1. Wage-increases, retirement, and benefits at risk: Supreme Court Ruling Pending

    Posted: Jun 4th, 2018

    The future of your union and collective bargaining rights over wages, hours, and working conditions are at stake and we need your help. We are asking everyone to sign this new membership form, if you haven’t done so already. You can fill out the form and sign it electronically or print it and send it back. We’d be happy to pick up the completed form from you.

    In the upcoming days/weeks, the Supreme Court will announce its decision in the Janus Case.

    As you may know, a ruling in favor of Janus could weaken unions by preventing unions from charging an ‘agency fee’ to those who do not want to be members. Agency fees cover the costs of services provided by the union to members of a bargaining unit.  The problem is that the decision would require unions to represent fully all members of a bargaining unit, regardless of whether they pay dues or not. Such a decision is supported by interests intent on destroying unions, quashing our collective voice, and eroding our wages and benefits.

    We need to stand together now so that we can continue with our important work representing members to ensure fair and competitive wages, hours and working conditions. We are asking that you sign our new membership form that provides members with an annual window to withdraw from the union, in compliance with the anticipated ruling. Signing this new card is a proactive way to indicate your support of the UCHC-AAUP.  Union dues will remain the same at less than 1% (0.63%) of gross pay up to $250,000.

    A short summary of UCHC-AAUP benefits and accomplishments:

    • Our UCHC-AAUP faculty union has been in place almost 10 years and serves as a means for faculty to have a voice in UConn Health decisions and to provide the strength of many voices to negotiate salaries, benefits, and general working conditions.
    • The UCHC-AAUP developed and negotiated a unique equity-adjusted compensation plan that has successfully increased base pay (on average more than 2.7%/year over ten years) and significantly reduced wage inequities, while maintaining a system for merit-based wage increases and/or bonuses. Before we formed the union, there were large inequities in faculty salaries.
    • In addition, as a result of our negotiations: 1) This July, everyone will receive a $2,000 bonus; 2) In April 2018 longevity payments will be made to for those who are eligible; 3) One extra day of vacation will be given to clinicians who participated in EPIC training.
    • In July, 2020 and again in July, 2021, we will receive a 5.5% increase in our equity fund, which will be distributed in the form of wage increases and merit.
    • The UCHC-AAUP, as member of the state coalition of employee unions (SEBAC), has also negotiated protection for pensions and retirement benefits as well as ongoing health insurance. Please see an update of the SAG award FAQ here.
    • The UCHC-AAUP represents bargaining unit members in employment-related matters. Your union contract has important protections for your wages, hours and working conditions. Please find the union contract here.
    • The union leadership is deepening our communications network by asking people to be liaisons in each department. We will also be bringing together constituent councils to work on issues of common concern. If you would like to be a liaison or participate in the councils, please let us know.
    • We had a substantial legislative presence this year, supporting a fair budget and protecting collective bargaining rights.

    These protections and benefits cannot be maintained without committed dues-paying members!

    We must maintain solidarity in the upcoming months. Not only is the UCH facing the formation of a public/private partnership, but there will be attacks on collective bargaining, our pensions, and health insurance during the legislative session. Additionally, national groups intent on destroying public employee unions will be gathering data so they can take advantage of the Janus decision by sending letters urging people to abandon their unions. (An Illinois organization already asked UConn for data about union members last week!)

    Stand together so that we can continue to have a voice! Please sign our new form today!

    Please contact us if you have any questions at all.

    Kind regards,

    Kevin Claffey and Cindy Polinsky

     

     


  2. QA on SEBAC ARP Award with Notice Issue

    Posted: May 31st, 2018

    Time Sensitive Update ARP and Hybrid – 5/24/2018

    The previous version of the Q&A on the SAG award included the following: 

    Q9:    If I am eligible for the SAG or Hybrid, how long will I have to make my choice of plans, and what materials will be available to me?

    A9: The choice must be made between September 14th and December 14th of this year. Materials will be posted shortly which provide some of the information you may need to make your best choice.

    One thing to keep in mind is that the current online calculator which figures the actuarial cost of buying past service credit will likely be updated soon to reflect changes in benefits and actuarial assumptions that occurred in 2017.   The plan requires notice prior to the calculator changing. So, while the SAG calculator when it is posted will be slightly less expensive than the Hybrid due to the difference in post-retirement death benefits, they may both be more expensive than the Hybrid calculator used today, depending on how the actuaries value in the 2017 changes.

    We continue to believe that the online calculators and the purchasing costs will shortly be updated, and that those costs are likely to be higher than the current calculator determines, regardless of whether a member chooses the Hybrid or to move to SERS through SAG. However, we are no longer assured that members will be given notice before the calculators are changed. We intend to challenge any change that occurs without notice, but the result of that challenge cannot be guaranteed.

    People should take this into account in their decision-making.  The attached updated Q&A references the possible dispute about notice. Should the dispute be resolved, we will immediately issue an updated Q&A so indicating.

    QUESTIONS AND ANSWERS ON SEBAC ARP GRIEVANCE AWARD (“SAG Award”)

    On September 22, 2010, neutral arbitrator Roberta Golick recommended and the parties accepted the attached arbitrator’s award which resolves the SEBAC grievances concerning steering of higher ed employees into the Alternate Retirement Plan.  The Q& A below is intended to help answer any questions about the award which is at nearly ready to be implemented nearly 8 years after its issuance.

    Q1:    What was the steering grievance and what remedies was it seeking?

