Tag Archives: collective bargaining

State Workers Seek to Protect Labor Rights As Coronavirus Spreads

Originally published in The Intercept on March 21, 2020.

On Tuesday, a week after declaring a state of emergency due to the spread of Covid-19, Minnesota’s Democratic Gov. Tim Walz signed an executive order pertaining to his state’s 50,000 executive branch employees. The order extended paid leave to all state employees for absences like caring for children due to school closures, and authorized agency heads to waive parts of collective bargaining agreements so as to more easily deploy workers where and when needed. Minnesota law grants the governor such powers during such emergencies.

Publicly, unions representing these workers praised Walz for his action on paid leave, and offered only muted concerns about the collective bargaining measures — stressing they will monitor the situation to ensure employers do not abuse their new authorities.

Privately, though, unions were taken off guard by the governor’s actions, and were unable to get the state to agree to establishing guardrails in the order itself around preventing employer abuse.

Workers are concerned that other states, especially less labor-friendly ones, may follow Minnesota’s lead, and use the pandemic as a pretext to weaken unions in the long term. In California, some employers have been lobbying for a similar executive order, to free themselves of public-sector bargaining restraints. While state employees have made clear they’re committed to flexibly responding to the crisis, unions understand anti-labor managers have wielded emergencies to their benefit in the past.

On Thursday March 12, state union representatives had an in-person meeting with the Minnesota Management and Budget — an agency that governs personnel and finance issues — to check in about the novel coronavirus. In that meeting, which was described as “friendly and nonproductive” by an individual involved who was not authorized to speak about the discussions, union reps talked primarily about paid leave, and also raised concerns around telework, and safety equipment for health and correctional workers.  There was no discussion then of potentially waiving aspects of collective bargaining, and they all planned to meet again on Tuesday, March 17.

But on Monday, March 16, with less than an hour’s notice, the MMB emailed the unions an invitation for a conference call. It was on that call that state officials announced the draft of their forthcoming order, though they did not provide anyone on the call with a written copy of the text.

“It was received as a great surprise,” said one of the participants on the call. “A lot of questions were thrown out, and because we did not have the physical document in front of us, a lot of the questions were just like, ‘What did you say? What’s that phrase?’”

A few hours later union senior staff organized another call among themselves to discuss how to respond. They were less concerned about Walz and far more worried about how agency heads below him might interpret their new broad authorities. Many leaders of individual state agencies have been in charge since Republican Gov. Tim Pawlenty’s tenure, and are not supportive of unions. Under the new order, employers can change schedules, work locations, or work assignments without notice, whereas in the past employees were given a notice period to rearrange their lives.

On Monday evening, union leaders emailed MMB officials and Walz’s chiefs of staff to request the administration publicly commit to “working with union representatives to swiftly and fairly address issues that may come up as a result” of this proposed order. The unions specifically requested a sentence be added to this effect, and that the administration commit to saying this in a press conference.

But all they were able to win was the addition of a vague line saying, “When circumstances allow, Minnesota Management and Budget will work in partnership with the labor unions affected by any adjustments to the provisions of collective bargaining agreements or memoranda of understanding.”

When the executive order was signed on Tuesday, union leaders largely bit their tongues. “We are thankful for the Governor’s action in authorizing this new policy specifically to address COVID-19 leave,” stated the Inter Faculty Organization, which represents employees at Minnesota’s seven state universities. Walz was elected in 2018 with strong union support, and the IFO praised the paid leave measure for “setting the standard for the rest of the nation.”

The executive directors of American Federation of State, County and Municipal Employees Council 5 and the Minnesota Association of Professional Employees also issued a joint statement that recognized the “magnitude” of the executive order. “We won’t stand in the way of the state’s powerful response to the crisis, but we won’t idly sit by if that power is abused,” they said. The unions emphasized they had “worked with the State” to ensure the changes would be only limited to dealing with Covid-19.

In an emailed statement MMB Commissioner Myron Frans said his agency “is working in strong partnership with our union partners during this rapidly evolving emergency situation. We continue to work together with the shared goals of preventing the spread of COVID-19, keeping employees healthy, and providing critical services to the people of Minnesota.”

So far, rank-and-file members have not reacted negatively to the order — and have been focused more on the new expansive rights around paid leave, which they are happy with. Union leaders suspect the rubber will hit the road if and when cases of coronavirus ramp up in Minnesota, and working conditions start to change.

“We’re particularly concerned about things like conditions in prisons, where workers already deal with severe understaffing,” said the union source. And while their grievance procedures are technically unaffected by the executive order, the reality is the standard grievance process doesn’t move quickly enough during emergencies, meaning workers could be left without recourse in the event of employer abuse.

Some unionized state workers in California were recently threatened that their collective bargaining rights were soon to be waived too.

Ashley Payne, a state worker in Contra Costa County, one of the nine counties in the Bay Area, has been increasingly alarmed by the lack of safety protections for workers like herself who have been required to come into the office. She works in her county’s Employment and Human Services division, where she helps administer welfare.

As an elected officer for her union, SEIU Local 1021, Payne has been fielding concerns from colleagues about the lack of hand sanitizer, disinfectant wipes, and masks — including for social workers who have to do home visits.

On Wednesday, Annie Barrett, the division manager for Payne’s department, emailed staffers about working conditions under Covid-19, and said they were “exploring temporary telecommuter opportunities.” Payne forwarded the email to Jeffrey Bailey, her county’s labor relations manager, to say that while her union strongly supports this step, she wants to make it clear in writing that SEIU 1021 does not agree to making this change permanent. “We will not allow the County to exploit this crisis as a pretext for ushering in permanent changes,” she wrote. “We continue to expect timely notice of upcoming changes so we can Meet and Confer over changes to wages, benefits, and working conditions.”

In his emailed response, Bailey agreed the assignment of staff to work from home was temporary, but emphasized that things “are different” under emergency conditions (Emphasis in original).

“Furthermore,” Bailey wrote, “the state of California has informed us that the Governor intends to pass an executive order to temporarily suspend many of the provisions of the MMBA [Meyers-Milias Brown Act, the state law governing public sector collective bargaining] during this emergency period.”

Upon receiving this email, Payne reached out to her local’s leadership, who reached up the chain to the state level. Soon after Rene Bayardo, a lobbyist with SEIU California, emailed to say his team had looked into this threat, and suggested Bailey was wrong. “The indication from the [Newsom] administration is that public employers are asking to suspend MMBA but this is NOT under consideration,” Bayardo wrote.

Payne, who has worked at her job since 2014, said her employer has grown far less responsive to union concerns since the Janus v. AFSCME decision in June 2018. “Knowing what their track record is I’m not surprised they’re trying to bust the union,” she said. Rather than distancing itself from unions during the pandemic, Payne added, local government should lean into “much closer collaboration because we know our work best and we know how best to ensure safety.”

Bailey told The Intercept that he doesn’t have “any direct knowledge” of California Gov. Gavin Newsom’s plans with respect to MMBA. “I heard about it, as we say, ‘through the grapevine,’” he wrote in an email. “This has been discussed widely among public agencies, but I don’t have any specifics or inside information. … We are all assuming that the suspension would apply to things like the meet and confer obligations and notice requirements.”

Crystal Page, a spokesperson with California’s Labor & Workforce Development Agency, said Newsom “has been clear that California needs flexibility to respond” and that he “understands the importance of collective bargaining and the need to ensure workers have a voice on the job.”

Nelson Lichtenstein, a labor historian at University of California, Santa Barbara told The Intercept he hadn’t heard anything about moves to suspend collective bargaining in California, though acknowledged it is certainly not unprecedented for anti-union leaders to try and exploit crises to weaken labor.

Lichtenstein pointed to the aftermath of 9/11, when Congress created the Transportation Security Administration. Using legislative authority, a George W. Bush-appointed TSA administrator denied the 40,000 TSA workers collective bargaining rights, claiming it was necessary for national security. It wasn’t until 2011, under a new Obama appointee, that TSA workers finally won the right to bargain.

Another example was following Hurricane Katrina, when Bush unilaterally suspended federal law governing workers’ pay on federal contracts in areas of Alabama, Florida, Louisiana, and Mississippi. Bush justified his move by calling Katrina a “national emergency” and said ignoring federal rules around construction costs “will result in greater assistance to these devastated communities.”

“People were outraged, it was just so obvious he was using it opportunistically,” said Lichtenstein. About six weeks later, in response to the backlash, the White House reversed course.

Payne said she worries that if labor-friendly California does follow Minnesota’s example, it would quickly motivate many other states to follow, particularly Republican-controlled states. “This is why I feel we have to hold the line,” she said. “If California does it, then everyone else will be like, ‘We should have been doing this a long time ago.’”

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Amid Conservative Assault on Organized Labor, Democratic Lawmakers Are Advancing Laws to Expand Workers’ Rights

Originally published in The Intercept on August 5, 2019.
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PUBLIC-SECTOR EMPLOYEES IN states with Democratic majorities have made significant legislative gains in recent months, despite the U.S. Supreme Court’s landmark 2018 decision in Janus v. AFSCME, which found that unions could no longer collect bargaining fees from workers who do not pay membership dues.

More than 22,000 state workers in Nevada and Delaware gained the right to collectively bargain this year thanks to recently passed legislation. Colorado, home to more than 26,000 state employees, is expected to follow suit next year.

With Nevada and Delaware’s new legislation, passed this summer, there are now 26 states that recognize state employee bargaining rights, as do Puerto Rico and the District of Columbia, according to a spokesperson for the American Federation of State, County, and Municipal Employees, or AFSCME. Twenty-four states either outright prohibit collective bargaining or do not authorize meaningful bargaining, such as Wisconsin, which heavily curtailed the ability of public-sector employees to negotiate in 2011.

On the federal level, congressional representatives are also working to bolster the rights of public-sector workers, though any chance of enacting legislation is highly unlikely unless Democrats win the White House and the Senate and maintain their hold on the House of Representatives in 2020. On June 25, Sen. Mazie Hirono, D-Hawaii, and Rep. Matt Cartwright, D-Penn., reintroduced the Public Service Freedom to Negotiate Act, which would, for the first time, set a minimum nationwide standard of collective bargaining rights for the nation’s 17.3 million public employees. Among other things, public employees would be required to recognize their workers’ unions if they’re “freely chosen” by a majority vote, and employers would be required to bargain with workers over wages, hours, and other terms of employment. If public employers refuse, then the legislation grants the federal government the authority to intervene.

The bill is backed by 2020 presidential candidates, including Sens. Elizabeth Warren, Bernie Sanders, Amy Klobuchar, Kamala Harris, Kirsten Gillibrand, and Cory Booker.

This legislative push comes as organized labor was bracing for the worst following the Supreme Court’s Janus decision, which was expected to significantly deplete union coffers. In its 5-4 decision, the court struck down more than four decades of legal precedent and concluded that unions could no longer collect payments from non-dues-paying members in exchange for collective bargaining services. This opened the door not only for nonmembers to stop paying fees, but also for union members themselves to opt out altogether.

