Supreme Court’s Janus Decision Opens A “Pandora’s Box” For Public-Sector Unions

Originally published in The Intercept on June 28, 2018.
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Six years after Supreme Court Justice Samuel Alito first signaled his interest in striking down agency fees on First Amendment grounds, he authored a crushing blow to public-sector unions in a giddy 5-4 opinion issued Wednesday.

Janus v. AFSCME resolved whether agency fees, also known as “fair-share fees,” can be collected from public-sector employees who do not wish to be members of a union. Under the law, a public-sector union has to represent all workers in a workplace, irrespective of whether they opt to be union members. Charging agency fees has historically enabled unions to avoid the free rider-problem — without them, employees could enjoy the benefits of collective bargaining without paying the dues required to support union activities.

This week, the Supreme Court affirmed that no agency fee or any other form of payment can be deducted from an employee, “nor may any other attempt be made to collect such a payment, unless the employee affirmatively consents to pay.” The decision has immediate ramifications for the nearly 7 million state and local government workers represented by a union, of which 58 percent are women and 33 percent are African-American, Asian-American, Pacific Islander, and Latino. There are 17.3 million public-sector workers across the nation.

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 1977 in a unanimous decision known as Abood v. Detroit Board of Education. But, the justices determined in Abood, requiring agency fees to support collective bargaining work was constitutional. Now the court has taken a knife to that distinction.

Many expected this outcome two years ago, when the court heard Friedrichs v. California Teachers Associationa case in which 10 public school teachers challenged the constitutionality of their mandatory agency fees on First Amendment grounds. While the 9th Circuit Court of Appeals disagreed with the teachers’ position, the Supreme Court seemed inclined to side with the challengers. But when Justice Antonin Scalia unexpectedly died in February of 2016, the court ended up issuing a 4-4 decision, preserving the 9th Circuit’s ruling. On Wednesday, the conservative members of the court got a second bite at the apple.

Writing for the majority, Alito was extremely dismissive of AFSCME’s argument that labor organizations will be less effective if agency fees are struck down. To support its case, Alito pointed to the 28 states that currently have laws on the books prohibiting agency fees as proof that those fees are not essential to avoid conflict between competing labor advocacy groups — something both U.S. employers and American labor law discourage.  Even without agency fees, Alito argues, workers in 28 states enjoy exclusive representation.

“Whatever may have been the case 41 years ago when Abood was decided, it is thus now undeniable that ‘labor peace’ can readily be achieved through less restrictive means than the assessment of agency fees,” the majority opinion reads.

When it comes to the free-rider problem, the court was similarly dismissive, citing the arguments raised by unions as “insufficient to overcome First Amendment objections” and not representing a compelling state interest to begin with.

In the dissent, authored by Justice Elena Kagan and joined by Justices Ruth Bader Ginsburg, Stephen Breyer, and Sonia Sotomayor, Kagan writes that the majority “fails to reckon with how economically rational actors behave.” She argues that the majority ignores the basic fact that public-sector unions must represent all workers in a workplace, in contrast to private groups that can choose to represent only those who actively opt-in. Kagan also notes that the “Court today wreaks havoc on entrenched legislative and contractual arrangements,” rendering thousands of city, county, and state contracts across the country illegitimate. In other words, previously existing collective bargaining agreements in the public sector will now need to be re-negotiated, many of them all at once. New York City, for example, currently has agency fees in 144 contracts with 97 different public-sector unions. “[The majority dismantles these agreements] with no real clue of what will happen next — of how its action will alter public-sector labor relations,” the dissent states. “It does so even though the government services affected — policing, firefighting, teaching, transportation, sanitation (and more) — affect the quality of life of tens of millions of Americans.”

Conservatives immediately cheered the decision.

“The Supreme Court has freed millions of American workers from manipulation by union bosses that misrepresent their interests,” said Tim Huelskamp, president and CEO of the right-wing Heartland Institute, in a statement. “On the heels of this decision, every state should move quickly to certify that no American worker is ever compelled to give their hard-earned money to support self-serving union bosses.”

The plaintiffs in Janus and the cases that helped lay the legal foundation for it were supported by a web of conservative legal advocacy groups and right-wing foundations, including the Center for Individual Rights and the National Right to Work Legal Defense Foundation.

In a statement released after the Janus decision, Lee Saunders, president of AFSCME, declared that “despite this unprecedented and nefarious attack” the “American labor movement lives on, and we’re going to be there every day, fighting hard for all working people, our freedoms and for our country.”

Randi Weingarten, president of the American Federation of Teachers, echoed the dissenting judges, calling the Janus decision “a warping and weaponing of the First Amendment, absent any evidence or reason, to hurt working people.”

While unions are resolving publicly to fight back, they have also begun to prepare for the worst. The National Education Association, for example, which is the nation’s largest public-sector union, is forecasting a loss of 307,000 members over the next two years, and is planning to reduce its expenditures by $50 million during that period. There are currently 3 million members in the NEA.

Progressive economists say that Americans should expect to see economic inequality increase as public-sector unions adjust to a post-Janus world. According to the left-leaning Economic Policy Institute, “[a]s union membership has fallen over the last few decades, the share of income going to the top 10 percent has steadily increased.” When union membership peaked at 33.4 percent in 1945, the share of income going to the top 10 percent was 32.6 percent. By 2011, when union membership was down to 11.1 percent, the share of income going to the top 10 percent reached 48 percent. The gap is even more stark when it comes to wealth: In 2017, the top 1 percent of American households owned 40 percent of the nation’s wealth, a higher share than at any point since 1962. The top 1 percent owns more wealth than the bottom 90 percent combined. EPI attributes these trends to the lack of bargaining power that non-union workers have to negotiate their wages, among other factors that have made wealth distribution more unequal.

The Janus decision, though long expected, begets a new period of uncertainty in American labor relations. As The Intercept previously reportedsome labor activists, like those in the International Union of Operating Engineers, argue that Janus may have some unintended consequences that empower unions. If, as per Janus, collective bargaining is speech, then it is subject to powerful First Amendment protections. The majority may have inadvertently opened up the floodgates for countless new union-led lawsuits against governments that try to restrict their speech, by, for example, limiting the scope of their contract negotiations to predefined topics. Dismantling Abood, they say, could open “a tremendous Pandora’s box.”

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Apprenticeships, A Favorite of Trump Administration, Carry Major Potential for Foster Youth

Originally published in The Chronicle of Social Change and InvestigateWest on June 20, 2018.
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This year Washington became the first state in the nation to pass legislation specifically designed to help foster youth access apprenticeship opportunities, which offer a steady path to full-time employment in a highly skilled trade.

Research shows that foster youth are likely to earn even less than other low-income youth living around them. Bill sponsor Sen. Kevin Ranker, D-Orcas Island, declared his intent to expand opportunities for children facing “immense obstacles or lack the support of their families.”

The legislation, SB 6274, offers financial assistance to foster youth, former foster youth and homeless youth for up to six years or until the person turns 26. It lowers the eligibility age from 16 to 13 and is expected to nearly double the number of eligible students.

Washington’s new law comes on the heels of President Donald Trump signing an executive order in June 2017 to increase the number of apprenticeships in the United States. The president called for doubling annual funding to $200 million, an expansion that would be paid for by reducing support for other job training programs deemed ineffective.

“Federally funded education and workforce development programs that do not work must be improved or eliminated so that taxpayer dollars can be channeled to more effective uses,” according to Trump’s executive order.

The order, noting that 350,000 manufacturing jobs were open, told the Labor Department to draw up regulations promoting apprenticeship programs by unions, trade and industry groups, and for-profit and nonprofit companies. It also sets up a task force to advise the president and calls for recognition for employers with good apprenticeship programs.

The order does not specifically mention the need to involve foster youth in apprenticeships, although it does seek to promote them for high school students, Job Corps participants, prisoners and those who were previously in prison, veterans and members of the armed forces.

While the president’s directive set no targets for exactly how many new apprenticeships there should be, labor experts from both sides of the aisle applauded the “earn-and-learn” expansion as needed and long overdue.