    A1:     There were two major aspects of the steering grievance.   First, the grievance alleged that virtually every higher ed employee had not received fully adequate time and/or information in order to make an informed decision among their choice between retirement plans (or in the case of adjuncts, their additional choice not to participate in a retirement plan). The grievance sought two remedies for this claim.  For new employees, the grievance sought the imposition of an agreed upon plan selection process by which employees would have adequate time, and the full information necessary to make an informed choice. For current employees, the grievance sought a one-time opportunity to switch plan choices with ARP employees able to use some or all of their ARP proceeds to purchase past service credit at its full actuarial cost.

    The second aspect of the grievance affected a small number of employees. This aspect alleged that these employees had either been told they could only choose the ARP plan, or told that if they chose the SERS option there would be an adverse employment impact (for instance, that they could only work part-time).  The remedy sought for this aspect of the grievance was the ability to switch to the SERS plan at a subsidized cost.

    Q2:    Does the award provide all the remedies sought by the grievance?

    A2:     No, the award is a compromise.  All employees will have a one-time opportunity to switch retirement plans. ARP participants switching to SERS may use their account balance to purchase past-service credit at the actuarial cost. It did not grant the ability for a small group of people to buy past-service credit at a subsidized cost.

    Q3:  What does it mean to buy past service at actuarial cost?

    A3: The actuarial cost is the cash cost of all the projected pension benefits you will receive based on the years of service you are buying, discounted for “present value” – meaning taking into account your projected years until retirement. To figure that value, the actuaries apply the plan rules for calculating benefits at your projected retirement date, and apply all the current assumptions they use for pension funding – life expectancy, projected salary at retirement, expected plan earnings, etc.  Since the window to switch has been open so long, those assumptions have occasionally changed, and when they do, members are given notice before the new calculation tables are adopted for purchase. {Notice requirement may be disputed.}

    Q4:   But it’s been almost 8 years.   What has taken so long, and how has the situation changed since the award was issued?

    A4: Questions were raised about whether the award’s allowance of members to switch plans would be deemed improper by the IRS. The Retirement Commission referred these questions to the IRS, which has taken since 2010 to indicate that permission will be granted.   The Comptroller has indicated that the 90-day window for members to make the choice to switch or not switch plans will be from September 14 to December 14, 2018.

    This choice, however, may be made in a different context than existed at the time of the award, because of the creation of the Hybrid Plan through the 2011 SEBAC Agreement.  That plan created a window for ARP participants to transfer into the Hybrid Plan which will close at the same time as the SAG window closes. So, ARP eligible employees will have the choice to remain in ARP, move to SERS, or move to the Hybrid.

    Q5: Are the members who can choose the SAG Award the same as those who can choose the Hybrid?

    A5: Not exactly.   While the SAG Award covers only people who were on the active payroll on September 22, 2010, the Hybrid allows people who retired as early as January 1, 2009 to shift in that plan.  And ARP participants who started as late as June 30th of 2012 are eligible to buy into the Hybrid, but again would be excluded from SAG because they were not on the payroll as of 9/22/2010.

    Q6: What are the differences between the SERS plan and the Hybrid for those who are eligible to switch into both?

    A6: Once you are in the Hybrid, it works precisely like the equivalent Tier of SERS with two very important differences and one much smaller one:

    • When you leave state service, you can choose the same monthly benefit you would get under SERS, or you have an additional option. You can take a cash withdrawal, which would be all the contributions you made since you joined the Hybrid, plus a 5% of salary Employer match, and a guaranteed 4% rate of interest. Any money you spent to buy your past service when you moved into the Hybrid, plus interest, would also be returned to you but there is no employer match on that initial purchase of service, because the employer has already contributed to the ARP for
    • Because of this additional withdrawal option, the Hybrid plan always costs 3% more in employee contributions than the equivalent SERS Tier.
    • The much smaller difference is in the post retirement death benefit. The SERS plans all include a post-retirement death benefit which says if you begin your monthly pension and you pass away before the monthly benefits have even added up to the amount of employee contributions you’ve made, you’ve made, your survivor gets the difference between your employee contributions and the monthly benefits already paid The question is how money an employee uses to purchase past service under SAG or in the Hybrid would be counted in this circumstance.     Under the Hybrid, all the purchase money is deemed an employee contribution for purposes of this post retirement death benefit.  Under SAG, only the employee share of the ARP account is counted.  Employees until very recently paid 5% to their ARP account, and the Employer 8%. So, of the money used to buy in, only 5/13ths of that is counted as employee contributions under the SAG. These percentages will vary very slightly due to the recent ¾% reduction in employer contribution.  But the point remains.

    Q7:    If my choice is to go into the SERS plan or the Hybrid, which plan would I go into?  Tier I, Tier II, Tier IIA, or Tier 3?

    A7:     Tier I will not be an option. Employees whose service extends to before July 1, 1997 will be placed in Tier II.   Anyone whose service does not extent to before July 1, 1997 would be placed into Tier IIA. Since the benefit structure of Tier IIA and Tier II are identical, the only difference would be from the time of the switch forward, Tier IIA participants would make a 2% higher contribution towards their future service, than Tier II participants do. There is no impact on the cost of purchasing past service, since the benefits are the same.

    For ARP participants who choose the Hybrid, they move into the Hybrid Tier equivalent to the SERS Tier based on their hire date.  So that would be Tier II or IIA, like the SAG award participants, but could even include Tier 3, since Tier 3 began on 7/1/11 and Hybrid transfer is available for people who started as late as 6/30/12.

    Q8:    What does the award mean by a “one-time” choice?