While the full extent of Janus’s blow to the labor movement may not be felt for several years, at a labor conference in February, public-sector union leaders said the first year’s impact had been less devastating to membership than expected. AFSCME President Lee Saunders said that while his union had lost 100,000 agency-fee payers since the court’s June decision, they had also managed to flip 310,000 agency-fee payers into dues-paying members. “For every member that we lost, we gained seven,” Saunders declared. Other unions reported relatively minimal losses, like the American Federation of Teachers, which lost 84,500 agency-fee payers after Janus, but also gained 88,000 new members between November 2017 and November 2018.

Still, many experts say the drop-off in membership could happen slowly, rather than an immediately significant decline. Michigan, which became a right-to-work state in 2012, has lost nearly 130,000 union members over the last seven years, or 16 percent of union membership. This year, Michigan unions have reported at least $20 million less in revenue than they did in 2012.

There’s also the risk that unions will have trouble recruiting new members moving forward. Mike Antonucci, a teachers union analyst, said recently that “current members are unlikely to resign in any great numbers. Over time, however, they will retire. The burden will be on the unions to recruit new members in the same percentages as they enjoyed pre-Janus.” The National Education Association saw a 0.5 percent increase in its membership compared to the year before, Antonucci found; however, New York accounted for 80 percent of that nationwide growth. By contrast, 10 state affiliates saw membership drops of 3 percent or more, including North Carolina, which saw a 6.8 percent drop in 2018.

IN THE FACE of the conservative assault on organized labor, workers and lawmakers in blue states are experimenting with new laws and forms of organizing to make it easier to unionize and negotiate on the job.

In Nevada, Democratic Gov. Steve Sisolak, signed a bill in June granting Nevada’s more than 20,000 state workers the right to collectively bargain, a right they’ve been denied since 1965. Sisolak, who was elected in 2018, pledged in his first State of the State address in February to get this legislation passed. His election placed the state government fully in Democratic control for the first time since 1992.

According to AFSCME, the legislation marks the largest expansion of collective bargaining for state workers anywhere in the country in the past 16 years. It benefits a broad swath of workers, including nurses, caretakers, and correction officers.

Conservative opponents of the bill argued that granting collective bargaining rights to state workers would hurt taxpayers and Nevada’s budget, even though there is little empirical evidence in support of that assertion. Local government workers in Nevada have been able to collectively bargain since 1969.

According to researchers at the Economic Policy Institute, a progressive think tank, state employees in Nevada earn between 1 and 13 percent less than their private-sector peers in total compensation, and their health care benefits are less generous compared to state workers in other parts of the country. Workers who advocated in Carson City for the legislation, however, went to great lengths to say that it was not just about wages and benefits, but also things like working conditions and safety. Rick McCann, head of the Nevada Association of Public Safety Officers, said for example that now his members can bargain over things like body-worn cameras and dashcams.

In order to get the bill passed, Nevada workers had to make some concessions. The legislation includes an amendment that grants lawmakers and the governor the final say over things like pay raises, regardless of what the workers negotiate. Compromises like this are common for public-sector unions. Still, labor leaders say that even having a seat at the table will be a huge step forward, and they will push for improvements to the law in the years ahead, if necessary.

Workers saw similar success this year in Delaware, where Democratic Gov. John Carney signed a bill in June granting collective bargaining rights to more than 2,000 state employees.

Since signing the law, state workers in Delaware have already begun to organize new unions. In late July, 340 workers at the Delaware Department of Motor Vehicles voted to form a union for the first time. They are joining Laborers’ International Union of North America Local 1029. Additionally, according to Michael Begatto, executive director of Council 81 AFSCME AFL-CIO in Delaware, dietary workers at the Delaware Veterans Home just voted to join AFSCME, and workers at the Office of the State Fire Marshal recently filed for an election.

Delaware Democrats have had a governing trifecta since 2009, but in the past, state workers faced “a reluctance” by some lawmakers and individuals in the executive office, Begatto said, noting that Gov. John Carney’s election in 2016 worked in their favor. “They balked at being able to go to the table as equals with workers,” he said. “This governor was more understanding; without him, this would not have happened.”

Unions in the state saw less of a decline in membership post-Janus than they had been expecting. “We were pleasantly surprised, as we were expecting a 20 to 25 percent reduction,” Begatto said. “Out of 7,000 members, we had only about 180 members opt-out.”

COLORADO WILL LIKELY be the next state to expand bargaining rights to state employees.

In this year’s legislative session, lawmakers in Colorado came close to achieving collective bargaining rights for its roughly 26,500 state employees, but the bill came to a halt because Democratic Gov. Jared Polis, who was elected last year, said he wanted more time to figure out how it would work in practice. In 2007, Colorado’s then-Democratic governor issued an executive order giving state workers the right to form a union, but not to collectively bargain. This bill would have codified and expanded that order.

Hilary Glasgow, executive director of Colorado Workers for Innovative and New Solutions, the state employee union, told The Intercept that she’s confident the bill will be passed in the next session.

“We know Governor Polis believes in collective bargaining, so where we’re at is him needing to understand all the ins and outs of what this means and how it can benefit not only the state and state employees, but also the citizens we serve in Colorado,” she said. “We’re going to be meeting regularly, as much as it takes, as often as it takes, to get to a place where we can introduce a bill on the first day of the next session that the governor and the union are behind.”

Glasgow and Polis released a joint statement at the end of April pledging to “enter into discussions to address outstanding issues surrounding House Bill 1273 and other issues affecting the state workforce and the people of Colorado that cannot be resolved in the few remaining days that exist in the legislative session.” The statement adds that “we are confident that we will successfully resolve these outstanding issues before the 2020 legislative session.”

Polis’s office declined to comment beyond the April statement.

Glasgow said collective bargaining rights are an important factor in addressing the state’s staffing crisis, which has escalated since 2009. A report published by the Economic Analysis and Research Network, a Colorado WINS partner, finds over the last decade that turnover among state employees increased by 73 percent. Colorado’s Department of Personnel reported last June that roughly one in every five positions in the state government was vacant. The high number of vacancies can place additional strain and responsibility on the workers who remain. A number of research studies support the idea that collective bargaining can help to reduce employee turnover.

“We’re seeing a steady decline in state workers and an alarming increase in vacancies,” Glasgow said. “We’re running roughly 10 percent behind the private sector on their total compensation plan, and what I think people don’t understand about state services is that a lot of them are highly dangerous behind-the-scenes work. There is expertise at the front-line level that can inform how they do their work in a way that makes it safer and better.”

The push for collective bargaining, Glasgow said, is rooted in a desire to make sure that this firsthand knowledge is taken seriously. “Workers need to have a venue to have those conversations so changes in their workplace can actually be implemented,” she said. “Right now, you’re at the benevolence of the governor and the cabinet as to whether they’ll hear you out.”

Labor Unions Are Skeptical of the Green New Deal, And They Want Activists To Hear Them Out

Originally published in The Intercept on Feb. 28, 2019.
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Deciding whether to sign onto the Green New Deal resolution is not an easy call for many members of Congress. They have to contend with the usual opponents: coal, utilities, oil companies, and other big-pocketed interests who like today’s economic order just fine. But even on the left, coalition-building can be complicated.

After signing onto the Green New Deal as an original sponsor, one House Democrat felt that acutely when he traveled back to his district and met with two top local labor leaders. The congressperson, who asked not to be named, said he faced harsh criticism from building trade representatives who worried the plan would put their members out of work. He pushed back, arguing that their members will actually fare better with a green infrastructure plan that can drive up wages for blue collar work, pointing to jobs like retrofitting buildings and constructing renewable energy infrastructure.

Recent polling has found strong bipartisan support for a Green New Deal, but unions, a key constituency, have been less than enthused by — and in some cases, downright hostile to — the ambitious proposal to tackle climate change.

Terry O’Sullivan, the general president of the Laborers’ International Union of North America, or LIUNA, denounced the Green New Deal the day it was introduced by Rep. Alexandria Ocasio-Cortez, D-N.Y., and Sen. Ed Markey, D-Mass. In a blistering statement, O’Sullivan said it was “exactly how not to enact a progressive agenda to address our nation’s dangerous income inequality” and “exactly how not to win support for critical measures to curb climate change.”

For many observers, the construction union’s opposition was not too surprising. LIUNA had ardently supported the Dakota Access pipeline and said in 2016 that the labor organizations who opposed the project were “self-righteous” and “display[ing] a truly amazing level of hypocrisy and ignorance.” In January 2017, shortly after Donald Trump’s inauguration, LIUNA was one of several building trade unions to meet with the president, later praising Trump’s “remarkable courtesy” and affirmed that LIUNA “look[s] forward” to partnering with the White House on infrastructure.

Some climate activists have said that support for the Green New Deal should be a litmus test for progressives. Writing for The Intercept, Naomi Klein argued recently that the labor movement should “confront and isolate” LiUNA over its opposition. “That could take the form of LIUNA members, confident that the Green New Deal will not leave them behind, voting out their pro-boss leaders,” she wrote. “Or it could end with LIUNA being tossed out of the AFL-CIO” — the American Federation of Labor and Congress of Industrial Organizations, the country’s largest umbrella group for unions — “for planetary malpractice.”

As advocates of the Green New Deal work to gin up more support for the resolution, they face the challenge of parsing out bad-faith criticisms from legitimate critiques by those whose livelihoods would be impacted by a transition to green jobs. The way they straddle that line and respond to those concerns could make all the difference in getting the critical mass of support needed for the Green New Deal to pass.

Ocasio-Cortez and Markey’s nonbinding resolution includes explicit language backing union jobs that pay prevailing wages and a commitment for “wage and benefit parity for workers” affected by the energy transition. The Green New Deal also calls for “strengthening and protecting” the right of workers to organize and collectively bargain, and for “enacting and enforcing trade rules, procurement standards, and border adjustments” with strong labor protections.

Despite those promises, only one big union, 32BJ SEIU, has come out swinging in support of the Green New Deal. The majority of labor organizations have so far stayed quiet or voiced skepticism or criticism. The opposition, particularly for those in the building industry, is rooted in concerns about jobs and wages, as well as the approaches favored in the resolution for decreasing carbon emissions. There is also a political thread, with Trump-voting Republican coal miners, for example, hesitant to embrace a policy that has been sponsored only by members of the Democratic caucus.

Evan Weber, political director at Sunrise Movement, the youth advocacy organization credited with putting the Green New Deal on the political map, suggested that his group is not too worried about labor’s early response. “Since the resolution launched, a few [unions] have put out negative and less-than-enthusiastic statements about the Green New Deal,” he said, “but most are remaining silent and choosing to view this as a potential opportunity.”

Two weeks ago, seven unions representing workers in the building industry sent a letter to the chair of the House Energy and Commerce Committee, Rep. Frank Pallone, D-N.J., and its ranking member, Rep. Greg Walden, R-Ore., saying they “have grave concerns about unrealistic solutions such as those advocated in the ‘Green New Deal.’” The unions have also used the letter — which outlines their climate legislative priorities — in meetings with House members and senators since January, according to Phil Smith, spokesperson for the United Mine Workers of America.

