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Freedom Foundation Serves Notice in California with Union Opt-Out Ads

The Freedom Foundation – which last year expanded into Oregon after spending a quarter century fighting for free markets and limited, accountable government in neighboring Washington – will take its first formal plunge into California this week by unveiling a series of TV ads targeting unionized caregivers.

Much like ads that have run successfully in Washington and Oregon, the California ads will deliver to home-based care providers a message their union doesn’t want them to hear: “You have a choice.”

Prior to 2014, home-based health providers being compensated for by Medi-Cal for providing care for a client or loved one were required to pay either dues or fees to a labor union.

But in Harris v. Quinn, the U.S. Supreme Court established that these state-paid home care aides and other “partial-public” employees could decide for themselves whether to associate with a union.

Faced with the prospect of massive defections – and the corresponding loss of billions in dependable revenue – the unions answered Harris by first ignoring the ruling, then fighting to keep the workers unaware of their newly affirmed legal rights.

And for those who heard about their rights and tried to exercise them, the unions dreamed up ways to make the opting-out process more trouble than it was worth.

The Freedom Foundation works in all three areas. Its lawyers have filed countless suits in the past two years aimed at making the unions live up to their legal responsibilities under Harris. Equally important, the organization has created a one-of-a-kind canvassing program that has hired dozens of workers to fan out all over the Pacific Northwest and visit thousands of home care providers with information their union is trying to keep from them.

The new California ads lay the groundwork for a similar push in this state by introducing viewers to providers in neighboring states who opted out with the Freedom Foundation’s help.

“As our name implies, we’re committed to freedom,” said Freedom Foundation CEO Tom McCabe. “If someone wants to be a union member and support its political agenda with their hard-earned dollars, that’s their privilege. But we also believe people have the right to decide for themselves they want to keep every dollar Medicare has allocated for their effort and for the care of their loved ones.”

The ads will run on cable TV stations in the Orange County market starting on Sept. 12.

“This is our largest ad buy – really, our largest marketing effort of any kind – ever,” McCabe said. “We’re in California for good now, and we want to bring the same information to forcibly unionized workers in this state that we did to the thousands of caregivers who’ve opted out in the past two years in Washington and Oregon.

He concluded, “Our message to the workers and the unions that deceive them is that we’re here, we’re staying and we mean business.”

The Freedom Foundation is a member-supported, Northwest-based think and action tank promoting individual liberty, free enterprise and limited, accountable government.

Fifty States of Right-to-Work?

Elected officials, the courts and John Q. Public are supporting worker freedom these days; teachers unions and other public employee unions are on the run.

Last Monday, Illinois governor Bruce Rauner issued an executive order that, if it stands, will absolve state workers from paying forced dues to a union. As The Wall Street Journal reports, Rauner declared that Illinois’s contracts with public unions “violate the First Amendment by forcing workers to associate with the union against their will.” Rauner instructed all state agencies to keep the workers’ dues in escrow, pending the outcome of a federal court lawsuit that he filed the same day.

Needless to say, the unions and their friends in Springfield aren’t doing cartwheels over his right-to-work (RTW) directive. Even prior to the order, the teachers unions had targeted the recently elected governor. Two weeks ago, Chicago Teachers Union boss Karen Lewis attacked Rauner, accusing him of being (Wisconsin governor) “Scott Walker on steroids.” Also before the announcement, local teacher union lobbyist Matthew Johansson declared that the governor is trying to “destroy us.”

After the announcement, Illinois Education Association president Cinda Klickna said that the attack on “fair share is extremely serious and will be monitored very carefully.” She added, “This attack is clearly intended to weaken the unions that fight for the middle class and for the students who attend our schools. We can’t let that happen.” The Illinois Federation of Teachers referred to the action as a “blatant abuse of power.”

The reality – beyond the union harrumphing and all-around hysteria – is this: In 26 states and D.C., workers are forced to pay unions as a condition of employment. The unions call this “fair share” because they say all workers benefit from their collective bargaining efforts. But if a worker doesn’t want to be part of the collective, he/she still must belong because the union demands monopoly status; a worker is not allowed to bargain on his/her own or hire another party to do so.

Hence RTW is quite simply an individual-rights issue. The workers the unions refer to as “free riders” are really “forced riders.” If you were going from Point A to Point B and wanted to walk, how would you feel if someone told you that you had to take the bus … and, of course, pay for the ride to boot?

Very importantly, not only does RTW liberate workers, it has many other far-reaching benefits. After Michigan became a RTW state in 2012, the West Michigan Policy Forum reported, “… of the 10 states with the highest rate of personal income growth, eight have right-to-work laws. Those numbers are driving a net migration from forced union states: Between 2000 and 2010, five million people moved to right-to-work states from compulsory union states.”

Also, in a new economic profile, the Illinois Policy Institute’s Paul Kersey reports that RTW states are much stronger economically than their forced-dues counterparts:

  • From 2002 to 2012, states with right-to-work laws saw a 7.2 percent increase in payroll employment, compared to a 2 percent increase in other states.
  • As of September 2014, right-to-work states had an average unemployment rate of 5.5 percent, compared to 6 percent in non-right-to-work states.
  • From 2000 to 2010, right-to-work states saw population growth that was twice as fast as that in other states (13.6 percent compared to 7.3 percent).
  • Median wages in right-to-work states appear $4,345 lower than in other states. However, once you take into account cost of living and local taxes, right-to-work state wages rise. In fact, the cost of living is 16.6 percent higher in states without right-to-work laws.
  • Right-to-work economies grew by 62 percent from 2002 to 2012, compared to just 46.5 percent growth in other states.

Much to the unions’ consternation, the RTW movement is picking up momentum across the country. Politico’s Brian Mahoney reports that legislation has been introduced in New Mexico, Missouri, West Virginia and Kentucky.

The bills have already cleared committee hurdles in New Mexico and Missouri. All but the Missouri bill were introduced by Republicans; in Missouri, the measure was introduced by state Rep. Courtney Curtis, a Democrat and an African-American who would limit right to work to the construction industry to combat what he sees as bias in minority contracting. In Kentucky, right-to-work ordinances have been passed in five counties, though it isn’t clear federal law allows the adoption of right to work anywhere except at the state and territorial level. Legal challenges are already underway.

Additionally, the American people are strong supporters of RTW laws. In a poll conducted right before Labor Day last year, Gallup found that 82 percent of Americans agree that “no American should be required to join any private organization, like a labor union, against his will.” Also, as Mike Antonucci reports, by a 2-1 margin – 64 to 32 percent – “Americans disagree that workers should ‘have to join and pay dues to give the union financial support’ because ‘all workers share the gains won by the labor union.’”

Much of the recent RTW activity has been undoubtedly spurred by the June 2014 Harris v Quinn Supreme Court decision, in which SCOTUS agreed with the National Right to Work Legal Defense Foundation, ruling that homecare workers in Illinois could not be forced to join the Service Employees International Union.

And in the legal on-deck circle is Friedrichs et al v CTA, which is on a path to reach SCOTUS within a few months. This litigation has ten teachers and the Christian Educators Association International – a union alternative – taking on the California Teachers Association with a lawsuit aimed squarely at California’s “agency-shop” law, which forces teachers to pay dues for collective bargaining activities. The Center for Individual Rights is representing the teachers, with help from Jones Day, an international law firm.

So, let’s see – RTW is gaining favor in state houses, the courts and with the citizenry. And please keep in mind, no one is talking about outlawing unions; RTW is simply about making them voluntary associations, just like every other organization in the U.S. Really nothing controversial, unless you are a wolf that preys on workers … all the while pretending to be a shepherd.

Larry Sand, a former classroom teacher, is the president of the non-profit California Teachers Empowerment Network – a non-partisan, non-political group dedicated to providing teachers and the general public with reliable and balanced information about professional affiliations and positions on educational issues. The views presented here are strictly his own.

SEIU Motives and Tactics Remain the Same

Times have changed, but the SEIU’s motives, and the means and tactics used to accomplish these motives — as documented in The Devil at Our Doorstep — remain the same. The SEIU’s ultimate goal is to achieve its agenda of destroying America’s Free Enterprise system and replacing it with statism. As seen in recent actions across the country, it is apparent the SEIU is still intent on fundamentally changing America, as is its cohort in the White House, President Obama. The President continues to create a welfare state and to attempt to overwhelm the American economy. In his State of the Union Address, Obama’s Middle-Class Pitch made it very clear, his agenda is to continue to pit Americans against each other (see Overwhelming the System). Together, the President and the SEIU are intent on collapsing the American system. They fervently believe that their Cloward-Piven Strategy Is Working, and that such strategy is what is best for America and the rest of the world.

While the President continues to foment racial divide through federal investigations in Ferguson and New York the SEIU’s Insidious Tentacles are involved behind the scenes in fostering these unrests so Eric Holder and the President, with the assistance of Al Sharpton, can paint America as a racist country. The stories below found in Phil Wilson’s LRI Publication reveal tactics employed behind the scenes by the SEIU to facilitate the administration’s agenda of Divide and Conquer.

First, with respect to New York: Robert Murray, a top 32BJ SEIU organizer earning a six-figure salary, has been charged with two felony counts and three misdemeanors, including resisting arrest, inciting to riot, and obstruction of governmental administration, for his participation in the December 13 assault of two NYPD police officers on the Brooklyn Bridge.

 A week after the incident, Murray turned himself into the police. The union has reportedly put Murray on unpaid leave until the matter is settled. Elaine Kim, a spokesperson for the 32BJ SEIU, said “The union did not organize any official contingent to participate in the protests.”

 While that may be true, it is also true that the SEIU has a history of organizing protests without “officially” putting their name on it. Additionally, Mayor Bill de Blasio met with the group behind last month’s New York City protests. Guess where the meeting was held? 1199 SEIU headquarters.

Second, the SEIU has been involved in Ferguson: President Obama is utilizing the tried and true labor boss tactic of misdirection to take Americans’ “eyes off the ball” regarding his Amnesty Order and, instead, has been directing attention to the recent events in Ferguson and New York City, as witnessed in a recent interview on BET where he said Racism is “Deeply Rooted” in U.S. Society.

The eruption of violence following the Michael Brown decision in Missouri and the Eric Garner decision in New York were blamed by the media on “outside agitators,” people who descended on the scene to generate unrest, and publicity. But just who were these hoodlums? According to Bill O’Reilly, the SEIU was front and center in the escapade.

Knowing that the connections would be made sooner or later, SEIU is attempting to jump on the bandwagon calling for “racial justice” in relation to the two incidents. Not surprisingly, many of the “Black Lives Matter” protestors have also been actively protesting for the Fight for $15 movement, another protest project spearheaded by SEIU behind the scenes. Perhaps SEIU should be responsible to pay the bills for all of the property destroyed in the SEIU-fomented unrest and violence.

Third, the President’s home state is providing payback and funds for the SEIU to basically nullify the freedom provided to home health care workers not to pay union dues by the U.S. Supreme Court. After the Supreme Court’s Harris v. Quinn decision in October, the state of Illinois enacted a policy requiring home-based caregivers to attend “training sessions” led by SEIU. The state is using taxpayer money to pay the union as much as $2 million to conduct these meetings – most of which are spent with SEIU officials “telling caregivers they will lose all benefits, including health insurance and the Medicaid stipend that helps them care for their loved ones, should they opt out of paying union dues.” Illinois Policy Institute has responded by sending staff members to wait outside most of these meetings in order to inform caregivers that what SEIU is telling them is not the truth. SEIU, of course, complained to the state about Illinois Policy’s presence, creating some situations where staff members have been threatened with arrest.

