Thursday, July 31, 2014

The case for a conscience exemption, Part Two

In my last post, I made what I called "it's the right thing to do" argument for expanding the religious exemption to fair-share dues in the union contract to an exemption based on conscience.  In this post, I will argue that not only is it the right thing to do, it might be a good tactical maneuver on the part of the union, provided the expansion follow certain "ground rules."  I'll call this argument the "practical" argument.  In my next post, I'll go over the "ground rules."

The practical argument comes partially as a response to what are probably the best objections to expanding the exemption, namely, that doing so would effect a drain on the union's resources and encourage anti-union-shop (aka "right to work") activists in their efforts to outlaw all fair-share provisions.

Expanding the exemption could lead to a drain on the union's resources.  I can see two ways that expanding the exemption might do so.  The first is, if enough people apply for the exemption, the unions' funds would drop precipitously.  The second is, even if relatively few people avail themselves of the exemption, "managing" the exemption-seekers, verifying they contribute what they are supposed to to the charity of their choosing (in lieu of paying the money to the union).  That effort also imposes a "cost" on the union, in terms of more effort expended with no additional (in fact, even less) money coming in as a result of that effort.

Expanding the exemption could also encourage anti-union-shop activists looks at those who in other states have outlawed fair-share and who think to do so in Illinois.  They would look at any expansion of exemption privileges as a chit in the direction toward their preferred policy, of full exemptions for anyone who doesn't want to contribute to the union. 

Both objections have a point.  Although I will argue that on balance, expanding the exemption does more good than harm for the union, the harm it does cannot be completely eradicated.  Some will seek the exemption.  The union will have to expend the effort and cost to manage it.  And anti-union-shop activists will be encouraged by it.  There's no getting around any of those points.

And yet, there are the opportunities for the union, too.  To the first objection--that the scheme will cost money--I offer something of a bet, but one that I nevertheless feel confident I will win.  I think very few people would avail themselves of the conscience exemption.  Keep in mind that as long as those enjoying the exemption have to contribute the money elsewhere, to a charity mutually agreed upon between the union and the exempted person, the exempted person still has to pay.  That person also has to go out of his or her way to get the exemption in the first place.  I believe that if the exemption is expanded, getting it should be fairly easy to do, say by downloading a form from the union's or university payroll's website.  But still, one has to go through the effort to do it, and then go through the effort to contribute to the charity and get a receipt or other proof to show to the union.

But how will the union know the receipt is a "good one" and not just something forged by the exempted person?  My first answer is that if someone is dishonest enough to forge a receipt, they are probably dishonest enough to claim in the first place that they belong to a religion that disapproves of unions and take advantage of that exemption.  Maybe that possibility is a reason to get rid of, instead of expand, the religious exemption, but I obviously disagree.

The union might also negotiate some scheme by which it can verify with the charity or charities that a payment was made.  Or, the union could set up a separate online account that collects money from all exempted persons as an automatic dues withdrawal.  From that online account, the exempted person could allocate money to the selected charity or charities, and if the exempted person does not do so after a certain time (say, 30 days), the money reverts to the union.

That answer is a bit of a stretch, I admit.  I imagine the union contract and applicable privacy laws as well as best practices among charities probably make confirmation of donations difficult or tricky.  (Or maybe not, I'm not very familiar with confidentiality when it comes to charitable donations.)  And setting up a separate account to "bank" payments is probably a good idea, but I have no idea how easy or hard it is to do, and it would probably require the union to spend money upfront developing such a site.

Or the union can trust to its charges' honesty.  Again, someone who would go out of their way to forge a receipt would probably go out of their way to lie about a religious exemption in the first place.  Also, the union claims to represent all members of the bargaining unit and must represent them.  In a labor dispute between a member of the bargaining unit and the university, the union will help the member of the bargaining unit.  It claims to have its charges' interests at heart, and if it wants to do that, it needs to assume a certain respect and trust for the members of its bargaining unit.

What if my prediction is wrong?  What if a significant number of people elect the conscience exemption?  I admit that is a possibility, and I don't have a ready answer aside from my bet that they won't.  If the number of people who elect the exemption is close to a majority of the union, say 40% or 50%, then I submit such an occurrence operates as a salubrious warning sign for the union.  If that many people are willing to go out of their way to pay someone else other than the union, then the union is in trouble and it is better that it know its members' discontent during the term of a contract rather than when or if certification again comes up for consideration.

But if the number is closer to, say, 10% of the bargaining unit, that could still be a chunky financial hit for the union without necessarily indicating a critical lack of support.  "Necessarily" is a key word here:  I suggest that if even 10% are willing to go out of their way to get an exemption and pay the money elsewhere, then that is a warning sign the union could benefit from knowing.  But it's a different thing from 40%-50%.  So yes, the union would run a risk if it concedes a conscience exemption.