Despite advocating their position in Congress, the signatories have not yet made public statements on the Green New Deal. Mark Brueggenjohann, spokesperson for the International Brotherhood of Electrical Workers, which signed the letter, told The Intercept that his union is not commenting now on the resolution, but “will be better prepared to do so” when actual legislation is available.

One climate strategy that many unions have said is important is investing in carbon capture technology and storage — a conceivable, if yet to be realized, way to prevent most of the carbon dioxide produced by fossil fuel plants from entering the atmosphere. This method has already generated a bit of controversy in the rollout of the Green New Deal. 

In November, the Sunrise Movement called for a Green New Deal Select Committeethat included “funding massive investment in the drawdown and capture of greenhouse gases.” This language appeared to endorse research and development in carbon capture technology, something many climate experts say is necessary to keep the planet from overheating. But in January, as Robinson Meyer from The Atlantic reported, the drafters of the final version of that resolution quietly removed any reference to “capturing” greenhouse gases. Meyer noted that the United Nations’s Intergovernmental Panel on Climate Change, which last fall warned that a failure to make major changes to reduce global warming in the next 12 years will be catastrophic for the planet, “has not produced any projection that shows us hitting that [necessary decarbonization] target without massively deploying carbon-capture technology.”

Carbon capture technology is somewhat polarizing. Critics say it’s risky to bank on pricey technology that does not really exist yet, and they say that the fossil fuel industry uses the prospect of carbon capture as an excuse to avoid reining in their environmentally harmful businesses.

Supporters, however, argue that investing in carbon capture is scientifically necessary for reducing emissions globally and vital for maintaining economic stability. “Our union does not question the science about climate change, and we’ve been working for some time on ways to mitigate it,” said Smith, the spokesperson for the mine workers union. “The answer, to us, is not quit using coal, but to spend the kind of money that needs to be spent on carbon-capture technology, on a commercial scale in this country and across the world. The fact of the matter is, if you don’t do that, you’ll never solve the global crisis.”

The Green New Deal resolution doesn’t explicitly rule out carbon capture technology, but in a section that deals with removing greenhouse gases from the atmosphere, the authors endorse “proven low-tech solutions that increase soil carbon storage,” like protecting land and planting new trees. Other vaguely written sections of the resolution, however, could open the door for carbon-capture technology. The resolution endorses “creating solutions to remove” emissions, and endorses the international exchange of technology, products, and services to address climate change.

The resolution is nonbinding, so the inclusion or exclusion of a provision does not dictate how future legislation will be written, but it does suggest some hesitancy to embrace carbon capture technology and storage.

The Sunrise Movement does not see “a heavy role for carbon capture and storage,” said Weber, the group’s political director, though he said it could be worth investing in some research and development for so-called heavy industry like steelmaking and shipbuilding. He noted that carbon capture technology is “pretty expensive compared to just reducing emissions by moving toward alternative forms of energy.” Ocasio-Cortez’s and Markey’s offices did not return requests for comment.

As an alternative, Weber said photosynthesis should be seen as an optimal way to remove carbon dioxide from the atmosphere. “We think there’s a lot of upward potential here in the U.S. to do ecosystem restoration and preservation,” he said. “A number of studies have shown that that can really help us get toward our climate goals and we’re most interested in investing in those proven solutions.”

Laborers are also skeptical of what the Green New Deal’s promise for a “just transition” would mean in practice. “We think it’s very important to find out what a ‘just transition’ actually means and who gets to define it,” said Smith of the mine workers union. “And will people be paid what they’re earning now, with the same level of benefits? None of that has been clarified.”

Members of the United Mine Workers of America earn an average of $30 an hour, along with employer contributions to a 401(k), paid sick leave, paid vacation, and ample health benefits, according to Smith. “I think, frankly, if you’re able to say to these folks, here’s a $30-an-hour job with all the rest of the stuff you’re used to, and you’ll pretty much work the same hours, you’ll have folks say, ‘OK, I’ll consider this,’” he said. “But that’s not what anyone is saying. And it seems to us there’s a very naive view about what this is going to cost and where the money is going to come from.”

Saikat Chakrabati, Ocasio-Cortez’s chief of staff, responded to early criticisms of the Green New Deal by saying that they envision future legislation that would provide economic security to miners who would find a switch to a new career challenging.

When asked if his members see an urgency to address climate change, Smith said they haven’t done formal polling, but that “anecdotally, our membership is very split on that issue.” He noted that plenty of miners voted for Trump and tend to agree with his perspective on climate change.

Sean McGarvey, president of the North America’s Building Trades Unions, or NABTU, told Reuters that his members were skeptical of promises of “green jobs” and noted that “renewable energy firms have been less generous” than the oil and gas sector when it comes to paying their workers. Renewable jobs, notably, are generally safer than fossil fuel jobs and can be done anywhere in the country, unlike jobs that are dependent on the location of a mine or an oil rig.

Like the mine workers, when it comes to NABTU and other critics of the Green New Deal, members’ political orientations are relevant.

In 2016, NABTU, along with LIUNA and a handful of other unions, sent a letter to the AFL-CIO, calling on the federation to cut ties with Democratic billionaire donor Tom Steyer, a vocal critic of the Keystone oil pipeline. (Since Trump’s election, Steyer has also frequently called for the president’s impeachment.) Despite their agreement over Keystone, the groups’ partisan leanings are a bit divergent. In the 2018 cycle, NABTU gave 41 percent of its political action committee contributions to Democratic candidates and 59 percent to Republicans. More than 75 percent of LIUNA’s contributions, by contrast, went to Democrats in the last election.

NABTU and LIUNA did not return multiple requests for comment.

Weber, the Sunrise Movement’s political director, said some of the concerns unions have raised about needing more specificity are “completely valid,” though he accused LIUNA of lying about what the resolution contains and misrepresenting climate science. “It’s always kind of disappointing to see potential allies resort to tactics that we see the right wing and our common enemies using,” he said.

With respect to labor issues, Weber said, the Green New Deal is “leaps and bounds ahead of previous climate proposals.” From his group’s perspective, if energy workers cannot find new jobs that pay them equal to what they’re currently earning, then “the government should step in and make up that difference,” he said.

“I think the job guarantee is a really critical element of the Green New Deal,” he said. “It doesn’t say if you’re a coal miner, you’re now going to go work on installing solar panels, it asks what are the jobs that make sense for your community and have this transition be something that’s locally determined.”

The union that has offered the most enthusiasm for the Green New Deal has been 32BJ, which represents 163,000 doormen, security officers, cleaners, and airport workers along the east coast. On February 6, the Joint Executive Board of 32BJ passed a resolution in support of the Green New Deal and “reaffirm[ed] its commitment to a 100 percent clean and renewable energy economy.”

In an interview with The Intercept, 32BJ’s New York City-based president, Héctor Figueroa, proudly noted that his union was the first to come out in support of the Green New Deal. “We can build unity in labor if we can recognize the urgency of the climate crisis” and effectively link the fight for climate justice to economic justice, he said.

Figueroa’s rhetoric is similar to that of Ocasio-Cortez and the Sunrise activists. He emphasized the need to take action “in a big, bold way” that addresses climate “concurrent to the problems of income inequality and declining labor standards.” He noted his personal connection — his family comes from Puerto Rico and has been dealing with the devastation wrought by Hurricane Maria — and he said two-thirds of their membership was born outside of the United States. “They know the impact of climate change back in their home countries,” he said. “They understand this is a global problem.”

32BJ’s February resolution on the Green New Deal “marked a new phase” in the union’s engagement on climate change, as for the past two decades, they’ve focused primarily on advocating for green jobs and energy efficiency standards, Figueroa said. “Now we’re taking another step, which is to very clearly and categorically say we need to build a future without fossil fuel,” he explained.

Their next task will be to pressure their national union, SEIU, to support the Green New Deal. “We are very passionate about it, and we believe it’s the right place for labor,” he said.

Other locals may also play a role in pressing their parent unions for support. Out in California, the San Diego and Imperial Counties Labor Council, of which an International Brotherhood of Electrical Workers local is a member, issued a resolution in support of the Green New Deal.

Aside from that, most unions have stayed silent — even those that have contributed to the discourse around climate change in the past. The AFL-CIO, for example, passed a resolution in October 2017 on “Climate Change, Energy, and Union Jobs.” The resolution affirmed the labor federation’s commitment to passing “energy and environmental policies with a focus on ensuring high labor standards, the creation of union jobs and environmental sustainability,” and also affirmed its support for enacting “comprehensive energy and climate legislation that creates good jobs and addresses the threat of climate change.” In 2009, the AFL-CIO worked to shape the House’s cap-and-trade bill. The American Clean Energy and Security Act — the name of which is conspicuously missing the term “climate change” — died in the Senate without a vote.

While the AFL-CIO has yet to issue a statement on the Green New Deal, in September, the federation’s president, Richard Trumka, gave a speech on fighting climate change that is telling of the group’s perspective. He said that “strategies that leave coal miners’ pension funds bankrupt, power plant workers unemployed, construction workers making less than they do now … plans that devastate communities today, while offering vague promises about the future … they are more than unjust. … They fundamentally undermine the power of the political coalition needed to address the climate crisis.”

The BlueGreen Alliance, a partnership of 14 unions and environmental organizations — including the Sierra Club and United Steelworkers — backed the cap-and-trade bill in 2009, but has not commented on the Green New Deal. (Spokesperson Abby Harvey declined The Intercept’s request for comment.) Critics have noted that BlueGreen Alliance tends to avoid weighing in on more controversial issues, like the Keystone XL pipeline. (LIUNA, which supported the pipeline, quit the alliance in 2012 over related disagreements.)

David Foster, the former executive director of the BlueGreen Alliance, wrote an op-ed in The Hill earlier this month, urging the public to study the lessons from a decade ago, the last time leaders called for a global Green New Deal. “Unless the transition to a clean energy economy is based on unifying politics, this next iteration will also prove another adventure in pyrrhic rhetoric,” Foster warned. A decade ago, unemployment was high and the price of oil was also skyrocketing. While neither are true today, he noted, inequality remains terrible and working conditions throughout the entire economy feel even more precarious.

The Sunrise Movement plans to launch a campaign in March to build more support for the Green New Deal, with events planned in states like Michigan, Kentucky, and Pennsylvania. “We’ve been working to get a lot of support from the grassroots and the grasstops,” Weber said, “and we’re going to keep doing that going forward.”

After Janus, The Country’s Largest Public-Sector Union Takes Stock of Its Movement

Originally published in The Intercept on July 5, 2018.
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The annual meeting of the National Education Association, the country’s largest public-sector union, held in Minnesota this week was much more high stakes than in years past. Typically, the convention is a chance for educators to vote on bread-and-butter issues like budget priorities and advocacy target areas. But the 8,000 or so students, retired teachers, and NEA delegates who descended on the Minneapolis Convention Center had more existential questions on their minds. In the wake of a U.S. Supreme Court ruling that dealt a crippling blow to public-sector unions, they debated strategies to expand their membership, keep union members apprised of their rights, and recover from the impending financial loss that is sure to happen in a post-Janus world.