Fourth, with respect to the President’s Amnesty program, as chronicled in DREAM Act, the Truth behind the Nightmare, the SEIU is being provided another payback in the form of potential future forced unionized workers as well as the opportunity to further create racial divide by giving them access to undocumented workers granted amnesty — The SEIU is taking advantage of President Obama’s recent executive order to give working visas to some 4 million immigrants. Their hope is that some of these people who have been too afraid to sign up in the past won’t be now.

There is no doubt the President and the SEIU are determined to fundamentally change the greatest country in the history of the world to impose their own view. America has provided more opportunity and increased the quality of life for more people, regardless of their background, than any country in history. Despite this, the President and the “same old” SEIU still believe they know best and are determined to destroy the American Free Enterprise system and impose statism upon this great country. Their true agenda is control of the American people.

*   *   *

David A. Bego is the President and CEO of EMS, an industry leader in the field of environmental workplace maintenance, employing nearly 5000 workers in thirty-three states. Bego is the author of “The Devil at My Doorstep,” as well as the just released sequel, “The Devil at Our Doorstep,” based on his experiences fighting back against one of the most powerful unions in existence today.

Union-dues case moves closer to Supreme Court

Sometimes you win by losing.

That’s precisely what occurred last week, when the 9th U.S. Circuit Court of Appeals granted the motion by Rebecca Friedrichs’ attorneys to decide her case (Friedrichs v. California Teachers Association) on the basis of the pleadings, without a trial or additional oral arguments.

The “loss” actually means that plaintiffs – several California public school teachers – can immediately file a petition to the U.S. Supreme Court without having to wait the one to two years it usually takes to get a case through the 9th Circuit before appealing to the Supreme Court. The Center for Individual Rights – counsel for Friedrichs and the other teacher plaintiffs – worked to expedite the proceedings. Essentially, they elected to “lose” in the lower courts, reinforcing their contention that only the Supreme Court has authority to grant them their petitioned relief.

The ruling was the result of a tactical maneuver by plaintiffs to get their motion for a decision on the pleadings in front of a motions panel that is assigned monthly to consider procedural motions rather than allowing it to languish until a panel could be assigned to hear the substantive appeal. The motions panel ruled there is nothing of substance to decide in Friedrichs because it is governed by past Supreme Court precedent, which the 9th Circuit is powerless to overturn.

According to plaintiff’s counsel Terry Pell, “This is a big development. It means we are within spitting distance of the Supreme Court. It also means that Friedrichs is all but certain to be the case where the court either allows compulsory dues to continue or ends the practice. It leaves no middle ground.”

Plaintiffs anticipate the court will take the case in spring 2015, with a 2016 decision.

Friedrichs involves a state’s right to require public employees, including teachers, to pay union dues, called “agency shop” laws. Twenty-six states, including California, require such. Friedrichs argues this violates free-speech rights.

Friedrichs has national implications. “This case is about the right of teachers to decide for themselves whether they want to join a union. If we win, we will not just strike down the law in California but compulsory union-dues laws nationally,” Pell explained.

While California teachers are not required to join the union, they still must pay union dues, but they can get a refund of the approximately one-third of dues that CTA claims goes toward political action.

Plaintiffs argue the case concerns the First Amendment right of public employees to decide for themselves whether to join and financially support a union. Their case argues that collective bargaining activities are just as political as anything else the union does, and contend that the government cannot compel individuals to financially support the political positions taken by unions in collective bargaining negotiations.

CTA has argued that compulsory dues are needed to prevent employees from “free riding” – gaining the benefits of union membership, including collective bargaining on their behalf, without paying for them.

Last June, the Supreme Court stopped short of doing away with compulsory dues in a 5-4 ruling in Harris v. Quinn.

I recently opined on the outsized political influence CTA wields on California legislative policy and elections. With 325,000 members, and the collection of mandatory dues from members, it usually gets its way in the Capitol, and in most elections. If the Supreme Court rules that individual public employees are not bound to pay dues to their unions, CTA’s money chest – and its political hegemony – will be diminished, inextricably altering the balance of power in California.

This is the case that may decide it all: hence, all eyes are on it.

About the Author:  Gloria Romero, a Los Angeles resident, served in the California Legislature from 1998 to 2008, the last seven years as Senate majority leader. Romero is the founder of the California Center for Parent Empowerment, established by in order to empower public school parents–especially those with children trapped in chronically underperforming schools–to understand and use the Parent Empowerment Act of 2010. This article originally appeared in the Orange County Register and is republished here with permission from the author.

12 Things You Need To Know About Government Unions

1. Even pro-union politicians used to think public sector unionism was too radical.

Long after the pro-union monopoly National Labor Relations Act (NLRA) was adopted in 1935, even strong supporters of this statute rejected the appropriateness of attempting anything analogous in federal, state, or local government.

For example, in 1937, President Franklin D. Roosevelt, who just two years earlier had publicly endorsed and signed the NLRA, wrote a letter to a government union official explaining it is “impossible for administrative officials to represent fully or bind the employer” in dealings with “Government employee organizations” because “the employer is the whole people . . . .”

2. Politicians later empowered private groups to tax government employees.

In the late 1950s and early 1960s, politicians like Robert F. Wagner Jr (New York City mayor and son of the Senate sponsor of the NLRA), Gaylord Nelson (Wisconsin governor), and finally President John F. Kennedy opted to bring monopoly unionism to the public sector.

Wagner, Nelson, and Kennedy all sought to strike a balance by resisting the wholesale imposition of NLRA-style unionism on the public sector. Case in point: Neither the executive order Wagner finally got around to issuing in 1958, nor the statute signed by Nelson in 1959, nor Kennedy’s 1963 federal executive order authorized Big Labor to extract any forced union dues from public servants who chose not to join.

However, today more than 20 states have laws explicitly authorizing forced financial support for unions for some or all categories of public-sector employees. And the vast majority of unionized government workers in the United States reside in these Big Labor-dominated states.

3. Government union bosses’ forced dues powers largely based on a false premise.

It was in 1977’s Abood v. Detroit Board of Ed that the high court originally sanctioned the “undeniably unusual” privilege for government union officials to force public employees, including nonmembers, into paying union dues and fees in jurisdictions where union officials are legally empowered to represent all front-line employees in a workplace.

Justice Potter Stewart, while writing for a six-justice majority, theorized that if union officials claim to be the exclusive representative of all employees in a bargaining unit, they must also have the option to force unwilling workers to pay union dues or fees. Otherwise, he said, such workers would get a so-called “free ride” on the “benefits” of the union’s bargaining and contract administration.

4. Federal courts have long admitted forced dues for government employees is constitutionally problematic.

Federal courts have repeatedly admitted that, to a greater extent even than government-authorized forced union dues in the private sector, compulsory union dues or fee payments to government unions (often euphemistically referred to as the “agency shop”) are constitutionally problematic.

Justice Antonin Scalia was particularly blunt in his opinion for a unanimous Supreme Court seven years ago in Davenport v. Washington Education Association. Scalia observed that, while the judiciary has tolerated government forced unionism in a series of cases, it has always done so reservedly:

[I]t is undeniably unusual for a government agency to give a private entity the power, in essence, to tax government employees. . . . [A]gency-fee cases [do] not balance constitutional rights . . . because unions have no constitutional entitlement to nonmember-employees’ fees.

5. In recent developments, mothers took on a governor and politically-connected union.

In early fall 2009, Pam Harris, a resident of suburban Chicago and mother of a young adult son with severe developmental disabilities, received a form letter from agents of Illinois Gov. Pat Quinn informing her that, as a care provider for her son in Illinois’ Disabilities Program, she now could cast a mail-ballot vote regarding which of two unions would be installed as her monopoly-bargaining agent in her dealings with the state.

On June 29, 2009, Quinn had signed an executive order designating 4,500 individuals who offer in-home care to disabled persons as “public employees,” thus rendering them vulnerable to unwanted union organizing. However, the scheme only designated providers as public employees for the purposes of unionization, leaving the homecare recipients as the employers for all other aspects of the providers’ work.

If the Supreme Court had found the scheme to be constitutionally permissible, the implications would have been enormous. Doctors who accepted Medicare or Medicaid could have been forced by gubernatorial executive order or state legislation to accept a particular private organization as their lobbying agent. Moreover, doctors could have been forced to pay mandatory dues and fees to such an organization.

Similarly, impoverished parents who participate in food stamps could have been forced to join or pay fees to a government designated lobbying agent.

6. Harris and other providers blocked an expanded shakedown.

Over the course of the rigged unionization “election” in late 2009, Harris and other parents pooled their money to print and distribute a flyer countering the Quinn team’s propaganda. The independent-minded providers’ shoestring effort succeeded. Providers ultimately voted two-to-one for “no union.” Nevertheless, Service Employees International Union (SEIU) and American Federation of State, County, and Municipal Employees (AFSCME) union officers continued to press ahead with their efforts to gain monopoly-bargaining privileges over the caregivers in the program.

Meanwhile, an estimated 25,000 Illinois at-home caregivers in a similar, but much larger, Medicaid waiver program were already being forced to pay union dues as a condition of receiving state assistance under a scheme launched by then-Gov. Rod Blagojevich (now imprisoned) and subsequently codified by state legislators in 2003.

In 2010, Harris and seven other home care providers filed suit. In written briefs and oral arguments presented to federal district and appellate courts and, finally, the Supreme Court, National Right to Work Foundation attorneys contended on the plaintiffs’ behalf that, because the state of Illinois was not their common-law employer or their sole employer, the Abood excuse for compelling employee financial support for unions did not apply to them.

7. The Court’s Abood majority acknowledged that forced union dues violate workers’ freedom to associate.

Concerns about the potential inequities resulting from “exclusive” union representation are one plausible reason for abolishing it in public-sector workplaces. But they are no justification for forcing nonmembers to financially support a monopolistic union. And the oral arguments in Harris v. Quinn, the first direct challenge to the constitutionality of government-sector forced union dues since Abood, highlighted one key reason why not.

The Abood majority opinion conceded up front:

To be required to help finance the union as collective-bargaining agent might well be thought . . . to interfere in some way with an employee’s freedom to associate for the advancement of ideas, or to refrain from doing so, as he sees fit.
The opinion proceeded to try to square this admission with support for the permissibility of forced financial support for a government union under the First Amendment by simply assuming that all public employees, including union nonmembers, who are subject to union monopoly bargaining benefit thereby.

8. Union lawyers admit public workers may be forced to pay a union to ‘make an argument’ with which they disagree.

During the Harris oral arguments this January 21, SEIU lawyer Paul Smith (who also represented Quinn) could not help but tacitly acknowledge, first of all, that significant numbers of nonmembers are made economically worse off by “exclusive” union representation.

At one point in the oral arguments, Justice Samuel Alito cited the example of a “young employee” who is “not very much concerned at this point about pensions,” but “realizes there’s a certain pot of money, and it’s either going to go for pensions or it’s going to go for salary at the present time.” Alito went on to ask Smith:

So that employee who’s not a member of the union has to pay for the union to bargain with the–the State to achieve something that’s contrary to that person’s interest. But you say that person is a free rider.
Smith’s response: “Yes, your Honor. . . .”

9. A Court majority struck down the scheme, but left government union bosses’ forced dues powers intact.

In his 39-page opinion of the Court, Alito basically concurred with the plaintiffs that Abood should be overruled. But rather than actually overrule it, Alito and the four other justices who joined in his opinion merely refused to allow it “to be extended to those who are not full-fledged public employees . . . .”

In opting not to overturn Abood, the Harris majority may merely have been abiding by the widely (albeit far from universally) accepted rule that “courts should not decide more than the occasion demands.”

However, the Harris opinion strongly suggests that Abood was wrongly decided, calling its “analysis questionable on several grounds.”

