CPD IN THE NEWS

Bloomberg Businessweek - June 16, 2014, by Josh Eidelson - While Congress drags its feet on immigration reform, New York State lawmakers are mulling an immigration bill of their own: It would grant state citizenship to some noncitizen immigrants, including undocumented residents, allowing them to vote and run for office. Under the New York Is Home Act, noncitizen residents who have proof of identity and have lived and paid taxes in the state for three years could apply for legal status that would let some qualify for Medicaid coverage, professional licensing, tuition assistance, and driver’s licenses, as well as state and local—but not federal—voting rights. The responsibilities of citizenship would also apply, including jury duty.

“It’s mind-boggling,” says Michael Olivas, a professor at the University of Houston Law Center who specializes in immigration law. “I don’t believe there’s ever been a serious attempt to codify so many benefits and opportunities.”

Democratic State Senator Gustavo Rivera, who’s sponsoring the legislation, sees it as a precedent. “We have a bill here that could be a model of what we need to do across the country,” he says. Rivera acknowledges the bill “certainly will not pass this session,” comparing it to same-sex marriage, a cause which took years to travel from fringe to mainstream. But he expressed hope that the primary defeat of Republican House Majority Leader Eric Cantor of Virginia, widely construed as a final nail in the coffin of near-term federal immigration reform, would create interest in state-level reforms like his. Democratic Assemblyman Karim Camara is introducing the same bill on the other side of the Capitol. Governor Andrew Cuomo’s office did not immediately respond to a request for comment.

If it did pass and Cuomo signed it—again, not at all likely—the new law would certainly be challenged in court. Olivas says some aspects of the bill are on safe ground (in-state tuition for undocumented students has become widespread), while others involve “unsettled or untested” areas of the law. Olivas says that by “appropriating the term ‘citizen,’” a word he says “is really truly a federal term,” the bill’s authors have made it more vulnerable to legal challenge.

The state law wouldn’t trump federal immigration statutes, so undocumented workers in New York would still be denied some important benefits of citizenship. One big example: They’d be subject to federal laws barring them from legally working in the U.S.

Supporters insist the bill, unlike Arizona’s largely overturned SB 1070, is well within the law. “The problem with the Arizona law and the copycat laws around the country is that they were intruding upon the unique province of the federal government to determine who gets to enter the United States and who gets deported,” says Peter Markowitz, a professor at New York’s Benjamin N. Cardozo School of Law. He says the bill, which he helped draft, is instead “exercising a firmly established, constitutionally enshrined authority of the state to determine the boundaries of its own political community” and is consistent with Supreme Court precedents that recognize “state citizenship” as well as “federal citizenship.”

 “The very nature of our dual-sovereign federal structure,” says Markowitz, “means that New York gets to decide who are New Yorkers.”

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On December 14, Chicago Teachers Union Vice President Jesse Sharkey announced the results of the union’s strike authorization vote. For the second time in three years, the union’s membership voted overwhelmingly to strike if necessary. "Our ability to withhold our labor is our power," declared CTU President Karen Lewis on the eve of voting.

That axiom, that strikes are where unions derive their power, is pretty out of favor these days. A wave of disastrous strikes and lockouts beginning in the Reagan era that helped deunionize much of American industry has left the surviving labor movement skittish about the prospect of full-scale walk-outs. But bright spots like Fight for 15, Bargaining for the Common Good and the Chicago teachers strike have shown that workers can win strikes (if one defines victory as workers walking away from the ordeal feeling more powerful). Labor activists and leaders, particularly as they anticipate a viciously anti-union Supreme Court decision in Friedrichs v. CTA, have to figure out more strategies to revive the strike weapon in our current era.

How strikes became a “bad idea”

Ironically, the seeds of labor’s 1980s defeats were planted during its best seasons for growth in the 1930s. During the wave of sit-down strikes that grew union membership by leaps and bounds, Congress passed the National Labor Relations Act in 1935. The purpose of the act was to establish an orderly process for certifying unions and compelling employers to bargain in good faith with them. The plain language of the law also made it illegal to fire an employee for union activity.

But in two of the early Supreme Court cases that established the constitutionality of this law, the court casually cut into workers’ rights to their jobs.

In a 1939 case called NLRB vs. Fansteel Metallurgical, the court ruled that the NLRB cannot compel the reinstatement of a fired worker who broke the law, even if his illegal activity was part of an otherwise protected union activity like striking. Sit-down strikes, the physical occupation of someone else’s property to prevent their business from operating without you, was simply not going to be a protected activity under this new labor law regime.