In Janus v. American Federation of State, County, and Municipal Employees, a 5-4 Supreme Court majority ruled last week that despite laws requiring public-sector unions to represent all workers in a workplace, fees charged to non-members to support the costs of collective bargaining violate the First Amendment. For more than four decades, the Court has held it constitutional for unions to collect money from non-members to support the costs of negotiating contracts on their behalf. Janus overturned that precedent, meaning that employees can now enjoy the benefits of collective bargaining without having to pay for it. Labor unions are bracing for substantial revenue loss.

Now, the choice before teachers is paying either hundreds of dollars in annual membership dues, or nothing at all. The NEA, which represents a little over 3 million members, is forecasting a loss of 370,000 members over the next two years. Approximately 88,000 educators have been non-members paying NEA agency fees, and the union anticipates at least several hundred thousand current members will also rescind their union cards.

“Janus was nothing more than a pretext for the Koch brothers and all their funded-friends to push for union members to drop out,” NEA President Lily Eskelsen García told The Intercept. “With Janus, they don’t care about the [agency] fee payers, they care about reducing our resources and our actual members.” She pointed to the multi-million dollar effort recently launched by a Koch-backed group to persuade dues-paying members to opt-out.

In light of these realities, the NEA approved a two-year budget at its convention that scales back union expenditures by $50 million. Union leadership maintains that this scaleback will not impact the organization’s political activities. “We’re looking at getting economies of scale as best we can,” explained Jim Testerman, the senior director at the NEA’s Center for Organizing. “How many more meetings can we do digitally, can we cut back on food, travel, are there different ways to approach the work. We also didn’t replace 40 staff who retired in January.”

While some states where NEA wields the most influence, like California, New York, and New Jersey, have required non-members to pay agency fees, the recent wave of teacher strikes that exploded across the nation in states like West Virginia, Arizona, and Oklahoma occurred in right-to-work states — which purport to protect workers from being required to join unions, but make collective bargaining more challenging and don’t require agency fees. Conservatives point to the walkouts as proof that agency fees aren’t really necessary. But workers in right-to-work states say they understand their efforts are aided by the national unions, which will certainly take a financial hit from Janus.

Back in the 1980s, when Eskelsen García was a 6th grade teacher, she served as bargaining chair for her union in Utah, a non-collective bargaining state. “There’s still a lot you can do without anyone’s permission,” she said. Just as superintendents and school board members largely supported the teachers who went on strike in red states this year, Eskelsen García said many administrators have shown willingness to bargain with unions even when not compelled to by state statute.

Indeed, at the NEA convention, despite the looming financial threats, the thousands of attendees were palpably emboldened by the teacher walkouts, collective actions that gave them a renewed and clearer sense of their own power. Though the protests were not union-initiated — beginning spontaneously with the grassroots — Testerman, of the NEA’s Center for Organizing, said his union is working to marry “the organic and the organized” as actions erupt. “It’s something we got better with over time, and Arizona was a good example,” he told The Intercept. “You don’t want the union to take it over, but having some organized entity who can get you permits and porta-potties and things like that can help you get even more done.” According to Testerman, Arizona’s NEA affiliate has seen an 8 percent increase in its membership since last year. “I don’t think the walkouts are over,” he added, noting that the future of the movement will depend on what happens in upcoming legislative sessions.

Delegates Reject Proposal to Open Union Membership to Supporters

One of the most contentious items considered at the NEA convention was a proposed constitutional amendment to create a new category of union membership, open to “any person who demonstrates support in advancing the cause of public education” and “advocates for the mission, vision and core values of the Association.”

The idea was formed last year in the wake of Betsy DeVos’s nomination to lead the Department of Education, Eskelsen García explained, when parents and community members flooded the NEA with questions on how they could speak out in opposition to DeVos and better support public education. Then, in the midst of the teacher strikes, the NEA president said, the outpouring support from non-educators proved crucial in building a broad political coalition for the walkouts. Under the proposal, so-called “community ally” members would pay minimal union dues but would be ineligible to vote on union matters or hold governance positions. The biggest opportunity this membership category would create, supporters explained, would be to make it possible for community allies to contribute to the NEA’s political action committee; only NEA members can legally contribute to the PAC, and given the expected decline in membership, this change would have given the PAC an additional stream of funds. The proposal also would have enabled the union to contact supportive members of the public directly. “We’re organizers in our bones,” Eskelsen García told The Intercept. “Why not organize them?”

The proposal triggered heated debate on Tuesday afternoon. Some members voiced concerns about opening up the union to outside political influence. “Selling stockholder shares in our union is a dangerous one,” warned a delegate from Michigan. “When you purchase stock, you expect a return on your investment.” Marshall Thompson, a delegate from Minnesota, called the idea half-baked. “Does my union card mean something or not?” he asked. “Bill Gates should not be able to buy one.”

NEA leadership defended the proposal, explaining that four other major unions, including AFCSME, have a similar membership category for the public, and all but 14 of the NEA’s state affiliates do too. For example, the Pennsylvania NEA affiliate has a “Partners for Public Education” membership category. Plus, NEA leaders added, community allies would have the same $5,000 political contribution limits to the PAC as do regular members. Tripp Jeffers, a delegate from North Carolina, spoke in favor of the amendment, saying a version of it already works well in his state. “We get by with a little help from our friends,” he quipped. Joe Thomas, the president of the Arizona Education Association, also defended the amendment, reminding the audience that the parents and community members who walked alongside educators during Arizona’s six-day teacher strike were instrumental in helping the union rebut the political narrative that their action was solely about teacher wages.

That was not enough to convince the 8,000 delegates, though. The measure was narrowly defeated on Wednesday, with just over 60 percent of delegates voting in favor. Constitutional amendments require a two-thirds majority to pass.

Reauthorization and Affirmative Consent

Janus has also sparked a legal and political debate over whether dues-paying members need to proactively reauthorize their union membership. The majority opinion, authored by Justice Samuel Alito, states that “neither an agency fee nor any other form of payment to a public-sector union may be deducted from an employee, nor may any other attempt be made to collect such a payment, unless the employee affirmatively consents to pay.” Conservatives have latched onto this “affirmative consent” idea to say that all those represented by a union, members and agency-fee payers alike, should have to affirmatively opt-in.

But labor groups have taken an alternative reading. At the NEA convention, the union’s general counsel Alice O’Brien told the crowd of delegates that Janus “does not mean that unions have to re-sign existing members. Janus is about fee payers,” she said. “Nothing in Janus supports an employer [who] insists a union must submit new proof that existing voluntary members want to remain members.”

Eskelsen García told The Intercept that the NEA has already received reports of school districts and school boards asking unions to submit new proof of membership. “But Janus doesn’t require that, and part of our mission right now is we have to make sure that our folks across the country understand that Janus was very specific in saying you can’t require a non-member to pay fees,” she said. “It doesn’t require re-signing up members, but we anticipated there would be a lot of misinformation from the Koch brothers and others. We’ll get this straightened out.”

The question over re-commitments first arose three years ago, when the Supreme Court heard the case of Friedrichs v. California Teachers Association, an anti-public sector union case considered to be the predecessor of Janus. (Friedrichs also challenged public-sector agency fees, but Justice Antonin Scalia’s unexpected death in 2016 resulted in a 4-4 decision that left the fees alive until Janus was brought before the court.) Despite the teacher union’s position that re-commitments are not legally necessary, both the NEA and the American Federation of Teachers have been working since then on getting re-commitments from all their members. The AFT reports that out of 800,000 members in 18 states with agency fees, more than 500,000 members have pledged membership renewals since January.

“The re-commit campaigns have really been an organizing strategy to go out and talk to our members about what these Supreme Court cases mean, and the value of belonging and acting collectively,” Testerman told The Intercept. “If members don’t know who the union is and what the union stands for, they are not likely to remain a member and we’re not taking anything for granted.” He said the NEA has seen a growth in membership for the last three years in a row, at an average of 0.5 percent per year.

But the tactics some union affiliates have taken to secure member re-commitments have stirred controversy, and they may be legally vulnerable in the post-Janus world.

In Minnesota, for example, the 86,000-member statewide teachers union asked educators to fill out membership renewal forms for the 2017-18 school year, authorizing the union to deduct dues. The forms included a fine-print disclosure that said “this authorization shall remain in effect and shall be automatically renewed from year to year, irrespective of my membership in the union, unless I revoke it by submitting written notice to both my employer and the local union during the seven-day period that begins on September 24 and ends on September 30. (emphasis added)”

The general counsel for the Center of the American Experiment, a conservative think tank, said the Minnesota teachers union was “betting that most teachers will just sign the card without reading it, or understanding what it means—and just keep paying.”

Los Angeles teachers took a similar approach. In its recommitment campaign, the United Teachers of Los Angeles asked members to sign membership forms with fine print that said, “This agreement shall be automatically renewed from year to year unless I revoke it in writing during the window period, irrespective of my membership in UTLA.” The legal language was first reported by Mike Antonucci, who runs the Education Intelligence Agency, a union watchdog site. “So a teacher who takes an administrative position, or leaves teaching altogether, and is then ineligible to be a UTLA member, will still be on the hook for dues payments until the next window comes around,” Antonucci surmised.

Both the Minnesota and Los Angeles re-commitment forms are constitutional under Janus’s “opt-in” requirement, said Charlotte Garden, a professor at Seattle University Law School. She added that she “also expect[s] the National Right to Work Foundation or other anti-union groups to challenge them in court, arguing they aren’t solicitous enough of objectors.” Garden said those types of challenges will “bring into conflict” two beliefs held by conservative members of the Supreme Court: that unions “must take various affirmative steps to facilitate the rights of objectors they represent” and that “employees should be held to the contracts they sign.”

Some conservative-backed litigation is already coming down the pipe.

Eight NEA state affiliates, including some in New York, Maryland, California, and Washington, are currently targets of class action lawsuits seeking to recover agency fees previously paid to the teacher unions before Janus. “The lawsuit we filed is a refund of the fees that were illegally retracted,” said John Bursch, the lawyer who filed the class action on behalf of California teachers. Alice O’Brien, the NEA’s general counsel, reminded delegates at the convention that whomever replaces Justice Anthony Kennedy, who announced his retirement just hours after siding with the majority in Janus, could help decide whether unions must pay back agency fees or not.

Another case, filed in February 2017, takes square aim at union opt-out rules. In Yohn v. California Teachers Association, Ryan Yohn and seven other California educators objected not only to paying agency fees but also to bureaucratic hurdles employees must go through if they want to opt-out of union membership. The teachers argue workers should have to affirmatively opt-in to a union, not opt-out. “We’re not free-riders, we’re forced riders,”one plaintiff told Education Week in February. The case is being brought by the Center for Individual Rights, the same libertarian law firm that brought the Friedrichs suit.

Sharon Block, the executive director of the Labor and Worklife Program at Harvard Law School, told The Intercept that she has no doubt that conservative groups will aim to push the limits of the Supreme Court’s holding in Janus for cases like Yohn. “I’m afraid that Janus has opened up additional fronts in the war these groups are waging on public-sector unions and the labor movement more generally,” she said. “We will see litigation for years.”