10. The Harris dissent matters, too.

Judging by the strenuous effort to shore up Abood in Justice Elena Kagan’s Harris v. Quinn minority opinion, she and her fellow dissenters do not believe it is too late to save the precedent that has protected forced union dues in the government workplace for nearly 40 years.

Kagan’s dissent did not completely ignore the specific issue of forced unionism in Illinois’s Rehabilitation Program that was being challenged in Harris. For example, she insinuated the plaintiffs ought to be grateful for SEIU-boss bargaining, which, she insisted, was responsible for the fact that the “wages” of home-care assistants “have nearly doubled . . . in less than 10 years . . . .”

Not surprisingly, Kagan’s uncritical rehashing of SEIU propaganda left out key facts, including the most important of all: The higher “pay rates” for home caregivers for which union bosses purport to fight may, if achieved, leave patients with less money to cover the other expenses they incur while being treated at home.

In the full-throated defense of Abood to which she devoted the bulk of her dissent, Kagan also insisted that government-imposed restrictions on public employees’ freedom to disassociate from a union should not be subject to “strict scrutiny,” the technical name for a type of judicial review in which a law is upheld only if it advances a “compelling governmental interest” and is “narrowly tailored” for that purpose.

11. The dissent runs contrary to years of federal court precedent.

What Kagan and the other dissenters apparently forgot is that federal courts have already repeatedly ruled that the government as employer does not have wide “constitutional latitude” to limit the First Amendment freedom of public employees to join a labor union. Forty-five years ago this February, a federal court overturned North Carolina’s statutory provisions restricting municipal employees’ right to join aid and assist labor organizations, finding them to be “an abridgment of the freedom of association protected by the First and Fourteenth Amendments of the U.S. Constitution.”

This conclusion by a three-judge panel on the U.S. District Court for the Western District Court of North Carolina quickly gained wide acceptance in federal courts across the country. Several courts in other circuits also explicitly affirmed that the First and Fourteenth Amendments prohibit laws and policies curtailing front-line employees’ personal right to join and form a union.

Moreover, other established court precedents make it clear that, if an employee’s choice to associate with a labor union is constitutionally protected, his or her choice not to associate must be similarly protected, since the government has no legitimate authority to “prescribe what shall be orthodox” in the realm of politics, conscience and ideas. Consequently, since government restrictions on the individual public employee’s freedom to join a union have been subject to the judiciary’s “strict scrutiny” test for nearly half a century, restrictions on the freedom not to join a union should have to pass this test.

12. Millions of public servants remain subject to compulsory unionism.

Thanks to the Harris decision, an estimated 500,000 home-care providers nationwide who are currently being forced to pay dues to a union may have a free choice in the near future as the 14 states that currently have home-care compulsory-dues schemes like Illinois come into compliance with the ruling.

In Illinois alone, where roughly 25,000 home caregivers were annually forced to pay union dues or fees, Big Labor could lose as much as $11 million a year. Nationwide, government union chiefs could be out as much as $80 million annually.

Of course, this is but a pittance compared to the billions of dollars in annual losses the union hierarchy would have faced if all of the roughly 5.8 million unionized public employees in non-Right-to-Work states were suddenly free from the threat of termination for refusing to bankroll an unwanted union. Encouragingly, the High Court in Harris did cast into grave doubt whether state laws and policies authorizing forced union dues from public servants are permissible under the First Amendment.

However, at least for the near future, the task of actually eliminating these constitutionally dubious statutes and policies has been left to state legislative and executive officials.

About the Author:  Stan Greer is the National Institute for Labor Relations Research’s senior research associate. This article originally appeared in The Federalist, and is republished here with permission from the author.

Checking Out of the Hotel California…Teachers Association

A new document shows that CTA is resigned to the fact that membership in its union will ultimately become voluntary.

Courtesy of Mike Antonucci, we get to peek behind the curtain at an internal California Teachers Association document which has been “declassified.” “Not if, but when: Living in a world without Fair Share…” is a 23-page pdf in which the largest state teachers union in the country envisions the future.

The communiqué  starts off with basic demographic data, then launches into a history of “fair share” – the union’s right to collect dues from every public school teacher in the state whether or not they join the union. In other words, “fair share” is really “forced share.”

Next there is a history of the initiatives that have tried to curtail the unbridled power of CTA including Prop. 75, in which I was an active participant. This 2005 “paycheck protection” initiative would have required public employee union members’ consent to use part of their dues for political contributions. The default position was – and unfortunately still is – that members must pay and have to jump through hoops not to. CTA tells us that proponent spending on the initiative was $5.8 million, while the prop’s opponents spent more than $44 million, with CTA alone providing over $32 million to defeat it. Given that disparity (and the unions’ outright lies about the issue), it’s not hard to see why the measure went down on Election Day.

The CTA document then goes into past and future legal challenges – Harris v Quinn, Friedrichs v CTA et al. Referring to them as attacks, they posit that these cases will lead to the demise of “fair share.”

Resigned to its worst nightmare – teacher freedom – the union is gearing up for what is standard procedure for most successful businesses and interest groups. If teachers think the union has something beneficial to offer, they can join and pay up. If they don’t see any value in belonging the union, they can just say no and not be forced to pay any dues whatsoever. In this vein, the missive has some suggested sales pitches:

CTA Builds the Infrastructure

Member Benefits research with young, prospective members to learn what might incent (sic) them to want to join the Association voluntarily.  

•Assessing their level of interest in terms of present member benefits offerings.

•How the program might be enhanced to reflect their interests.

•Finding messages that resonate with this demographic, and:

•How to package what Association membership offers in a way that appeals to them.

 Note the language: incent(ivize), voluntarily, reflect their interests, messages that resonate, a way that appeals to them. These are typical terms that a business might use to sell their product or service, which is of course very different from the old CTA forced-dues model, which could have been lifted straight out of The Muggers Guide to Fame and Fortune

There’s more about how CTA plans to adapt, and I would urge you to read the entire 23-page presentation; it is most definitely a stunning document.

Former union leader Doug Tuthill seems right at home with the direction that CTA is going.

The two most effective unions in the United States are the National Rifle Association and the AARP. They’re not industrial unions, but they are unions, and they are far more effective politically and financially than today’s teachers unions. Teachers should adopt this model.

Unlike today’s teachers unions, the NRA and AARP do not require their members to be part of a centralized bureaucracy. Their members are united by common values and interests, not by location. An NRA-AARP type teachers union would be able to advocate for teachers working in a variety of settings, including museums, libraries, district schools, virtual schools, art galleries, charter schools, homeschools, tutoring businesses, private schools, YWCAs, and Boys and Girls Clubs. The work setting would be irrelevant, just as where NRA and AARP members work — or where American Bar Association lawyers and American Medical Association doctors work — is irrelevant. (The ABA and AMA are also non-industrial unions.)

Even a current union leader has seen the light. Via National Right to Work Committee’s Stan Greer, we learn that veteran union organizer Gary Casteel, who was recently promoted to secretary-treasurer of the United Auto Workers, favors right-to-work laws:

[T]here’s a school of thought that says it’s not such a great thing to have everyone pay dues whether they want to or not….

This is something I’ve never understood, that people think right to work hurts unions. To me, it helps them. You don’t have to belong if you don’t want to. So if I go to an organizing drive, I can tell these workers, ‘If you don’t like this arrangement, you don’t have to belong.’ Versus, ‘If we get 50 percent of you, then all of you have to belong, whether you like to or not.’ I don’t even like the way that sounds.  Because [Right to Work is] a voluntary system, if you don’t think the system’s earning its keep, then you don’t have to pay.

So it would seem that during National Employee Freedom Week which runs through this Saturday, there is cause for optimism. A recent poll conducted by Google Consumer Surveys found that nearly 29 percent of union members nationwide responded that they were interested in leaving their union if given the opportunity. A similar poll found that nearly 83 percent of the American public believes that union members should have the right to choose.

As such, maybe one day soon we will see that, unlike the Hotel California, union members can check out and leave their union behind.

Larry Sand, a former classroom teacher, is the president of the non-profit California Teachers Empowerment Network – a non-partisan, non-political group dedicated to providing teachers and the general public with reliable and balanced information about professional affiliations and positions on educational issues.

Social(ism) Justice Lessons

Teacher union progressives seek to socialize our country, but the Koch brothers have other plans.

The recent teacher union conventions were full of self-pity, angst and anger over the Vergara and Harris legal decisions. Unfortunately that’s not all they concerned themselves with. The union avatars explored various progressive schemes with the intention of dragging us all into their brave new world.

The ugliest moment for liberty came during the “Social Movement Unionism vs. Corporate Reform: Winning Strategies to Turn the Tide” panel at the American Federation of Teachers’ convention. As reported by class warrior Lauren Steiner in the LA Progressive, “It featured six union officials from LA, New York, Houston, Philadelphia, Chicago and St. Paul sharing their efforts to bring the wider community into their organizing and the various successes they’ve had.”

What’s scary about this bunch is that not only do they work hard to keep many children from getting a solid education by demanding that 50s-era, industrial-style union work rules remain in place, they also envision a socialist America. Alex Caputo-Pearl, recently elected president of the United Teachers of Los Angeles, is perhaps the most radical of all. A proud community organizer, he has been active in various local issues and leftist politics. Within the union, he co-founded Progressive Educators for Action. His other “accomplishments” include working to kill a charter effort to reform wretched Crenshaw High School where he was a teacher, playing a role in building the national “Resisting Teach for America” network (TFA is a dangerous part of the privatization movement, doncha know) and as leader of the “Bus Riders Union” (and no, I did not make that up). Caputo-Pearl so believes in his mission and his own self-importance that he illegally ditched some of his teaching responsibilities while campaigning to become UTLA boss.

Randi Weingarten was not scheduled to be on the panel but showed up nonetheless. Excited by the collectivist bombast, she proclaimed that if the union can advance its progressive programs, it will make every child and parent say, “I need those unions and teachers to be what they are for us.”

The union boss then echoed her own socialist leanings, claiming that her goal is to “create an economy that works for all” and proceeded to outline essential policy proposals that the AFT would advocate for, which included,

… growing the labor movement and reviving collective bargaining; increasing retirement security; easing the burden of student debt; funding a higher minimum wage, paid family leave, universal early childhood education, and full, equitable funding for all schools ….

She also highlighted the AFT’s work “to invest union member pension funds in infrastructure and create 150,000 good jobs.”

Creating good jobs?! How ya gonna do that, Randi? Socialists aren’t very good at that sort of thing. They are good at redistributing money – taking it from Peter and giving it to Paul (and Robert and Joan and Bill and…), but not creating meaningful work for anybody. But I have just the solution, so please sit down or you may fall over. The answer is – are you ready, Randi? – the Koch brothers!

Unknown to many, the Kansas-based industrialists founded Youth Entrepreneurs in 1991. Its mission is to “provide students with business and entrepreneurial education and experiences to help them prosper and become contributing members of society.” Joy Resmovits and Christina Wilkie wrote “Koch High: How The Koch Brothers Are Buying Their Way Into The Minds Of Public School Students,” an extended piece about the project for Huffington Post, Despite the snarky title and several snide comments in the body of the piece, the article is actually quite informative.

In the spring of 2012, Spenser Johnson, a junior at Highland Park High School in Topeka, Kansas, was unpacking his acoustic bass before orchestra practice when a sign caught his eye. ‘Do you want to make money?’ it asked.

The poster encouraged the predominantly poor students at Highland Park to enroll in a new, yearlong course that would provide lessons in basic economic principles and practical instruction on starting a business. Students would receive generous financial incentives including startup capital and scholarships after graduation. The course would begin that fall. Johnson eagerly signed up.