In an earlier case, 1938’s NLRB v. Mackay Radio, the Supreme Court stripped workers of their unalloyed right to return to their jobs after a strike. The Court held that not only was an employer allowed to replace striking workers to keep a business going during a strike, but that they could keep the scabs on the job after the strike was over. The strikers would not be fired, per se, as an employer would have to make provision to recall former strikers as vacancies occur.

The McKay germ lay dormant for over 40 years. There were thousands of strikes in the United States all the way through the 1970s. And while plenty of bosses hired plenty of scabs, those scabs were almost always let go after a strike. To take a worker’s job away for standing with her union was viewed as almost un-American.

Or at least it was, until no less of an American than the sitting President, Ronald Regan, fired the striking air traffic controllers in 1981, sending a strong signal to industry: have at it..

McKay was weaponized by the Phelps-Dodge Corporation in 1983. The copper mining company bargained its Steelworkers local to impasse over drastic cuts in pay, benefits and working conditions—essentially daring the union to strike. Exploiting the bad economic times, the company had no problem importing a permanent replacement workforce, for whom even the reduced pay was far better than most jobs available. After 12 very ugly months, the scabs voted to legally decertify the union.

This Phelps-Dodge blueprint is how much of the deunionization of American industry occurred in the Reagan-Bush (and Clinton) era. Unions that survived frequently did so by capitulating to management’s giveback demands.

Tellingly, the AFL-CIO’s 1990s version of labor law reform was not for organizing rights, like card check, but a bill to undo the McKay doctrine and ban the permanent replacement of strikers.  In 1994, the year that the Workplace Fairness Act effectively died, there were 14 major strikes involving over 108,000 workers. By 2012, there were only four, and they involved less than 15,000 workers.

And perhaps most telling of all: Unions’ most recent attempt at labor law reform, the Employee Free Choice Act, did not include any provision on strikes. We have abandoned the strike weapon.

Well-planned strikes serve as inspiration

Not every union has abandoned strikes. The last Chicago teacher strike served as the strongest example in years for everyday workers of the power of a well-planned work stoppage.

On paper, it made no sense that a teachers union could wage a successful strike in 2012. Teachers unions had suffered from years of well-funded political attacks that cast them in the media as villains who prioritize “adults’ interests” over “students’.” The city’s power brokers, Mayor Rahm Emanuel in particular, were crying broke and exploiting civil rights rhetoric in their give-back demands. And there were thousands of teachers in charter schools and unemployed and recently retired teachers in the Chicago area who could have been recruited as replacements if they viewed the Chicago Teachers Union as striking against the public interest.

Instead, the Chicago public overwhelmingly viewed the CTU as striking for the common good. Partly, this was thanks to two years of deep and meaningful community organizing and partnerships that the union diligently pursued knowing there would likely be a strike. And partly, this was thanks to the union bargaining for school resources demands that resonated beyond just their membership.

For the last really big strike that got even non-union workers thinking about their power, you have to go all the way back to 1997. The Teamsters—who, like the CTU at the local level, had elected progressive reformers to their national leadership—also spent years preparing for a planned strike against UPS. These sort of well-planned strikes are crucial for getting workers, those in unions and those without, to think about power and the exercise of it.

In his book Only One Thing Can Save Us, labor lawyer Thomas Geoghegan expresses a preference for one-day strikes, which he has seen used effectively by the hotel employees union. In such a strike, a union signals its intent to return to work after 24 hours, allowing strikers to impact the employer’s business but protecting them from permanent replacement.

Joe Burns, also a labor lawyer, has written extensively on labor’s need to bring back the strike weapon. In his Reviving the Strike, he scorns one-day “publicity strikes” as no substitute for “an effective traditional strike,” which he defines as one that aims to halt production.

Burns’ contribution gets us thinking not just about the need to get more strikes going in this country, but to really think through how to define a “successful” strike. But his mantra-like focus on “halting production” is strangely limiting. As a result of union busting and globalization in manufacturing, most of the new organizing and strategic contract campaign action is in healthcare, education and the service industry. A Chicago teacher would likely rankle at the thought of their strike “halting production.” (What, after all, does their employer aim to produce? One hopes it is citizens and scholars, but fears it is docile workers and future prisoners.)

My own union work so far has been in hotels, home healthcare and education. I have worked on only a small number of work stoppages, most of a limited duration. In my experience, employers are working from such an ossified playbook that unions can get a lot of mileage out doing the last thing that the boss and his lawyers expect.