And what about the other objection, that expanding the exemption would be boon to anti-union-shop activists?  I suggest the boon, such as it is, would be one of momentum.  Anti-union-shop activists would see the grant of such an exemption as one more sign of the weakness of unions.  I suppose they could encourage union members to exercise their new option, under the guise of a "better to help people through charity than support the union" campaign. 

But while I cannot deny a potential benefit to the anti-union-shop movement, expanding the exemption will otherwise make the union stronger in that same struggle.  The union, after making the exemption available, can now say honestly it exercises less coercion than before, that the members of its bargaining unit have a meaningful choice and can direct their fair-share funds elsewhere.  Such a position won't sway the dedicated anti-union-shop activists, but it would be a good counterpoint to the notion that fair-share operates only as coercion, without any choice.  Coercion is still there, of course.  The member of the bargaining unit still has to pay regardless.  But he or she now has more freedom to direct where the pay goes.

I'll add to that last point that expanding the exemption might be the way to meet possible changes in the law.  As I've noted, the recent Supreme Court case Harris v. Quinn, did not abolish fair-share for public employees, but it could be interpreted as signalling a readiness by some of the justices to do so in a later case, more amenable to addressing that specific question.  If the union can say those it claims to represent have a true choice in how their fair-share portion is meant, perhaps an anti-fair-share ruling wouldn't apply to it.

In short, I believe expanding the exemption could benefit the union.  But the benefits I describe in this post and my prior one depends on certain "ground rules."  Those I will discuss in my next post.

Tuesday, July 29, 2014

The case for a conscience exemption, Part One

In my last post, I raised the not quite hypothetical point of someone who would prefer the religious exemption from the fair-share requirement of the union contract to be expanded to include a conscience exemption.  In other words, instead of having to aver an objection to the union on religious grounds, one could simply object on the grounds of not supporting the union.  I believe that as long as a few ground rules are maintained, the union should consider conceding such an exemption the next time it negotiates a contract, or sooner if at all feasible.

In this blog post, I'll advance what I call "it's the right thing to do" type of reasons.  In a later blog post, I'll try to demonstrate why expanding the conscience exemption is not only the right thing to do, but also a good tactical thing, for the union, to do.

To start, let's look more closely at the religious exemption.  In both the Non-tenure-track and tenure-track contracts, the relevant portion can be found in Article 8, subsection H, sub-subsection 3.  The language reads in part as follows:
In the event that any employee covered hereby is precluded from making a Fair Share involuntary contribution...on account of bona fide religious tenets or teachings of a church or religious body of which that employee is a member, that employee shall have the right to refuse to allow said involuntary deductions; provided, however, that said right to refuse shall continue only so long as the employee makes contributions at least equal in amount to the Fair Share Fee amount to a non-religious charitable organization mutually agreed upon by the employee so refusing and the Union...The employee shall, on a monthly basis, furnish satisfactory evidence to the Union that such payment has been made.
It is important to note here what this exemption does and does not do.  It does not absolve the employee from paying.  It's not a "free ride," although from the perspective of the union's coffers it probably seems as such.  Also, the member of the bargaining unit who has to apply for the exemption has to go out of his or her way to get it, that is, he or she has to affirmatively state and seek out the exemption.  It's an "opt out" provision, and only a partial one at that, because, again, the bargaining unit member still has to pay.  It also doesn't specify what makes a religious teaching or tenet "bona fide."  There is probably a tradition of contract interpretation and jurisprudence that gives insight on how to determine this point, and that tradition probably gives a lot of deference to a person's subjective sense of what his/her religion requires.  But it leaves unstated how a bona fide belief is to be stated, affirmed, and demonstrated.  Finally, it makes the union responsible for ensuring compliance.

I don't know exactly why the religious language was included.  It is probably standard fare when it comes to most states' automatic dues deductions and fair-share requirements, informed by the American tradition of respecting religious conscience.  But I think the exemption should be expanded beyond the religious.

One reason for expanding it is that the provision implicitly gives a privilege to religious belief that automatically excludes people who do not profess any religion, or who profess a religion that has no official position on unionization.  I suppose in order to accept this as a reason for expanding the exemption, one must accept a certain set of assumptions about whether certain beliefs or non-beliefs ought to be privileged by policy.  I join the side of not privileging religious belief as such, although a conscience exemption could accommodate a religious exemption while the religious exemption cannot accommodate the conscience one.