In some ways, the class looked like a typical high school business course, taught in a Highland Park classroom by a Highland Park teacher. But it was actually run by Youth Entrepreneurs, a nonprofit group created and funded primarily by Charles G. Koch, the billionaire chairman of Koch Industries.

The official mission of Youth Entrepreneurs is to provide kids with ‘business and entrepreneurial education and experiences that help them prosper and become contributing members of society.’ The underlying goal of the program, however, is to impart Koch’s radical free-market ideology to teenagers….

Lesson plans and class materials obtained by The Huffington Post make the course’s message clear: The minimum wage hurts workers and slows economic growth. Low taxes and less regulation allow people to prosper. Public assistance harms the poor. Government, in short, is the enemy of liberty.

… During the 2012-2013 school year, YE’s credit-bearing class reached more than 1,000 students in 29 schools in Kansas and Missouri, according to the group’s annual report. Vernon Birmingham, YE’s director of curriculum and teacher support, told HuffPost that the course will be in 42 schools in the coming school year. An offshoot in Atlanta, YE Georgia, reported being in 10 schools in the 2011-2012 school year. Since 2012, YE has also launched three major new initiatives: an online version of its course, an affiliate program to help rural schools access the class, and an after-school program, YE Academy, which served more than 500 students in its first year.

While the Kochs’ program advances the notion that anyone can become prosperous, the left promotes victimhood and resentment as it blathers ad nauseum about the haves and have-nots, “two Americas” and the evil and greedy one percenters. What the left refuses to acknowledge is that we are still an upwardly mobile and fluid nation. As pointed out in an excellent piece in the New York Times,

It is clear that the image of a static 1 and 99 percent is largely incorrect. The majority of Americans will experience at least one year of affluence at some point during their working careers. (This is just as true at the bottom of the income distribution scale, where 54 percent of Americans will experience poverty or near poverty at least once between the ages of 25 and 60).

… Rather than talking about the 1 percent and the 99 percent as if they were forever fixed, it would make much more sense to talk about the fact that Americans are likely to be exposed to both prosperity and poverty during their lives, and to shape our policies accordingly. As such, we have much more in common with one another than we dare to realize. (Emphasis added.)

Hence, we have the Koch brothers trying to instill in its students a sense of independence, a can-do spirit, a solid work ethic and the importance of good business acumen. And our teacher union leaders are striving to enslave us by raising taxes, killing anything that smells of privatization and waging class warfare.

Now seriously, which lessons do you want your kids to learn?

Larry Sand, a former classroom teacher, is the president of the non-profit California Teachers Empowerment Network – a non-partisan, non-political group dedicated to providing teachers with reliable and balanced information about professional affiliations and positions on educational issues.

Keeping Their Backs Up and Claws Sharp

As the teachers unions lose popularity, some think that they will soften their positions. But as recent events show, this is very far from the truth.

A poll taken in June, right after the Vergara decision was handed down in Los Angeles, found that 49 percent of California voters think that teachers unions have a “somewhat or very negative” impact on the quality of K-12 education, with just 31 percent saying that they have a “somewhat or very positive” impact.

This result is consistent with national polls. In 2012, long before Vergara became national news, an Education Next survey found that those with a positive view of unions dropped to 22 percent in 2012, down from 29 percent the year before. Perhaps more interestingly,

The survey’s most striking finding comes from its nationally representative sample of teachers. Whereas 58% of teachers took a positive view of unions in 2011, only 43% do in 2012. The number of teachers holding negative views of unions nearly doubled to 32% from 17% last year.

In addition to losing favor, the National Education Association has been bleeding teachers. Due to a shrinking student population and right-to-work legislation passed in several states, the nation’s largest union has lost more than a quarter-million members over the past five years.

Some predicted that the loss of rank-and-file and stature would lead the national unions to soften their more rabid positions and become more amenable to certain reforms, but if their recent conventions are any indication, this is hardly the case. In fact, they seem to be digging in.

At the NEA convention a couple of weeks ago, Lily Eskelsen Garcia was elected president and proclaimed that her first task was to win back the public. She apparently thinks the unions need better PR, not to become more child-friendly and accountable. But as the public’s awareness of what the unions are really about grows, that strategy won’t fly. As Democrats for Education Reform president Joe Williams pointedly said, “Eskelsen Garcia must navigate that minefield carefully because the public will smell bulls**t from a mile away.”

And indeed, there was plenty of odiferous waste at the convention. Among other things, the union faithful came up with a New Business Item (NBI) which called for the resignation of Arne Duncan, who had the audacity to tweet a positive response to the Vergara decision. (It’s ironic: As former California state senator Gloria Romero points out, the union that fights to keep every last teacher in classroom, including those who commit unspeakable offenses against children, wants to ditch Duncan for merely voicing an opinion contrary to theirs.) Other items had nothing at all to do with education but, being champions of “social justice,” the activists came up with an NBI which proposes to inform the public about the dangers of fracking, another that calls for the end of “food deserts” (don’t ask) and one that wants President Obama to investigate the continued incarceration of Leonard Peltier, a man who was convicted of first-degree murder in the slaying of two FBI agents in 1977.

Outgoing president Dennis Van Roekel was hardly in conciliatory mode when he blasted those whom he deems a threat to his union’s hegemony. Just a sampling of his enemies list:

The issue of privatization of more and more jobs of our education support professionals. The intrusion of for-profit players, both in higher education and K-12. Especially troubling is the increasing influence and control of huge corporations like Pearson and others. And the incredible onslaught of corporate reformers like Democrats for Education Reform, Michelle Rhee, and the like. Attacks on educators’ rights and even attempts to silence our voice. And if that were not enough, our lives revolve around testing–the overwhelming amount and the offensive misuse of scores from high-stakes standardized tests.

Then last week in Los Angeles, the American Federation of Teachers’ convention got off to a rousing start when Reverend William Barber gave a speech that most definitely will not “win back the public.” Setting the dial at “hellfire-and-brimstone,” he excoriated Tea Party “extremists,” greedy ultra-conservative “puppets,” the Koch Brothers, the religious right, those who want to “give vouchers to the wealthy,” all the while singing the praises of a green economy and healthcare for all. Clearly he was appealing solely to the left, while insulting and ignoring the majority of the membership which leans slightly to the right.

Not to be upstaged, AFT president Randi Weingarten joined the trashing of the Vergara decision:

When we last met, we didn’t know that a court decision in California would reignite the perverse rallying cry of so-called reformers: that the only way for students to win is for educators to lose.

And then, referring to Harris v Quinn – a SCOTUS decision which held that homecare workers could not be forced to join a union – she said,

And while many of us rejoiced when marriage equality was upheld by the Supreme Court, sadly that court has become Supreme Court Inc., ruling in favor of corporate interests while diminishing the rights of voters, women and working families.

Then she, too, blasted all her bête-noires: Democrats for Education Reform, Jeb Bush, Eli Broad, ALEC, Govs. Snyder, Walker, Corbitt, Jindal and Brownback, the Walton family and – what would a union leader diatribe be without them? – the Koch Brothers. But she didn’t join the “Dump Duncan” chorus; instead, she just chastised him over his pro-Vergara stance. But two days later, AFT approved a resolution calling for him to resign “if he does not improve under a plan to be implemented by President Obama.”

Edu-pundit Andy Smarick suggests that teacher union leadership appears to be defiantly marching their members toward Waterloo.

There is an alternative, though it might seem implausible in the current environment. First, the appeal of Vergara could be halted. Instead of relitigating the case, unions might work with the California legislature to rewrite the challenged laws so they primarily protect students not jobs. Second, the national unions and their affiliates could seek to amend tenure and seniority rules in other states so Vergara-inspired lawsuits don’t get off the ground.

Smarick’s alternative suggests that the teachers unions become more conciliatory and flexible. They won’t. Despite losing members and the dissatisfaction of the more conservative rank-and-file, the union hardcore is doubling down. As Stanford’s Terry Moe rightfully asserts,

Unions are unions. They are in the business of protecting jobs: that is why their members join, that is what their members expect them to do, and that is what they actually do. If you expect them to do something else–to represent children or to represent the public interest–you will be wrong. Don’t expect a cat to bark.

They’ll just keep hissing and baring their claws.

Larry Sand, a former classroom teacher, is the president of the non-profit California Teachers Empowerment Network – a non-partisan, non-political group dedicated to providing teachers with reliable and balanced information about professional affiliations and positions on educational issues.

Will the Supreme Court Do an “Abood Face?”

The decision in Harris v Quinn could be just the first shoe to drop in the fight against forced union dues.

Last month was not kind to Big Labor. First, the teachers unions in California had some of their favorite work rules knocked out of the state constitution by Judge Rolf Treu in his Vergara decision. Then, on the last day of the month, the Supreme Court agreed with the National Right to Work Legal Defense Foundation in Harris v Quinn and ruled that homecare workers could not be forced to join the Service Employees International Union (SEIU).

Vergara upset the teacher union Pooh-Bahs who just can’t believe that educators who hang on to their jobs for 16 months aren’t entitled to them for life, regardless of whether they’re good, mediocre or teachers from hell. The decision is going to be appealed and no one knows –  if the appeal fails – how the subsequent replacement laws will play out. But if Vergara got the unions in a snit, Harris has pushed them into apoplexy.

Regarding Harris, I searched the internet long and hard to find a statement from a union leader that went something like this:

The decision doesn’t harm the union movement in the least. It gives hard working men and women the freedom to choose whether or not to join us. If they do join, they will enjoy the benefits and perks that come with union membership. If they choose not to join, we will not force them to. They are free to make whatever deal that they and their employer agree to. As patriotic Americans, we believe in liberty and that means giving all workers a choice.

Okay, I confess. I really didn’t search long and hard. In fact, I didn’t search at all; it would have been a complete waste of time. Instead, we were treated to union leaders doing what they usually do when they don’t get their way: trot out the usual half-truths, fear-mongering and lies to rally the troops and garner public sympathy.  Chalkbeat reports,

‘This court has built a record of weakening the rights of both voters and working families; no one should be surprised by this decision,’ said American Federation of Teachers President Randi Weingarten in a statement.

Weingarten is saying  that one working family has a right to force a member of another working family into a union.

Dennis Van Roekel, president of the National Education Association, the nation’s largest teachers union, defended the ‘fair share’ practice. ‘Fair share simply makes sure that all educators share the cost of negotiations for benefits that all educators enjoy, regardless of whether they are association members.’

There is nothing fair about forcing a worker to pay dues to an organization that he or she does not want to belong to.

The NEA website goes deeper into the “fair share” philosophy:

All union members who enjoy the benefits, rights, and protections of a contract should, in fairness, and must, according to Illinois state law, contribute to maintaining that contract. Sometimes called ‘agency fee,’ fair share is a percentage of full union dues, based on the actual cost of collective bargaining, contract maintenance, and other services provided to all union members. 

Well yes, all those who benefit from the union contract, should pay dues. But if they don’t want any part of your contract, why are you trying to force them to pay you?

Mind you, Harris was a narrow decision. Justice Samuel Alito’s ruling drew a distinction between the home care workers and ‘full-fledged’ public employees

… who were required to pay union dues under the Court’s Abood v. Detroit Board of Education precedent in 1977. In that sense unions dodged a more sweeping decision that could have jeopardized dues payments from all public workers.

But – and this is what’s scaring the spit out of unionistas – Alito added that Abood (which maintains that it is illegal to withhold forced dues from dissenters beyond the cost of collective bargaining) is “questionable on several grounds.” Collective bargaining issues, he wrote, “are inherently political in the public sector.”