Apprenticeship programs begin with a mix of on-the-job training and class instruction, during which time the apprentice earns a wage. Industries where apprenticeships are common include information technology, construction and carpentry, plumbing, and various health professions. The executive order seeks to promote apprenticeships in “critical industry sectors,” such as manufacturing, construction, cybersecurity and health care.

Over the course of an apprenticeship, which can last several years, participants gradually take on more complex parts of a trade, and eventually receive a certificate of completion.

Supporters point to studies that suggest individuals who complete apprenticeships earn a starting wage of more than $60,000 per year, and that nearly 90 percent of participants lock down employment when their apprenticeship ends. With millions of job vacancies across the country, and a national survey of CEOs reporting that most executives struggle to find qualified workers, the potential of apprenticeships offers some a rare glimmer of hope.

Foster youth represent one population in particular that could really stand to benefit from these new economic opportunities. Some 23,000 young men and women turn 18 or 21 and “age out” of the foster care system every year. The statistics are grim. According to the National Foster Youth Initiative, foster youth have a less than 3 percent chance of earning a college degree, and only half who age out of the system will have some form of gainful employment by age 24.

But how can foster youth take advantage of expanded apprenticeships? What could help make such opportunities more accessible to them?

According to Mike Pergamit, a labor economist with The Urban Institute whose research focuses on vulnerable youth, experts “still don’t really know what works” when it comes to designing effective youth employment programs. The picture looks even worse when it comes to foster youth. Pergamit says “there haven’t really been many evaluations” of employment programs targeting youth in foster care.

That said, Pergamit maintains there’s reason to think apprenticeships could be particularly beneficial to foster youth since they they’re typically longer-length opportunities that come with high levels of mentorship. Stability and support, he says, can make all the difference.

One challenge for policymakers who might want to help target apprenticeships is that many foster youth have no desire to self-identify as someone with ties to the foster care system. One strategy for dealing with this stigma issue is to pursue strong data partnerships with government agencies.

In Washington, for example, the Washington Student Achievement Council has partnered with the state Department of Social and Health Services (DSHS) to better target resources and information toward foster youth looking to go to college or join the workforce.

“In secure ways DSHS sends us who is in foster care at the time at which they can maybe access the services so we know who they are,” said Becky Thompson, the director of student financial assistance at the Washington Student Achievement Council. “But it also requires a lot of outreach, so we provide training to social workers about resources that are available, since sometimes they can act as more of a trusted adviser.”

Some states also have foster care liaisons working in their public school districts; these liaisons can work with program providers to help students learn about what’s available and how to take advantage of supports.

Other barriers that could impede foster youth from accessing apprenticeship opportunities include a lack of stable housing; a lack of reliable transportation to get to work; and lack of driver’s licenses, which can be a prerequisite for even getting hired.

Krishna Richardson-Daniels, the founding director of A Bridge Forward, a nonprofit in Renton, Washington, focused on youth aging out of the foster care system, says her group works to provide young people with subsidized ORCA cards so they can get to work and school. But some foster youth live in areas that lack high-quality public transit.

Obtaining a driver’s license, Richardson-Daniels says, can be one of the biggest and most poorly understood barriers for foster youth.

“Driver’s education is now privatized and not offered in the public school system, and those programs can cost anywhere from $300 to 500,” she said, noting there really aren’t many foster families willing to support those costs and few nonprofit groups have the bandwidth to take it on.

“Seattle is the fastest-growing city, we have some of the largest construction projects going on, but you cannot actually work in construction without having a driver’s license,” she explained. Construction is a field with a long history of providing apprenticeship opportunities.
A coalition of foster youth advocates has launched a national campaign called “Going Places” to try to tackle this driver’s license problem.

Aside from these barriers, given that apprenticeships are broadly understood to be something of a rigorous pre-employment opportunity, many people fail to realize how much work typically goes into preparing young people for apprenticeships. So-called “pre-apprenticeship” programs have become a popular strategy; these are short-term opportunities designed to help acclimate specific groups so they can enter and thrive in their apprenticeship program later on.

One promising pre-apprenticeship model designed to help disadvantaged youth (including but not exclusively foster youth) was developed by the District 1199C Training & Upgrading Fund in Philadelphia. The pre-apprenticeship program runs for six weeks and includes an opportunity to ensure all participants secure driver’s licenses.

Advocates say thoughtful, concerted outreach will be necessary to help older foster youth access apprenticeships, perhaps even more so than other disadvantaged populations, given the chaos they face if they age out of the system at 18 or 21. Experts suggest beginning targeted outreach in high school, several years before foster youth are set to age out.

“This is a unique population that might have some barriers that need additional support, and so having some very early outreach happening with high school counseling can be very effective,” Thompson said.

Another barrier can be whether the employers themselves are prepared to work with foster youth. One strategy is for policymakers to encourage employers to get trained in the so-called Trauma Informed Approach, a professional development model which can help bosses better understand what their foster youth apprentices are dealing with, and how best to support them.

“Trauma is a big difference between foster youth and other disadvantaged youth,” said economist Pergamit. “Many (foster) youth have had various trauma, growing up in tough neighborhoods and witnessing all kinds of things, but foster youth by definition were the victim of some sort of abuse or neglect, and once they enter the foster system they’ve had even more disruption and turbulence beyond that.”

Representatives from the Labor Department did not return multiple requests for comment.

Edwin Dirth contributed to this report.

The Teachers’ Movement Goes Virtual

Originally published in The Atlantic on April 11, 2018.
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When West Virginia teachers initiated a nine-day labor strike this past winter, they secured national attention and a 5 percent pay raise. Oklahoma and Kentucky educators followed suit, with Arizona teachers threatening to do the same. Amid all this organizing was another strike threat, not previously reported, last week in California: between teachers in online classrooms and the organization that employs them.

Students enrolled in virtual schools (sometimes called “cyber schools” or “virtual academies”) take their classes online. It’s a small phenomenon, representing less than 1 percent of students, but a fast-growing one. According to the National Education Policy Center, about 279,000 students enrolled in virtual schools in 2016, up from roughly 200,000 in 2012. Education experts have been concerned by the growth of virtual K-12 education, especially virtual charter schools, which are publicly funded and privately managed. U.S. Education Secretary Betsy DeVos has touted virtual charter schooling as a particularly ripe area for expansion, emphasizing its flexibility and potential to offer courses that a student’s traditional school might not have. But, in practice, virtual schools, especially charters, have tended to deliver significantly lower academic results than brick-and-mortar ones. “Academic benefits from online charter schools are currently the exception rather than the rule,” wrote the authors of a 2015 report from the Stanford Center for Research on Education Outcomes.

While some teachers gravitate to virtual charters because of the flexibility it offers, salaries can be low, and class sizes are, on average, much larger than in brick-and-mortar charter schools or traditional public schools. (Though virtual teachers don’t have to manage physical classrooms, large class sizes still equate to a heavier workload.) The overwhelming majority of virtual teachers are not unionized. But in 2014, educators at California Virtual Academies (CAVA), California’s largest network of online charter schools with more than 10,000 students and about 450 teachers, decided to create a union, California Virtual Educators United, under the umbrella of the California Teachers Association. After two years of legal battles, CAVA recognized the teachers’ union, and starting in September 2016, the parties began negotiating their first contract over salaries, class sizes, and other issues.

The negotiations represent an important test case of how educators might wield power in a future where online education becomes even more common. According to Brianna Carroll, a high-school social-science teacher in Livermore, California, and president of the teachers’ union, bargaining had been slow-going, especially in recent weeks, when negotiators hit an impasse over class size. Educators said the number of students under their supervision had spiraled out of control, with some teachers stuck overseeing virtual classrooms exceeding forty students, and demanded class sizes be capped. “Either you have teachers who are burning themselves out because they’re trying to meet the needs of everyone, or you aren’t meeting the needs of everyone,” Carroll told me. “It’s really one or the other.”

April Warren, CAVA’s head of schools, declined to comment on many details of the negotiations. “CAVA is dedicated to working together with CVEU to reach a fair and equitable settlement so that we may continue to build upon CAVA’s unique and special achievements in support of the students and families across California,” she told me in an email.