For example, hotel employees can cost the company more money by not striking on the day the company expects, thus costing them the expense of paying and lodging scabs as well as the continued payroll costs of the union members who stayed on the job an extra day. 

I don’t prescribe a perfect form of strike. American workers will not learn to strike again from articles like this or books like Burns’ and Geoghegan’s, which are really more for labor nerds and bookish organizers—they will only learn to strike by watching contemporary examples of workers striking. Since it’s hard to raise chickens without eggs, even one-day “publicity strikes” have an educational value.

But many thousands times more working people will be educated by the next Chicago Teachers strike. The teachers will halt production, but, perversely, that will save their employer money. Chicago will continue to collect taxes and be freed of the burden of compensating its teachers for a few weeks. (In fairness, Joe Burns expounds upon this unique aspect of public sector strikes in his follow-up book, Strike Back.)

To be effective, the CTU must take the students and parents who will be disrupted and bring that disruption to the doorsteps of Rahm Emanuel, Illinois Gov. Bruce Rauner and Chicago’s unelected school board. To win for the working class, they must continue to loudly proclaim, as CTU President Karen Lewis did, “Your power is your ability to withhold your labor.”

Possible paths forward

Our challenge is to inspire even non-union workers to think about their power and how to exercise it using the tools we have on hand: a union movement with miniscule density in only a handful of service and public sector industries largely led by staff who have precious little personal experience with leading job actions. We should be clear about how deep this deficit is.

One of the most promising labor projects of the moment is Bargaining for the Common Good. This is an effort by public sector unions in Washington, Oregon, California, Minnesota, Wisconsin, Illinois and Ohio to align their bargaining demands with each other and with community demands around progressive taxation, affordable housing, youth incarceration and government transparency.

These community demands fall well outside a union’s scope of bargaining and are therefore technically illegal. But as long as the unions also have demands that are within their legal scope (not hard to do when employers refuse to pay people what they deserve), then the unions can press the community’s case. This is a brilliant way of getting community to see unions’ fights as their own and of building worker and community power—and the next Chicago teachers strike will likely be the highest profile test of the theory this side of the Mississppi.

What follows could be bigger. A number of public and private sector unions in Minnesota have contract expirations in 2016. Their bargaining demands for the common good are focused not just on their individual employers but also on the largest employers in the state: Target and Wells Fargo. This is the potential for the closest thing we’ve seen in a while to a general strike (something Minnesota has a history of doing).

Another promising project is the Fight for 15. Some have dismissed the series of rolling one-day strikes for increases in the minimum wage and organizing rights as mere P.R. stunts. But there is something deeply radical and significant at play here. Workers who don’t even technically have a union are proving their value—and their power—to their bosses by withholding their labor. And the response from the general public is, at worst, a sort of patronizing “Well, good for them” but more often something a bit closer to “Go get ‘em!”

Just two short years ago, it would have been inconceivable to most union strategists that the lowest paid and most vulnerable workers would be willing to risk it all as these fast food workers have done. But, then, one is reminded of the old Dylan lyric: “When you got nothing, you got nothing to lose.”

The great potential of Fight for 15 is that unorganized workers see reflections of themselves in the strikers and begin to fantasize about what a job action could look like at their workplace. This is the perfect complement to well-planned and executed strikes by established labor unions.

The labor wars of the 1980s and 1990s were won by bosses who caught their unions by surprise. The unions that are still here are survivors who have an obligation, both to their continued survival and to the hope of inspiring a greater wave of organizing, to meaningfully plan for job actions that can win in every round of bargaining.

Those who toil in alternative forms of worker representation—the workers centers, advocacy groups and non-majority unions—should strategize and experiment in job actions that help their members and anyone watching and drawing inspiration feel a sense of their own power and agency.

And the rest of labor, starting with the AFL-CIO, should send a strong signal that strike plans are back by incorporating a ban on permanent replacements in the successor to the Employee Free Choice Act and as part of a broader “right to your job” movement. For those public sector unions who are most threatened by the pending Friedrichs decision, a wave of “free speech” strikes to both celebrate and protest the dubious new rights that the Supreme Court threatens to give them.

Source: In These Times

SF Gate - March 24, 2015, by Jill Tucker - California’s 1,100 charter schools are subject to insufficient financial oversight, lax practices that leave the door wide open to fraud, mismanagement and abuse, according to a report released Tuesday by a trio of education policy groups.

Since the first charter school opened in 1992, state or local officials have uncovered more than $81 million in fraud or mismanagement. But that’s probably the tip of a very big iceberg, according to the report released by Public Advocates, Alliance of Californians for Community Empowerment and the Center for Popular Democracy.