Union-Friendly Legislation in the Wake of Janus

In anticipation of a Supreme Court decision striking down agency fees, unions have been lobbying state legislators for the last few years to support new bills that could help labor strengthen its position. Specifically, labor organizations have pushed for new measures that would more easily allow union representatives to make the case for membership to new public-sector employees and to limit the services unions have to provide to non-members.

Last year in California, the legislature passed two such bills: one that allows public-sector unions to give presentations to new employees during their job orientations, and another that restricts what government employers can say to their staff about the pros and cons of joining a union. Two bills are pending now that would give labor groups an opportunity to weigh in on a worker’s intent to cancel their union dues.

Maryland legislators passed a bill this spring requiring new teachers to meet with a union representative within 30 days of their hiring or by their first pay period. It became law in April without the signature of Gov. Larry Hogan, a Republican.

New Jersey Gov. Phil Murphy, a Democrat, signed a more expansive bill in May that gives unions a number of new protections, including the right to meet with new employees for at least a half hour within 30 days of being hired and a guarantee that public employers will provide the union with exclusive representation contact information for all new employees.

In New York, Democratic Gov. Andrew Cuomo in April signed what he called “the Janus bill,” which in addition to providing unions with contact information for all new public-sector workers, also makes clear that unions are not required to provide non-members with the full range of union services. For example, non-members facing disciplinary charges will now have to obtain their own attorneys, whereas the union covers legal representation for dues-paying members. Last week, immediately following the Janus decision, Cuomo issued an executive order to protect public employee contact information from those who may try to target them in union opt-out campaigns. It was mostly a symbolic gesture, since the state already has similar privacy protections on the books.

Aside from these bills, Sharon Block of the Labor and Worklife Program at Harvard Law School and Benjamin Sachs, a Harvard Law School professor and editor-in-chief of the On Labor blog, put forth another legislative proposal to help unions cope after Janus. “The simplest, and the most effective, move would be for states to change, quite subtly, the accounting system for union dues,” they wrote last week in Vox. While unionized public-sector workers currently earn about 17 percent more than their non-unionized counterparts on average, the now-unconstitutional agency fees have comprised about 2 percent of that wage premium. Under the system reviewed by the Supreme Court, employers paid this 2 percent to workers, and workers then had to pay that money back to the union as an agency fee. “But if public employers simply paid the 2 percent directly to the unions — giving the same 15 percent raise to employees but not channeling the extra 2 percent through employee paychecks,” Block and Sachs wrote, “then there would be no possible claim that employees were being compelled to do anything, and thus no constitutional problem.”

“We’re up against something pretty scary,” Lily Eskelsen García said this week in Minneapolis, speaking before thousands of delegates. “Janus is the latest attack on our union, but this ain’t our first rodeo… We don’t get scared, we get ready.”

The Right Is Trying to Bring Down Public Sector Unions. It May Bring Much More Down With It.

Originally published in The Intercept on February 25, 2018.
——

In the middle of last week, Dixon O’Brien, a 60-year-old engineer, and his union, the International Union of Operating Engineers Local 150, quietly filed a federal lawsuit against Lincolnshire, a village in a northern suburb of Chicago. Together they raised issue with Lincolnshire officials using taxpayer dollars to fund a statewide lobbying group, the Illinois Municipal League, which advocates for things like limiting collective bargaining and reducing pension benefits. “O’Brien objects to the use of his tax money to fund private organizations that lobby and/or engage in other political activities that run directly against his economic interests and his political beliefs,” the complaint reads.

On Thursday, the head of the same union filed a federal lawsuit against Illinois Gov. Bruce Rauner, challenging portions of state law that requires unions to provide representational services to non-dues paying members. “It is absurd that state law forces unions to provide equal representation and service to public sector workers who are not members and pay nothing toward associated costs,” said union President James Sweeney in a statement.

And then on Friday, the International Union of Operating Engineers Locals 139 and 420 filed a federal lawsuit against Wisconsin Gov. Scott Walker, challenging a law he signed in 2011 that dramatically restricts public employee collective bargaining rights. The unions argue that the law’s restrictions impinge upon their protected free speech rights under the First Amendment.

These three consecutive lawsuits are a warning to the Supreme Court that if it buys into an extreme conservative argument being used to undermine labor unions, the justices are going to take a lot more than just agency fees down with them.

On Monday the Supreme Court will hear oral arguments in Janus v. AFSCME, Council 31 – a case experts have long predicted could strike a mortal blow to public sector unions. The plaintiff, an Illinois state worker named Mark Janus, has argued that he has a First Amendment right to avoid paying anything to a union that bargains on his behalf. With the current ideological leanings of the court, the plaintiff — and the conservative groups backing his lawsuit — face strong odds of victory.

But while most of the media has focused on the fact that the Janus case stands to decimate union coffers – and by extension, Democratic Party coffers – some labor activists and legal scholars have begun sounding the alarm on what they say would be the unintended consequences of the suit, effectively opening up the floodgates for countless lawsuits like the recent ones filed by the International Union of Operating Engineers. If Mark Janus doesn’t have to pay his agency fees because collective bargaining is speech he disagrees with, then collective bargaining is speech. And it can’t be restricted. Indeed, when some of the lazier advocates of Janus lay out the case, they accidentally argue on behalf of  unions’ right to free speech. “Because government is both employer and policymaker, collect­ive bargaining by the union is inherently political advocacy and indistinguishable from lobbying,” wrote George Will on Sunday, directly implicating the First Amendment.

For more than 40 years, the Supreme Court has held that there’s a constitutional difference between a union’s political activities and its collective bargaining work. Compelling workers to fund the former would infringe on their freedom of speech, the court ruled in the 1977. But under current law, collective bargaining is different. Imposing conditions, such as requiring mandatory dues, or limiting the scope of their negotiations to wages and benefits, is fair game.

If the Janus plaintiffs win their case, this critical distinction would be dismantled. (A decision is expected by June, when the court’s term ends.) A union’s bargaining and political lobbying would be treated the same — as protected free speech. In other words, the court would actually be elevating the free speech standards of bargaining. That, in turn, could bring with it new legal protections.

“If the plaintiffs are right that collective bargaining is political speech indistinguishable from lobbying, well, the flip side of that coin is that that protected free speech can’t be restricted,” said Ed Maher, a spokesperson for the International Union of Operating Engineers. “We don’t think this has been thoughtfully considered by the plaintiffs, and it is our belief that a win for Janus will open a tremendous Pandora’s box.”

This Pandora’s box, Maher suggested to The Intercept, holds all sorts of chaotic possibilities for the U.S. legal system and state governments across the country. Nearly all states impose some form of restriction on collective bargaining, limiting who can bargain and what workers can bargain over. If the Janus plaintiffs win in court, the theory goes, then workers could start bringing First Amendment challenges to limitations on their bargaining rights, like the restrictions Walker, the Wisconsin governor, passed in 2011.

And, as the three cases filed last week demonstrate, they’ve already started.

Courts have long sought to avoid applying First Amendment rights to unions. From the earliest court decisions that concerned worker protests in the 19th century, as labor writer and strategist Shaun Richman has written, judges have tended to treat unions “as criminal conspiracies that interfere with employers’ property and contract rights.” And while courts have chipped away further at the free speech rights of workers and unions over the last half-century, they have also expanded the free speech protections afforded to employers and corporations.

Ann C. Hodges, a labor law professor at the University of Richmond agrees that a win for the Janus plaintiffs could invite all sorts of new legal challenges. Writing recently for the American Constitution Society, Hodges said:

Courts have regularly ruled that states like Wisconsin can provide collective bargaining rights to some groups of employees and not others, using the rational basis test to find no equal protection violation… But if all union activity is protected political speech, then these distinctions implicate fundamental rights, invoking strict scrutiny for such classifications. Thus, the differential treatment of employee groups by the states may not survive. Indeed, unions may even have an argument that there is a constitutional right to collective bargaining.

Equally unlikely to survive are many governmental employer restrictions on employee speech. A long line of cases allows government employers to impose various restrictions on employee speech. The Supreme Court distinguishes employee from citizen speech, permitting employers to limit and control employee speech in the interests of the government as employer… A ruling in favor of the Janus plaintiffs could obliterate the distinction, requiring employers to tolerate much unwanted speech by their employees.

Some left activists remain understandably skeptical that Janus could lead to some interesting or even good opportunities for labor, arguing, as Richman wrote, that a judiciary that “that could buy such a craven argument as Janus will refuse to take the precedent to its logical conclusion and shamelessly waving away workers’ free speech rights.” But if the anti-Trump backlash leads to a wave of liberal judge appointments, the legal landscape could grow significantly more friendly for unions over the next few election cycles. Plus, unless Janus ends with an extremely narrow ruling, it would be a while before the Supreme Court could really stamp out all the knock-on cases, even if it wanted to. In other words, legal chaos could reign for years in the lower courts.

Richman goes so far as to say that Janus “could hand new liberal majorities a roadmap for restoring a legal balance of power between corporations and workers.” Or, as Sweeney of Local 150 puts it, “The free speech rights being invoked by the union-busters behind Janus work both ways.”

The New Fight For Labor Rights

Originally published in The New Republic on September 28, 2017.
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The American labor movement currently stands at one of its lowest points in history. Barely one-tenth of all workers belong to a union—down from more than one-third in the 1950s. Over the past half-century, the courts have gutted legal protections for striking workers, curtailed their ability to engage in political action, and granted employers broad “free speech” rights to frighten them out of unionizing. Under President Trump, workers are likely to be besieged by even more hostile attacks from Republicans and their corporate allies—including calls for a national “right to work” law that would strip unions of their ability to collect dues. If the labor movement hopes to survive in the twenty-first century, it will need a new strategy.

For more than 80 years, workers have primarily relied on protection from the National Labor Relations Act, the landmark measure passed under FDR that prohibits unfair labor practices and encourages collective bargaining by private-sector employers. But the law has been so watered down by unfriendly court decisions and legislative amendments that it offers little recourse for the labor movement going forward. Today, according to a new report by a leading think tank, workers would be better off if they adopted a strategy that turned to a different and more sacrosanct set of constitutional guarantees: the Bill of Rights.

According to Shaun Richman, a former organizing director for the American Federation of Teachers, workers should not just defend their rights as employees, but should also start championing their liberties as citizens. In a report for the Century Foundation, Richman argues that just as corporations have gone to court to claim broad constitutional protections, workers should assert their fundamental rights to free speech and equal protection under the law. “Unions have rarely if ever argued that these cases violated their own constitutional rights,” Richman says. “Rights-based rhetoric was kept out of their whole legal strategy.”

Consider several recent cases that unions argued—and lost—under the National Labor Relations Act. In 2011, workers at a Jimmy John’s sandwich franchise in Minneapolis launched a campaign to protest the company’s refusal to provide paid sick leave. In response, the company fired six workers involved in the protest. But when the union representing the employees, the Industrial Workers of the World, accused the company of violating the National Labor Relations Act, a federal appeals court ruled in July that the company had the right to fire its employees for engaging in “disloyal” conduct.