A second reason is difficulty in determining who has a "bona fide" religious belief about unions.  As I mentioned above, what counts as "bona fide" might be tricky unless it means in practice "whatever the person seeking the exemption claims."  If in practice it means that, then the "bona fide" provision is essentially meaningless as far as any attempt to verify compliance goes, although perhaps an exemption-seeker might not be willing to lie about such a thing.  If in practice it means something more--perhaps a note from one's clergyperson, or a hearing before an arbitrator about one's religious beliefs--then the "bona fide" provision potentially involves the union in a task for which it is ill-suited:  investigating and passing on the legitimacy and sincerity of a person's most deeply held beliefs.

I say the above is a reason for expanding the exemption because unions function primarily to represent workers' on-the-job interests and not the state of their soul.  At least, that is its most widely accepted role, the role about which most people agree unions should exercise.  There, of course, those who believe unions could and should  transform society and perhaps exercise a deeper role in the consciousness of its members.  Less controversial (but still controversial), some believe unions should lobby lawmakers for policies deemed favorable to those whom they represent.   But even those who disagree with that "movement" view and the pro-lobby view--and even those who dislike unions generally--seem to agree that if unions are to exist at all, their principal role is to represent on-the-job interests.

The two reasons above are probably best characterized as, "it's the right thing to do" type of reasons.  I would like those reasons to appeal to what I believe might be a shared understanding on numerous points:  whether the type of privileges accorded to religion ought to end with religion belief or expand to conscience andwhether the union really ought to concern itself with whether a belief is "bona fide," and, indirectly. 

At the very least, even if my readers disagree with me on whether the above reasons are persuaded, and even if the readers don't share my assumptions, I wish them to acknowledge a difficulty with fair-share provisions.  Those provisions compel people to pay a part of their salary they would not otherwise want to pay.  In some cases, it's a question of laziness and/or temptation.  People who otherwise support the union or (in my case) do not wish to free ride, might inadvertently let their membership lapse or appreciate a slightly buffier paycheck.  In other cases, it's a question of someone with a principled opposition.  In those cases, they union has failed to convince that person to support it.

I suggest that even if we concede it is right to demand involuntary contributions, it's not 100% right.  There's a little bit of the appeal to force there.  And if one--following as I honestly believe good reasons--believes fair-share is necessary, there ought to be a little bit of recognition that something is being taken from the unwilling.

In a later blog post, I'll explain why expanding the exemption is not only the right thing to do but also why it may be tactically a good thing for the union to do, provided it's done along certain ground rules that are similar to what is already in place for administering the religious exemption.

Friday, July 18, 2014

Balance out the slogans with an argument

One type of discussion I have witnessed occasionally about the union goes something like this.  Person A complains about the union, wishing to opt out of paying fair share dues, or wishing the religious exemption could be broadened to a conscience exemption.  (Keep in mind that even with the exemption, a person still has to pay, but the payment goes to a charity mutually agreed upon by the union and the person.)  Person B responds by saying something like, "Are you also going opt out of the pay increase you've gotten because of the union."

It should be no surprise that I'm going to criticize Person B's retort.  But I want to point out first that Person B has a point.  Although it is an open question whether UIC faculty would have received a wage increase similar to the one they actually received with the contract--such appears to be the argument of the authors at No Faculty Union--the current pay raise (still pending, at least in my case) is instituted via the current contract, and it's not impossible that the administration would have simply declined to grant a raise if left to its own devices.  Also and as I have argued before, there is a benefit to having union representation that goes beyond pay increases.  It's the benefit of being represented by an organized and officially recognized body, which can be useful from time to time when an employee finds oneself at the mercy of an unfair practice.  There are also disadvantages to that representation, too, and what strikes some people as unfair often strikes me as an attempt to choose the least bad of several bad options.  But let's not pretend that there's no benefit to having a union, or that the benefit of a union lies only with pay increases.

The reason I criticize Person B's retort in this case is that it's not really an argument.  If Person A feels such a strong objection to the union that he/she would prefer to opt out and pay the equivalent dues to a charity, then the union hasn't made its case for that person.

And it's not a given that Person A benefits from the union as much as Person B suggests.  If Person A is on a margin that the union contract makes it more expensive to hire him or her, then a pay raise, even a modest one, makes it more difficult to keep Person A on.  Also to be considered is the proposition that the increased job security that this union contract, like most union contracts, tries to provide can have a perverse effect on some employees.  My understanding of the contract is that when it comes to contingent faculty, the provisions that ensure the most security kick in for those who have been at UIC for a while, say, more than years, if I understand the contract correctly.  What about those newer faculty who might not enjoy the security guarantees?  How does seniority work when it's one person's position compared against another's who has been there longer?  My point is not to criticize job-security or seniority provisions per se, but to point out that such provisions narrow the number of people whom the university can let go if money gets tight.  And if someone falls along that margin, he or she has a reason to fear dismissal, and all along, has to pay dues to the union.  That point ought to be recognized.