While virtual schools across the country face some of the same struggles roiling traditional public schools, namely decreased state funding per pupil even after local economies have rebounded since the recession, virtual teachers also have to reckon with a newer threat: the involvement of for-profit companies that seek to deliver profits to their investors. CAVA, for instance, is a nonprofit network, but its operations are deeply intertwined with K12 Inc., a publicly traded company based in Virginia. K12, founded in 2000 by William Bennett, the education secretary under Ronald Reagan, and Ronald Packard, a former Goldman Sachs banker, is the nation’s largest supplier of management services and curriculum for virtual charters. The company, according to Education Week, has built a powerful lobbying operation in more than 20 states.

While CAVA describes its schools as independent, Jessica Calefati of San Jose’s The Mercury News, who investigated the arrangement back in 2016, found tax records showing that K12 employees themselves had established more than a dozen online schools in California. CAVA contracts with K12 for all sorts of services: The company provides the schools’ curricula, oversees their budgets, trains teachers, offers technical assistance, and even handles media communications. Calefati wrote, “Accountants and financial analysts interviewed by this newspaper, including several who specialize in school finance, say they’ve never seen anything quite like the arrangement between K12 and the public online academies.” (A CAVA official called The Mercury News investigation a “gross mischaracterization” of the organization’s work.)

CAVA teachers say they organized a union in part to push back on K12’s corporate influence over their schools. “For so long it’s been focused on how to use this charter-school concept to turn a dollar, rather than how to use online tools to support more students,” said Carroll, the union president. “We’re really using the union to push CAVA to have different goals.”

The virtual charter network might benefit from some new goals. In 2016, then-state Attorney General Kamala Harris alleged that K12 and CAVA had used false advertising and inflated their student-attendance numbers to collect extra state funds. Harris also alleged that K12 had trapped the network in debt by saddling cava with an unfair contract. CAVA and K12 agreed that year to settle with the state for $168.5 million. K12 emphasized it had admitted no wrongdoing, and said the attorney general “grossly mischaracterized the value of the settlement just as it did with regard to the issues it investigated.” In an email to The Atlantic, the K12 spokesperson Michael Kraft disputed the AG’s characterization of the schools as indebted. Also in 2016, The Mercury News reported that fewer than half of  CAVA’s high-schoolers earned diplomas, and almost none were qualified to attend the state’s public universities. (K12 disputes this, noting the state does not always have reliable data for nontraditional schools with higher student mobility rates.) CAVA was also hit with a nearly $2 million fine in 2017 after California’s Department of Education found continued issues with attendance reporting and other practices. (CAVA disputed this, releasing a statement that CAVA schools “demonstrated they were consistently operating in full compliance with all state laws and regulations” and planned to appeal the financial penalty.)

Last fall, faced with a stalemate with CAVA over salaries, workday length, and class size, the teachers authorized a strike: More than 90 percent of the 450-member union voted to back their bargaining team if it called for walking off the job. Shortly after that, CAVA administrators tentatively agreed to some new concessions, according to copies of signed agreements provided by the union: a pay raise, a shorter work year, and fewer employment duties, among others.

Still, the fight around class size remained unresolved. CAVA teachers argued that class-size limits would improve academic quality. Carroll said the charter network maintained during negotiations that caps would hinder their needed flexibility. (CAVA declined to comment on its position on class sizes.) When they were still unable to reach an agreement, following a two-day fact-finding mediation last week, union leaders announced they were preparing for a first-of-its-kind strike. A virtual-charter strike would have meant that all online classes would be canceled, and teachers would meet in person to picket at locations such as the CAVA offices in Simi Valley. The strike was to be held in late April or early May.

But the day after the teachers’ strike announcement, April Warren, CAVA’s head of schools, proposed a compromise resolution: Classrooms could be capped at about 30 students, according to a copy of the signed agreement provided by the union, and if a classroom were to exceed that threshold, the teacher would be compensated accordingly. The teachers agreed. “I think the strike played a huge role in helping us resolve this, because that’s what CAVA was constantly saying—‘well, we don’t want a strike,’” Carroll said. Warren declined to comment on the strike threat, but on Monday, she confirmed the parties had reached a tentative agreement and were “working on a timeline for full ratification.” A spokesman for K12 declined to comment.

Carroll says teachers at other virtual charter networks have been reaching out to her, intrigued by her and her colleagues’ union work. While the West Virginia and Oklahoma teacher strikes demonstrate how educators at traditional public schools can still assert formidable collective power, just 11 percent of charters in the United States are currently unionized, and among virtual charters, that number stands at 9 percent. There are several reasons for this: Most charter-school backers and funders take a relatively anti-union stance, asserting that unions will impede a school’s flexibility, and therefore its ability to deliver the best education possible for students. Unions have also been slow to organize charter-school teachers, long viewing them as scabs who threaten their livelihoods. Labor groups have softened their stance towards charter teachers in recent years, but tensions remain as unions continue to work politically to halt charter-school growth.

A successful contract negotiation for cava teachers, though, could help ignite similar efforts elsewhere. The anything-goes approach to virtual education has made it alluring to operators trying to cut costs or make a buck. But if their workers have any say in the matter, online charters’ freewheeling days may be numbered. That would be good not just for educators but for the students entrusted to them.

Radio show on Janus v. AFCSME and striking teachers

I was kindly invited onto a California radio show, Beneath the Surface, yesterday to talk about recent happenings in the world of labor — namely the Supreme Court case challenging public sector union agency fees and the recent West Virginia teacher strike  and potential teacher strike in Oklahoma.

I was joined by Shaun Richman, a regular source of inspiration for my labor stories.

Can listen here: http://archive.kpfk.org/index.php?shokey=bts_friday

How Labor Is Thinking Ahead to a Post-Trump World

Originally published in The Intercept on January 21, 2018.
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The American labor movement, over the past four decades, has had two golden opportunities to shift the balance of power between workers and bosses — first in 1978, with unified Democratic control of Washington, and again in 2009. Both times, the unions came close and fell short, leading, in no small part, to the precarious situation labor finds itself in today.

Just over 10 percent of workers are unionized, down from 35 percent in the mid 1950s. Potentially, though, a wave of Democratic victories in 2018 and 2020 could give labor groups one last chance to turn things around. With an eye toward that moment, labor’s leading strategists are coming together to build a program that avoids the mistakes of the last two rounds.

Strike One: 1978

The National Labor Relations Act — a foundational law that guarantees the rights of private sector employees to unionize — was passed in 1935, and more than 40 years later, President Jimmy Carter, urged on by the AFL-CIO, came out in support of federal labor law reform. “The purpose of this [proposed] legislation is to make the laws which govern labor-management relations work more efficiently, quickly, and equitably and to ensure that our labor laws fulfill the promise made to employees and employers,” Carter said at the time.

The law would have addressed a number of issues that still remain on labor’s agenda today, such as faster union elections and tougher penalties for employers who refuse to bargain and violate labor law. “We didn’t try for revolutionary things; we pushed for things we thought we could get broad support for,” said Ray Marshall, who had served as labor secretary in the Carter administration. But with 59 votes in the Senate, a 44-year-old freshman Republican from Utah, Orrin Hatch, had filibustered the law, and it failed.

One of the revolutionary things the administration did not try for was the Humphrey-Hawkins Full Employment bill, which guaranteed a federal job to anybody who wanted one. It represented the height of labor’s aspirations coming out of the Great Society and what liberals (at least the ones who had not turned toward the free market as the answer) saw as one of the final legs of the stool. Carter was having none of it, and a much-weakened version went through instead. Anger at Carter’s inability to deliver for labor led many unions to back the primary challenge launched by Sen. Ted Kennedy, D-Mass. Despite Carter’s reputation as a progressive and the good work he has done since leaving office, his presidency is not remembered fondly in many union households.