The report’s authors estimate that charter school fraud could be closer to $100 million in 2015 alone, based on methodology cited the Association for Certified Fraud Examiners 2014 Report to Nations on Occupational Fraud and Abuse.

“Charter schools promised to innovate and show best practices for schools — but is this how they are living up to that promise? This is not an example of how schools should work – this is an example of what not to do,” said Martha Sanchez, a parent and community leader with the Alliance of Californians for Community Empowerment.

The California Charter School Association, however, criticized the report for “making estimates based on global assumptions calls into the question the credibility of the report and the organizations that published it.”

“While we don’t presume to understand the motives behind this report we do know that California is a state where the charter school sector, authorizers and legislators have come together to put into place real solutions,” according to the charter organization, in a statement. “It is unfortunate that we continue to have similar distractions for a sector that the report itself suggests is demonstrating to be responsible users of precious public funds in addition to serving a half a million public school students well.”

The report cites several instances of uncovered fraud, including $2.7 million for excessive amounts of school supplies at Los Angeles’ Wisdom Academy of Young Scientists Charter Schools, provided by vendors who were family members or close acquaintances of the former executive director and who charged exorbitant prices.

The report also cited Oakland’s American Indian charter schools, where the former director reportedly diverted more than $3 million to his own businesses via rent and other expenditures.

The agency that authorized the charter school — typically the local school district or county office of education — is responsible for oversight, but they don’t always have enough staff to perform fraud risk assessments, the report said.

The report recommended that charter school audits include an assessment by someone certified in financial forensics and that school board or county boards of education should require charter schools to ensure fraud controls are in place before granting a charter or renewing one.

“California already spends too little on public education, so it’s critical to ensure that this money actually goes where it’s intended — to serve kids,” said Hilary Hammell, an attorney at Public Advocates. “When charter school operators misappropriate public education money, our state’s most vulnerable families suffer.”

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Times Online - October 2, 2014, by JD Prose - A day after Pennsylvania Cyber Charter School founder Nick Trombetta was in a federal courtroom as part of his ongoing criminal case, a new report cited him as an example of $30 million in fraud and financial mismanagement among Pennsylvania charter schools since 1997.

The report, “Fraud and Financial Mismanagement in Pennsylvania’s Charter Schools,” was done by three organizations, the Center for Popular Democracy, Integrity in Education and Action United.

It piggybacks on a national report on charter schools in May by the Center for Popular Democracy and Integrity in Education that claimed more than $136 million has been lost to waste, fraud and abuse by charter schools.

The Pennsylvania Coalition of Public Schools issued a statement saying allegations of fraud must be investigated.

“However,” the statement continued, “the report draws sweeping conclusions about the entire charter sector based on only 11 cited incidents in the course of almost 20 years, while ignoring numerous alleged and actual fraud and fiscal mismanagement in the districts over the same time period, which dwarf the charter school allegations in terms of alleged misuse of taxpayer dollars.”

To stem the loss of tax dollars by charter schools, the three nonprofit organizations make several recommendations, including annual fraud risk assessments, trained forensic auditors doing reviews, charter school authorizers doing comprehensive reviews every three years instead of every five years, and charter schools posting findings of internal assessments.

City and county controllers should also be authorized to perform fraud risk assessments and fraud audits on charter schools, the groups recommended.

They also suggested that the state attorney general’s office review all charter schools in Pennsylvania, that the Legislature pass a law to protect and encourage charter school whistle-blowers, and that the state declare a moratorium on new charter schools until reforms are implemented.

Trombetta, who faces 11 federal charges, including mail fraud and filing false tax returns, is cited as one example in the report. On Tuesday, he was in court trying to get recordings tossed in the case, in which he is accused of using various offshoots of PA Cyber to siphon away millions of taxpayer dollars.

The coalition said the report’s recommendations should be applied to traditional school districts as well as charter schools “in the name of intellectual integrity.” If not, it would just be an example of pursuing a political agenda, the coalition said.

Not surprisingly, the president of the National Education Association issued a statement trumpeting the report’s findings and blasting charter school supporters, especially Gov. Tom Corbett. “It’s time for lawmakers to stop providing charter industry players a blank check with little oversight and no accountability,” said Lily Eskelsen Garcia.

“Pennsylvania Gov. Tom Corbett and other politicians in the state continue to push for privatization, despite compelling evidence of fraud and abuse of taxpayer funds in the charter school industry,” Garcia said.

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