At the same time, Congress and the courts have sharply curtailed the ability of workers to go on strike, especially in solidarity with others. It is now illegal for truck drivers to refuse to make deliveries to stores where workers are on strike, or for cleaners to refuse to wash linens from hotels where workers are protesting. In 2006, Roger Toussaint, then the president of Local 100 of the Transport Workers Union, was sentenced to ten days in jail for leading a transit strike that crippled New York City. Employers, meanwhile, have retained the right to lock out workers who are engaged in collective bargaining, and to fire employees without just cause.

To Richman, cases like these underscore the benefit of a rights-based strategy. After all, punishing employees for speaking out against their boss—whether on a flyer, a T-shirt, or Twitter—would seem to violate their First Amendment right to free speech. Similarly, going on strike should fall under the constitutional right to free assembly, and union organizing embodies the right enshrined in the Thirteenth Amendment to be free from “involuntary servitude.” In effect, Richman argues, unions should go on offense in the courts—and brandish the Constitution as their most powerful weapon.

“After the election, it’s clear Democrats need to do something to win back workers,” Richman says. “But they don’t really know what to do. Why not push the courts to establish a right to strike? Or the right to be free from arbitrary terminations from your job?”

Some longtime observers of the labor movement are skeptical that unions will embrace Richman’s call to arms. “I’ve found that unions are very shortsighted,” says Bill Fletcher Jr., co-founder of the Center for Labor Renewal and a former education director of the AFL-CIO. “There’s a conservatism that exists in the labor movement—a sense that doing anything different might be too radical, or could be misperceived, or could lead to an uncertain outcome.”

Given the bleak state of affairs for workers, however, some argue the labor movement has little left to lose. “There’s no point thinking that if labor sticks with the status quo, they will survive,” says Erik Loomis, a labor historian at the University of Rhode Island. “The National Labor Relations Board under Obama was probably the best it’s been for labor since LBJ. But even that kind of incremental progress is just not enough when you’re at total war with the Republicans.”

 

When it comes to corporations and employers, the courts routinely adopt a rights-based position. Unlimited campaign contributions are protected as a form of free speech. Denying the right of unions to collect dues from all employees is defended as “the right to work.” Employers have the right to permanently replace striking workers, and to put economic pressure on other businesses to support their own economic interests. Richman points to cable television providers that have blacked out an entire channel rather than submit to a rate increase from the channel’s network—and have even urged viewers to call the network’s CEO to complain. “Why is the use of the secondary boycott legal when employed by media companies,” Richman writes in his report, “but illegal when exercised in solidarity by workers?”

Richman spells out a variety of rights-based cases that unions should take to court—where even conservative judges have proven to be receptive to constitutional arguments. Unions should argue that workers have a free-speech right to protest their employers. If they are locked out on the job, workers should assert their due process rights under the Fifth Amendment. And they should challenge right-to-work laws and the bans on solidarity boycotts and so-called “signal picketing”—such as protests in front of a company that mistreats its employees—as violations of their Fourteenth Amendment right to equal protection under the law. “Simply put,” Richman argues, “unions are hampered by rules that would never be applied to corporations, or to any other form of political activism.”

In addition to fighting in court, workers and their allies need to educate the public about workplace inequality and pressure Democratic lawmakers to block anti-labor judges. They also need to begin outlining a clear pro-worker agenda for whoever wins the Democratic nomination for president in 2020. The Obama era showed just how brief the window of opportunity can be for advancing labor rights. That’s why, even though the GOP currently controls all three branches of government, and the courts still tilt to the right on matters of labor law, unions and their supporters must wage a war on all fronts. “It would be horrible if people thought we could just pursue a long legal strategy and ultimately win in the courts,” says Stephen Lerner, a labor strategist and architect of the Justice for Janitors campaign. “It has to be part of a concerted strategy—winning both legally and legislatively.”

In a way, there’s no better time than now to implement a rights-based labor strategy. After all, Lerner points out, some of the greatest gains in labor history have come from workers organizing to fight illegal or unprotected conditions—whether it was farmworkers going on strike to protest low wages, or public school teachers mobilizing for collective bargaining rights at the state level. It’s not just Republicans holding back workers—it’s also the timidity of unions themselves. “There has to be a willingness to break the law as a way to highlight injustices,” Lerner says, “to show we can go on offense.”

 

Hillary on Charters: Yes and No

Originally published in the The American Prospect on July 6, 2016.
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On Tuesday morning, as the FBI issued a recommendation to not indict Hillary Clinton for her use of a personal email server while secretary of state, the presumptive Democratic presidential nominee came before more than 7,500 delegates at the National Education Association’s Representative Assembly in Washington, D.C., and praised public charter schools—to the audible dismay of some of the delegates—while condemning for-profit ones.

The moment of tension emerged when Clinton started to discuss replicating the success of “great schools”—including public charter schools. She noted there had been too much focus on so-called “failing” schools.

Though Clinton has been a long-time supporter of school choice, and her husband helped to catapult charters to the national stage when he was president, she took heat from charter school advocates in November when she remarked that “most charter schools … don’t take the hardest-to-teach kids, or, if they do, they don’t keep them.” Although an adviser emphasized shortly thereafter that Clinton remains a “strong supporter” of public charter schools, many reformers remained leery of her commitment.

But on Tuesday, Clinton gave charters a shout-out, resulting in the loudest boos she received the entire morning. “We’ve got no time for these education wars!” Clinton told the crowd. Facing the evidently anti-charter audience, Clinton quickly pivoted to denouncing for-profit charter schools, saying, “We will not stand for [them].”

The Representative Assembly is the annual conference for the NEA, the nation’s largest labor union, which gathers each summer to set its political agenda for the coming year. The union, with its nearly three million members, endorsed Clinton in October, following the American Federation of Teachers, which endorsed her last July. Throughout the campaign, Clinton’s ideas around public education have been much debated, with self-proclaimed reformers worried she would be hostile to their policies, while many rank-and-file teachers remained skeptical that Clinton would stand up for unions and fight efforts to privatize public schools. 

Despite these concerns, the mood in the plenary hall on Tuesday was overwhelmingly enthusiastic; members wore “Educators for Hillary” T-shirts, waved signs in support, and cheered with excitement.

“I want to say right from the outset that I’m with you,” Clinton told the audience early on in her speech. She promised that if elected, educators will “have a partner at the White House” and that they’ll “always have a seat at the table.”

Clinton framed her education policy proposals around the slogan of “TLC,” or teaching, learning, and community. She threw out a lot of ideas that met eager applause, from raising teacher salaries to reducing the role of standardized testing, to creating universal preschool for every child. She discussed “repairing crumbling schools” and making general investments in school facilities and technology.

Clinton’s rhetoric on charters mirrors language in the recently released Democratic Party platform, which says the party is committed to providing parents with “high-quality public school options” and expanding such options—namely neighborhood schools and charters—for low-income children. The platform comes out against for-profit charter schools, which it says are “focused on making a profit off public resources.”

According to the National Alliance of Public Charter Schools (NAPCS), a charter advocacy group, just under 13 percent of charters are run by for-profit companies, though in cities like Detroit, more than 80 percent of charter schools are run by for-profits. However, the distinction between for-profit and nonprofit is often messier than groups like NAPCS readily admit: Nonprofit charters can still hire for-profit management companies to run their schools.

Some states have begun banning for-profit charter schools, or passing laws that make opening them more difficult. Last year, California legislators tried to ban for-profit charter schools from operating in their state, but Democratic Governor Jerry Brown vetoed the bill, saying he did not “believe the case has been made to eliminate for-profit charter schools in California.” The momentum against for-profit schools has clearly grown more pronounced since then, and also reflects growing divisions within the education reform coalition, between those who champion market-based reforms, and those who push for greater accountability.

In her speech, Clinton also denounced her likely opponent, Donald Trump, who enthusiastically endorsed charter schools during a March primary debate and has said he opposes Common Core standards and “may cut the Department of Education.”

The NEA carries formidable political weight. According to the union, its members represent one out of every 58 general election voters. Rallying those teachers who preferred Senator Bernie Sanders for president to not only vote for Clinton in November but also help campaign for her will be a pressing priority for the union’s leadership.

Following the speech, the union released a statement saying that Clinton’s remarks “held no punches in articulating a clear and inspiring vision of opportunity for every student in America, regardless of ZIP code.”

Charged with Firing Teachers for Organizing, a Chicago Charter Network Settles

Originally published in the American Prospect on January 12, 2016.
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The National Labor Relations Board finalized a settlement agreement this week between Urban Prep Academies, an all-male charter network in Chicago, and more than a dozen Urban Prep teachers who were fired abruptly back in June. The firings came less than a month after a majority of teachers at Urban Prep voted to unionize with the Chicago Alliance of Charter Teachers and Staff (ChiACTS). Urban Prep will pay over $250,000 in back wages and severance to 13 fired teachers, and two of the fired teachers were able to return to work on Monday. The others, who already had taken new jobs elsewhere, waived their right to reinstatement and settled for back pay.

Back in June, the union responded to the firings by filing two unfair labor practice charges with the NLRB. One alleged that Urban Prep fired three teachers for their union activism; the second charged Urban Prep with failing to bargain with the union over all the teachers’ terminations. Educators, parents, and community members organized protests, urging Urban Prep to rehire the teachers.

Urban Prep’s COO, Evan Lewis, said earlier this summer that “the suggestion that anyone was fired as a result of their organizing activity is both wrong and offensive. … We respect and support the right of our teachers to choose a union as their exclusive representative. … Many of the teachers returning next year were active in the effort to organize, and we look forward to continuing our work with them.”

However, the NLRB launched an investigation into the situation, and on November 20, the board issued a complaint, finding that one teacher was fired for union activity and that Urban Prep failed to meet their legal obligations by not bargaining over the teachers’ firings. The NLRB scheduled a hearing for January 13, which has now been cancelled since Urban Prep decided to settle.

“We’re glad we were able to settle the charges rather than having to continue a long legal fight, because if Urban Prep had lost at the hearing they could have appealed,” says Carlos Fernandez, an organizer with ChiACTS. “These kinds of charges can take years to settle, so [resolving this] in just a little over six months is pretty good.”

The teachers at Urban Prep have been meeting regularly with their employer since September to work out the terms of their first contract; the union says they’ve made “significant progress.”There are currently 29 other unionized charter schools in Chicago, and a growing number nationwide.

The total amount that Urban Prep has agreed to pay—$261,346—marks the largest unfair labor practice settlement for charter teachers to date. Back in June, the I Can charter network, based in Ohio, had to rehire four teachers and give seven teachers back pay for firing them during their 2013-2014 union drive. That settlement totaled $69,000.

“It’s unfortunate that these publicly funded schools often react so poorly when their teachers choose a union, and it’s even worse when they’re able to waste so much time and money union busting, something well outside the scope of the work the people of Chicago pay them to do,” says Brian Harris, a special education teacher in Chicago and the president of ChiACTS. “We often hear from charter operator groups that they’re ‘not anti-union but pro-teacher.’ One would assume that the ‘pro-teacher’ part would kick in after a mass illegal firing. Nonetheless, we’re very happy that we can move forward and finally begin to work on what is most important: making Urban Prep a better place to teach and to learn through empowering teachers.”