Strike Two: 2009

The labor movement had another rare opportunity in 2009. Barack Obama had won the presidency, and Democrats not only took over Congress, but also seized an unexpected 60-vote, filibuster-proof majority in the Senate. Labor wasted no time vocalizing its demand for the passage of the Employer Free Choice Act, a law known as EFCA that would have given workers the right to join a union as soon as a majority of employees signed cards in support of the move. The legislation also would have stiffened penalties on employers who violated labor laws and forced recalcitrant employers to negotiate contracts with new unions.

The unifying idea behind these three reforms was that policies were needed to make it easier for workers to form unions and bargain contracts once they did. Research at the time showed a steep rise in the illegal firings of pro-union workers in the 2000s, and the National Labor Relations Board election process — to certify or decertify a union as a unit’s bargaining representative — was widely seen as tilted toward anti-union employers. Even when workers did vote for union representation through NLRB elections, many employers then refused to bargain, with only 38 percent of unions securing a contract within a year of certification.

Unions started discussions around EFCA in 2003, when Republicans controlled Congress and the White House. In 2007, Kennedy and Reps. George Miller, D-Calif., and Peter King, R-N.Y., introduced the bill, which passed in the House 241-185 — including 13 votes from Republicans. Though EFCA also had majority support in the Senate, it was blocked by a Republican filibuster.

So when Democrats took control in 2008, with a filibuster-proof majority to boot, the prospect of EFCA’s passage was tantalizing.

In 2009, progressives believed the odds were in their favor — all it would take was getting the votes of all 59 Democrats and independents, and hanging on to Arlen Specter, the Republican senator from Pennsylvania who co-sponsored the 2007 bill. Unions predicted they could add at least 5 million members to their rolls in just a few years if EFCA were to pass.

The business community hated EFCA, correctly recognizing that it would have shifted power relations between workers and employers. “This will be Armageddon,” the vice president for labor policy at the Chamber of Commerce complained. Before his inauguration, Obama told the Washington Post he knew the business community saw EFCA as “the devil incarnate.”

But the politics ended up being far more treacherous than labor anticipated — or perhaps more than the movement allowed itself to see.

“We never had 60 votes for EFCA, we just didn’t,” said Sharon Block, who worked as senior labor counsel for Kennedy on the Senate committee on Health, Education Labor, and Pensions in 2008. “We didn’t have all the Dems, even though we were closer than we had been before.”

Though EFCA tackled several areas, the provision that remains most memorable is “card check,” which would have allowed workers to form a union once a majority signed pro-union cards. (Labor organizers prefer the term “majority sign-up,” but card check is what stuck.)

The proposal was deeply controversial, in part because unions found it tough to explain why they were discouraging NLRB elections, in which workers could vote by secret ballot. Suddenly, Democrats and unions found themselves on the defensive, pushing back against arguments that they were anti-democratic. EFCA opponents argued they were merely trying to protect workers from coercive employee pressure — a talking point that resonated even as they expressed no similar concern regarding the similar, well-documented pressure coming from employers.

“There was a lot of not terribly sexy, but good reforms in EFCA to shape public opinion along the lines of fairness and stopping intimidation, but instead the conversation was about fattening the coffers of union bosses through anti-democratic methods, that unions don’t want you to have the right to vote,” recalled Louis Nayman, who worked then as a director of organization at the American Federation of Teachers. “Opponents even got George McGovern, the darling of the left, to do a 60-second anti-EFCA ad paid for by [anti-union activist] Rick Berman.”

Labor leaders still disagree about the reasons for EFCA’s failure.

Some say it’s the fault of moderate Democrats — like former Sen. Blanche Lincoln from Arkansas — who said she’d only vote for the bill if the card check provision was removed. (Lincoln lost her re-election bid to a Republican in 2010.)

Others blame Obama for not prioritizing the legislation, instead putting his energies and political capital behind health care reform.

And some say it had to do with a weak ground game from the labor movement and progressives, who never really mobilized the public enough to hold Congress and the president accountable. “There was this ‘Hey we just got you elected and now you owe us’ way of thinking about the world,” said Ken Jacobs, chair of the Labor Center at the University of California, Berkeley. “Obama at some point said, ‘You’ll have to make me do it,’ and that was not taken seriously to the degree it needed to be. To do something that will significantly shift power relations in the U.S. cannot be done quietly as a negotiated deal, it cannot happen without a loud clamor for it. It needs to be big enough and presented in ways people can understand.”

Block, the former lawyer to Kennedy in the Senate, doesn’t think Obama’s lackluster advocacy really made much of a difference. In fact, she said, some version of EFCA probably would have gotten through, but the final blow came when Senate Democrats lost 60 votes following Kennedy’s death. When the Massachusetts Democrat died of brain cancer in August 2009, he was succeeded by Republican Sen. Scott Brown, and the filibuster majority was no more, and EFCA never came up for a vote again.

The cost of losing EFCA was devastating, said Block. “We had put all of our eggs in that legislative basket and we didn’t win. And we really haven’t seen fundamental labor law reform since then.”

Carrie Gleason, who directs the Fair Workweek Initiative at the Center for Popular Democracy, said EFCA would have generated momentum to do even more, but after it failed, “the labor movement lost steam on a broader agenda.”

Though it was unsuccessful, Nayman, who is now retired, thinks the movement to pass EFCA alarmed and energized mainstream Republicans, who were suddenly fearful that unions might dramatically boost their membership, thereby increasing Democratic power throughout the United States.

“Right-wing funders capitalized on that and said, ‘Let’s never be put in this position again, let’s go after their money,’” said Nayman, who draws links between EFCA’s failure and Wisconsin Gov. Scott Walker’s subsequent rise to power, which came in part as a result of his focus on weakening public sector unions.  “When you aim to shoot the king, you better kill him, and with EFCA that didn’t happen,” Nayman said. “Every action has a reaction.”

“During the EFCA fight, I think there was a lot more energy on the business side, it felt like there were more people being brought in to canvass against it than there was union rank-and-file being brought to pressure Congress,” reflected Lawrence Mishel, who led the Economic Policy Institute, a pro-labor think tank in D.C., for decades until his retirement in December.

One consequence of failing to pass anything major on the federal level was a shift to state and local labor organizing — turning to city councils, legislatures, and ballot initiatives. The Fight for $15, for example, took off in 2012 and over the next five years, led to a wave of successful efforts to raise the minimum wage, pass fair scheduling bills, paid sick days, and paid family leave.

“A lot of us looked at the Fight for $15 in the beginning and thought they were out of their minds,” said Jacobs. “But they ended up changing the whole debate, in part by going out with clear, bold demands everyone could understand.”

But one result of all those local gains has been a push by Republicans in states to pass “preemption” laws, which prohibit local governments from passing laws on certain issues, effectively blocking cities from passing progressive legislation. “We’ve made tremendous gains, but with Republicans pushing for national preemption, everything is at risk if we don’t organize and build power in Congress,” said Gleason.

A Better Deal and Beyond

In 2017, a group of prominent congressional Democrats, including Senate Democratic Leader Charles Schumer and House Democratic Leader Nancy Pelosi, unveiled a package of labor reforms, under the banner “A Better Deal for American Workers.” The package includes ideas to strengthen the right to strike (by banning the permanent replacement of striking workers), push for mechanisms to ensure employers negotiate a first contract with unions (similar to what was proposed in EFCA), and ban so-called right-to-work laws, which have allowed workers to shirk paying fees to unions that represent them.

Mishel, the recently retired economist, called the Better Deal ideas “seriously bold” and Jacobs of UC Berkeley agreed, adding that the proposals seem to reflect “a much deeper understanding” among Democratic leadership and Democratic thinkers of what ultimately needs to be done. (Card check is notably not included in the list of Better Deal proposals.)

Also on the table is a bill called the Workplace Action for a Growing Economy Act, backed by the labor federation AFL-CIO. The WAGE Act would make it easier for workers to organize, stiffen penalties against employers who violate labor law, and give workers the right to file discrimination lawsuits if they’re punished for union activity.

At AFL-CIO’s convention in October, the union passed a resolution pledging to protect workers’ right to organize, heighten employer penalties, make negotiating first contracts easier, and protect immigrant workers from exploitation and retaliation.