    A8:    Because of IRS rules, the choice of pension plan is in most circumstances irrevocable. So once current employees make the choice allowed by the award, and once new employees make their choice upon hire, that pension plan choice will be binding throughout their tenure with the State. This applies even where the employee changes jobs – for instance, when an adjunct becomes full-time in the state university or community college systems. There are a few complicated exceptions to the one-time rule, but they are rare enough not to discuss here.

    Q9:    If I am eligible for the SAG or Hybrid, how long will I have to make my choice of plans, and what materials will be available to me?

    A9: The choice must be made between September 14th and December 14th of this year. Materials will be posted shortly which provide some of the information you may need to make your best choice.

    One thing to keep in mind is that the current online calculator which figures the actuarial cost of buying past service credit will likely be updated soon to reflect changes in benefits and actuarial assumptions that occurred in 2017. The plan requires notice prior to the calculator changing.   {Notice requirement may be disputed.} So, while the SAG calculator when it is posted will be slightly less expensive than the Hybrid due to the difference in post-retirement death benefits,

     

    they may both be more expensive than the Hybrid calculator used today, depending on how the actuaries value in the 2017 changes.

    Q10: I understand that the calculator predicts my final average earnings (for purchase purposes) using my highest year’s salary. What do I do if I don’t believe that year is a fair predictor of what my real earnings will be?

    A10:   There are individuals whose highest year of salary so far is an anomaly and so not a fair predictor of final average earnings.   For instance, maybe you’re a professor who served as interim Dean during a search, and for that one year (until the new Dean was hired), you were paid $25,000 more than your faculty salary.   The parties have developed a process to deal with those situations.   If you feel something like this may apply to your highest year, you should contact your Union, and get help you with what we call the Salary Anomaly Process.

    You are encouraged to do this as soon as you can.

    Q11: What about individuals not covered by Social Security? Will they be allowed to switch to SERS and if so, what will happen to their exemption from social security coverage?

    A11: Since the exemption applies only to those in the ARP (and only to certain ARP participants), that exemption would end upon the switch, just as it does with the Hybrid. Complex Social Security rules may make the switch inadvisable for such people, but this is an individual decision that should be discussed carefully with a financial advisor.

    Q12:  Will the Unions be encouraging people to change plans?

    A12:  No.   We think it’s very important that all employees have the option to choose a defined benefit plan like SERS or a combined plan like the Hybrid, and that they understand the benefits that a true pension program presents to long- service employees and their employers. But the carrying out of that choice is an individual decision which must be made by each employee based on their own particular circumstances.   This is also true — perhaps even more true – with respect to the decision about whether to purchase past-service credit upon switching.  These are individual choices which should be made based upon a careful assessment of individual financial circumstances.

     

    Q13:  I’m an ARP participant thinking of purchasing past service credit.   If I choose, can I keep some of my money in ARP and use some to purchase past-service credit?

    A13:  Yes

    Q14: What if my ARP funds are insufficient to purchase my full past- service credit?  Can I use my own funds?

    A14: You can use money from your 403(b) or 457 savings accounts for this purpose, including money you may have rolled over from other tax deferred accounts.

    Q15:    If I had previous SERS time before I became an ARP participant, and now I move from ARP to the Hybrid, or I move back to SERS through the SAG award, what happens to my previous SERS time?

    A15: Whether you move to the Hybrid or move to SERS through the SAG award, your prior time can be bridged with your ARP time subject to the normal plan permanent break-in-service rules.      However, these issues are complex, and we have uncovered a number of individual variations which affect ARP participants who have previous SERS service. If you are in that category, and are contemplating transferring to the Hybrid, or moving to SERS using the SAG, you should let your union representative know and your case will be individually reviewed to see if transfers are possible, and how it may be handled in your best interest. Campus human resource employees are being asked to forward these cases to union representatives for individual review.

    Q16: I understand that employees currently in the SERS plan had to make an election to prior to July 1, 2013 to make additional contributions under Attachment F of the SEBAC 2011 agreement in order to maintain the current normal retirement ages beyond June 1, 2022.   Is this true? And how will that affect people who move into the Hybrid or SERS now?

    A16: It is true that as of July 1, 2013, employees not eligible to retire before 7/1/2022 had to make that election to preserve pre-SEBAC 2011 normal retirement age for years worked after July 1 of 2011. (The current normal retirement ages are automatically maintained for employees who are eligible for normal retirement by June 1 of 2022 regardless of whether they work beyond that date).  As for how it will affect people currently transferring to the Hybrid or SERS, if you would be eligible for normal retirement by June 1, 2022 you don’t need to do anything. But if not, an employee who transfers to the Hybrid or to SERS who wants to maintain the current retirement age beyond 2022 will have a window period after the transfer to elect to make the additional contributions.

    Retroactive additional contributions would be due for any purchased Hybrid or SERS time between July 1, 2013 and the purchase date. Those retroactive contributions may be made from remaining ARP funds, or through payroll deduction on a pre-tax basis.

    Q17:  I understand from some others who have already moved to the Hybrid that sometimes it can take a very long time to get the invoice for the past service cost.  Will that delay continue?

    A17:   We need to clarify that first.  Talking about the experience before the SAG windows opens on September 14th of this year, the effective date of the move is very quick. You are moved to the Hybrid plan effective the next pay period after your application is received.

    What has been slow has been the actual invoicing of the cost of purchased service – the complexity of the process of confirming service time, and the unfortunate understaffing of the Comptroller’s office has caused invoicing to take as much as two years.  However, the invoice amount is determined by the date the employee moves to the Hybrid or SERS, not the date the invoice is made.