In the private sector, the line is easier to see. Collective bargaining concerns the union’s dealings with the employer; political advocacy and lobbying are directed at the government… But in the public sector, both collective bargaining and political advocacy and lobbying are directed at the government. (Emphasis added.)

Clearly, Alito left the door open for the court to do something of an “Abood face.” The next shoe that drops could lead to the unions’ worst nightmare – making union membership optional nationwide. (At this time 26 states are forced union states, while 24 are right-to-work.)

In fact, that “next shoe” is awaiting a fitting. Friedrichs et al v CTA is on a path to reach SCOTUS within a year or two. This litigation has ten teachers and the Christian Educators Association International – a union alternative – taking on the California Teachers Association with a lawsuit aimed squarely at California’s “agency-shop” law, which forces teachers to pay dues for collective bargaining activities, though – as per Abood – paying for the unions’ political agenda is not mandatory. The plaintiffs’ lawyers are challenging the law, claiming collective bargaining is inherently political and that all union dues should be voluntary.

Terry Pell, president of the Center for Individual Rights, a public interest law firm representing Rebecca Friedrichs and her co-plaintiffs, was upbeat after the Harris ruling was announced.

Today’s decision is a good sign of things to come. The Court will soon have before it another union dues case, one that asks it to recognize the First Amendment rights of all employees to decide whether to pay union dues, not just home healthcare workers.

He importantly added,

We’re not attacking collective bargaining. … That’s not at issue. All we’re saying is individual teachers get to decide whether to pay dues to that organization. You can have collective bargaining and you can have a strong union, but you don’t have to have compulsory dues.

If Friedrichs is successful, and the court overturns Abood, workers will have a choice. To paraphrase President Obama, “If you like your union, you can keep your union.” But if you don’t, you can’t be forced to join. Freedom of choice – sounds like the American way to me.

Larry Sand, a former classroom teacher, is the president of the non-profit California Teachers Empowerment Network – a non-partisan, non-political group dedicated to providing teachers with reliable and balanced information about professional affiliations and positions on educational issues.

Unions in the News – Weekly Highlights

Why ‘Harris v. Quinn’ Has Labor Very, Very Nervous
By Joel Rogers, April 14, 2014 Edition, The Nation
Sometime soon, certainly by the late-June conclusion of its present term, the Supreme Court will tell us its decision in Harris v. Quinn, arguably the most important labor law case the Court has considered in decades. Harris has already generated a great deal of attention and worry in labor circles, and nearly as much enthusiasm and celebration in pro-business ones — reflected in the extraordinary number of friend-of-the-court briefs filed by advocates on both sides. The case threatens the existence of the “agency shop,” a bedrock institution in American labor relations—one relied on in the most successful recent union organizing, and that is decisive to the health of public sector unions. Here’s what Harris is about. In American labor law, a union wins the right to be the exclusive collective bargaining representative for workers in a particular unit by demonstrating its support by a majority of the workers in the unit. But the law also imposes a duty with this right. The union must represent all workers, union members and nonunion employees alike, when it negotiates and administers collective bargaining agreements. Thus it is theoretically possible for nonunion employees to capture the benefits of collective bargaining won by their union colleagues (often at considerable expense) but pay nothing for it. (read article)

Vergara V. California Lawsuit Could Revolutionize U.S. Public Education
By James Marshall Crotty, April 1, 2014, Forbes
You might think that the leading clusters of education reform are the Bay Area, Phoenix, and Washington, DC. However, testimony that just concluded March 27 in a Los Angeles Superior Courtroom could lead to sweeping reforms for public education not just in the Golden State, but across the country as well. Nine public school students filed the lawsuit nearly two years ago against the state of California, its department of education and other state educational organizations. The students claim they have been denied an equal education from that of their peers elsewhere in the state. It turns out that public school students in the state have a constitutional right to “substantially equal opportunities for learning,” according to the 1976 ruling in Serrano v. Priest. However, the plaintiffs claim their rights are being infringed upon due to state laws designed to retain teachers on measures that have little to do with educating students. The case, named Vergara v. California, seeks to strike three labor laws in the state. They are… (read article)

More Companies Bow to Investors With a Social Cause
By Emily Chasan, April 1, 2014, Wall Street Journal
Shareholders are driving changes in corporate policies and disclosures unthinkable a decade ago, on issues ranging from protecting rain forests to human rights. Even the threat of a proxy vote can be enough to bring company executives to the negotiating table. So far this year, environmental and social issues have accounted for 56% of shareholder proposals, representing a majority for the first time, according to accounting firm Ernst & Young LLP. That is up from about 40% in the previous two years, and means shareholders are increasingly voting on things like greenhouse-gas emissions, political spending and labor rights. While such proposals usually don’t grab the same headlines as changes sought by activist investors, their proponents often are effective at persuading companies to meet them halfway. The proposals are “really meant to get the attention of the corporate leadership,” said Thomas DiNapoli, the New York comptroller who oversees the $160.7 billion New York State Common Retirement Fund. “Profitability that is at a sustainable and responsible level is very, very important to us.” Mr. DiNapoli filed about 65 resolutions this past year, and he often succeeds in getting companies to agree to his requests before they come to a vote. (read article)

Tennessee lawmakers reject ban on mass union picketing
By Max Smith, April 1, 2014, The Tennessean
A bill that would have created a misdemeanor charge for disruptive picketing failed in the House Criminal Justice Committee after many legislators voiced concerns that it was too vaguely worded and broad. Under House Bill 1688, by Jeremy Durham, R-Franklin, protesters could be charged with a class B Misdemeanor if their “mass picketing” prevents someone from entering or exiting their place of employment or interferes with work by being a “disturbance or nuisance.” The bill had explicitly defined “mass picketing” as protesting related to labor disputes but was amended to apply to all picketers. Durham, an attorney, said those opposing the bill were doing so out of union loyalties, an accusation state Rep. Micah Van Huss, R-Jonesborough, took exception to. To Van Huss and other members of the committee, both Republican and Democratic, this was a First Amendment issue. Last month, Tennessee Attorney General Robert Cooper released an opinion that he found the legislation unconstitutional as well. (read article)

Illinois Governor’s Race Puts Unions in Tough Position
By Andrew Ujifusa, April 1, 2014, Education Week
Powerful teachers’ unions in Illinois are faced with a vexing problem in this year’s gubernatorial race: a Democratic incumbent they’re unhappy with, and a Republican candidate they view as a threat to the rights of unionized public workers. The race in Illinois has the potential to be a test case for the political consequences of taking high-profile steps aimed at curbing pension obligations, at a time when many states are anxious about the long-term fiscal health of their retirement-benefit systems. Estimates about the unfunded liabilities across states vary widely, but the total nationwide ranges into the hundreds of billions of dollars. And Illinois faces the most acute unfunded pension problems of any state. (read article)

Emanuel’s pension fix: Shrink benefits, raise taxes
By Hal Dardick and Bill Ruthhart, April 1, 2014, Chicago Tribune
Mayor Rahm Emanuel is proposing to raise property taxes and cut retirement benefits for some city workers to start digging out of a massive pension debt he inherited. But the proposal the mayor and his top aides outlined late Monday would not address huge pension shortfalls for Chicago police, firefighters and teachers. Nor would it deal with the city’s most immediate, pressing financial problem: a state requirement to pay a whopping $600 million more toward police and fire pensions next year, a provision that could lead to a combination of tax increases, service cuts and borrowing. Even as Emanuel vowed to put his pension proposal on paper in the coming days so it can be considered by state lawmakers, the changes face an uncertain future. Although Emanuel aides say the proposal comes out of talks with more than 30 city unions, not all of them are on board. A lawsuit is all but certain, especially after one group of unions issued a statement calling Emanuel’s concept “an unconstitutional approach that makes onerous cuts to the pension benefits of nearly 50,000 active and retired public servants.” The mayor said his pension proposal should send a signal to reluctant police and fire unions that “there’s common ground and a consensus” with what he said was a majority of the other unions involved. (read article)

Pennsylvania Republicans Join Big Labor In Healthcare Fight
By Fred Wszolek, April 01, 2014, Town Hall
The Keystone State has traditionally been regarded as a union stronghold, but recently some lawmakers have taken steps to break their politically motivated partisan influence. Republican lawmakers introduced legislation to change the state’s taxpayer-funded union dues collection system and close loopholes that protect union members from anti-stalking laws. Despite these advances, the Workforce Fairness Institute (WFI) was disappointed to find out that while some lawmakers in Pennsylvania are boldly taking on labor bosses, others are joining forces with them in a healthcare dispute between two private companies. Over the years, WFI has successfully highlighted the ongoing battle between lawmakers and union bosses in states like Pennsylvania specifically drawing attention to instances where Big Labor has gone too far. Most recently, we brought attention to 10 members of a Philadelphia-based Ironworkers union, Local 101, who were charged with assault and arson. We have also recently written about a longstanding Pennsylvania law that exempts union organizers in a labor dispute from criminal statutes, making it nearly impossible to prosecute intimidating organizers engaging in thuggery. Although national union organizations are witnessing a dramatic decrease in membership, healthcare has been one of few markets where union membership has actually grown. (read article)

What Other Businesses Can Los Angeles Destroy? What About Trash Haulers?
By Scott Shackford, April 1, 2014, Reason
We should probably be surprised businesses were allowed to choose in the first place.Credit: p.Gordon / Foter / CC BYLos Angeles City Council has voted to seize the local private business/large apartment trash hauling industry, take control of it, and sell off exclusive contracts to those it deems appropriate. The word “seize” is not used, of course, but instead it’s all being sold as a recycling and landfill-use reduction plan. It takes the Los Angeles Times nine paragraphs to get past the environmental back-patting to explain what’s actually going on: Currently, landlords for businesses and apartments choose between competing businesses to haul their trash. Under the new “exclusive franchise” system, Los Angeles will be divided up into 11 zones. Haulers will bid for city contracts giving them the exclusive right to collect garbage in each zone. The new system is hitched to environmental standards: To be eligible to win each zone, haulers would have to provide separate bins for recycling and use “clean fuel” vehicles, among other ecologically friendly requirements. The plan is backed by environmentalists and labor groups, who say the system is the best way to help Los Angeles meet its goal of diverting 90% of its trash from landfills. Activists say the system will also mean fewer trucks crisscrossing city streets and safer conditions for workers in a dangerous industry. The city is turning a private competitive service into a monopoly. The Times does note that the proposal puts unions and environmentalists against business and private property: (read article)

Unions don’t belong in college sports
Editorial, April 1, 2014, Detroit News
College basketball fans are currently hanging on the results and emotions of March Madness. But that phrase is only a slight exaggeration of the recent ruling from a regional director of the National Labor Relations Board which, if upheld, will launch Big Labor into a new arena: college sports. The likely impetus for this ruling is that the unions see an untapped source of dues and membership from an industry that generates billions of dollars of revenue every year. It’s only the most recent in a string of labor-friendly directives under President Barack Obama’s NLRB. Players at Northwestern, bankrolled by United Steelworkers, want the ability to collectively bargain for better “working conditions,” rights to money made off their likenesses, access to more health care and, perhaps one day, compensation. But full tuition scholarships, room and board, access to world-class training facilities, and potential entryway to professional sports — valued at tens of thousands of dollars per year — have always been the understood compensation for the talent, ability, and time college players give their schools. The ruling is wrought with questions that will be decided on appeal, and ultimately in court. (read article)