Damon Silvers, director of policy and special counsel at AFL-CIO, told The Intercept that the group’s immediate strategy is to focus on those four planks and push for the WAGE Act, ultimately launching a longer-term conversation about what more fundamental change is needed.

The looming question is whether these ideas are enough to confront the challenges faced by working people in 2018. Most labor experts agree that if these proposals had passed back in 1978, when Hatch famously filibustered attempts at reform, economic inequality could look very different today. But what about now?

Larry Cohen, Our Revolution board chair and former president of the Communications Workers of America, said labor should aim higher, since no Republican would vote for any of the Better Deal ideas anyway. “If our frame is collective bargaining, how does that look in the rest of the world, and why do we come up short?” Cohen asked, noting that it’s much harder to bargain collectively in the United States compared to many other democratic countries. “Everyone lectures us about the global economy, and we need to lecture back,” he said.

In the meantime, labor is sliding backward. The Supreme Court will issue a decision later this year that could severely weaken public sector unions, and President Donald Trump’s National Labor Relations Board is doing its very best to overturn critical pro-worker decisions issued during the Obama era. And, because the basic structure of the National Labor Relations Act hasn’t changed much since it was first established in 1935, employers have had decades to develop new legal strategies to weaken the law; their strategies include forced arbitration and misclassifying workers as independent contractors.

A number of creative proposals have been floated recently — and might attract attention from progressive legislators looking for ways to stand out in a competitive 2020 primary.

Among these ideas include a push to end at-will firing, and a call for workers to demand their rights be treated as constitutional rights. “I think this frame is very helpful to talk about the core of what it means to have more of a say at your job,” said Gleason. “The right to free speech at work, the idea that your employer can’t just fire you because they don’t like you or because you spoke up about your beliefs. … I think people in America don’t really realize how powerless they are at their jobs until it’s too late.”

Other ideas include exploring so-called sectoral labor standards — where workers across entire industries, such as all finance workers or all retail workers, bargain collectively. Sectoral bargaining has been an important lever for workers in countries like France, Germany, and Brazil. Right now in the United States, workers collectively bargain with their individual employers, but sectoral bargaining would mean negotiations could take place industry-wide.

“If there’s anything we’ve learned from the Fight for $15 and a union is that the need for real transformative demands are important,” said Sarita Gupta, executive director of Jobs With Justice. “People want demands that are worth the risk.” Gupta’s group is exploring proposals like the idea of universal family care and “co-enforcement,” under which community-based organizations would partner with workers to help enforce progressive labor laws.

Jacobs said pushing for joint-employer liability, meaning pushing legislators to end corporations’ ability to shirk legal responsibility through franchising, also needs to be on the table. While the NLRB under Obama started to address this issue through a critical decision issued in 2015, the NLRB reversed the ruling last month, making it once again extremely difficult to hold corporations liable.

Nayman hopes to see a greater willingness among progressives to reach out to moderate Democrats on labor reform. “I would not start my conversation with Bernie Sanders or Sherrod Brown, I would start with the Blue Dogs, because you’re going to need them too,” he said. “Rather than treating moderates as enemies and sellouts, recognize that we’ll need them on board for this.”

“The lesson [from EFCA] is you don’t wait until the wave hits, you begin to work when times look tough,” added Bill Samuel, director of government affairs at AFL-CIO. “So we’ll begin drafting and introducing legislation, which we’ve done in terms of the WAGE Act, and we’re going to work on getting support from members and candidates.”

Unions should precondition endorsements for candidates on a commitment to support the WAGE Act, he added. “The lesson is get to work, regardless of the political environment you’re in, build support, awareness, and be ready.”

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.”

 

Fining Teachers for Switching Schools

Originally published in The American Prospect on November 3, 2016.
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Last month, the Massachusetts Teachers Association reported on the story of Matthew Kowalski, a high school history and economics teacher who received a $6,087 bill over the summer from his former employer—a suburban charter school in Malden, Massachusetts. Kowalski had worked at the Mystic Valley Regional Charter School for seven years, but with three young children and another one on the way, he said he wanted to find a teaching job that would offer something more stable than at-will employment.

Mystic Valley now seeks to collect thousands of dollars in “liquidated damages” for Kowalski’s departure. Every spring, the charter school requires its employees to sign one-year contracts for the following school year, but since many new teaching positions don’t open up until May, June, and July, this puts teachers in a tough position if they want to consider looking for alternative jobs. Kowalski signed Mystic Valley’s 2016-2017 contract in April, got a job offer from a traditional public school in May, and gave the charter written and verbal notice by May 20. Mystic Valley then hired Kowalski’s replacement, whom Kowalski trained. Two months later, his $6,000 bill arrived. It didn’t take long for Kowalski to learn there were others who had faced a similar fate. MTA Today reported on another teacher who had worked at Mystic Valley for four years, who was billed $4,900 in “damages” for giving notice over the summer.

As MTA’s legal division worked to help the former Mystic Valley teacher fight these charges, Kowalski’s attorney stumbled upon something surprising: Mystic Valley employment contracts included non-compete provisions, prohibiting teachers from working in any public or private school in any of the six “sending districts” near the charter school. Though charters are often framed as a way to induce competition into American schools, non-compete agreements—which have grown increasingly common in the private sector—make clear that some charter employers don’t believe that schools should compete for teaching talent. Nor is it clear that the agreements are even legal, or enforceable.

Just how common contracts like these actually are remains a mystery, but they’re not just limited to Mystic Valley.In 2015, the Akron Beacon Journal found that Summit Academy Schools, the largest charter network in Ohio, sued nearly 50 former teachers in a three-year period for leaving for other jobs. Summit Academy schools have non-compete provisions in their employment contracts.

“Summit Academy’s legal team filed [lawsuits] against as many as eight [former teachers] at a time,” the Akron Beacon Journal reported. One such teacher was Joel Kovitch, who quit in 2013 to take a higher-paying position. He gave his notice one month into summer vacation, and thought there’d be plenty of time to replace him. He ended up paying Summit Academy $1,200 after growing tired of fighting the legal battle.

The American Prospect also reviewed an employment contract for a charter school within the Constellation Schools network, another Ohio charter chain with 17 campuses throughout the state. The contract requires teachers to work for one year, to have no expectation for employment beyond that, and to pay their school $2,000 in liquidated damages if they terminate their employment at any time before their contract expires. The Constellation contract says this is not a “penalty” for leaving, but an acknowledgment that the employer “has expended considerable time and effort recruiting and/or retaining and training you to ensure you are prepared for your position, and … that such a disruption to the educational process is difficult if not impossible to calculate.”

In other words, teachers can’t expect to stay more than one year, but if they leave before one year is over, then they will need to pay their school two grand. Constellation Schools did not return request for comment.

Teachers who work at Ozark Montessori Academy, a charter school in Arkansas, also have to sign non-competes, agreeing to not “directly or indirectly … solicit, induce, recruit, or cause another person in their employ of Employer to terminate his/her employment for the purpose of joining, associating, or becoming employed with any business or activity which is in competition with Ozark Education, Inc.” The agreement lasts for two years after the teacher leaves the school, and it applies “in any area in which Employer plans to solicit or conduct business.” Charter teachers at Ozark are also required to sign confidentiality agreements that they will not directly or indirectly disclose “trade secrets” which are “used by Employer and give it an opportunity to obtain an advantage over competitors who do not know those trade secrets.”

The American Prospect contacted Ozark to inquire about their employment contract, and in regards to their non-compete requirement, a school representative said, “We pay for our teachers’ Montessori training, and since that’s such a big expense for us, we wanted in [the contract] that we’re not going to pay for a teacher’s training and then they go quit and work for someone else.”

The American Prospect reviewed a contract for another charter school in Washington, D.C., that, in addition to having a one-year non-compete provision and requiring teachers to keep “trade secrets” confidential during and after employment—including information related to the school’s “academic policies and strategies”—also requires teachers to not “create, or appear to create, a conflict of interest with Employee’s loyalty to or duties for” the school, “including, but not limited to, providing any tutoring for hire.”

