Public Unions Research Articles

Prosecutors and Police: An Unholy Union

In mid-December 2018, assistant prosecutors of St. Louis County in Missouri voted to join their local police union, the St. Louis Police Officers Association. This move has been largely interpreted as a sign of opposition to new elected prosecutor and reformer Wesley Bell, who opposes the death penalty and has expressed a desire to eliminate cash bail. This complete and public union of prosecutorial and police interests represents a collapse not only of prosecutorial ethical standards, but also a very real threat against democratically elected prosecutors who would seek to enact the reforms that their constituents desire. Such unions between prosecutors and police must, if not categorically prohibited, be viewed with great suspicion and caution for a number of reasons, including 1) anti-reformist political lobbying that prosecutors frequently engage in but frequently deny exists; 2) conflicts of interest, and 3) what might be characterized as horizontal separation of powers problems. It is not, however, only formalized labor unions comprised of police and prosecutors that should be causes of concern. Many scholars, both legal and criminological, have focused on the power of both police and prosecutors and their inimical influence on the criminal justice system and on the communities that they often detrimentally harm. This Article is not only the first to examine the unionization of prosecutors and police, but also the first to contextualize such a formalized relationship in a spectrum including other, more casual connections, such as job affiliation groups, friendships, and even romantic liaisons. This Article also proposes a novel approach to prosecutorial cultural change, looking to examples from industries such as aerospace and medicine for interventions and inspiration. Future Articles will explore in greater depth why allowing prosecutors to unionize, even apart from involvement of other public safety unions, would have a negative impact on the public interest, and why prosecutors and police forming tighter bonds may negatively impact case investigation and operational policy.

Janus, Union Member Speech, and the Public Employee Speech Doctrine

In Janus v. American Federation of State, County, and Municipal Employees (“AFSCME”), the Supreme Court held that public sector unions can no longer collect fees from nonmembers to fund the costs of representing them in collective bargaining and grievance proceedings. The Court determined that virtually all union speech is political speech and that collection of these fees is impermissible compelled speech under the First Amendment. However, not everything in Janus harms public union interests. The Janus Court’s discussion of Garcetti v. Cabellos and Connick v. Myers actually helps protect union member speech in the context of First Amendment retaliation cases. This Article argues that, after Janus, speech by union representatives on behalf of their union is not “employee speech” under Garcetti and is almost always a matter of public concern under Connick. Further, this Article argues that ordinary union member speech and union grievance filings are not “employee speech” either. In support of the latter, this Article also looks to the Supreme Court’s decision in Lane v. Franks as well as the nature of union membership generally.

The Representation Of Interests In The Mechanism For The Legal Regulation Of Environmental Relations: Certain Aspects

The article is aimed at studying the legal means (ways) of representing (formalizing) interests in the mechanism for the legal regulation of environmental relations.
 The conclusion is reached that it deems reasonable to pose a question about an optimal correlation between interests, i.e. about their sound compromise, not a balance between them, since the latter requires balancing them out which is neither factually, nor legally possible.
 One characteristic feature of environmental law is its simultaneous use of a permit-based way of the legal regulation by granting the corresponding rights and introducing prohibitions. It contributes to developing a rigid model of the behaviour between the subjects of environmental relations.
 One of the criteria determining the degree of the efficiency of the mechanism for the legal regulation of a certain type of relations is, among others, taking a full account of the interests of the subjects of this type of relations by means of representing (formalizing) these interests in legislation, their juridization. There exist several ways aimed at formalizing environmental interests: 1) permits, concerning only citizens and public unions, i.e the powers provided for by the environmental rights of the subjects of environmental law; 2) obligations - prescriptions binding on persons to be fulfilled, designed for state authorities, subjects of economic relations, citizens and their unions; 3) proscriptions.
 All of the components of the environmental law mechanism described in the article are complex in terms of their procedure and, in fact, constitute the public law mechanism being aimed at ensuring mostly public environmental interests. Furthermore, its implementation will definitely involve influencing private, often nonenvironmental interests, which should also be taken into consideration. This is what constitutes the very purpose of the environmental law mechanism as a comprehensive coherent system of normatively established measures and requirements, actions and processes aimed at gradually and effectively achieving the objectives of environmental law. This objective lies in developing environmental law and order as a guarantee for the fulfillment of the constitutional environmental rights and nature conservation, including the objective of conserving biodiversity.
 Considering the dynamic nature of the development of environmental and other relations with regard to the possibility of the direction of the interests of the subjects of these relations being changed, it deems necessary to reconsider the nature and content of those legal means that constitute the environmental law mechanism.