 

A New Course: Larry Hogan wants to change Maryland’s unique charter school laws and bring in more charters, but will kids suffer?

Originally published in Baltimore City Paper on August 5th, 2015.
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Baltimore City Paper cover

Baltimore City Paper cover story

At the end of 2014, just weeks after Larry Hogan won a surprise victory in the gubernatorial race, the governor-elect announced that he would push to expand Maryland charter schools once in office.

“We shouldn’t be last in the nation in charter schools,” Hogan declared—referring to Maryland’s spot in the state ranking system designed by the National Alliance for Public Charter Schools (NAPCS), an advocacy organization that promotes charter schools around the country. According to NAPCS, Maryland has the nation’s “worst” charter law. The Baltimore Sun editorial board, echoing NAPCS, has said Maryland boasts one of the “weakest” charter laws in the United States.

In late February and early March, legislators in Annapolis listened to testimony related to charter reform bills that Gov. Hogan introduced in the House and Senate. Supported by the Hogan administration, a coalition of charter school operators, and national education-reform advocates, the bills met fervent opposition from teachers, principals, and community members.

“I don’t care what the National Alliance for Public Charter Schools, a lobbying group out of Washington, D.C., has to say about the charter school law in Maryland or where they rank Maryland relative to their own biased standards. Neither should you,” testified Megan Miskowski, a speech language pathologist at Patterson Park Public Charter School. It’s Maryland’s strong law, she argued, that explains why Maryland charters have never wrought the level of fraud and abuse so prevalent in places such as Minnesota and Louisiana—states that receive high marks from NAPCS. “Who are they to define what is best for Maryland children?” Miskowski asked. “We do not answer to them.”

The Maryland Charter School Act passed in 2003 and the first state charter schools opened their doors in 2005. A decade later roughly 18,000 students attend 47 Maryland charters—34 of them concentrated in Baltimore City. A version of the Public Charter School Improvement Act eventually passed, but it was substantially watered down from Hogan’s original proposal, and many believe he’ll push a stronger law again next year. The heart of the debate centers on competing visions for the future of public education, and whether one believes Maryland has the best charter law in the country or the worst.

The publicly funded but independently managed schools known as charters have grown significantly since the first one opened in Minnesota 23 years ago. Today more than 6,700 charters exist in 42 states and Washington, D.C. and their numbers are climbing. Albert Shanker, then-president of the American Federation of Teachers (AFT), first proposed the charter school idea in 1988; the influential union leader imagined a new kind of school that could serve as a laboratory for innovative and experimental education practices. The hope was not only to serve kids within charters who might benefit from alternative educational models, but also to carry newly discovered best practices back into traditional schools for all students to enjoy. In Shanker’s vision, charter teachers would still be unionized district employees, but certain labor regulations would be relaxed to promote greater innovation.

Maryland’s charter culture sets it apart from most other states in several ways. First, under the law all Maryland charter teachers are considered public school employees and represented under their district-wide collective bargaining unit. While this actually most closely resembles what Shanker had imagined, few states today adopt this particular model. According to the Center for Education Reform (CER), just 7 percent of all charter school teachers nationwide are unionized.

Another distinctive characteristic of Maryland charters has been a general commitment to innovate within the district, as opposed to outside of it. In other states, the law may allow for multiple charter authorizers, such as churches, universities, or nonprofits. In Maryland, however, only the local school board can authorize charter schools. “I’d say the strong desire [of Maryland charters] to work within the school district is fairly unique,” says Joceyln Kehl of the Maryland Alliance of Public Charter Schools, a newly formed coalition of charter operators around the state. “Maryland is hugely pro-union and Democratic, so that’s just our context,” she adds.

Additionally, Maryland charters must comply with a greater number of state and local regulations than charter schools in other states. While detractors of Maryland’s law argue that this creates an inflexible environment for the independent schools to operate in, supporters point out that Maryland has not had any of the kinds of problems related to fraud, abuse, and mismanagement that charter schools in states with decreased regulation have had. “It is true that Maryland charter school law provides more oversight than many other states,” testified Deborah Apple, a charter school teacher at the Baltimore-based Wolfe Street Academy. “It is also true, however, that our charter school system is more effective than most.”

A stronger level of oversight, a close relationship with the school district, and unionized charter teachers illustrate the uniqueness of Old Line State charters. The vast majority of schools are considered “mom and pop” charters, meaning parents or former local educators founded them, as opposed to some of the larger national charter management organizations (CMOs) that have developed presences in other cities. According to an Abell Foundation report released this year, many high-performing CMOs have expressed reticence or disinterest in coming to Maryland given the conditions in which they’d have to operate. While the Maryland charter law has facilitated the growth of strong schools with little to no fiscal and academic issues, the question is whether such growth is sufficient, and whether the state’s law should change in order to entice more CMOs to expand into Maryland.

Baltimore’s 34 charter schools educate 13,000 of the district’s 84,000 students. Bobbi Macdonald, co- founder of the City Neighbors Charter School, is one of Charm City’s veteran operators. City Neighbors was one of the first charters to open up in 2005, and since then Macdonald has opened two more schools. Reflecting on the evolving dynamics between Baltimore charter operators and the district, Macdonald describes years of intentional relationship building. “I don’t believe that school systems are made out of steel, they’re made out of people,” she says.

In 2004, after the charter law passed and before the first schools opened, Baltimore’s new charter operators formed a coalition to organize and advocate for their collective interests. This coalition grew increasingly formalized as the years went on. “The work of the coalition became really focused on defending our autonomy and the rights of children in charter schools,” says Macdonald, who served as the coalition’s co-chair for the first six years.

Many charter operators spoke favorably, even nostalgically, of Dr. Andrés Alonso’s six-year tenure as city superintendent, which ended at the end of 2012-2013 academic year. “Dr. Alonso had a clear vision of wanting to provide a portfolio of school options for families, and to create opportunities for innovation and then replicate those practices,” says Allison Shecter, the founder of the Baltimore Montessori Public Charter School, one of the city’s most popular charters. “I think when Dr. Alonso was here we had a really strong relationship and participated in a lot of ways on many different levels,” says Macdonald.

Since Alonso’s departure, the relationship between charter operators and the district has grown more strained. “I’d say it’s a challenging relationship. It’s not a partnership unfortunately,” Shecter says. “We’d like it to be a partnership but in order for it to be a partnership there needs to be consistent and ongoing communication back and forth around policies that may impact charters.” Many operators say they feel the district is neither accountable nor transparent, which fuels growing levels of distrust.

One issue charter operators repeatedly raise is that they believe the district short-changes them when it comes to per-pupil funding. Under state law, the district must provide “commensurate” funding between traditional schools and charters. Currently, the district allocates $7,300 per traditional school student, and $9,400 per charter student—which is supposed to take into account that Maryland charters have to pay for the cost of their facilities, programming, salaries, and other school-level costs, which the district pays for in traditional schools. However, the formula that the district uses to come up with these amounts is unclear, and operators are convinced that what they’re getting is too low. Charter operators believe that they should be getting closer to $14,000 per pupil. Debates around these dollar amounts grow very charged.

Not everyone at charters agrees the district is shirking its funding responsibilities. “Charters still receive more per pupil, even after those extra costs are covered,” says Matthew Hornbeck, the principal at Hampstead Hill Academy, a charter located just south of Patterson Park. “Everyone, with the exception of some of the charter operators, knows that.” Hornbeck, who has served as his school’s principal for 12 years, has been outspoken about what he sees as a district funding formula that unfairly favors charters.

“I was a charter operator and I absolutely knew we were getting more than traditional public schools,” adds Helen Atkinson, the executive director of Teachers’ Democracy Project, a local organization that helps teachers engage in public policy and develop more social justice curricula.

Jon McGill, the director of academic affairs for the Baltimore Curriculum Project, the city’s largest charter operator, describes the relationship between charters and the school district headquarters on North Avenue as “overall harmonious” but says he does wish the district would be more transparent about how about how exactly it spends its slice of per-pupil funding. He thinks charters “lose the PR game” because the public sees them as always asking for more money. One reason the funding issues get so heated, McGill suggests, is because some operators have taken huge personal risks to open charter schools, and feel they need more reassurance that the district truly supports their efforts. “Some people have 30-year mortgages to worry about,” he says.

While for the past decade the story of Baltimore charters has mostly been an intra-district struggle, Gov. Hogan’s rise to power signified a turning point for the Maryland school-choice movement.

The legislation Hogan introduced would have dramatically changed the charter law passed in 2003. His proposals included provisions to exempt charter school employees from the district bargaining unit, as well as from many state and local requirements such as teacher certification. Hogan’s bill would have enabled charter schools to compete against traditional schools for state public construction money, and the bill would have required districts to explicitly define “commensurate funding” to mean that charters should get 98 percent of the per-pupil amount that traditional public school students receive, leaving 2 percent left over for district administrative expenditures.

“It did take us by surprise,” says Kehl. “As a charter sector, we were not expecting legislation this year, and we’re grateful that Governor Hogan finally wanted to cast an eye on the charter sector.” While charter operators around the state met with legislators and held school meetings to discuss why they supported Hogan’s bill, Kehl acknowledges that their advocacy “wasn’t as robust an effort had we been really prepared for it.”

Once news of Hogan’s charter bill went public, Maryland charter teachers began to organize together in new ways. In Baltimore, teachers convened and decided to form the Baltimore Charter School Teacher Coalition. Educators broke up into committees to strategize and implement an organized political response to the bill.

Corey Gaber, a sixth-grade literacy teacher at Southwest Baltimore Charter School who was active in the coalition, says part of the reason they formed their group was because they were dissatisfied with the pace and quality of the Baltimore Teachers Union’s (BTU) response. “We felt like we needed to reach out and inform teachers about what was going on and we didn’t feel like the union was doing it effectively,” he says. Gaber acknowledges that among Baltimore charter teachers there exists a “constant contradiction of feelings”—in some ways they are dissatisfied with the current union leadership, but on the other hand, teachers are proud to be being unionized district employees and deeply value their protections. With fellow charter teacher Kristine Sieloff, Gaber wrote an Op-Alt for City Paper (“The injustice of a two-tiered education system in Baltimore City,” March 31) and Gaber created and helped to circulate a petition that garnered hundreds of signatures from both charter and traditional public school teachers.

“The interests of traditional teachers in charters and public are exactly the same right now,” says McGill, who thinks the proposed bill would have created deep divisions between Baltimore educators.

The BTU helped circulate another petition for charter teachers and charter educational support personnel, roughly 740 people in total, and more than 90 percent of eligible petitioners signed. “I spoke with every teacher I know, teachers were universally against [the legislation],” Gaber says.

In addition to local educators who worried about losing their collective bargaining rights and allowing non-certified teachers to work with kids, other leaders pushed back against what they saw as a deeply inequitable funding structure embedded into Hogan’s legislation.