This charter school also requires teachers to agree to mandatory arbitration—a process that involves waiving away your right to sue for grievances, or to contest the terms of the contract itself. The provision requires teachers to waive their rights accorded them by worker protection, civil-rights, and anti-discrimination acts, as follows:

The parties agree that … any dispute (“Dispute”) between the parties arising out of or relating to the Employee’s employment, or to the negotiation, execution, performance or termination of this Agreement or the Employee’s employment, including, but not limited to, any claim arising out of this Agreement, claims under Title VII of the Civil Rights Act of 1964, as amended, the Civil Rights Act of 1991, the Age Discrimination in Employment Act of 1967, the Americans with Disabilities Act of 1990, Section 1981 of the Civil Rights Act of 1966, as amended, the Family Medical Leave Act, the Employee Retirement Income Security Act, and any similar federal, state or local law, statute, regulation, or any common law doctrine, whether that dispute arises during or after employment shall be resolved by final, binding, and non-appealable arbitration by one arbitrator in the Washington, D.C. metropolitan area, in accordance with the National Employment Arbitration Rules of the American Arbitration Association, as modified by the provisions of this Article.

The Covenant Keepers Charter School in Little Rock, Arkansas, requires its teachers to not disclose “trade secrets” and to agree to not work for any “business or activity in competition with the charter school” for two years after leaving, in “any area in which the Employer currently solicits or conducts business, and/or any area in which an Employer plans to solicit or conduct business.” The teacher also has to agree to pay liquidated damages in the amount of “$100,000 plus court costs, litigation expenses, and actual and reasonable attorneys’ fees” if the non-compete or confidentiality agreement is breached.

No one has sought to tally how many charter schools include non-compete agreements in their contracts. Schools certainly don’t publicize them; it often requires individual teachers coming forward to alert the public to their existence. A Gainesville, Florida, elementary school teacher wrote on a legal advice forum asking whether the non-compete agreement she signed at her charter school was enforceable. A teacher at the Pennsylvania Virtual Charter School confirmed to The American Prospect that they too must sign non-compete agreements.

The Prospect reached out to the National Association of Public Charter Schools to inquire if the group promoted any kind of model charter employment contract, or if there are any provisions they specifically discourage charter schools from adopting. Vanessa Descalzi, a senior communications manager, says her group had never heard of other charter schools with practices like suing departed teachers for liquidated damages, or including non-compete, or forced-arbitration clauses.

The revelation of such provisions in charter school contracts comes at a time when the Obama administration and the National Labor Relations Board have begun to crack down on overly broad confidentiality agreements, mandatory arbitrations, and non-compete clauses. The White House says 20 percent of American workers are bound by non-compete agreements, and just last week urged state legislatures and policymakers to ban them for certain categories of workers, particularly those unlikely to possess real trade secrets.

The Economic Policy Institute says survey evidence reveals that many workers have no idea they are bound by non-compete agreements, with fewer than one in five employees consulting an attorney before signing, and only about one in ten attempting to negotiate the terms of their agreement. And as Economic Policy Institute vice president Ross Eisenbrey notes, even when workers know about the clauses, it’s a choice “between taking a job and not taking it in a tough labor market that favors employers.”

Even if such provisions are one day banned by legislatures or nullified by the courts, their current inclusion within charter employment contracts may be enough to deter teachers from taking the legal risk of moving on to a different school. This may be what the employers are counting on.

The National Labor Relations Board Says Charter School Teachers Are Private Employees

Originally published in The American Prospect on September 8, 2016
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The National Labor Relations Board issued a pair of decisions in late August, which ruled that teachers at charter schools are private employees, therefore falling under the NLRB’s jurisdiction. The cases centered on two schools with teachers vying for union representation: PA Virtual Charter School, a statewide cyber charter in Pennsylvania, and Hyde Leadership Charter School, located in Brooklyn. In both cases, the NLRB concluded that the charters were “private corporation[s] whose governing board members are privately appointed and removed,” and were neither “created directly by the state” nor “administered by individuals who are responsible to public officials or the general electorate.” The NLRB determined that a charter’s relationship to the state resembled that of a government contractor, as governments provide the funding but do not originate or control the schools.

For Donna Novicki, a seventh grade science teacher at PA Virtual, the NLRB’s decision signaled that her long wait for a union had finally neared its end. Novicki and her colleagues voted to unionize in March of 2015, but her school challenged the NLRB’s jurisdiction, and the case has been under the board’s review ever since. The votes, which were impounded after PA Virtual challenged the election, were finally counted yesterday, and the teachers voted for unionization by a 57-to-15 margin.

Novicki has been teaching for 17 years, in both charters and traditional brick-and-mortar schools. This marks her 12th year at PA Virtual. “The teachers at PA Virtual are an amazingly dedicated force,” she says. “But we work longer hours, we work more days, we carry greater student case-loads, and after all that, we get paid less than our traditional counterparts. We’re hoping for a union to better meet that compromise with the end goal of greater student success.”

The NLRB’s decisions came amidst fierce ongoing debates over whether charters are truly public schools, or tools to privatize education. Unions and charter critics say charters are happy to be “public” when it affords them state and federal dollars, but claim they are private when seeking to hide from public oversight, or to opt out of rules applicable to those in the public sector. Advocates defend charters as public schools, saying they are open to all students, free to attend, and funded by taxpayers.

To understand the significance of these recent NLRB decisions, one has to go back a few years.

In 2010, charter teachers at the Chicago Mathematics & Science Academy (CMSA) filed for union representation with the Illinois Educational Labor Relations Board. CMSA responded by saying its teachers fell under the purview of the NLRB, because their school was a privately incorporated nonprofit, governed by a corporate board. While the regional NLRB director initially dismissed CSMA’s challenge, the national labor board agreed to review the case. The National Alliance of Public Charter Schools, the most prominent national charter advocacy organization, filed an amicus brief in support of CSMA’s position, arguing that “charter schools are intended to be and usually are run by corporate entities that are administered independently from the state and local governments in which they operate.”

In a 1971 Supreme Court case, NLRB v. Natural Gas Utility District of Hawkins County, the justices deemed Hawkins County a “political subdivision”—and therefore public—by looking to see if it was created directly by the state, or administered by individuals who are responsible to public officials or the general electorate. The NLRB applied this same “Hawkins test” to the CMSA charter, and concluded in 2012 that CMSA was not a political subdivision, and thus private. While advocates sometimes say that charters’ public nature is evidenced in part by their need to comply with various laws and regulations enacted by public officials, the NLRB concluded that most government contractors are “subject to exacting oversight in the form of statutes, regulations, and agreements.”

Since 2012, the landscape has remained fairly murky for charter teachers looking to organize; charter operators have challenged the jurisdiction of both public labor boards and the NLRB, depending on which their staff is petitioning for the right to unionize.

In April 2014, teachers at the Pennsylvania Cyber Charter School—a different, but similarly named virtual charter—voted for union representation. (This school has gained notoriety because its founder and former CEO was accused and finally pleaded guilty to $8 million in tax fraud.) While Pennsylvania Cyber challenged its staff’s attempt to unionize with the NLRB, the regional director dismissed management’s challenge, citing the 2012 CMSA case as precedent.

Two months later, though, the U.S. Supreme Court issued a ruling in National Labor Relations Board v. Noel Canning, saying that President Obama’s recess appointments of three members of the NLRB were unconstitutional. This ruling called into question hundreds of decisions the labor board had recently made, including their 2012 decision related to charter school employees.

A year later, when Novicki and her PA Virtual colleagues voted for union representation, the NLRB decided not to dismiss the employer’s challenge, as it had dismissed the Pennsylvania Cyber Charter School’s challenge in 2014. In New York City, another charter case was also being reviewed; this time the teachers had tried to unionize with New York’s public labor board, and their employer, Hyde Leadership Charter School, argued that the teachers should be covered under private labor law instead. With the board’s ruling in CMSA undercut by the Court’s decision in Noel Canning, the board was returning to the question of the status of charter schools.

“The NLRB really took its time on Hyde,” says Shaun Richman, a campaign consultant who writes on labor issues, and the director of the AFT’s charter organizing program from 2010-2015. “I think that’s because the Chicago Mathematics & Science Academy precedent was vulnerable to procedural challenges and they wanted to be very clear about how they are going to rule on most charter cases. As an organizer that clarity is helpful.”

