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Public Universities and Private Suits: How National Changes Affect Our Graduate Unionization Effort

Penn State administration’s opposition to graduate unionization is crystal clear. However, what might not be clear is why university administration is willing to spend upwards of $500,000 to fight our unionization campaign. While one answer is that spending this amount of money in the short-term saves the administration money and negotiation efforts in the long-term, another reason for their attempts to derail graduate unionization is that the winds may be changing in their favor at the national level.

The big change that has already happened involves the National Labor Relations Board (NLRB). Since taking office in January, President Trump has filled two vacancies on the NLRB with Republicans Marvin Kaplan (the chief counsel of the Occupational Safety and Health Review Commission) and William Emmanuel (a corporate lawyer). Filling these vacancies gives conservatives control of the NLRB and is particularly troubling for unions given the Supreme Court’s announcement in late September to take on a case regarding fair-share fees in public sector unions.

This case, Janus v. American Federation of State, County, and Municipal Employees, Council, will decide whether or not fair-share fees are constitutional. These fees are paid by non-union members in the public sector to help cover the costs of their workplace union’s collective bargaining activities. Because the fees are not put toward expressing political speech, but instead dedicated to negotiations with employers, something even non-union members benefit from, the Supreme Court ruled in Abood v. Detroit Board of Education (1977) that such fees are constitutional. However, Mark Janus, the individual bringing the current suit, is challenging that ruling.

The Supreme Court heard a similar case last year in Friedrichs v. California Teachers Association and appeared to be ready to rule that fair-share fees were unconstitutional, which would have significantly reduced the amount of funds available to public sector unions for collective bargaining purposes. The death of Justice Antonin Scalia on March 13, 2016, resulted in a deadlocked decision, but now with Justice Neil Gorsuch filling Scalia’s seat, the Supreme Court is poised to more or less return to Friedrichs in the Janus case and, if Gorsuch votes as expected, it’s likely that fair-share fees will be ruled unconstitutional in the next year.

While Penn State is not a private university and is, therefore, not fully subject to the changing nature of the NLRB, Supreme Court, and executive administration, it also isn’t completely isolated from the effects of these changes. With potential cuts to federal funding and student aid for universities coming in the next year along with the lingering effects of Great Recession-era state funding cuts and rising tuition, Penn State, along with other universities, is uncertain about its future funding, as illustrated by President Eric Barron’s September 26, 2017, email imploring “every Pennsylvania resident in our Penn State community to contact their state legislator to encourage them to finish the state budget and fund Penn State.”

Like many other universities, both public and private, Penn State is concerned about its future funding and like many other universities, including Columbia, Yale, and Harvard, it’s using stalling tactics and well-worn arguments in the hope that a changing administration, Supreme Court, and NLRB can help them. Concerns about a university’s future are valid, but stalling graduate unionization and hoping for an intervention from the federal government is not. Graduate employees at Penn State and elsewhere aren’t about taking their universities to the cleaners, but instead advocating for an underappreciated and overworked employee base. Unions improve universities and it’s up to us to fight to prove this supposedly controversial fact because instead of looking at us, Penn State’s administration is looking to Trump for help.

In solidarity, the Coalition of Graduate Employees