    So, the delay in the invoice, while frustrating, doesn’t harm the member.

    Once the window opens on September 14th, there will be a 90-day period in all eligible members must decide once and for all whether to remain in ARP, and if not to which plan (SERS or Hybrid) they wish to move. Given the possibility of a large number of applications being received in a much more confined period of time, the exact process for making this work is still being finalized. It is possible that once again there will be a delay between the transfer into the SERS or Hybrid plan and the invoicing of the past service charges. But if so, the delay in invoicing will not increase the purchase cost to the member.


  3. “A Cautionary Tale: The Aronow Case”

    Posted: Apr 9th, 2018

    Connecticut Commission on Human Rights Rules Against UConn Health

    Sometimes, the wheels of justice turn slowly. On February 14, 2018, after a seven-year battle, the State of Connecticut Commission on Human Rights and Opportunities ruled in favor of Dr. Michael Aronow in his whistleblower complaint against the http://uchc-aaup.org/chro-decision-aronow_ocr/  University of Connecticut Health Center (UCH).

    In September of 2011, Dr. Aronow filed a grievance with the Health Center Appeals Committee (HCAC). The state tribunal agreed that, subsequent to his filing of that appeal, Dr. Aronow was subjected to several retaliatory actions by UCH that resulted in damage to his career and his finances. Those actions also resulted in disruption to the care of patients. The final decision rendered by the tribunal can be found here. It documents instances in which UCH treated Dr. Aronow prejudicially, kept crucial information hidden from him, ignored the orders of the tribunal, and undermined the clear language of the by-laws and grievance process by, among other actions, conducting an extra-judicial investigation, arranging ex-parte meetings, and failing to provide a neutral liaison to Dr. Aronow throughout the proceedings.

    The state tribunal concluded that UCH “showed resentment, animosity, and contempt” for Dr. Aronow’s grievance while UCH “harbored impermissible retaliatory animus” toward him. This stemmed from what the tribunal characterized as, “an air of retaliatory animus that permeated the [Health Center’s] corridors.” Further, they found that the actions of UCH “were against their own (hence the taxpayers [sic]) financial interest, and against past practices and policies.”

    An understanding of what occurred provides an extremely powerful argument for the necessity of union representation. It demonstrates, unfortunately, that even when bylaws, policies, and procedures are in place and codified, adherence to them is not a foregone conclusion, much less guaranteed. The good news is that, as a faculty member, you need not “go it alone.”

    Our union contract provides for ‘just cause’ in discipline and a grievance and arbitration process. In cases involving discipline and contract violations, faculty can elect a route of due process rather than utilizing internal UCH processes (e.g., the Health Center Appeals Committee). The external grievance and arbitration process involves the assignment of a neutral third party to rule in cases of discipline or contract violations. Especially in light of the case discussed above, we urge members to consider seriously the contractual grievance and arbitration process vs internal UCH processes whenever a choice is possible. At minimum, we urge you to contact the union to discuss your options. Remember, the UCHC-AAUP is here to support you and your interests and to ensure that all faculty receive a fair shake. Do not hesitate to contact us for representation and assistance concerning UCH administrative matters.

    Here is a link to our union contract and another to the Aronow Decision.

     

     

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  4. Unions Rally For Collective Bargaining With Eye on Connecticut Legislature

    Posted: Feb 27th, 2018

     

    HARTFORD, CT — Union workers in Connecticut are worried about the impact a U.S. Supreme Court decision—that has yet to be made — may have on their ability to organize.

    They’re worried the U.S. Supreme Court will decide in favor of Mark Janus, the child-support specialist from Illinois who sued the American Federation of State, County and Municipal Employees for taking $45 from his paycheck each month, even though he declined union membership.

    Unions are concerned that the Supreme Court will rule in favor of Janus and limit their ability to collect dues that would be used for collective bargaining.

    Oral arguments lasted for an hour this morning in Washington DC while unions in Connecticut rallied in four locations across the state, including Hartford and New Haven.

    Court watchers expect Justice Neil Gorsuch will be the vote that breaks the tie in favor of Janus. A previous similar case split 4-4 in January 2016 before Gorsuch was seated on the court.

    The Janus decision, if it came down in favor of Janus, would have an impact on public employee unions across the nation. There are 24 states that allow at least some public employee unions to collect “agency fees,” according to AFSCME’s brief in the case.

    Connecticut labor unions rallied on the steps of the Connecticut Supreme Court building in Hartford Monday to show their support.

    House Speaker Joe Aresimowicz, D-Berlin, who works as an education coordinator for AFSCME Council 4, said collective bargaining is part of the fabric of Connecticut “and that’s not going to change any time soon.”

    He said this November “collective bargaining will be on the ballot.”

    House Majority Leader Matt Ritter, D-Hartford, said last year they had to defend the right to collectively bargain last year when they approved $1.57 billion in labor savings last summer.

    “This is not something that’s happening just in Texas or Republican states,” Ritter said. “We almost had amendments passing that would have eliminated the right of workers to get together.”

    He said all collective bargaining does is lift people up and all taking it away would do it “tear people down.” He asked the crowd to stay active through the November election.

    Lori Pelletier, president of the AFL-CIO, said this fight “is about the soul of America. It’s about our soul as union members.”

    The fight is no longer a distant one for Connecticut labor, which until recently enjoyed large Democratic majorities in the General Assembly.