The Recent Evolution of Wisconsin Public Worker Unionism since Act 10

This paper examines the experience of four major public sector unions in Wisconsin since the passage of Wisconsin Act 10 in 2011. The four unions are the American Federation of State, County and Municipal Employees (AFSCME), the American Federation of Teachers (AFT-Wisconsin), the Service Employees International Union (SEIU), and the Wisconsin Education Association Council (WEAC), an affiliate of the National Education Association. Wisconsin’s prior legal framework for public sector collective bargaining is explained and compared to the new highly restrictive framework established by Act 10. That new framework, established by state legislation, is analyzed, as are its impacts on the membership, revenues, structures, and practices of the four unions. In general, we find the impacts to have been very dramatic, with a loss of active union membership averaging approximately 70 percent overall, and concomitant dramatic losses in union revenues and power. These shocks have engendered the restructuring of two of the unions examined, the downsizing of the third, and the de facto exiting from the state’s public sector in another. There have also been significant changes in representation practices in one union, but less so in the others. We conclude by discussing best union practices based on this experience, as well as considering what the recent public sector union history in Wisconsin may portend for public worker union membership nationwide, since the issuing of the Janus Decision by the U.S. Supreme Court.

State Pension Accounting Estimates and Strong Public Unions

ABSTRACTConcerns are commonly raised that strong public unions extract generous pension benefits from state governments and are the cause of states' burdensome pension obligations. Prior research (Anzia and Moe 2015) finds evidence supporting such concerns. Consistent with incentives to minimize such perceptions, our findings suggest that state pension plans with stronger public unions select higher discount rates to improve reported funding levels. While riskier asset allocations are used to support the higher discount rates (which equal the expected return on the plan assets), most of the higher rates appear opportunistic. In addition, consistent with a desire to avoid drawing attention to persistent plan underfunding, our evidence indicates that stronger union plans are less likely to select longer amortization periods to recognize pension deficits when underfunding is larger. We do not, however, find evidence for asset smoothing periods being used to delay the recognition of investment losses on plan assets. Together, our findings suggest that stronger union plans take steps to make their pension obligations look less burdensome to the public.

Streetlaw – assisting access to justice in the Employment Tribunal: A practice report

<p>If you have not yet read the judgment of Lord Reed in the Supreme Court decision of Unison v The Lord Chancellor, please allow yourself a little time over the coming weeks to enjoy a clear and evidence-based statement on access to justice in the employment tribunals of England and Wales. The case was brought by Unison, the UK public workers union, and challenged the introduction in July 2013 of the requirement to pay a fee to lodge an employment tribunal claim. Having reviewed some of the key common law authorities and quoting from the Magna Carta and Donoghue v Stevenson no less, Lord Reed concluded that the fee regime was unlawful “because it has the effect of preventing access to justice”. This landmark decision in July 2017 brought an immediate end to the fee regime. Time will tell whether the UK Government will attempt another fee scheme in the future, but there are other more pressing issues occupying Whitehall at the moment.</p><p><br />The four-year fee regime and the Unison challenge brought access to justice in employment tribunals very much into the public eye. Other barriers to access were also widely discussed and reported, including the lack of legal aid and legal representation for claimants in employment law matters. A number of law clinics and pro bono schemes operate to give guidance and advice to the public, in addition to the essential work of ACAS (the Advisory, Conciliation and Arbitration Service). The purpose of this paper is to share with you my experience of a university student Streetlaw project at the Cardiff Employment Tribunal providing guidance to unrepresented claimants about tribunal practice and procedure.</p><p><br />The concept of Streetlaw is familiar to readers of this Journal as a form of public legal education aimed at helping members of the public to understand their rights. It is also frequently referred to as “legal literacy”, the importance of which Richard Grimes explains in a previous edition of this Journal. The key aim of our Streetlaw project is to educate potential claimants about what to expect in the run up to their employment tribunal hearing and what happens on the day. As I shall explain, however, there are a number of secondary aims and several other beneficial outcomes.</p>

