06/28/18 Yesterday's Supreme Court Decision: Janus v. AFSCME Council 31
Yesterday the U.S. Supreme Court issued its ruling against public sector unions in Janus v. AFSCME Council 31 (2018). The decision barred requiring of bargaining unit members who do not commit to be union members to pay for the representation they get from the unions negotiating on their behalf.
The ruling by the Supreme Court reverses the decision in Abood v. Detroit Board of Education (1977). In the Abood decision the court decided unanimously that unions representing public employees, including educators, could collect fees from those bargaining unit members who chose not to join their union, but who will benefit from the union’s collective bargaining efforts. The Abood court recognized that while members can decide whether or not to join a union, that unions legally must represent everyone, even nonmembers, so it could ask these nonmembers to pay their fair share for that representation. That fair share is sometimes referred to as an agency fee. The Abood decision has been the law of the land for over 40 years. At present here at Wayne State, members pay 0.9% of their salary, while agency fee payers have been paying 80% of that amount for the representation they receive from the union’s negotiation of the terms of employment of the faculty and academic staff. We have notified the Administration that under the Supreme Court decision they must immediately cease deducting fee amounts from the salaries of those members of the bargaining unit who fall into the category of agency fee payers. In addition, deduction for research and scholarships must also be stopped and those few who decided not to contribute to these and were willing to take the two-day layoff instead are not exempted from this action.
The reversal of Abood has been the dream of the corporate anti-union activists for decades. The Koch brothers and other billionaires have poured many millions into the anti-union movement in recent years. The Senate Majority Leader, Mitch McConnell, refused for a year to have a hearing on Merrick Garland, President Obama’s nominee for the open Court position created by the death of Justice Antonin Scalia. President Donald Trump nominated Neil Gorsuch, an extreme conservative, to the open seat. He was quickly endorsed in the Senate Judiciary Committee on a party line vote. Gorsuch provided the crucial fifth vote that decided the Janus case. He was joined in the majority opinion by Associate Justices Samuel Alioto, Clarence Thomas, Anthony Kennedy, and Chief Justice John Roberts, all of who were nominated to the Court by Republican Presidents. The retirement of Justice Kennedy opens the door for another extreme conservative to be appointed by President Trump.
Those of you who are full members of the Union do not need to do anything to continue your membership in the Union. Your dues will continue to be deducted from your salary by the Administration. We have proposed to the Administration that it agree that those who wish to do so may continue on a voluntary basis to pay for fair share representation at the same rate as they presently do. Fee payers may also sign up to become full members, but under the Janus ruling, no member of the bargaining unit will be required to be a member of the Union.
The Union continues to have the legal duty of fair representation of all members of the bargaining unit. That means that all aspects of the Collective Bargaining Agreement will continue to be enforced by the Union for both members of the Union and for those who do not pay dues. If a member of the bargaining unit chooses to not be a Union member and pay dues, she or he will become a free rider, enjoying the benefits won by the Union in negotiations paid for by their colleagues who are members.
On the list presented in a recent Union Newsletter, there were nearly 50 current grievances and potential grievances. The grievance process is important for defending the rights of members of the faculty and academic staff. For example, the Union prevented the Administration from taking from all bargaining unit members a significant and valuable right to medical leave benefits. For decades the policy on medical leaves was that when new members first came to the University they earned a month’s medical leave for each year they were employed for up to six years. This meant that if you have been here for six years and get sick and cannot work, you will receive your regular pay for up to six months while on medical leave. When you return to work, you earned back the full six months of medical leave a year after your return. The Administration decided unilaterally to change this so that you would have to work for six more years to earn back the right to six months of medical leave. Through the grievance process our lawyers, paid for by Union members and agency fee payers, got the Arbitrator to restore the policy which had been in place in the past.
The Administration, for no reason other than to make its financial books look better, wanted to change the past medical leave policy in a manner that could have cost you up to one-half of your annual salary should you fall sick again and found it necessary to go on medical leave before six years elapsed after your first return to work. This is the kind of protections for which your dues pay as well as for the many individual issues the Union pursues on behalf of those who experience unfair administrative actions each year. This was a significant financial win for all our bargaining unit members over an Administration that cares little for the medical leave rights they were trying to take away from our faculty and academic staff.
When President Roy Wilson formulated a policy in the School of Medicine that had the goal of mass de-tenuring scores of faculty members, it was the Union that opposed his policies and guaranteed that faculty rights be respected. Union officers devoted many hours to consulting with faculty being targeted and offering alternatives for dealing with the financial crisis in the Medical School. Eventually we saw the development of a program of buy-outs that the Union had maintained from the beginning should be adopted. The Union defended the faculty when the Administration regularly blamed the faculty for the crisis, which had its roots in a combination of changing factors in the health care market and past administrative incompetence. It was the Union that pointed out that the almost $40 million deficit in the first year of the current crisis was not the fault of the faculty, but to the mismanagement of the previous administrative leadership of the School of Medicine.
The Administration initially threatened up to 80 faculty members with de-tenuring, eventually winnowing the list down to 43 who were sent menacing letters. Over 30 faculty members agreed to retire after being offered buy-outs pushed by the Union. The Administration eventually brought tenure revocation charges against only four faculty members. One faculty member retired after the hearing panel held against his case. But this was only after the panel asked that he be given the same buy-out provided for other faculty members. The Union agreed to this but the Administration did not. The faculty member then retired before the case was sent to the Board of Governors for final action. In two of the other cases brought by the Administration, they lost. In the last case the hearing is over, the briefs have been filed and we await the faculty panel’s decision.
It was the Union that defended tenure against arbitrary action by the Administration. It has been an expensive undertaking, and one in which the Administration would have taken far more drastic actions without Union opposition. In one case, the Administration hired the law firm of a former member of the Board of Governors, Eugene Driker. Driker’s firm charged the University $174,000 for their services (overall costs to the Administration were over $211,000). Driker’s firm lost the case. But, it illustrates the need to have a strong Union to oppose an Administration that is willing to spend a lot of money to get their way.
President Wilson has spent millions on his consultants in the School of Medicine. It has been up to the Union to provide the principal alternative voice defending the rights of the School’s faculty and academic staff against administrative action recommended by these consultants. The Union will continue to need your support to be able to stand up against arbitrary administrative actions and to protect academic rights in the School of Medicine and the rest of the University. I hope that you recognize this need and commit to being a Union member.
Also, there are other benefits of membership offered by the Union above and beyond those in the Collective Bargaining Agreement. These are only available to members and include low-cost mortgage and home refinancing programs, a legal services plan, cell phone and car rental discounts, and other cost savings.
Finally, past history has proven the need for a strong Union at Wayne State University. Whether it is a matter of representing individual bargaining unit members or standing up to the Administration on policy matters, such as the attempt described above to deny unilaterally medical leave benefits to members, or the Administration’s attack on tenure, you have benefited from a strong Union. You have a vested interest in keeping your Union strong. If you are already a member, continue your commitment to be a member. If you are a fair share payer, you will have the opportunity to become a member or to continue your fair share status on a voluntary basis. Please take advantage of this opportunity when it is presented to you. Membership keeps the Union strong.
Please reach out to the Union at any time if you have any questions (313) 577-1750.
--Charles J. ParrishPresident, AAUP-AFT, Local 6075, WSU ChapterVice President-at-Large, AFT MichiganPresident, AAUP Michigan ConferenceMember-at-Large, National Council, AAUP5057 Woodward Avenue, Suite 3301Detroit, MI 48202313.577.1750