to fund the unions’ public policy initiatives. Instead, they only fund activities that are germane to collective bargaining. And because of the way the case has been litigated, the plaintiffs have not identified which specific provisions in their collective bargaining agreements they oppose.

In their Supreme Court brief, the Friedrichs plaintiffs argue that wages and benefits for teachers can be controversial, and they assert that collective bargaining involves matters relating to education policy, but they never assert that they personally oppose their union on any issues addressed by their own collective bargaining agreements. While the brief is full of generalized assertions about collective bargaining agreements, it never addresses any of the specific collective bargaining agreements that apply to the plaintiffs. ….

….The unwillingness of the Friedrichs plaintiffs to identify the specific collective bargaining activities that they find objectionable is at odds with the heated rhetoric in their lawyers’ Supreme Court brief. While their lawyers assert that the Friedrichs plaintiffs are being forced to contribute money “for the propagation of opinions which [they] disbelieve[],” in fact, it appears that their agency fees are going to fund negotiation and enforcement of collective bargaining agreements that directly benefit them…..

Massive Rolling Strikes Shut Down Quebec

Source: Sonia Singh, Labor Notes, November 23, 2015

After provincial bargaining stalled, 400,000 public sector workers across Quebec walked out in October and November on rolling one-day strikes.

The government is proposing pension cuts and only a 3 percent salary increase over five years. Since coming to power in April 2014 it has already begun cuts to services, including slashing health and education funding.

The Common Front, a coalition of Quebec public sector unions, is coordinating the strikes, which include teachers, health care workers, and government employees. Members voted to authorize six days of strikes per union. These began with one-day strikes, staggered by region. The Common Front vowed that if no agreement was reached, all members would strike at the same time December 1-3.

Labor Notes interviewed Benoit Renaud and Philippe de Grosbois, who have both been on strike. Renaud is an adult education teacher in the city of Gatineau and a member of the La Fédération Autonome de L’enseignement. de Grosbois teaches in a pre-college program in Laval and is an executive of his local, which is part of the Confédération des Syndicats Nationaux.

At the time of the interview, a December general strike was still planned. However, the Common Front recently announced it’s postponing the strike while negotiations continue…..

Political Entrenchment and Public Law

Source: Daryl Levinson & Benjamin I. Sachs, Yale Law Journal, Vol 125 no. 2, November 2015

Courts and legal scholars have long been concerned with the problem of “entrenchment”—the ways that incumbents insulate themselves and their favored policies from the normal processes of democratic change. But this wide swath of case law and scholarship has focused nearly exclusively on formal entrenchment: the legal rules governing elections, the processes for enacting and repealing legislation, and the methods of constitutional adoption and amendment. This Article demonstrates that political actors also entrench themselves and their policies through an array of functional alternatives. By enacting substantive policies that strengthen political allies or weaken political opponents, by shifting the composition of the political community, or by altering the structure of political decision making, political actors can achieve the same entrenching results without resorting to the kinds of formal rule changes that raise red flags. Recognizing the continuity of formal and functional entrenchment forces us to consider why public law condemns the former while ignoring or pardoning the latter. Appreciating the prevalence of functional entrenchment also raises a broader set of questions about when impediments to political change should be viewed as democratically pathological and how we should distinguish entrenchment from ordinary democratic politics. ….

…..[P]olitical actors intent on entrenching their preferred parties or policies need not resort to manipulating the formal rules of the Constitution, elections, or legislation. Consider recent changes to public-sector labor law. Labor unions generally provide support to Democratic candidates, mobilizing pro-Democratic voters and funding the logistical and organizational infrastructure of Democratic campaigns. Seeking to defend their hold on power against Democratic challengers, Republican officeholders have enacted restrictive labor legislation for the purpose of weakening unions. In 2011, for instance, the Republican-dominated Wisconsin legislature overhauled the state’s collective bargaining laws to profoundly curtail unions’ ability to participate effectively in politics. In case the purpose of these measures was not apparent, the new restrictions exempted all the unions that had endorsed the Republican Governor in the previous election. The goal, it seems, was to selectively incapacitate the Republicans’ political opponents, and not just at the state level: as Wisconsin’s Republican senate majority leader put it at the time, “[I]f we win this battle, and the money is not there under the auspices of the unions . . . President Obama is going to have a . . . much more difficult time getting elected . . . .” Wisconsin Republicans intent on undermining their political opposition and entrenching their party in office did not need to resort to disfranchisement or gerrymandered electoral districts. They used labor law instead……