State Pension Accounting Estimates and Strong Public Unions

Concerns are commonly raised that strong public unions extract generous pension benefits from state governments and are the cause of states’ burdensome pension obligations. Prior research (Anzia and Moe 2015) finds evidence supporting such concerns. Consistent with incentives to minimize such perceptions, our findings suggest that state pension plans with stronger public unions select higher discount rates to improve reported funding levels. While riskier asset allocations are used to support the higher discount rates (which equal the expected return on the plan assets), most of the higher rates appear opportunistic. In addition, consistent with a desire to avoid drawing attention to persistent plan underfunding, our evidence indicates that stronger union plans are less likely to select longer amortization periods to recognize pension deficits when underfunding is larger. We do not, however, find evidence for asset smoothing periods being used to delay the recognition of investment losses on plan assets. Together, our findings suggest that stronger union plans take steps to make their pension obligations look less burdensome to the public.

Supreme Court Holds Public Union Nonmember Forced Speech Subsidy Unconstitutional

The US Supreme Court, on June 27, held that a public union's extraction of “agency fees,” a euphemism for a percentage of union dues to be expended in furtherance of certain collective bargaining activities, from nonconsenting public‐sector employees is a violation of the employees' free speech rights (Janus v. American Federation of State, County, and Municipal Employees, Council 31). This holding necessitated an overruling of a 1977 Supreme Court decision (Abood v. Detroit Board of Education).

Bread and Butter or Bread and Roses? Experimental Evidence on Why Public Sector Employees Support Unions

Despite their decline, unions, and especially public unions, remain important associations. Yet we do not have a good understanding of why workers voluntarily support and join unions. We report on a field experiment conducted during a 2017 Iowa teachers union recertification election. We randomly assigned union members voting in the election to receive emails describing union benefits and measured effects on turnout effort (N=10,461). Union members were more likely to try to vote when reminded of the professional benefits — but not legal protections or political representation — their union offered. A follow-up survey identified the specific benefits that members most valued and why. In a context where union membership and support is voluntary, our findings emphasize the importance of selective professional benefits. Our results have broader implications for understanding the American labor movement and civic participation. They suggest that public-sector unions may face a tension between political activities and offering excludable workplace benefits.

Editorial Note

Editorial Note

Life After Janus

The axe has finally fallen. In Janus v. AFSCME, Council 31, the Supreme Court struck down the major source of financial security enjoyed by public sector unions representing nearly half of the nation’s fifteen million union members. Countless press stories, law review articles, and amicus briefs have criticized and defended this outcome. This Article has a different aim. Rather than re-litigating Janus, the question I ask is instead forward-looking: What’s next? Is there life for public sector unions after Janus? And if so, what might it look like? In engaging these questions, this Article has three goals. First, I want to push back on the narrative that public unions have no choice now but to struggle on within a national right-to-work environment. That is certainly one possibility, but pro-labor states have available a range of legislative responses that may soften Janus’s blow or even negate it altogether. One response is for pro-labor states to authorize public employers to reimburse unions for their bargaining-related costs directly. The standard objection is that direct government funding will undercut unions’ ability to advocate independently for workers. My second goal is to confront this objection head-on, with an argument that draws on an unlikely source: an analogy between public unions and public defenders. As it turns out, America’s woeful experience with indigent criminal defense teaches some powerful lessons about how not to fund entities whose entire purpose is to contest the government’s narrow self-interest. But it also suggests funding approaches that would raise no independence concerns at all. That leads to my final and most significant objective: to propose model legislation for state lawmakers to implement direct reimbursement of unions. The proposal is revenue neutral for public employers and unions, and it is revenue enhancing for workers in light of nuances in the federal income tax. Readers interested in the nuts and bolts of the proposed legislation may wish to skip the first three parts of this Article (which make the case for why reimbursement is desirable) and start at Part IV on page 43. For convenience, a model bill is included in the appendix.