Implications of Northwestern NLRB decision could extend far beyond labor relations
By William A. Blue, Jr. and David P. Phippen, March 31 2014, Lexology
The rationale of the Northwestern decision could have a dramatic impact on institutions of higher learning, extending far beyond the “four corners” of the Regional Director’s decision. Any scholarship that benefits a private college could arguably mean that the recipients were “employees” for purposes of the full range of laws that govern the employment relationship, including tax laws (unemployment, social security, and income taxes); the Fair Labor Standards Act, and state and local wage and hour laws; obligations under ERISA and the employer mandate of the Affordable Care Act; occupational safety and health; coverage under the federal, state, and local anti-discrimination laws; workers’ compensation; and vicarious liability to employees or third parties for “employee” torts. Other issues could include uncertainty with respect to intellectual property rights, including control of images of players and confidential team information; applicability of “green card” requirements under immigration laws, as opposed to requirements for student visas; and coverage under insurance policies that include or exclude “employees” from the scope of coverage. Moreover, if scholarship student-athletes at private institutions of higher learning are “employees” under the NLRA, the athletes have the Section 7 rights of “employees” under the Act, including the right to engage in protected concerted activity. Given the NLRB’s aggressive positions concerning employment and social media policies, this change alone could have a significant impact. (read article)

Missouri House endorses limits on union payments
By Jordan Shapiro, March 31, 2014, Belleville News-Democrat
The Republican-led Missouri House took another step Monday in a repeat bid to require labor organizations to ask public employees every year to agree to have union fees automatically deducted from their paychecks. The House voted 83-70 to give preliminary approval to the measure, but it needs one more affirmative vote before moving to the Senate. The House tally is only two votes above the minimum threshold required to pass a bill out of the chamber. Democratic Gov. Jay Nixon vetoed nearly identical legislation last year, but the House version would bypass him and instead send the measure to the August ballot for voter approval. Public employees who are not in unions can be required to pay so-called fair-share fees that are automatically deducted from paychecks. The legislation would apply to those fees as well as the dues that union members pay. In addition to needing consent for those automatic deductions, unions representing public employees would also need to receive annual written consent to spend a portion of a worker’s fees on political activities. (read article)

California Considers Bill to Protect Temp Workers
By Michael Grabell, March 31, 2014, ProPublica
California could become one of the first states in the nation to hold companies legally responsible for wage and safety violations by their subcontractors and temp agencies if a bill proposed Friday becomes law. The bill tackles the longstanding complaint of labor leaders that companies can often shirk responsibility for the abuse of workers by hiring them through agencies or contracting with smaller firms. A ProPublica investigation last year found that temp workers face high rates of wage violations and on-the-job injuries, but rarely have recourse against the brand-name companies whose products they move, pack or assemble. Typically, only the agencies or subcontractors that directly employ workers face fines when something goes wrong, even when fulfilling contracts with larger firms that indirectly control or influence the work conditions. Unions and other worker advocates say the bill would protect temps and subcontracted workers, such as building janitors, by holding the companies at the top of the supply chain accountable. (read article)

How Labor Unions Can Save the NCAA
By William W. Berry III, March 31, 2014, Slate
Last week, after the National Labor Relations Board announced its decision to allow Northwestern University football players to unionize, some said it would mark the death knell for the current amateurism model of intercollegiate athletics. This is unsurprising in light of the widespread belief that unions will enable pay-for-play arrangements combined with a generally tepid public view of labor unions. Counterintuitively, however, labor law may provide the one viable jurisprudential avenue to survival for the NCAA. At the heart of the NLRB decision last week was Regional Director Peter Sung Ohr’s conclusion that football scholarship athletes are employees. As he explained, they are “receiving scholarships to perform football-related services” for Northwestern “under a contract for hire in return for compensation.” Indeed, this is the very characterization the NCAA has fought for decades to avoid. It has long claimed instead that college athletes are students whose primary purpose is to receive an education and “go pro” in something else. (read article)

Federal judge upholds part of Michigan’s right-to-work law
By Chad Livengood, March 31, 2014, Detroit News
A federal judge on Monday allowed a union lawsuit challenging aspects of Michigan’s right-to-work law to move forward while ruling the state had the power to make union membership optional. U.S. District Judge Stephen Murphy III’s mixed ruling will let the Michigan State AFL-CIO continue to make its case that the state’s right-to-work law violates the federal government’s power to regulate private-sector labor unions. “The significant parts of our case are going to go forward, so I think that’s a significant victory,” said Andrew Nickelhoff, general counsel of the Michigan State AFL-CIO. The judge dismissed three counts of the lawsuit, saying right-to-work laws “are a valid exercise of state regulatory power.” “Fortunately, the court dismissed the union lawyers’ challenges to the core provisions of Michigan’s Right to Work law and Michigan workers will continue to have the Right to Work without having to pay dues to an unwanted union,” Mark Mix, president of the National Right to Work Foundation, said Monday in a statement. (read article)

Gov. John Kasich work for average Ohioans
Cuyahoga County executive and Democratic candidate for governor, Ed FitzGerald, continued his full-court press of organized labor support Monday by questioning Gov. John Kasich’s blue-collar credentials during a visit to a union hall. “Here’s what I think it all comes down to,” said FitzGerald, joined by fellow statewide office-seekers during a news conference at the Building Laborers’ Union Local 310. “Who do you when you get up in the morning, who do you speak for? Who do you work for? We have a governor who I think works hard, he just doesn’t work hard for average Ohioans. The remarks come on the third anniversary of Senate Bill 5, a controversial collective-bargaining measure championed by Republicans in the legislature and signed into law by Kasich. Voters later overturned the bill, despite Kasich’s campaigning to keep it intact. Despite Kasich’s assurances that he has no interest in picking a new fight with labor, Democrats doubt his sincerity. They believe he has not unequivocally said whether he would veto right-to-work legislation that would ban union dues-paying requirements. “We will have a governor in place who will veto the hell out of those bills,” Nina Turner, a state senator from Cleveland running for secretary of state, said at Monday’s event. (read article)

Will Senate Bill 5 matter in race for Ohio governor?
By Darrel Rowland, March 31, 2014, The Columbus Dispatch
The only time Ohioans have voted on one of Gov. John Kasich’s proposals, 61 percent said no to Senate Bill 5. Opponent Ed FitzGerald and others on the statewide Democratic ticket are setting out to remind voters of that battle. Today marks the third anniversary of Kasich signing into law the measure that gutted public employee collective bargaining rights, which was repealed in November 2011 after opponents gathered nearly a million signatures on a referendum petition. FitzGerald and others on the Democratic ticket are commemorating the date by holding events across the state to remind Ohio voters of this “assault on middle-class families.” “This is a governor who got elected under false pretenses,” FitzGerald said during a press conference in a Cleveland union hall, noting Kasich did not mention worker rights, women’s rights or cutting local government during the 2010 campaign. (read article)

What’s next for public employee pensions?
By Teague P. Paterson, March 30, 2014, Sacramento Bee
Now that a pension-modification measure proposed by San Jose Mayor Chuck Reed will not appear on the November statewide ballot and a court ruling has blocked San Jose from slashing employees’ vested pension rights, opponents of public pensions are falling back on their old, false argument. It’s a hackneyed line with little truth: Public employee labor unions are not willing to negotiate. That could not be further from the truth. Across our state, when mayors and department heads have sat down with their employees’ unions to discuss pensions, they have found that common interest prevails over self-interest. Consider firefighters in Salinas, who agreed to a contract that reduced retirement benefits. Or dispatchers, police assistants and clerical workers in Daly City who now contribute more of their own paychecks to pension accounts. Police officers in Martinez made a deal to double their own contributions. Firefighters in Benicia and Imperial Beach, as well as miscellaneous city workers in Yorba Linda, compromised on reduced benefits. Those are a few examples from this current calendar year. During the past several years, beginning when our economy was still in a recession, public workers in nearly 400 municipalities agreed to cost-saving changes including higher employee pension contributions, reduced benefits and delayed pay increases. (read article)

Teachers union fights new plan by Sacramento and other school districts to address low-performing schools
By Loretta Kalb, March 30, 2014, Sacramento Bee
In the seven months since Sacramento City Unified School District won unprecedented federal permission to use new methods at low-performing schools, the urban district has begun ranking campuses and sending educators to other schools to coach their colleagues. These were among the early steps in plans to improve performance among 43,175 students, many of whom live in poverty and are learning English along with their everyday studies. Even as the district rolls out the plan, the teachers union – which never signed on – is fighting to stop it. The Sacramento City Teachers Association, in particular, objects to a promise that Sacramento City Unified and seven other districts made to link student test scores to teacher evaluations. “We have been really, really clear in California ever since (federal grant competition) Race to the Top that we did not believe using student test scores to evaluate teachers was a good idea,” said Dean Vogel, president of the California Teachers Association, which has been providing support to the SCTA. Sacramento City Unified is part of a consortium that represents more than 1 million students in school districts in Fresno, Long Beach, Los Angeles, Oakland, San Francisco, Sanger and Santa Ana. (read article)

Neel Kashkari wants to be California’s governor
By Shane Goldmacher, March 30, 2014, National Journal
Neel Kashkari is speaking over a plate of two over-easy eggs and wheat toast he didn’t want to order. We’re in a quiet San Francisco café after relocating from a noisier coffee shop down the block. We arrived full, and with drinks in hand (Kashkari, orange juice; his adviser, Aaron McLear, coffee; me, tea). “Guilt order,” he says of the eggs. He eats them anyway. Kashkari has passed through the busy downtown streets and two cafés all but unnoticed. This wouldn’t be a problem except that Kashkari is running for governor of California. Among those who would recognize Kashkari—he clocked in at 2 percent in the race’s most recent public poll—many would probably know him as the face of one of the most despised laws in modern American history: the bailout of Wall Street. One of its cornerstones was Kashkari’s brainchild. This is the kind of thing most candidates pivot away from as quickly as possible. Not Kashkari. “We’re not running away from TARP. No, I’m running towards the TARP,” he says of the $700 billion Troubled Asset Relief Program that he helped design and implement. “I own the TARP.” As if a Republican running to unseat a political icon, Gov. Jerry Brown, in one of the nation’s bluest states, wasn’t hard enough, Kashkari is doing so lugging the kind of baggage that has ended dozens of careers. But the bailout is more than baggage for Kashkari; it’s a basis for his candidacy, his singular public-policy achievement when he puts himself before the voters. “This is one of the only examples in recent history where Republicans and Democrats worked together,” Kashkari says. “…Isn’t that what we all want our leaders to do?” He’ll soon find out. (read article)

Biggest spenders wear the union label
By Susan Ferrechio, March 28, 2014, Washington Examiner
Photo – Democrats are out to make the Koch brothers the most infamous campaign donors in the 2014 election cycle. But they are hardly the biggest spenders, nor is Americans for Prosperity, the 501(c)(4) they support, at the top of the list. That distinction belongs to the nation’s labor unions, whose ability to freely use worker dues to help favored candidates — almost all of them Democrats — puts them far above just about any other individual or group. Labor union spending on both campaigns and lobbying can be difficult to track, however. Unions are required to disclose donations to candidates and campaigns with the Federal Election Commission. According to the nonpartisan Center for Responsive Politics, that figure totaled $143 million during the 2011-2012 election cycle. By comparison, Americans for Prosperity spent about $36 million on political activity during those two years, all of it spent against Democratic contenders, according to CRP. But those numbers tell only part of the story. A great deal of union spending on behalf of candidates includes not only direct donations but also spending on other activities that aid campaigns. Those efforts often include hiring workers to staff phone banks and staging get-out-the-vote efforts. (read article)