    Pelletier said there are people at the state Capitol across the street “who want to see you make less money. Be less safe on the job and not have a voice on the work floor. And that’s what we’re standing up against today.”

    Union membership may be declining, but in Connecticut there are still over 200,000 union members, according to Pelletier. And despite the declining membership, labor still has political clout when it comes to getting voters to the polls.

    Rep. Michael D’Agostino, D-Hamden, who is also running for attorney general, was the one who defended the collectively bargained savings on the House floor  last July.

    D’Agostino told the crowd Monday that organized labor is the only check left on the concentration of wealth and power in this county. He said no one should be surprised that the wealthy want to “undermine the only check left on it.”

    Christine Stuart / ctnewsjunkie

    Christine Stuart / ctnewsjunkie

    House Majoiity Leader Matt Ritter

    D’Agostino told the crowd that Republicans introduced legislation last week that seeks to take away their collective bargaining rights.“This is nothing more than turning this state into Wisconsin,” D’Agostino said as he waved a copy of the bill.

    “They didn’t write this themselves. This is paid for and funded by and written by the same people paying Mark Janus’s legal bills,”  he added.

    He said he’s telling anyone who will listen that public employees and labor unions are not to blame for the unfunded pension liabilities because they paid in when the politicians did not.

    House Minority Leader Themis Klarides, who helped draft the bill D’Agostino was waving around, said he’s “consumed by his blatant political ambitions as he is running for Attorney General who is supposed to be the voice of every Connecticut resident, not just genuflect to a partisan base.”

    She said they have proposed a “slew of cost saving measures to be enacted over time that would help us get out from under a mountain of debt in pension and healthcare obligations.”

    She pointed out that Connecticut is one of only four states that collectively bargains pensions for public employees “46 other states do it differently and we believe changes are necessary for the good of all.’’

    The legislation would require any new state employees after July 1, 2027 to calculate their pensions differently. It would also require employees to contribute seven percent of their salary and wouldn’t allow overtime to be calculated as part of pension payments.

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  5. Janus, Agency Fees, and the First Amendment

    Posted: Feb 15th, 2018

    BY HANK REICHMAN

    Later this month the U.S. Supreme Court will hear arguments in the case of Janus v. AFSCME, Council 31, in which anti-union “right to work” forces are challenging the right of public employee unions to collect agency fees from non-members that the unions represent. These fees have since 1977 been protected by the Supreme Court’s unanimous decision in Abood v. Detroit Board of Education. The ostensible plaintiff, Mark Janus, backed by the National Right to Work Committee and other anti-union groups, claims that requiring non-members to pay for union representation at all is de facto government-compelled speech and hence a violation of the First Amendment.

    Last month the AAUP joined with the National Education Association to submit an amicus curiae brief in support of the respondents, which urged the Court to reject the challenge, arguing that “the government is fully justified in ordering its own workplace affairs through collective bargaining with an exclusive representative. And in order to secure that arrangement, the government is equally justified in authorizing and entering agency fee arrangements that ensure the financial stability of its collective bargaining partner. Such a result is fully consistent with the First Amendment, which grants the government the ‘widest latitude’ in conducting its own internal affairs.”

    The brief was but one of many filed on both sides, including several filed by unions and state and local governments on behalf of the respondents. Two interesting briefs from an unexpected source and an unusual partnership merit broader attention and comment. In what one account called “a surprising lifeline from an unlikely friend,” two conservative legal scholars, Eugene Volokh, professor of constitutional law at UCLA and regular blogger for the Washington Post, and William Baude, a constitutional law professor at the University of Chicago and rising star in libertarian conservative legal circles who has been cited in oral argument by Justice Neil Gorsuch, filed a brief in support of AFSCME. The two are by no means friends of unions, but their concern is with the case’s potential danger to the First Amendment.

    “Compelled subsidies of others’ speech happen all the time, and are not generally viewed as burdening any First Amendment interest,” they write. “Just as non-union members may find many reasons to disagree with a public union’s speech, there are countless grounds to object to other speech supported by government funds. Many people undoubtedly disagree with a great deal of public and private speech funded by taxes or other compulsory payments. There is, however, no First Amendment interest in avoiding those subsidies.”

    While the entire brief is worth reading, here is its summary of argument:

    1. Abood v. Detroit Board of Education, 431 U.S.209 (1977), this Court has observed, is “something of an anomaly” when it comes to the First Amendment. Harris v. Quinn, 134 S. Ct. 2618, 2627 (2014) (internal quotation marks omitted). In fact, Abood is even more anomalous than previously acknowledged. For the first time, “Abood . . . recognized a First Amendment interest in not being compelled to contribute to an organization whose expressive activities conflict with one’s ‘freedom of belief.’” Glickman v. Wileman Bros.& Elliott, Inc., 521 U.S. 457, 471 (1997). Abood then concluded that some interference with this new First Amendment interest was “constitutionally justified by the legislative assessment of the important contribution of the union shop to the system of labor relations,” and the need to avoid free-riding on the public union’s collective bargaining efforts. Abood, 431 U.S. at 222.

    The Court has since questioned whether Abood balanced the competing interests correctly, noting, for example, that “free-rider arguments are generally insufficient to overcome First Amendment objections.” Harris, 134 S. Ct. at 2627 (internal quotation marks and alterations omitted). Petitioner and his amici press similar arguments for reversing Abood here. See Pet. Br. at 36–37.