Political Embeddedness of Public Pension Governance: An Event History Analysis of Discount Rate Changes

AbstractState governments are frequently said to manipulate the discount rate assumption to make pension funding look better, reduce employers' and employees' pension contributions, or relieve fiscal stress. Building a model from the political embeddedness perspective and applying an event history analysis to the 81 largest state‐administered pension plans in the United States, the authors found that more politically embedded pension boards were actually more likely to reduce their plan's discount rate. Public union coverage and government political ideology, however, had no significant impact on discount rate changes. These findings reveal the effect of political embeddedness on pension planning decisions and provide useful insights into the intricate process of setting pension discount rates in a new era of more muted investment return expectations. This article points to both political and financial pressures facing pension boards and state governments for many years to come.

How to Undo Janus: A User-Friendly Guide

This short white paper explains how progressive states can undo the disruptive effect of the Supreme Court's decision invalidating public union fair share fees in Janus v. AFSCME, Council 31. Put succinctly, lawmakers can amend state law to permit government employers to reimburse unions for their bargaining-related expenses directly. Such an amendment would be revenue neutral for government employers and unions, and it would result in a net increase in take home pay for public sector workers (on the order of $200 per year for an unmarried worker making $50,000). The paper describes how this approach would work, considers major objections, and proposes model legislation for lawmakers to consider. A more detailed discussion of all of the issues implicated by this proposal can be found in a full-length companion article entitled, Life After Janus. (Version History: This is v2.0 of this white paper, posted on 7/30/18. An earlier version (6/27/18) can be obtained from the author via e-mail).

Policy Feedback as Political Weapon: Conservative Advocacy and the Demobilization of the Public Sector Labor Movement

Scholars have shown that once in place policies can foster greater political participation. Indeed, politicians often deliberately design policies to shore up political support among their allies. But can political actors engineer the reverse effect, crafting policies that demobilize their rivals? Drawing on the example of conservative cross-state advocacy against public sector unions, I describe the strategy of policy feedback as political weapon, or when actors design policies to politically weaken their opponents. I then document that the passage of conservative network-backed legislation led to large and enduring declines in public sector union density and revenue. I further show that by curbing the power of public unions, the passage of conservative network-backed bills dampened the political participation of public sector employees. My findings emphasize the importance of considering how actors use policy to demobilize political opponents and explain why public unions are now on the defensive in state politics.