Calif. law friendly toward college unions
By Stefanie Loh, March 27, 2014, San Diego Union-Tribune
The NLRB’s Northwestern football ruling only applies to private institutions, but precedent in Calif. law would make it easy for student-athletes at public institutions to push for employee status. Former Wildcats quarterback Kain Colter and the Northwestern football players are leading the charge to give student-athletes bargaining rights to petition for improved benefits, and the NLRB ruling has opened the door for the 17 private schools that compete in FBS level football – including California-based USC and Stanford, for instance – to petition their schools for the right to be acknowledged as employees. The NLRB only has jurisdiction over private sector employees, so student-athletes at public schools would have to appeal to their state’s labor board for the right to unionize. But based on precedent in California labor law, there’s reason to believe that this might be a relatively smooth process for student-athletes at any of the five public institutions that compete at the FBS level in football: San Diego State, UCLA, Cal, Fresno State and San Jose State. (read article)

Mississippi Senate Approves Anti-Union Bills
By Jeff amy, March 27, 2014, Chem Info
Bills that aim to restrict union organizing and picketing practices in Mississippi, as well as limit governments’ abilities to pressure employers to use unionized workers, are on their way to Gov. Phil Bryant. The Senate gave final passage Wednesday to the three bills, on mostly party-line votes. Senate Bill 2473 would make it illegal to coerce a business into staying neutral in a union drive or to allow workers to choose union representation by signing cards instead of by secret ballot. It’s not clear what would constitute coercion, but businesses could sue anyone they believed engaged in it. Union supporters have been pushing Nissan Motor Co. to declare its neutrality in an attempt by the United Auto Workers to unionize the Japanese automaker’s Canton plant. Supporters have said the bill isn’t specifically aimed at Nissan. Senate Bill 2653 tries to restrict mass picketing of a residence or place of business. It says pickets would be legal as long as they weren’t violent and didn’t block entrances. But it also makes getting a court stop order against picketing easier. Senate Bill 2797 says the Legislature would have to pass a law to allow any state or local government to make an agreement to use unionized workers on a project. Such a project labor agreement was used to build the Toyota Motor Corp. plant in Blue Springs. (read article)

Labor unions saved Ford in our ‘darkest’ hour: Bill Ford
By Jeff Marganteen, March 27, 2014, CNBC
The executive chairman of Ford Motor Co. said the United Auto Workers union helped his company get through its toughest times. Though they are sometimes blamed for the financial woes at other car companies, labor unions actually helped “save” Ford Motor as competitors such as General Motors went bankrupt, Bill Ford told CNBC on Thursday. Ford, the executive chairman of the Detroit automaker, said in an interview on CNBC’s “Squawk Box” that former UAW President Ron Gettelfinger doesn’t get enough credit for helping to shore up the books during Ford’s “darkest hour.” “When we got into a really tough period, I sat down with Ron and I said, ‘You have to help me save the Ford Motor Company so we didn’t have to go through bankruptcy, so we didn’t have to get a federal bailout,'” Ford said. “And he did that.” Ford credited the union with helping his company regain a foothold in the North American market. He added that the UAW helped the entire industry “get back on its feet.” (read article)

College Players Granted Right to Form Union
By Ben Strauss and Steve Edermarch, March 26, 2014, New York Times
A regional director of the National Labor Relations Board ruled Wednesday that a group of Northwestern football players were employees of the university and have the right to form a union and bargain collectively. For decades, the major college sports have functioned on the bedrock principle of the student-athlete, with players receiving scholarships to pay for their education in exchange for their hours of practicing and competing for their university. But Peter Ohr, the regional N.L.R.B. director, tore down that familiar construct in a 24-page decision. He ruled that Northwestern’s scholarship football players should be eligible to form a union based on a number of factors, including the time they devote to football (as many as 50 hours some weeks), the control exerted by coaches and their scholarships, which Mr. Ohr deemed a contract for compensation. “It cannot be said that the employer’s scholarship players are ‘primarily students,’ ” the decision said. (read article)

Missouri unions rally against right-to-work bill
By Jordan Shapiro, March 26, 2014, Associated Press
Democratic Governor Jay Nixon’s condemnation of so-called right-to-work legislation as unnecessary and misguided drew applause from about a thousand Missouri union members who gathered Wednesday at the state Capitol. The measure to prohibit labor contracts from requiring that all employees pay union fees, regardless of whether workers are union members, is a top priority of House Republican leaders this year. But some union members attending the annual rally sponsored by the Missouri State Building and Construction Trades Council said it would weaken a union’s ability to collectively bargain and secure protections for workers. “This is not an issue we need. It will do nothing but harm the middle class and is about lowering wages,” said Glenn Lindsey, a Fulton-based Local 36 sheet metal worker for 32 years and third generation union member. (read article)

Labor group that protests restaurants won’t let its own workers protest
By Robby Soave, March 26, 2014, Daily Caller
Critics are accusing an activist labor union of rank hypocrisy after it was revealed that the group — which organizes workers’ protests of fast food establishments — forces its own employees to sign contracts prohibiting them from protesting. The Restaurant Opportunities Center has 13,000 members and nearly a dozen affiliates across the country, according to Florida Watchdog.org. It organizes protests against restaurants that it believes have violated fair labor practices. It even encourages activists to pester restaurant customers by placing giant inflatable cockroaches outside the doors to the establishments. It contractually prohibits its own employees from protesting, however. Workers may not strike, picket or interfere with the organization’s operation in any way — even though that these are exactly the kind of tactics that the group believes empowered workers should use to fight for their rights. It’s even written into their collective-bargaining agreement: “It is mutually agreed that there shall be no strikes, lock-outs, sit downs, Sit ins, slowdowns, Sympathy Strikes,­ picketing, stoppage or interruption of Work, or direct or indirect interference or interruption of the operations of Employer during the term of this Agreement. The Guild shall use every reasonable effort to prevent the above actions by any of its employees employed by the Employer.” (read article)

Unions need to take a page from the Tea Party
By Marc Ambinder, March 26, 2014, The Week
Not so long ago, the American labor movement faced a make or break moment. Facing internal dissension and a continuous hemorrhage of members and clout, it managed to elect a Democratic president and a Democratic Congress. Tilting federal labor laws back in favor of unions, and passing legislation that would allow so-called “card check” elections to establish them in workplaces, were vital. If not then, with that political configuration, then when? Five years later, organized labor considers itself to be even worse off. Though a friendlier National Labor Relations Board has helped fix contract disputes, the economic recession slashed more than 600,000 jobs from the ranks of public sector employees, at least half of them union jobs. And where the private sector is growing, unions aren’t. Politically, labor is toxic. The Democratic governor of New York has found in labor a steady opponent. Where Republicans have taken on labor power, they’ve won, too. Anti-labor folks have impressed upon the media how bloated public sector pension funds are the single largest source of potential economic peril in cities spanning from San Jose to Central Falls, R.I. (read article)

3 bills that seek to restrict labor unions in Mississippi get final Senate OK
By Jeff Amy, March 26, 2014, The Republic (Indiana)
Bills that aim to restrict union organizing and picketing practices in Mississippi, as well as limit governments’ abilities to pressure employers to use unionized workers, are on their way to Gov. Phil Bryant. The Senate gave final passage Wednesday to the three bills, on mostly party-line votes. Senate Bill 2473 would make it illegal to coerce a business into staying neutral in a union drive or to allow workers to choose union representation by signing cards instead of by secret ballot. It’s not clear what would constitute coercion, but businesses could sue anyone they believed engaged in it. Union supporters have been pushing Nissan Motor Co. to declare its neutrality in an attempt by the United Auto Workers to unionize the Japanese automaker’s Canton plant. Supporters have said the bill isn’t specifically aimed at Nissan. Senate Bill 2653 tries to restrict mass picketing of a residence or place of business. It says pickets would be legal as long as they weren’t violent and didn’t block entrances. But it also makes getting a court stop order against picketing easier. (read article)

 

Turning Points in the Fight Against Forced Unionism?

Summary:  Two current cases offer the U.S. Supreme Court opportunities to stop abuse. The National Labor Relations Act declares that “encouraging the practice and procedure of [monopolistic] collective bargaining” is “the policy of the United States.” Federal courts have often treated that declaration as if it authorized union officials to do whatever they deem necessary to bring employees into unions. Fortunately, in one case heard in November and another set to be heard this month, the U.S. Supreme Court may identify some important limits on union officers’ special legal privileges.

The National Right to Work Legal Defense Foundation provides legal representation to Americans who are fighting compulsory membership in labor unions, or compulsory payments by workers to those unions. Currently, the Foundation has two cases before the United States Supreme Court, the Mulhall case and the Harris case. Depending on the outcomes, these cases could have significant impacts on people’s right to choose whether to join labor unions.
First, let’s look at the case of UNITE HERE Local 355 v. Mulhall, which was heard recently by the U.S. Supreme Court. The case stems from a so-called “neutrality” deal forged in 2004 between hotel workers’ union bosses in UNITE HERE and an employer, Mardi Gras Gaming. Mardi Gras is the operator of a dog racetrack and a casino located in Hollywood, Florida. UNITE HERE is a union that represents mostly hotel workers and those in related fields such as food and laundry services.

Under the terms of the neutrality deal, Mardi Gras agreed to help officials of Local 355 of UNITE HERE secure monopoly-bargaining power over the company’s front-line employees. In exchange, the union brass agreed to divert a substantial sum of money from their treasuries, laden with workers’ dues, to back a casino gambling ballot initiative that the company wanted passed. Union bosses also promised not to picket or strike Mardi Gras as they sought to unionize its employees.

After the deal was reached, without employees’ input, it became clear that many of them did not want to be unionized by UNITE HERE. One employee, groundskeeper Martin Mulhall, was especially determined to prevent UNITE HERE from being imposed on him and his fellow workers. Mulhall was confident that, provided that employees had the opportunity to make their choice in the privacy of a voting booth, Mardi Gras’ front-line employees would never vote to make UNITE HERE Local 355 their monopoly-bargaining agent. He was chagrined to learn that, under the terms of the “neutrality” deal, UNITE HERE could unionize the workplace without having to face a secret-ballot election first.

Mardi Gras had acquiesced to “card check” recognition of Local 355. That is the sort of thing many businesses have done in recent years in order to avoid Big Labor harassment and negative public relations, or to get something in return from the union. The “card check” process essentially eliminates the secret ballot. Under the longstanding federal court interpretation of NLRA Section 9(a), union organizers may acquire monopoly-bargaining power by collecting signed “union authorization cards,” if the employer acquiesces. Consequently, under the peering eyes of union organizers individual workers may be intimidated into unionizing—signing not just themselves, but all of their nonunion fellow employees, over to union officials’ control.

Mulhall believed that UNITE HERE organizers would never be able to win over a majority of employees without coercion, but that absent the protection of a secret ballot, the union could prevail if given a “card check” process and the opportunities for intimidation it would provide.

That’s especially true because there’s little chance that union professionals would share a critical fact with hesitant employees: that the cards, if signed by a majority, bring the union in automatically, with no secret-ballot vote ever required. Under pressure from union organizers, employees often sign such cards because they incorrectly assume—or are dishonestly told by the union—that by signing they are just calling for an election in which they will later have a chance to vote against the union.

Mulhall was determined to stop the “card check” scheme, but he didn’t know how. He reached out to the National Right to Work Legal Defense Foundation, and in 2008 foundation attorney Bill Messenger filed, on Mulhall’s behalf, a federal suit alleging that key provisions of the “neutrality” deal between Mardi Gras and Local 355 violate the law. The deal has not (as yet) led to unionization of Mardi Gras employees; the company eventually concluded the deal was illegal and repudiated it. I say “as yet” because Local 355 has attempted to enforce the “neutrality” deal in court. Thus, the Mulhall case remains active and in need of resolution.