    Where Abood truly went wrong, however, was not in how it applied the new First Amendment objection it recognized. Rather, Abood erred by recognizing that objection in the first place. Compelled subsidies of others’ speech happen all the time, and are not generally viewed as burdening any First Amendment interest. The government collects and spends tax dollars, doles out grants and subsidies to private organizations that engage in speech, and even requires private parties to pay other private parties for speech-related services—like, for example, legal representation. To be certain, these compelled subsidies are subject to other constitutional restrictions. For example, the government cannot compel payments that violate the First Amendment’s Religion Clauses or the Equal Protection Clause. But a compelled subsidy does not itself burden a free-standing First Amendment interest in freedom of speech or association.

    So if Abood misapplied the First Amendment, it undercut a First Amendment interest that Abood itself miscreated. If anything in Abood should be revisited, it is the existence of the First Amendment interest itself. That is also sufficient reason to reject Petitioner’s request to expand Abood’s First Amendment holding by overturning it in the other direction.

    2. There is certainly no First Amendment violation when the government itself engages in taxpayer-funded speech that some find objectionable. The content of that speech is protected from First Amendment scrutiny by the government speech doctrine. No matter how much we disagree with the government’s message, we cannot withhold the portion of our taxes that support it. The First Amendment permits taxpayers who object to government speech to raise their own voices in opposition and to associate with others who share their views. And, of course, disgruntled voters can express their frustration at the ballot box. But those are their only remedies. They have no First Amendment interest to resist subsidizing government speech they happen to disapprove of.

    The First Amendment analysis is the same when the government gives tax revenues to private entities to provide services that include speech. As with government speech, the government’s choice of what services and what speech to subsidize does not implicate the First Amendment’s freedom of speech and association rights, outside of certain exceptions like public forums. See Rust v. Sullivan, 500 U.S. 173, 200 (1991). Nor does the First Amendment constrain private grant recipients when they speak using government funds. Again, taxpayers who oppose these compelled expenditures have no right to withhold taxes and no recourse besides engaging in speech or association themselves or voting for different government officials.

    The only difference with the compelled subsidies challenged here (and in Abood) is that they involve payments made directly from one private party to another as a condition of public employment. But the government frequently conditions important activities on the purchase of speech-related services from private entities or individuals. Doctors and lawyers must enroll in continuing medical and legal education courses to remain in practice. States require entrants to a wide variety of occupations to purchase dozens or hundreds of hours of training and certifications. And a number of states require people buying real estate to be represented by an attorney at the closing. The government requires people to purchase non-speech services from private entities too, like car insurance and vaccinations, and the entities that receive these government-compelled funds are then free to spend them on objectionable speech.

    The First Amendment does not provide freedom from any of these mandatory payments for others’ speech. Practicing attorneys cannot refuse to pay for CLE programming because they disagree with the messages presented or because they choose not to associate with CLE providers. Home buyers cannot refuse representation by counsel in states that require it, even if they would prefer to spend their money on something else. These and other instances of private speech funded by government mandate need not be viewpoint-neutral, nor must they be justified by a compelling governmental interest. The First Amendment rights to freedom of speech and association simply do not guarantee that one’s hard-earned dollars will never be spent on speech one disapproves of.

    3. Stripped of Abood’s unfounded First Amendment concerns, this is an easy case. The government has determined that collective bargaining is the best way to negotiate contracts and settle disputes with public employees. The government would undisputedly be free to establish a public collective bargaining agent, or to pay a private one directly from the public fisc. That it has chosen instead to pay its employees and then require them to hire the collective bargaining agent does not change the constitutional analysis.

    4. Under the doctrine of stare decisis, Abood should not be overturned unless it reached the wrong result. It is not enough to note that Abood was badly reasoned, or that parts of the opinion were flawed. The Court should overturn Abood only if, going back to first principles, it can establish that the Free Speech Clause does protect a right that is violated by agency fees. But the First Amendment provides no such right. The judgment below should be affirmed.

    This is a remarkable argument, going further than most others to argue that Abood’s own reasoning was flawed, but not in the way its challengers contend. (Volokh has also responded to critics who claim that while the Constitution provides for the taxing power, it does not authorize agency fee payments, a distinction that, he retorts, is “quite beside the point.”)

    A different approach is taken in a brief submitted by the seemingly unlikely pairing of Charles Fried, professor of law at Harvard University and a former Republican Solicitor General of the United States, and Robert Post, professor of constitutional law and former dean at Yale University Law School, who is a former general counsel to AAUP and current member of Committee A, represented by Seth Waxman, Solicitor General in the Clinton administration. The two intervened on behalf of neither the petitioner nor the respondent. But they also take head-on Janus’s First Amendment claim:

    In seeking a categorical prohibition on agency fees, petitioner claims that all union speech directed to the government is “political speech indistinguishable from lobbying the government.” That is manifestly incorrect. When a union discharges statutory duties, it engages in speech that “owes its existence” to the State’s chosen system for managing its workforce; funding such speech—which is directed to the government as an employer, not to the government as a sovereign—does not implicate “any liberties the employee might have enjoyed as a private citizen.” Garcetti, 547 U.S. at 422. Concluding otherwise would set in motion drastic changes in First Amendment doctrine that essentially threaten to constitutionalize every workplace dispute and, further, to unsettle other constitutional doctrines that distinguish between the government as employer (or proprietor) and as sovereign.