Or what if the union dues help fund political advocacy with which Person B disagrees?  I may write in a later post on the pension issue, and I don't want to make this blog primarily about pension reform, but I can imagine some employees are concerned that reform is needed and prefer what they expect to be 90% of a "loaf" of retirement benefits rather than half a loaf, or no loaf at all.  I'm not saying, right here, that that 90% vs. 50% vs. none at all formulation is correct.  But if the belief is held sincerely, and if it is at least a position that can be argued in good faith, the person who holds that belief might legitimately resent being compelled to help subsidize an organization that lobbies for a different outcome.

What I just wrote assumes much, I admit.  First, I don't know how the funds break down nor do I know how, if at all, our union intends to use the funds for political advocacy.  Second, my paycheck has not yet included any dues deductions.  So that point is still hypothetical to begin with.

There are some other problems about the "well, why don't you give up your benefits, too" retort.  First, it's unfair.  The union has won.  That retort serves more to silence opposition, to kick opponents while they're down, so to speak.  Second, being unfair, it is also unwise.  And for the same reasons.  The union will have to begin renegotiating another contract within the year.  How many people does it want to alienate with a question-begging slogan?  How many people will come out for the next "job action"?   Perhaps the one who objects at this late date will never be reconciled to the union.  But it might be a question of having a non-supporter in the ranks, or of having an avowed opponent, or even "enemy" of the union.

Third, the retort is an ad hominem attack, and not a very good one, even for an ad hominem.  Like all ad hominems, this one invites another.  For example, when Congress and the G. W. Bush administration granted taxpayers a one-off "rebate" on their taxes in, I believe, 2001 and 2007, I--and many others--thought that this was an unwise move.  Did they give the $300 to $600 rebate back?  I didn't.  Does that make the policy any less or more merited?  No.  I imagine that most members of the union would not have a hard time identifying policies that benefit them, at least in the short run, but for which they don't renounce the benefit. 

And like all ad hominems, it runs against the problem of the "consistent objector."  I don't know if such exists in the bargaining unit, but it's not impossible that someone objects so strongly to the union that he or she abrogates his/her pay raise, or perhaps donates it to charity.  Again, I don't know if anyone goes that far, but it's a possibility.  And yet again, one can counter that, per what I said above, there's an intangible benefit to being represented by a union that cannot be abrogated or renounced.  I concede that point, but then ask how can one expect another to renounce something non-renounceable?

I suggest that the argument for unionization needs to be made continually.  As I have said before, I intend to remain a union member and pay dues and I would even if there were some sort of opt out provision.  I believe that if I benefit from having a union, I ought to pay. But in that case, it's my choice, and not everyone agrees.  The union and its supporters should avail themselves of the opportunity to consider others' objections, not necessarily in the hope of winning them over, but in the hope of ensuring the objectors that whatever their views, they are welcome as part of the bargaining unit and part of the community of scholars and service-faculty that the union claims to represent.

Tuesday, July 1, 2014

On Harris v. Quinn, the "Fair Share" case

The Supreme Court has finally handed down its decision in Harris v. Quinn, what I in the last post, and elsewhere (page 7 of my letter from February [PDF]), have said might end fair share provisions for public employees' unions.  The decision didn't go that far and now that I've had a chance to skim it, I realize the facts of the case weren't exactly propitious to outlawing fair share.  Even accounting for court opinions' tendency to mold the facts of the case into a narrative that seems ineluctably to lead to their results, it now seems clear that the main issue was whether the employees in question--personal care providers whose wages were set by statute but who otherwise were employed mostly by their patients/clients--were actually state employees to begin with.  In other words, the decision had as much, or more, to do with whether the state could properly call any union these employees entered into a true "public union" or whether the state could call these employees truly state employees.

This case has gotten much less commentary than the other case decided yesterday, the famous Hobby Lobby suit, which ruled that "closely held" corporations can object to certain regulations on the ground that the regulations violate the owners' religious beliefs.  But its implications could be far reaching.  As at least one commentator has said, the decision could serve as an invitation to a full-fledged challenge to fair share for public employees in general. I imagine the outcome of that case, if it ever comes to be heard, will depend on which justice retires in the next few years and who gets to appoint their successors.

All of which is to say that the UICUF has dodged a bullet, but it's not in the clear.  I still urge its leaders to avoid the appeal to force in their advocacy for the organization.