The Judiciary and Fiscal Crises: An Institutional Critique

Scholars have long debated the role for courts with respect to governmental action that responds to crisis. Most of the crises analyzed, however, are exogenous to the political process; the courts’ role in response to politically endogenous crises has received less attention. We evaluate the role of the judiciary in a subset of those endogenous crises: the judicial treatment of governmental efforts to resolve the crisis facing underfunded public pensions. Assessing institutional competence schematically with reference to an institution’s democratic accountability and fact-finding ability, we argue that, where institutions function properly, judicial intervention in politically endogenous economic crises should be close to nonexistent. But when they must occur — and, consistent with doctrines of justiciability, some adjudication of governmental action in the fiscal context will be inevitable — we argue that such intervention should respect the judiciary’s comparative institutional incompetence by treading lightly, constitutionally speaking: where the relevant law allows discretion, and where a non-constitutional determination is possible, courts addressing the state’s fiscal policy-making apparatus should avoid constitutional pronouncements entirely. After developing a preliminary framework for assessing this decision rule, we apply it to a hard case (where the statute and contract is silent as to whether executory pension contracts are subject to constitutional protection against modification) and an easy case (where there is a reservation of rights for that very modification). Unfortunately, courts have erred in both the hard and easy cases; our framework explains why the law is not only consistent with our decision rule, but why comparative institutional competence compels the result. In both the easy and the hard cases, the point is not to promote or demote the interests of a single class or faction active within the fiscal policy-making process — whether bondholders, public unions, taxpayers, or the government — but to locate that policy-making process within the most democratically responsive and empirically competent institutions. With this framework, we evaluate the recent effort of the San Jose Superior Court to address these issues. We conclude that the court got the easy case exactly wrong.

Acceptability and Feasibility of a Shared Decision-Making Model in Work Rehabilitation: A Mixed-Methods Study of Stakeholders' Perspectives.

Purpose To establish the acceptability and feasibility of implementing a shared decision-making (SDM) model in work rehabilitation. Methods We used a sequential mixed-methods design with diverse stakeholder groups (representatives of private and public employers, insurers, and unions, as well as workers having participated in a work rehabilitation program). First, a survey using a self-administered questionnaire enabled stakeholders to rate their level of agreement with the model's acceptability and feasibility and propose modifications, if necessary. Second, eight focus groups representing key stakeholders (n = 34) and four one-on-one interviews with workers were conducted, based on the questionnaire results. For each stakeholder group, we computed the percentage of agreement with the model's acceptability and feasibility and performed thematic analyses of the transcripts. Results Less than 50% of each stakeholder group initially agreed with the overall acceptability and feasibility of the model. Stakeholders proposed 37 modifications to the objectives, 17 to the activities, and 39 to improve the model's feasibility. Based on in-depth analysis of the transcripts, indicators were added to one objective, an interview guide was added as proposed by insurers to ensure compliance of the SDM process with insurance contract requirements, and one objective was reformulated. Conclusion Despite initially low agreement with the model's acceptability on the survey, subsequent discussions led to three minor changes and contributed to the model's ultimate acceptability and feasibility. Later steps will involve assessing the extent of implementation of the model in real rehabilitation settings to see if other modifications are necessary before assessing its impact.

МОЛОДЕЖНЫЕ ОБМЕНЫ КАК ОТРАЖЕНИЕ ИНТЕГРАЦИИ СТРАН — УЧАСТНИЦ ШАНХАЙСКОЙ ОРГАНИЗАЦИИ СОТРУДНИЧЕСТВА

Development of the youth exchanges is directly connected with the increasing of the level of competency of scientific and public unions in the field of comprehensive humanitarian cooperation between the Shanghai Cooperation Organization countries and questions of the youth mobility, i.e. promotion to the objective perception of actual contemporary social –economic, social-political, scientific and cultural transformations. The goal of the paper is the evaluation of condition and perspectives of development of the youth exchanges between the Shanghai Cooperation Organization countries (Russia, China, Kazakhstan, Kyrgyzstan, Tajikistan, and Uzbekistan). In the frameworks of sociological research, we realized a random sample survey among participants of youth exchange programs (n = 449). As a result, we revealed that the most popular among youth are programs of cultural exchanges and youth policy, realized in the Shanghai Cooperation Organization countries, as a rule. The youth’s intentions are connected with Russia — the most of young people, representatives of the Shanghai Cooperation Organization countries, plan to participate the exchange programs in Russia. In comparison with the young people from the Shanghai Cooperation Organization countries, the Chinese youth have more evident migration potential and will probably become general target audience of future youth exchanges with Russia. Authors obtained objective data about factors of development of the youth exchanges between the Shanghai Cooperation Organization countries that could be used to correct the plans and choose methods and forms of work on development of youth exchanges, development of effective management decisions, forecasting of the Youth Organization of the Shanghai Cooperation Organization countries.