    Most striking here is the brief’s reliance on the Court’s 2006 decision in Garcetti v. Ceballos, a decision that raised considerable concern among faculty and in the AAUP over its potential to restrict academic freedom. But it turns out that Garcetti is a two-edged sword. “Public-sector bargaining regimes involve the same state managerial prerogatives to which the Court has expressed deference in the Garcetti line of cases,” the brief states. “This Court has interpreted the First Amendment, consistent with Garcetti, to give ample room to state employers to structure public workplaces as they believed most effective, without undue First Amendment restrictions.” The brief continues:

    The essential insight of the Garcetti line of cases is that if public employees are accorded categorical First Amendment rights, public employers will be denied the broad discretion they need to manage their workplaces. States will be stripped of their capacity effectively to govern in accordance with local needs and values. It is inconsistent with Garcetti’s carefully drawn distinction between speaking as an employee and speaking as a citizen to hold that the compulsory payment of agency fees is categorically protected under the First Amendment. Any such holding would therefore threaten to transform every workplace dispute into a constitutional controversy. . . .

    Union representatives discharging their statutory duties therefore are speaking on behalf of employees qua employees, with funding from employees qua employees, within a statutory system created to manage the State’s relationship with its employees qua employees. Their speech “owes its existence” to the State’s chosen system of labor relations and does not implicate “any liberties the employee might have enjoyed as a private citizen.” Garcetti, 547 U.S. at 422.

    That this case involves employee funding of speech, rather than employee speech itself, does not distinguish Garcetti. There can be no First Amendment claim for restricting speech made in the context of a system “commissioned or created” by the government acting as employer. 547 U.S. at 422. This principle applies with equal force to a claim of compelled speech. See Riley v. National Fed’n of the Blind of N.C., Inc., 487 U.S. 781, 796 (1988) (the “difference between compelled speech and compelled silence … is without constitutional significance”). Indeed, public employees are routinely compelled to speak pursuant to their official duties, and courts have rejected First Amendment challenges to such compulsion under Garcetti. If the employee speech at issue here can be restricted or compelled without First Amendment challenge, so too can the funding of such speech. Because a claim of compelled funding of speech is more attenuated than a claim of compelled speech simpliciter, this conclusion follows a fortiori from Garcetti.

    The brief goes on to argue that a “categorical rule holding agency fees unconstitutional would also blur the limits the Court has been careful to place on what constitutes a ‘matter of public concern’ for constitutional purposes”:

    The record reveals that certain activities funded by the agency fees at issue in this case cover the very types of routine workplace matters that the Court has carefully refrained from constitutionalizing with First Amendment protections. . . .

    A ruling categorically prohibiting agency fees would necessarily elevate these types of pedestrian workplace matters into matters of public concern. . . . That is irreconcilable with this Court’s precedent. Indeed, the employee’s claim in Connick “failed the public concern test” precisely because the workplace questionnaire she distributed—addressing matters like the need for a grievance committee—“was ‘most accurately characterized as an employee grievance concerning internal office policy.’” Guarnieri, 564 U.S. at 392 (describing Connick); see also Connick, 461 U.S. at 149. If the Court in this case holds that employee grievances are a matter of public concern, it will have to accept the same result in countless other scenarios—including, for example, a public employee’s complaint of a superior’s “poor management and motivational skills,” Ezekwo v. New York City Health & Hosps. Corp., 940 F.2d 775, 778 (2d Cir. 1991), a superior’s lack of leadership ability, Graziosi v. City of Greensville Mississippi, 775 F.3d 731, 738 (5th Cir.2015), and, more generally, employment conditions and personal dissatisfaction with personnel decisions, Brooks v. Arthur, 685 F.3d 367, 372 (4th Cir. 2012).

    A third argument made in the brief against Janus and his backers concerns the Court’s longstanding balancing test in public employee speech cases:

    A categorical prohibition on agency fees would also mark an abandonment of the balancing that is the final step in the Court’s public-employee speech cases. Once an employee has overcome the threshold requirements, i.e., speaking as a citizen on a matter of public concern, “[t]he question becomes whether the government entity ha[s] an adequate justification for treating the employee differently from any other member of the general public.” Garcetti, 547 U.S. at 418. . . .

    Nearly half the States have chosen to authorize agency fees for unionized public workplaces; they have decided that well-funded collective-bargaining arrangements are best-suited to serving their citizens effectively and efficiently. These discretionary state judgments deserve respect and must be weighed in the balance mandated by Pickering, Connick, and Garcetti. . . .

    The categorical approach sought by petitioner would ignore the balancing requirement and preclude States and localities from funding any workplace management activities through agency fees. States and localities could not even use agency fees to fund routine matters such as “[a]djusting grievances … and representing employees in proceedings under civil service laws and regulations.”

    I find less persuasive the Fried-Post brief’s lengthy argument against upholding Abood’s test for determining which union fees are chargeable and which are not and its advocacy of moving to the “statutory duties” test proposed in a previous case by Justices Scalia, O’Connor, Souter, and Kennedy. While this may well be aimed at opening a door for a compromise resolution that might attract Justice Kennedy’s vote, I wonder if it will make much difference in reality, since there was not agreement among the four justices originally proposing that test about how to define its parameters. That said, through its shrewd turning of Garcetti, which limited public employee speech, against the claims of those phony “free speech” advocates behind Janus is a powerful argument that complements the one submitted by Volokh and Baude.

    Nonetheless, it is questionable, if not doubtful, whether these arguments will prove effective. To be sure, both briefs speak to potential swing justices. Volokh and Baude’s arguments may be aimed at Justice Gorsuch, the one justice who has yet to indicate a stance on this issue. (Last term’s Friedrichs case raised the question, but absent Justice Scalia the Court deadlocked 4-4 and no opinions were issued. It is clear, however, that the four liberal justices — Breyer, Ginsburg, Kagan, and Sotomayor — opposed overturning Abood.) But Baude has said he does not think the brief would appeal to one justice in particular, or even a subset of justices, because its argument is based on first principles and logic. “I think all the justices are pretty committed to free speech,” he said. “They just have a lot of hard cases between what’s speech and what’s not, and this is an example of one of those boundary cases.”