The New York teachers union fought against classifying educators as private employees, but as organizing charter schools continues to grow as a priority, the NLRB’s recent decisions offer unions some advantages. In recent years, states with anti-union Republican legislators, like Wisconsin, have significantly weakened the power of public-sector workers to collectively bargain. Under federal labor law, as long as a Democrat remains in the White House, a teacher’s right to organize is more likely to be protected.

Richman says he loves the recent NLRB decisions because they force people to ask tough questions. “Charter schools were designed to be public but at a very fundamental level they are not public,” he says. “There are very critical errors in the way the laws are designed. They decided to make these things be nonprofit corporations, and almost all the problems with charter schools flow from that essential, unnecessary decision. You want a school with autonomy over its pedagogy and hiring? There’s no reason to make it a separate corporation.”

Going forward, challenges to charter unions are likely to be resolved faster for two reasons: There are now additional NLRB precedents, meaning there is less ambiguity as to how charter teachers should be classified. (Employers can still challenge the NLRB’s jurisdiction at any point during the election process, but there’s a greater likelihood that their claims will now be dismissed.) And in April of 2015, the NLRB adopted new rules to expedite the time it takes to hold an election, while also reducing the number of ways an employer could challenge a union effort. Teachers at both Hyde and PA Virtual had voted for union representation prior to these rules going into effect, but teachers seeking unionization in future campaigns may look forward to having an easier time of it.

California’s Ed Reform Wars

Originally published in The American Prospect on August 2nd, 2016.
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This past April, the California Court of Appeals unanimously struck down the controversial Vergara v. California decision, in which a Los Angeles County Superior Court judge ruled that five longstanding teacher protections—including a two-year probationary period for new teachers and a layoff system based on how many years one’s been teaching—violated students’ constitutional right to an equal education. The lower court judge had argued that these labor protections make it harder to fire bad teachers, and bad teachers significantly undermine a child’s education. In a 3-0 decision, the appellate judges concluded that the labor protections themselves are not responsible for harming students, even if school administrators sometimes implement them injudiciously.

Students Matter, a nonprofit backed by Silicon Valley entrepreneur David Welch that’s representing the Vergara plaintiffs, has filed an appeal to California’s Supreme Court. Their supporters argue that children pay the price for such job protections as teacher tenure and seniority. They also point to research that suggests making it easier to fire teachers has positive effects on student achievement. Critics counter that the real problems students face—particularly low-income students of color—are not teacher job protections, but their under-resourced, highly segregated schools that fail to attract and retain high-quality educators. At a time when states like California face real teacher shortages, they say, the focus on firing teachers is misplaced at best.

Since the lower court’s Vergara ruling two years ago, similar suits challenging teacher job protections have been filed in New York and Minnesota.

While David Welch and his allies remain committed to waging legal battles against tenure, seniority, and other job protections, they are also pushing for statutory changes via the California legislature. Following the original Vergara decision, Republican lawmakers introduced a package of three bills to extend the time it would take a teacher to earn tenure, to repeal the “last-in, first-out” statute that makes layoff decisions based on seniority, and to establish an annual teacher evaluation system. These bills, however, got nowhere in the Democratic-controlled statehouse.

“I think the Vergara decision helped increase public demand for improvements in our education system, but I always think it’s better when we can make policy changes through the legislature rather than the court system,” says Assemblywoman Kristin Olsen, the Republican who sponsored the teacher evaluation bill.

Back during the original Vergara trial, unions and some education experts also argued against making policy changes through the courts. A spokesperson for the California Teachers Association told The Wall Street Journal that legislators were already looking at ways to amend the contested laws, and Randi Weingarten, the president of the American Federation of Teachers, said that extending the time it takes to get tenure in California is a legitimate idea, but that such changes should be done through the political process, not the judiciary.

Today, however, local unions are fighting back against attempts to change employment laws through the legislature. California is one of just five states that grants teachers tenure after two years—32 states require a three-year probationary period, and nine states require four or five years. And, as critics are quick to point out, the reality is that California administrators must file paperwork for tenure status after a teacher has been working for just 15 to 18 months if they’re to meet state deadlines. Even those who are very supportive of teacher tenure feel lengthening the amount of time it takes to earn it makes sense. Before granting genuine job security, they say, make sure it’s for an individual you’d really want in front of students for the long haul.

But the California Teachers Association and the California Federation of Teachers have both strongly opposed bills aimed at modifying tenure, even legislation from which their adversaries have withdrawn support. While the final outcome of the Vergara case remains to be seen, the unions’ firm stance against reform could help prompt tenure opponents to mount an initiative campaign—a routine occurrence in California politics. That may not bode well for the unions: A 2015 poll of registered California voters found that most respondents think teachers in their state receive tenure too quickly, and that seniority should count less during the layoff process. If changes to tenure and seniority were to come before the voters, there are decent odds that such a measure would pass.

The concept of teacher tenure in American public education, as Dana Goldstein documents in her book The Teacher Wars, was an idea originally imported from Germany. Progressive-era reformers saw that giving teachers more job security was often a good way to incentivize people to join the low-paid profession. Tenure also made it harder to fire teachers, which consequently made it more difficult for the urban political machines that then dominated cities to dole out teaching jobs as political favors.

Though teachers unions have existed in the U.S. for a long time, the idea of collective bargaining didn’t take off until the second half of the 20th century, as membership in teachers unions grew, and public sector unionism gained strength more broadly. The first teachers union to win collective bargaining rights was New York City’s United Federation of Teachers in 1963, and by the end of the 1970s, after a series of labor strikes across the country, 72 percent of public school teachers were covered under collective bargaining agreements.

As a result, teacher tenure in unionized school districts means being covered under a “just cause” provision in a collective bargaining agreement. In a non-unionized workplace, employees can be fired simply because an employer doesn’t like them. The added job security that comes with tenure means that a boss would need to legally demonstrate that firing their employee was justified—that there is “just cause” for the worker’s termination. Tenured employees also have the right to contest their firing.

Tenure critics rightly note that in many school districts, the process an administrator has to go through in order to dismiss a teacher for cause ends up being so lengthy and expensive that it can feel nearly impossible. In many cases, it’s easier, and a lot cheaper, to keep an ineffective teacher employed, rather than jump through the legal hoops to remove them. In New York City, officials who make failed attempts to terminate teachers often end up just issuing fines.

Union contracts generally distinguish between two kinds of dismissals. The first is termination for cause; for example, an administrator should be able to fire you if you’re an ineffective teacher or if you sexually harass a student. The second type of dismissal is through a layoff due to an economic circumstance—generally, cuts to school district budgets during recessions.

Many teacher tenure critics also want to end the process of “seniority”—which requires that districts make layoff decisions based on the number of years a teacher has been working. Opponents of these “last-in, first-out” statutes say that high-quality young teachers are penalized under this system, since their few years in the profession makes them more likely to be canned, regardless of their job performance. This also disproportionately hurts students in high-poverty schools, critics say, because young teachers are generally assigned to those schools.

Some states, including many that are substantially unionized, have already explicitly banned seniority when making layoff decisions, and others require teacher job performance to be the primary factor considered. Ten states—including New York and California—however, still require that the number of years a teacher has taught be a partial, or the primary factor for districts when making layoff decisions.

Defenders of seniority say that if you want to fire someone for poor performance, then do it for cause, not disguised through the layoff process. In effect, tenure and seniority work together to give employers the flexibility to lay people off when economic circumstances require it, but in a way that protects teachers from being arbitrarily targeted, or targeted because they were paid more than more junior faculty. Seniority-patterned layoffs exist specifically to protect the “just cause” rights.

“Until very recently, these rules were fairly uncontroversial,” says Leo Casey, the executive director of the Albert Shanker Institute, a think tank affiliated with the American Federation of Teachers. “They prevented older, more expensive teachers from being discriminated against during lean economic times, and administrators often appreciated the simplicity of ‘last-in, first-out’, especially because there was no consensus on how to best evaluate teachers’ performance.”