Rectors’ Forum of Higher Educational Institutions of Ukraine and Poland

The article reports on the activities of the regular Forum of Rectors of Higher Technical Educational Institutions (HTEI) of Ukraine and Poland held at Igor Sikorsky Kyiv Polytechnic Institute. The Association of Rectors of Higher Technical Educational Institutions is a trustworthy public union. The most important achievement in its activities is the development of different methods for Ukraine’s access into European education environment. The author also underlines that the Association cooperates with leading enterprises, which enables it to encompass a vast array of common problems of higher technical education. Heads of higher technical educational institutions of Ukraine and their colleagues from Poland considered the current state, opportunities, and prospects of expanding cooperation, common challenges of Ukrainian and Polish higher technical education and way for addressing them. In the course of the discussion on European accreditation of engineering education, representatives of Ukraine and Poland signed relevant memoranda of understanding. On behalf of Ukraine, Igor Sikorsky Kyiv Polytechnic Institute offered a commitment to internationalisation and described all its elements and processes. The Forum also paid attention to the importance of international activities for an educational establishment, systemic integration of the international aspect into educational and scientific activities of a university, etc. The Forum of Rectors of Higher Technical Educational Institutions of Ukraine and Poland ended with a great concert bringing together the best performance ensembles of universities of Poland and Ukraine. Within the framework of the Forum, a special joint meeting of the Association of Rectors of HTEI of Ukraine and Conference of Rectors of Technical Universities of the Republic of Poland took place. During the Forum, some recommendations were approved aimed at contributing to the further development of educational and scientific cooperation and bringing benefits for the whole system of higher technical education in Ukraine and Poland alike. Keywords: Forum of Rectors of HTEI of Ukraine and Poland, Ukraine, round table, Poland, education, scientific cooperation.

Unions, Parties, and the Politics of State Government Legacy Cost

AbstractMany American state governments have made extensive promises to pay for employees’ health care and other benefits in retirement. Currently estimated at over $1 trillion in unfunded liabilities, these other postemployment benefits (OPEB) are creating a major fiscal problem for state governments. In this article, we examine the politics of OPEB. We seek to explain the variation in the generosity of OPEB across U.S. states. We argue that party competition theories do not adequately explain the outcomes we observe. Instead, we draw on the emerging Schattschneiderian approach to the politics of public policy to show that public union strength conditions a party's incentives to represent unions’ interests. In states where public sector unions are strong, unions can find their way into either party's coalition. We find that Republicans are more responsive to public union interests than either their ideological brand or prior research would suggest. It is only in states where public employees are weak that Republicans can act unilaterally and enact their preference for less government spending. To test our theories, we carry out an empirical analysis using a newly assembled data set of per capita OPEB liabilities across 49 states.

Do public sector industrial relations challenge the Swedish model?

This article discusses recent developments in public sector labour relations in Sweden from a historical, gender and power relations perspective. The main question is whether these trends challenge the established Swedish industrial relations system. Our point of departure – yet chronologically also the point of arrival – is the Swedish Municipal Workers’ Union, Kommunal’s, exit from the coordinated wage setting model within the Swedish Trade Union Confederation (Landsorganisationen, LO) in 2015/2016. The immediate reason was that Kommunal, representing one-third of the LO members, including many low-paid women, turned down the LO’s proposal on a general wage increase for low-wage groups. Instead, Kommunal urged to upgrade wages for a specific member group, the auxiliary nurses. This broke an almost uninterrupted 20-year-long period of labour market cooperation and coordination that was introduced in 1997 through the so-called Industry Agreement (Industriavtalet). This agreement was launched in the wake of the deep financial crisis in the early 1990s, and the neoliberal move towards a complete decentralization of pay negotiations. How should this move by Kommunal be interpreted? Why, and when, has the centralized system become a straitjacket for Kommunal, when for decades it seemingly was a precondition for both private and public union strength?