    Fried and Post clearly hope to sway Justice Kennedy. Justice Samuel Alito has been the main advocate on the court for the position taken by Janus. “The position Charles Fried and I took was that the Alito position is inconsistent with the First Amendment analysis of employee speech that Kennedy had set forth in Garcetti,” Post explained in an interview. “Garcetti was a case about whether public employees have First Amendment rights, and Kennedy, speaking for the court, said it depends on whether they’re speaking as employees or as citizens.”

    “Kennedy was trying to make regulation of employee speech not a constitutional question every time it happened, but the Alito position completely undermines this,” Post said. “It has to be contextual, and you have to be much more nuanced about the sort of speech you’re talking about subsidizing.”

    Still, the Court has not always been known for its logical consistency, especially in today’s highly politicized environment. Absent a powerful mass movement in support of unions, it is difficult to imagine how legal arguments alone will carry the day. But such arguments are not without import and worth understanding. If nothing else, their rejection will educate us about the nature of law and power in contemporary America. Sadly, it remains unlikely at best that public employee unions, including the AAUP, will once again dodge the bullet of a declaration that agency fees are unconstitutional. We must remain prepared.


  6. Educators File Amicus Brief with Supreme Court in Janus v. AFSCME

    Posted: Jan 23rd, 2018

    FOR IMMEDIATE RELEASE

    January 19, 2018

    NEA, AAUP compellingly argue how strong unions benefit communities

    WASHINGTON — The National Education Association and the American Association of University Professors submitted an amicus brief today with the Supreme Court in the case of Janus v. AFSCME, Council 31. The National Right to Work Committee, which is behind the case, is asking the Court to read into the First Amendment a right to work law for the entire public sector. As the brief explains, the First Amendment has never been so interpreted and doing so would conflict with the Court’s long-established deference to state decisions about their public workforces. At issue in Janus is whether non-union members, who share in the wages, benefits and protections that have been negotiated into a collectively bargained contract, may be required to pay their fair share for the cost of those negotiations.

    “Strong unions help to create strong schools for students and even stronger communities that benefit all of us,” said Lily Eskelsen García, a sixth grade teacher from Salt Lake City, Utah who was elected to serve as the president of the National Education Association. “For generations, unions have been the best path to the middle class for working people, especially people of color and women. But in this rigged economy, unions are under attack, and those attacks are coming not just from the White House and Capitol Hill. They’re happening at the ballot box and at the Supreme Court with cases like Janus v. AFSCME.”

    A comprehensive report issued last year by the Economic Policy Institute detailed how collective bargaining plays an essential role in the labor market, by raising working people’s wages and supporting a fair and prosperous economy as well as a vibrant democracy. Unions and their ability to bargain collectively are an important force in reducing inequality and ensuring that low- and middle-wage workers receive a fair return on their work. Another recent report titled, “Strong Unions, Stronger Communities,” reviewed numerous case studies where members of labor unions have used their freedom to join strong unions and collective voice to fight for improvements that benefit all working families in communities throughout America.

    “This case is part of a broader effort to weaken the freedom and power of working people, undermine public services, and to erode the common good. The Supreme Court should consider the benefits of robust collective bargaining and unionization for public employers, employees and the general public, including improved government services, better educational outcomes and higher economic mobility,” said AAUP General Counsel Risa Lieberwitz. “The court also should not ignore the fact that many of the groups who filed briefs in support of Janus only want to manipulate and weaponize the court’s decision to attack unions and deprive state and local governments of broad societal benefits that accompany collective bargaining.”

    The Janus case presents a real test for the court. If facts, merit and law are considered, then the justices must rule in favor of upholding 40 years of precedent that support the authority of state and local governments to choose to have strong public sector systems of collective bargaining.

    “The politically-motivated backers behind Janus know this case is nothing more than a smokescreen for what they’re really trying to do,” added Eskelsen García. “Point blank, this case is an assault on the freedoms of working people to earn a better life for themselves and their families. The case’s backers are attempting to write the rules further in favor of their own special corporate interests and other billionaires. The justices on the Supreme Court cannot allow themselves to be fooled.”

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  7. Reject Betsy DeVos’s Nomination

    Posted: Feb 7th, 2017

    The AAUP urges the United States Senate to reject Betsy DeVos’s nomination as education secretary.

    Given her documented lack of qualifications and hostility to public education, DeVos is manifestly unqualified for the position. In both ideology and practice she has violated the principles of quality education that the AAUP has defended for over a century. Far from seeing our public schools as a valuable asset, DeVos understands them instead as a source of revenue to fill the pockets of corporate school entrepreneurs. Her privatization schemes have done much damage in several states, especially Michigan. They treat students as widgets in a machine to produce a profit for well-heeled investors. In Ohio, DeVos broke the law by knowingly making illegal campaign contributions through her school choice PAC, resulting in a fine of over $5 million that has yet to be repaid eight years later. This brings her personal ethics and responsibility into question

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  8. Faculty Strike at 14 Campuses

    Posted: Oct 19th, 2016

    The faculty union for the Pennsylvania State System of Higher Education announced a strike, starting this morning. The banner at right is from the union’s website.

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