“Charter advocates rely on the premise that as money flows from a regular school to a charter school, the costs of the regular school go down proportionately. Sounds good; it’s just not true,” wrote David W. Hornbeck in a Baltimore Sun op-ed published in February. Hornbeck “recommended the approval of more than 30 charter schools” while serving as Philadelphia’s superintendent of schools from 1994 to 2000, and he now believes he made a grave mistake. Hornbeck, who also served as superintendent of Maryland schools from 1976 to 1988 (and is the father of Hampstead Hill principal Matt Hornbeck), pointed out that Pennsylvania’s charter law is ranked much higher than Maryland’s and “yet its charter growth is contributing significantly to a funding crisis that includes draconian cuts to teachers, nurses, arts, music and counselors in Philadelphia.”

Bebe Verdery, the director of the Maryland ACLU Education Reform Project, also submitted testimony against the bill, arguing that the proposed funding formula would result in severe cuts to traditional schools. “Simply put, students without any special needs would get funding the state formula intended for others,” she said. Verdery also objected to a provision that would have allowed public capital repair funds to go toward private buildings that housed charter schools, saying, “this would further strain an already insufficient pool of state resources for addressing the state’s $15 billion school repair and construction backlog.”

Hogan’s legislation said “commensurate funding” should mean that charters get 98 percent of what traditional public schools receive because a 2005 State Board of Education ruling determined that districts needed only 2 percent of per-pupil funding to cover central administrative costs. But when the Department of Legislative Services (DLS) surveyed local school systems later on, it found that administrative expenditures make up closer to 10-14 percent of per-pupil spending. Critics argued that if 98 percent were legally guaranteed for charters, but necessary administrative work still had to be done, then money would be taken from traditional public school students, potentially leading to increased class sizes, special educators with enormous case loads, or cuts to after- school programming, gym, and art.

Local charter operators insisted that their goal was not to bankrupt the district, but simply to fight for parity. “We believe strongly that we can achieve this without harming funding for other schools,” testified Ed Rutkowski, the executive director of Patterson Park Public Charter School.

The watered-­down bill that Hogan ultimately signed was a grassroots victory for some, and a major disappointment for others. The Center for Education Reform, which hired several lobbyists to push for the bill’s passage, was so dismayed with the final result that it actually urged the governor to veto it, insisting that this would be a step back for Maryland school choice, not one forward.

The final bill ended up removing mostly all provisions that had generated controversy. It grants greater autonomy to charters that have demonstrated five years of success, and it provides for increased flexibility with student enrollment. The bill also authorizes the Maryland State Department of Education (MSDE) and the DLS to complete a study by the end of October 2016 to determine what a more appropriate figure should be for districts when it comes to commensurate funding.

“The law that passed was more subtle and more evolutionary rather than revolutionary,” said Hampstead Hill’s Hornbeck. “It did not trash a good law, like the governor’s proposal tried to do.”

Given that the governor still had support from MarylandCAN, a pro-charter advocacy organization that helped to craft the original legislation, Hogan went ahead and signed the bill into law. It’s an imperfect bill, but it creates “the pathway” to expand charters and it grants more flexibility to existing ones, said Keiffer J. Mitchell Jr., Hogan’s special adviser on charter schools.

“As the state with the most restrictive charter law in the country, these small steps forward, while welcomed, are not enough,” said Jason Botel, the executive director of MarylandCAN, in a statement. “They must be the start, not the end, of our work to dramatically reform charter school policy in our state.”

Kara Kerwin, the president of CER, believes MarylandCAN is mistaken to think that they can just go back and improve on the new law later. She points out that the new law clarifies that only the local district board—not the Maryland State Board of Education—can authorize new charters, and that online charter schools are now explicitly prohibited from operating within Maryland.

In an interview, Kerwin describes online charters as “one of the biggest innovations right now that’s helping so many students who aren’t brick and mortar types.” However, several studies have found that online charter schools tend to provide a lower-quality education than traditional schools, and a 2011 New York Times investigation found that K12 Inc., one of the nation’s largest online charter school operators, “tries to squeeze profits from public school dollars by raising enrollment, increasing teacher workload and lowering standards.”

Most people interviewed for this story do not believe the new law will lead to an expansion of Maryland charter schools, one of Hogan’s top policy priorities. “The final bill that passed was very limited in scope, it doesn’t have a whole lot of changes,” Macdonald says. “But it’s a step in the right direction.”

So what does this all mean for the future of Maryland charters?

“I have no doubt that this was round one and [the operators] are going to try again as long as Hogan’s governor,” Gaber says. “We’re going to keep fighting. We started this teacher coalition knowing that this is a long-term fight and we need to be organized and ready before the next time comes.”

Kehl thinks that the Maryland Alliance of Public Charter Schools, which just officially emerged as a statewide group in July, will focus on building a more unified policy voice and cultivating a stronger presence in Annapolis. “Our charter sector has matured,” she says. “If you believe that schools shouldn’t be one size all, then you have to create a system that supports that. I don’t see how you can make change if you keep everything the same.”

Whether new legislation will be introduced next year is an open question. Kerwin of CER thinks such an effort would be futile, even if they tried. Todd Reynolds, the political coordinator for Maryland’s American Federation of Teachers, says some legislators might decide it makes sense to wait until after the new MSDE/DLS study is completed.

While the emerging landscape appears fraught with tensions between the district and the charter sector, there still remains a possibility that Maryland charters will chart a different sort of future than that of other states.

Even though Macdonald of the City Neighbors Charter School supported Hogan’s legislation, she acknowledges that some parts made her feel ambivalent. While she feels strongly that Maryland charters need more autonomy and bureaucratic relief, she also wants to preserve collective bargaining rights for charter teachers. “I feel like Maryland is so unique in our stance,” she says. “I haven’t yet seen the bill I would really fight for.”

In a few months, on Oct. 22, the Teachers’ Democracy Project will be hosting a big meeting between teachers, charter operators, politicians, union officials, and school board members to try and figure out a way forward that doesn’t require another heated legislative fight. Atkinson believes the current law is good, but that Baltimore teachers—charter and non-charter alike—should be organizing for more money for all schools. “We’re going to try to hold an open conversation about what people’s concerns are,” said Atkinson. “The operators are reasonable, they’re not right-wing, they’re not trying to get charters to take over the world. Their main frustrations are with the union contract and some of the ways the district controls things.”

McGill thinks that a more collaborative push for charter reform from the district, teachers, and charter operators “would be the ideal” solution but worries things are growing too polarized for that to materialize. Gaber, however, says that the Baltimore Charter School Teacher Coalition has also discussed how they want to stand for something, and not just against reform. “I think it would be a good idea for us to be more proactive,” adds Reynolds of the AFT. “We should get back to what charters were intended to in terms of offering innovation that can then be brought into traditional schools.”

The question of whether some of the larger CMOs would be interested in setting up schools in Maryland remains uncertain. Kehl says it’s important to help facilitate more attractive operating conditions because “there’s a certain point where you tap out your local leadership” and if you “can’t attract national talent” into Maryland, then you’ve just closed the door on quality options for kids.

Others see luring CMOs as a less urgent priority, especially given how the state increasingly underfunds public education. In his latest budget, Hogan increased state education funding by 0.4 percent, but cut Baltimore City’s funding by 3.3 percent. Attracting those CMOs—which would likely be into Baltimore—might mean redirecting funds toward charter facility expenses or pushing harder to restrict collective bargaining. Maryland might also experience some of the financial strain that rapid charter growth in other states has placed on traditional schools.

Testifying last spring, CEO of Baltimore City Public Schools Dr. Gregory E. Thorton said Hogan’s bill would work “to the benefit of large out-of-state charter organizations—to the detriment of Maryland’s most vulnerable student populations.”

While the Baltimore City School District might need to work harder to collaborate with its local charter sector, and the teacher unions may need to re-examine some provisions within their contracts, it’s not yet clear that Maryland’s unique charter culture is headed out the door.

State law currently allows charters to negotiate waivers and exemptions from certain aspects of the district-wide collective bargaining unit. That’s how Baltimore’s KIPP charter school was able to extend its school week; KIPP had to agree to pay its staff more money for the increased number of working hours. Theoretically charter operators could sit down with union leaders to discuss some of their most pressing concerns around staffing, innovation, and autonomy. “It’s not meant to be a one-size-fits-all situation,” says Reynolds. “You can sit down with the union and negotiate a Memorandum of Understanding. We have done that, and I think that’ll continue.”

“I think it would be amazing to sit down with the union and really roll up our sleeves,” says Macdonald. “I do think it’s really important for teachers to be unionized, to collectively bargain, and to get paid well, but I also think if we want to innovate and serve the children of Baltimore, we really have to allow [for] some more flexibility.”

Ohio Charter Teachers Fired for Organizing Will Be Reinstated

Originally published in The American Prospect’s Tapped blog on July 24, 2015.

Teachers at the Ohio-based I CAN charter network decided to organize a union during the 2013-2014 school year. Yet when the school year ended, the administration did not renew contracts for seven teachers leading the union drive—resulting in a cancellation of the scheduled union vote. While about 40 charter schools in Ohio are already unionized, those are mostly conversion schools, meaning teachers had already worked for the district before going to work for a school-district sponsored charter. These I CAN schools would have represented the first start-up charters to go union in the state.

After the firing, I CAN educators and the Ohio Federation of Teachers filed a federal complaint, which accused I CAN of making teachers feel like they were under surveillance and for pressuring employees to reveal the identities of union leaders. The complaint also alleged that I CAN increased staff salary and benefits just before the scheduled vote in order to dissuade teachers from joining a union.

One of the fired teachers, Kathryn Brown, told The Plain Dealer that she wants a union because teachers don’t feel valued. “The I CAN network believes that administration and a teaching template are all you need for education,” said Brown. “That’s the big flaw and why I got involved in unionization. A school is not just administration.”

This past October, the NLRB regional director sided with the teachers and accused I CAN of “interfering with, restraining and coercing employees.” The founders of the charter network, Marshall Emerson and Jason Stragand, denied the allegations, insisting that nobody was fired specifically for union organizing. (They pointed out that most involved in the union effort did have their contract renewed.) But Emerson and Stragand also made it clear they want to keep their schools union-free. “It would really cripple our principals and administrative staff. It could dramatically change the model. It could drastically change what we do,” said Emerson.

While the I CAN schools would have been the first Ohio start-up charters to organize, other charters in the Buckeye State have since moved ahead with their own successful campaigns. This past March teachers at the Columbus-based Franklinton Preparatory Academy voted to join a union. Since then three more charter schools in Youngstown have also voted to unionize.

As for I CAN, this week the NLRB finally reached a settlement with the charter network and imposed penalties for interference. I CAN will have to re-hire four of the fired teachers and give all seven teachers back pay. School officials will also have to post a statement in their school buildings that says they cannot interfere with union organizing efforts. However, the NLRB settlement did not include any finding of wrongdoing and I CAN only needs to pay $69,000 to be split among the seven teachers.

David Quolke, the president of the Cleveland Teachers Union told The Plain Dealer that he and other Ohio Federation of Teacher leaders feel vindicated by the NLRB settlement, calling it “one of the strongest we’ve seen in our years of helping to organize our fellow teachers at charter schools.”

I CAN teachers are reportedly planning to schedule a union vote this coming fall. They will join a growing number of charter teachers around the country who are also organizing their own union drives.