The case was heard by the U.S. Supreme Court on November 13. Lawyers for Martin Mulhall do not contend that “card check” deals per se are illegal. However, as a practical matter, Mulhall represents a grave threat to “card check” organizing. That makes the case critically important because, according to the best available evidence, “card check” has become private-sector unions’ most important method of organizing.

No wonder Benjamin Sachs of Harvard Law School has referred to Mulhall as, potentially, “the most significant labor case in a generation.” Sachs’ assessment has been quoted in dozens of mainstream and specialized legal media reports on the case.

Gag clause a ‘thing of value’

The major issue in the Mulhall case relates to whether key elements of the agreement between UNITE HERE and Mardi Gras constitute a “thing of value.” The NLRA law’s Section 302(a)(2) makes it  unlawful for any employer to pay, lend, or deliver, or agree to pay, lend, or deliver, any money or other thing of value . . . to any labor organization . . . which represents, seeks to represent, or would admit to membership, any of the employees, of such employer.

And Section 302(b)(1) makes it unlawful for any union or union officer “to request, receive, or accept, or agree to accept” any such “thing of value.”

As Bill Messenger, attorney for the National Right to Work Legal Defense Foundation, explained in a brief to the Supreme Court, Congress adopted Section 302 largely in recognition of the fact that union monopoly bargaining as authorized and encouraged by the statute “creates a fiduciary relationship.” A fiduciary relationship is one of trust, such as between a trustee and a beneficiary; a trustee must act in the interests of the beneficiary. For example, an attorney must operate in the interests of his or her client. The NLRA-promoted fiduciary relationship between union officers and unionized employees is another example.

Messenger argued that Congress had adopted Section 302 largely to forestall “conflicts of interest in labor relations.” In support of this view, he quoted a U.S. Senate report on the 1959 NLRA amendments that extended the section to cover any union seeking to organize an employer’s employees:

For centuries, the law has forbidden any person in a position of trust to hold interests or enter into transactions in which self-interest may conflict with complete loyalty to those whom they serve.

Agreements to “pay, lend, or deliver” things of value to employees themselves, rather than to union officials, are indisputably permissible. The only “things of value” prohibited are those rendered by employers to union officials (except for some explicit exceptions in the law).

In the case now before the Supreme Court, Mulhall contends that three types of organizing assistance promised by Mardi Gras to Local 355 as part of their “neutrality” deal constitute “things of value” prohibited by Section 302:
(1) lists of confidential information about Mardi Gras’ nonunion employees, including their “job classifications, departments, and addresses”; (2) use of Mardi Gras’ private property for organizing; and (3) control over Mardi Gras’ communications to nonunion employees regarding unionization . . . . The last provision [of the deal] stated that “[t]he Employer will not do any action nor make any statement that will directly or indirectly state or imply any opposition by the Employer” to unionization or any particular union.

The Obama administration involved itself directly in the case, filing a “friend of the court” brief. While urging the Supreme Court to find that Local 355 had not violated Section 302, Solicitor General Donald Verrilli conceded that “courts generally construe” the term “thing of value” to include “both tangibles and intangibles.” He noted:
Courts have found a wide variety of goods, services, and benefits to be “things of value” within the meaning of the criminal laws.

Mulhall’s brief added that to be a “thing of value” under Section 302, a service or benefit need only be of value to the union officials receiving it. Moreover, each of the neutrality pact provisions at issue has a market value, albeit one it is difficult to assess with any precision, and can be “delivered” to union representatives.

For example, the gag rule provision is legally comparable to one business agreeing with another (assuming the agreement is permissible under antitrust law) not to fight for customers in a particular market, in exchange for some other consideration:

. . . Coca-Cola certainly delivers something of great value to Pepsi if it enters into a noncompetition agreement that bars it from advertising or competing against Pepsi in a particular market.

No ‘successful union organizing’ without employer collusion?

Questioned during November’s Supreme Court hearing on the Mulhall case, UNITE HERE lawyer Richard McCracken had a tough time defending his claim that gag rules, lists of employee names and addresses, and use at no cost of an employer’s facilities are not “things of value” under Section 302. Even Deputy Solicitor General Michael Dreeben, who also appeared before the Court to argue that UNITE HERE bosses had not violated the law, undercut McCracken on this key point when he admitted:

Certainly, read in isolation, the words “thing of value” are very broad. In other statutes, they cover intangibles. We would have no problem treating the things here as things of value under . . . 302 if that’s the only thing that existed.
But Dreeben contended all this shouldn’t matter, because union organizers have a right to seek recognition from an employer as employees’ monopoly-bargaining agent based on signed cards alone, without a secret-ballot election. That’s under NLRA Section 9(a), as interpreted by the Supreme Court in National Labor Relations Board v. Gissel Packing (1969). If the employer acquiesces, union bosses have a right to unionize employees through such “card checks” without a vote.

“Card check” recognition is obviously a thing of value to organized labor, Dreeben noted. Because it is permissible for employers to deliver such recognition to union officials, he claimed, it should also be permissible for employers to deliver to union officials virtually any other kind of organizing assistance, regardless of what Section 302 says.
The administration’s Dreeben and UNITE HERE’s McCracken evidently did not think it prudent to baldly claim, as Sachs of Harvard Law School had in a blog post the day before, that “effective union organizing” in the private-sector today relies on employer collusion in the form of gag rules, lists of information, and use of property. Yet Dreeben made the same point more circumspectly. He suggested the Justices should rule against Mulhall because employers’ “voluntary” recognition of unions through “card checks” is not merely a “permissible” element but a “favored” element of national labor policy.

But that’s wrong. In reality, the Supreme Court in the 1969 Gissel case acknowledged that “secret elections,” not “card checks,” are the “preferred” method “of ascertaining whether a union has majority support.” Therefore, there is no plausible reason to ignore the literal meaning of Section 302 in order to avoid hindering Big Labor from securing monopoly-bargaining privileges through “card checks,” even though “card checks,” with organizing assistance from employers, have become unions’ favored modus operandi.

As the attorney Bill Messenger observed in response to question from Justice Sonia Sotomayor, “nothing gives [UNITE HERE] any right to the three things it demands from Mardi Gras. So enforcing 302 in this case cannot conflict with the NLRA.”

Case #2: Forcing caregivers to join unions

If it comes out wrong, the Supreme Court case of Harris v. Quinn, set to be argued this month, could take the country much further down the road of Big Labor coercion. Or it could go in the other direction, revoking forced-dues privileges that government unions have exercised in many jurisdictions for more than four decades.

The lead plaintiff in Harris lives in a Chicago suburb and is the mother of a young adult son with severe developmental disabilities. In fall 2009, Pam Harris received a form letter from agents of Gov. Pat Quinn (D-Ill.). It informed her that, as a care-provider for her son in the state Disabilities Program, she now could cast a mail-ballot vote on which of two unions would be installed as her monopoly-bargaining agent in her dealings with the state. The letter Harris and several thousand other Disabilities Program providers received did not clearly state that they could opt for no union representation at all.

How did top bosses of the Service Employees International Union (SEIU) and the American Federation of State, County and Municipal Employees (AFSCME) get the opportunity to compete for control of Disabilities Program providers? They owed it all to Executive Order 2009-15, issued by Quinn on June 29, 2009.

Participants in the Illinois Home Based Support Services Program for Mentally Disabled Adults receive taxpayer-funded subsidies from the state to help cover the cost of care. Adults, or their legal guardians, may use their subsidies to compensate care-providers. Executive Order 2009-15 was crafted to enable one union to secure recognition from the state as these providers’ exclusive representative in their dealings with the state, and then to extract forced dues or fees from the providers.

For many years before, Big Labor had wanted to corral taxpayer-subsidized home care providers across Illinois into government unions, but had not been legally able to do so. The courts had held the providers were not public employees, because they are not supervised, hired, or fired by the state.

Quinn’s edict did nothing to change the underlying facts, of course. It simply declared that, even though citizens like Pam Harris aren’t supervised, hired, or fired by the state of Illinois or any of its subdivisions, the fact that they are paid and regulated by the state suffices to justify classifying them as public employees solely for purposes of unionization.

If the schemes concocted by Pat Quinn and other opportunistic Big Labor politicians in multiple states over the past few years—schemes to expand the reach of public-sector monopoly unionism—are constitutionally permissible, the implications are enormous. Doctors who accept patients under Medicare and/or Medicaid could be forced by gubernatorial executive order or state legislation to accept a particular private organization as their lobbying agent. Moreover, doctors could be forced to pay mandatory dues and fees to such an organization. Similarly, impoverished parents who participate in the “food stamp” program could be forced to join or pay fees to a government-designated lobbying agent.

Pam Harris and other care-providers cry halt

Over the course of the rigged Disabilities Program provider “election” in fall 2009, Harris and other parents pooled their money to print and distribute a flyer countering the Quinn team’s propaganda. The independent-minded providers’ shoestring effort succeeded. Providers ultimately voted two to one for “no union.” Nevertheless, SEIU and AFSCME union officers continued to press ahead with their efforts to gain forced-dues privileges over caregivers.

In Harris v. Quinn, Pam Harris and other Disabilities Program providers are seeking relief from these unionization efforts (continued under a program established by Quinn’s predecessor, the now-jailed Gov. Rod Blagojevich). They have been joined by several at-home caregivers who are being forced to pay union dues as a condition of receiving state assistance. Like Martin Mulhall in his case, the plaintiffs in the Harris case are represented before the Supreme Court by Bill Messenger of the Right to Work Foundation.

During oral arguments on January 21, Messenger will ask the Supreme Court to protect his clients from compulsory payments to unions by overturning Abood v. Detroit Board of Education, a 36-year-old case that invoked the “free rider” excuse to force workers into unions. Under this theory, workers who don’t pay forced union dues would get a “free ride” with regard to the benefits of the union’s bargaining and contract administration (benefits unsolicited by the workers, of course). Messenger will respond by citing a recent Foundation-won Supreme Court case, Knox v. SEIU Local 1000, in which Justice Samuel Alito observed in his majority opinion that “free-rider arguments . . . are generally insufficient to overcome First Amendment objections.” Alito added that perhaps Abood had crossed “the limit of what the First Amendment can tolerate.” (For more on Knox v. SEIU, see Labor Watch, Oct. 2012.)

Messenger will also argue that, even should the Court balk at reversing Abood, his clients must not be forced to pay union dues or face the imminent threat of forced-dues payments, because they are not employed in any government workplace. Therefore, there exists not even a theoretical possibility of “labor peace” in the workplace being disrupted by so-called “free riding,” as the Abood opinion had envisioned.

‘First Amendment values are at serious risk’

A Harris ruling that neither revokes Abood’s constitutional waiver for public-sector forced union dues nor finds the plaintiffs outside of Abood’s reach would have very dark implications for personal liberty and the democratic process.

In a November 2011 petition asking the Supreme Court to accept the case, Messenger reminded the Court that, outside the realm of labor-management relations, it has up to now been very reluctant to uphold statutes or executive orders that impose “compulsory advocates” on individual citizens. He quoted the Court’s 2001 ruling in U.S. v. United Foods:

First Amendment values are at serious risk if the government can compel a particular citizen, or a discrete group of citizens, to pay special subsidies for speech on the side that it favors.

In short, Abood blew a hole in the First Amendment, but a victory for the Quinn Administration and Big Labor in Harris would greatly expand that hole and jeopardize the free speech rights of millions of citizens who have been protected up to now.

That’s why, as high as the stakes are in Mulhall, the stakes in Harris appear to be even higher.

Stan Greer is senior research associate for the National Institute for Labor Relations Research, a think tank located in Springfield, Virginia, that is affiliated with the National Right to Work Committee. The opinions presented here are his own. This article originally appeared in Labor Watch, a publication of the Capitol Research Center, and appears here with permission.