In February, before the Vergara appeals court decision came down, California Assemblywoman Susan Bonilla, a Democrat, introduced a bill aimed at finding some legislative common ground for the various employment statutes being challenged in court. While the three bills sponsored by Republicans in 2015 got nowhere, some believed an effort led by a Democrat might get more traction. Both the California Teachers Association and the California Federation of Teachers have donated to Bonilla’s campaigns.

Bonilla proposed, among other things, giving principals the option of waiting until a teacher’s third or fourth year to grant tenure, and placing poorly performing teachers in a program that would provide increased professional support. If the ineffective teacher received another low performance rating after a year in this program, Bonilla’s legislation would enable schools to fire the teacher through an expedited process. The LA Times editorial board said her bill would make the rules “more reasonable and practical, while preventing capricious or vindictive firings of teachers by school administrators.” Education reformers initially took no position on her bill, but following April’s Vergara appeals decision, Students Matter, the group that brought the case, decided to back it.

However, Bonilla still lacked support from school administrators and teachers unions, and the California Teachers Association was urging its members to fight her bill. EdSource, a nonprofit news site focused on education in California, reported that the union posted an “action alert” for teachers to call their lawmakers, labeling the proposed legislation “an all-out assault” by “corporate millionaires and special interests.”

In June, Bonilla introduced an amended version of her bill, one that would require new teachers to work for three years before becoming eligible for tenure. Her bill no longer included provisions to create a new teacher evaluation system, to require teachers with poor performance reviews to be laid off before those with less seniority, and to remove many of the dismissal rules that administrators found frustrating. In an interview with The American Prospect, Bonilla explained that she needed to narrow her legislation’s scope because that’s what the Senate Education Committee requested. “They are looking for policy change, but my original bill was too wide-ranging,” she says.

Despite being significantly watered-down, the bill was still opposed by the unions, while the education reform groups that originally offered support came out in strong opposition, too. However, the Association of California School Administrators and the California School Boards Association now came forward with endorsements of the amended legislation.

“In my opinion, I really needed administrators’ support. That’s why we took LIFO [last-in, first-out] completely out and worked with the superintendents and the school board association to craft a version they could back. They’re part of the education community, they really understand what needed to be changed,” says Bonilla. The Association of California School Administrators is listed as one of Bonilla’s top campaign contributors.

Students Matter called the amended bill “a bad deal for California students” and urged members of the California legislature to reject it.

“The reform groups wanted everything, and some wanted everything but only if it was written exactly by them,” says Bonilla. “They didn’t want to come on board if it didn’t come out of their house.” She says Students Matter, and another reform-oriented group, Teach Plus, withdrew their support when her legislation no longer addressed seniority.

“If I had to choose who I was going to go with, I’d choose the administrators, the people actually running the schools. That was my priority in terms of really getting sound policy,” says Bonilla.

The California Teachers Association called upon its members to organize against the amended bill, saying it would take rights away from educators, and negatively impact students.

On June 29, the California Senate Education Committee held a hearing,ultimately rejecting Bonilla’s amended bill. Just two of the committee’s nine senators voted in favor—and both are terming out in November. (Five opposed it, and two others didn’t vote.)

“I do feel that at least having the hearing on the bill, which went on for about an hour and a half, was really important,” says Bonilla, who is also leaving office in November. “I felt it was important, as a Democrat, that I stand up and say, we as legislators have an obligation to our constituencies to find a solution and not pretend that the status quo is alright, just because the union says it is.”

One senator to vote in favor of Bonilla’s bill was Carol Liu, the chairwoman of the education committee. Liu told Bonilla that she could amend her bill further over the July recess period if she wanted to try and get more support. Bonilla took Liu up on this and submitted a new version that does not extend the time it takes a new teacher to earn tenure. All Bonilla’s latest version does now is grant school districts the authority to negotiate an alternative dismissal process with their local bargaining units, if they so choose. Right now, under California state law, local bargaining units are prohibited from negotiating the terms of their dismissal process. In 2014, the teachers union in San Jose tried to do this, and asked the California state board of education for a waiver so they could extend their probationary period to three years. But the state board denied the San Jose school district and its union their request. (The California Teachers Association argued that such changes should only come from the state legislature, not through waivers.) Bonilla’s twice-watered-down bill, then, would make such a change.

As of August 1st, it was still unclear whether Bonilla’s new bill would receive a waiver and come up for a re-vote. The American Prospect was unsuccessful in getting an interview with the California Teachers Association, despite repeated attempts over several weeks.

I asked Josh Petchalt, the president of the California Federation of Teachers, why his union opposed Bonilla’s amended bill in June. Wasn’t a one-year extension of the probationary period a fairly good compromise?

Petchalt, though, does not think the tenure law needs to be changed, and believes changing it would not solve the underlying issue of how tenure is assessed. “I think all the commotion about making it three years or five years really misses the point about what it means to have a rigorous procedure for evaluating teachers,” says Petchalt, who taught high school for more than two decades. “I don’t think it takes very long to decide if an adult should be working with kids. I think it happens relatively quickly if that person is being observed on a regular basis by properly trained administrators who know what they’re doing.”

Some leading academics share Petchalt’s assessment. During the Vergara trials, Jesse Rothstein, an economics professor at UC Berkeley, testified that two years was long enough for principals and school administrators to determine whether or not to award tenure. He cited his own research, which suggests that granting tenure earlier, rather than later, is better for students. Rothstein also argued in favor of using seniority to handle layoffs, which he says is a less costly, subjective, and controversial method than using annual performance evaluations.

If Bonilla’s revised-again bill, which has been stripped of its probation provision, comes up for a revote, she says she really hopes there will be “three courageous legislators” who will vote for its passage. “Allowing a union to bargain locally is not an anti-union position,” Bonilla says.

If her amended bill does not pass, or even if it does, the education reformers may seek to place an initiative on the 2018 ballot. Bonilla says she’s heard that there already been some money raised to start that effort.

If such a measure is placed before voters, I asked Petchalt, wouldn’t it look bad to oppose a bill that wouldn’t end seniority, wouldn’t end tenure—just merely extend the probationary period to three years, which is how long it takes in most states anyway?

“I don’t doubt that the optics are not great, but our members spend a career in the classroom, they are committed to public education, to children, and so it’s not good enough to say well there’s an element of goodness in this specific bill if the overall effect would make things worse,” he says. Petchalt points to the Vergara trial, and the broader political effort to weaken teachers unions and collective bargaining. At a time when public sector workers are under attack, when public education is under attack, he says, his union feels compelled to fight back against “a broad narrative.”

“The teachers union supported No Child Left Behind and it got them nowhere,” Petchalt adds. “And they supported [NCLB] for exactly what you’re saying, they didn’t want to be seen as folding their arms and being opposed to everything. [Some union leaders] said if we support [NCLB], then they’ll stop their attacks. But it furthered the attacks, creating a dynamic that resulted in very bad things happening.”

Petchalt is probably right to suspect that even if his union and the CTA backed Bonilla’s bill, even if union leaders agreed to change the probationary period to three years, education reformers would be unlikely to stop fighting for more concessions. In Pennsylvania, where teachers are eligible for tenure after three years, reformers are pushing to extend it to five years, insisting that three years is too short. In this political climate, unions have decided that ceding no ground and putting forth alternatives is preferable to compromising and hoping the disputes get resolved.

Whether this is the most strategically savvy move, though, is unclear. A survey released in 2012 of 10,000 educators found that, on average, teachers felt it was reasonable to work 5.4 years before being evaluated for tenure. Another survey released in 2015, sponsored by the pro-reform group Teach Plus, found that 65 percent of California teachers think that a probationary period between three and five years makes sense for administrators making tenure decisions.

“In California, when legislators can’t come up with a solution, it ends up going on the ballot,” says Bonilla, who worries about lawmakers abdicating their responsibilities, and the electorate voting on issues they’re not well informed about. “We as legislators have to be the ones to demand that the reformers and the centrally-controlled unions be reasonable. There is no one else who is going to do it.”

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.”