Saturday, May 24, 2014

Thoughts on the Supreme Court "fair share" case

I have little to say so far about the implementation of the union contract at UIC.  Mostly that's because there's a lot I don't know.  Partly, it's also because of what I do know, I don't know much is meant to be generally public knowledge and how much is not meant to be.  Of course, we're a public university, so I imagine everything will be public eventually.  But I think it's the better part of wisdom not to speak of that which I'm so ignorant anyway.

But one thing I'm less ignorant about is the pending U.S. Supreme Court case, Harris v. Quinn.  There's a lot I don't know about the case.  I haven't read any of the briefs or followed it very closely in the news.  But yesterday I did listen to the one-hour oral argument, which can be found here.  (For a rundown of the major steps in the litigation, click here.)

I'll confess that listening to the oral argument was, well, fun and exciting.  I imagine such arguments are made available as a matter of course in most or at least many cases, but this was the first time I've actually listened to one.

But the stakes are important.  Apparently, it involves a challenge to fair share provisions for public employees.  If I understand the challenge correctly, fair share is questioned because it compels people (in this case, members of bargaining units for public employees unions) to petition the government even if they disagree with the "petition," i.e., disagree with the union.  The defense to the challenge is, as best I can tell, based on the following points:
  1. Fair share for state-level public employees has been an established part of labor relations for at least some states for about 30 years.  This practice has been validated by federal case law.
  2. The state, as employer, has certain prerogatives to deal with its employees as employees in a way that it wouldn't otherwise have in dealing with its citizens.
  3. Fair share provisions, for the states that have them, represent the state acting as employer.
From listening to the oral arguments--and I realize the "real" arguments are actually made in briefs and in prior decisions of lower courts--it seems there are three possible ways the Supreme Court will decide:

  1. Uphold fair share for public employees and reject the challenge altogether.
  2. Invalidate fair share for all public employees.
  3. Follow some intermediate path.  Perhaps by invalidating fair share for this particular case but not in general or by saying that fair share isn't really at issue here and that some other policy is really the controlling concern.  In this case, "some other policy" might be Medicaid.  The fair share challenge here involves home workers for very ill, indigent persons who rely on Medicaid.  There was some discussion, especially by the Chief Justice, about whether Medicaid stipulates a certain standard of payment that would make unionization of employees paid by Medicaid subject to a special set of rules that don't necessarily apply to other public employees.
I'm no legal scholar, so perhaps I'm missing something.  My prediction is that the decision will be against fair share provisions, but somewhat along the lines of #3 above.

If my prediction is right, here is my (again, amateurish) assessment of how the decision will affect the UIC United Faculty Union.  It will open up the possibility for a challenge to the fair share provision in our contract.  That challenge, or a challenge concerning a very similar type of contract elsewhere in the country, will probably hinge on the extent to which the union engages in public advocacy beyond the purview of wages, hours, and working conditions.  In that sense, the union's institutional membership with the American Federation of Teachers and the American Association of University Professors will be scrutinized.  My understanding is that those organizations sponsor political and legal activity that could be construed as falling outside the wages, hours, and working conditions purview.  That scrutiny might not hold up in court, and UIC's fair share provision would be invalidated or it will have to be restructured and the dues will have to be segregated, with an opt-out option for those who do not wish their payments to go to the affiliates. 

That's a lot of prediction from a non-lawyer, non-legal scholar.  But I'll be interested to see what happens.

Saturday, May 10, 2014

Resist the appeal to force

I am and will probably remain a member of the UIC United Faculty union, unless it starts taking positions I cannot in good conscience endorse.  I would say this even if there weren't a fair-share provision.  There are ways in which being represented by a union is useful, and I believe if I'm going to get the benefits of union membership, I should pay for it.  Also, as I've said before, I don't oppose fair-share provisions in principle.  But I'd like my union colleagues to reconsider how they use the fair-share provision in our contract when encouraging members of the bargaining unit to join or remain members of the union.

Back in January or so, when I first mentioned to one colleague my reservations about the union, his or her first response was not to ask about my reservations.  It was to say something like the following (I paraphrase, but it's as close a rendering I can recall):  "Well, Illinois is a fair-share state, and once we get a contract you'll end up paying anyway.  So you might as well join in order to have a say in what goes on."

That's a reasonable response.  And frankly, even though I have found open dissent a difficult thing, I've seen others do it at union meetings and they were listened to, even applauded (I presume for their courage and not in agreement).  They were not jeered.  And as I have said, I have at least one contact with whom I have discussed my reservations and who wanted to take my views on what was going on.  The person in question who mentioned the "Illinois is a fair-share state" argument has not put a lot of, or any,  pressure on me to join or cooperate with the strikes.

But the response is also a veiled appeal to force.  The laws are such that pretty much any contract that was going to be ratified (assuming one was indeed going to be ratified) would have a fair-share provision.  The worker in such a case has no real choice about whether to pay, although if he or she objects enough, there are provisions for the money to paid to a charity.*  The right response to someone with reservations is not to say, essentially, "we're stronger, therefore you'll have to go along anyway."

That, I admit, is a harsh way of putting it.  And I disagree with those of a libertarian bent who identify such laws as coercion and hint that any and all coercion is to be condemned or at least sharply limited.  That fair-share is technically coercion, I agree.  But not all coercion is created equal, and I'm comfortable in principle with this particular form of coercion.  None of that, however, means we ought to throw discussion about merits to the wayside.

There are three reasons for this.  First, joining the union is a vote of confidence in the union.  That is true because public employee unionization in Illinois is done through a "card check" mechanism.  Simply relying on fair-share risks being a disingenuous (if unwittingly so...if it's possible to be "unwittingly disingenuous") claim.  And even if the "card check" procedure were not the current procedure, retaining membership expresses a measure of support for the union that merely paying fair-share dues does not.  And sometimes, refusal to join--or the decision to withdraw membership--can be strongest way to exercise a "voice" vis-a-vis the union.

Second, the current contract will not last forever.  When negotiation's start again in about a year, the union will again face the question of whether it is a good thing.  And if it so happens, and I fairly sure it will given the perennial experience of many of the other unions on campus, that the negotiations drag on, we might again see strikes or threats of strikes.  Maybe now is not the time to question the union, but soon the question will be refreshed.

Third, the question might come to the fore even sooner.  There is a case pending in the U.S. Supreme Court, Harris v. Quinn, that might invalidate fair-share provisions for public employees.  I don't know if that's the only way to frame what's at stake in that case, and even an adverse (for fair-share proponents) ruling might not necessarily invalidate all fair-share for all public employees.  But it could happen and as early as this June.

Again and in keeping what I said at the beginning of this post, I will probably remain a member of the union at least as long as I'm a part of the bargaining unit and as long as it is my official and contracted representative, even though I'm still not yet convinced that it is the right thing for UIC.  But the union should not rely overmuch on the fair-share provision.  Even if Harris v. Quinn turns out favorably for the union, the pro-union argument is not reducible to it.

*I should mention here something about which I had been earlier mistaken.  Somewhere on this blog--I forget where--I claimed that fair-share dues are less than the dues full-union members pay.  That was my understanding when I was a member of UIC's Graduate Employee Organization (GEO), but even if it was true then, it does not appear to be the case here.  The contract merely states that fair-share payments cannot exceed the amount of union dues, which I suppose means that they will be equal to such dues.