Tuesday, October 25, 2011

IEA Legal Analysis of Chancellor Cheng’s FAQ to GAs

The GAU site has an IEA legal response to the Chancellor's FAQ regarding GAs and their rights during a strike.  You can find it here, but since some folks are having difficulty seeing or using the links, I'll copy it in total after the break.  I am startled -- simply startled! -- that a legal analysis would find our Administration heavy-handed and in potential violation of Illinois labor law.  (Yes folks, that is sarcasm...but not intended as "a substitute for argument" in this case.)


                      IEA Legal Analysis of Chancellor Cheng’s FAQ

 “Under the Illinois Educational Labor Relations Act (115 ILCS 5/1 et seq.) (“Act”), Graduate Assistants (“GA’s”) are legally entitled to strike.  In fact, Section 3 affords GAs the right to “organize, form, join, or assist in employee organizations or engage in lawful concerted activities for the purpose of collective bargaining or other mutual aid and protection or bargain collectively through representatives of their own free choice …[and] have the right to refrain from any or all such activities.” 

According to the Act, SIUC would be guilty of an “unfair labor practice” for “interfering, restraining or coercing employees in the exercise of the rights guaranteed under this Act.”  SIUC would also be guilty of an unfair labor practice for “discriminating in regard to hire or tenure or employment or any term or condition of employment to encourage or discourage membership in any employee organization.

With this legal backdrop, it is our belief that SIUC is in violation of the Labor Act when it:
  • Threatened GA s that they were “[choosing] between participating in a strike or continuing [their] work/education.”
  • As the University is aware, under the Act, GA’s have the legal right to strike without losing their employment or adversely affecting their student status.
  • Threatened GA s that there were “consequences and risks that they will experience if they individually choose to strike.”
  • As the University is well aware, under the Act, GA’s cannot be subject to “consequences and risks” affecting their employment or student status for engaging in a strike.
  • Threatened all faculty with reprisals for engaging in a strike that results in the cancellation of classes.
  • As the University is aware that under the Act, accusing faculty of cancelling classes and threatening to discipline those same faculty members simply because they voted to strike, is an illegal restraint on the faculty members’ Section 3 rights as stated above.
  • Threatened GA s by stating, “Graduate Assistants who go on strike, rather than work, put at risk their eligibility for a waiver of tuition and partial payment of their Health Service fee, which may make them fully responsible for payment of tuition and fees.”
  • Again, the University is well aware that, under the Act it cannot threaten, much less take putative action against GA s in the form of tuition waivers and/or Health Service fees simply because they engaged in a labor strike.
  • Threatened that GAs who struck would not receive any of their compensation, including stipend, tuition or other forms of compensation.
  • The University knows that you have the legal right to strike.  It knows that a strike can shift the power balance to you.  It has chosen to engage in scare campaign instead of putting their resources into a fair contract.
The University’s threat is illegal, as would its action to enforce the threat.

35 comments:

  1. Lawyers argue the case for the side they represent so it is no surprise that the IEA lawyers argue this position and of course the university's lawyers would argue the opposite. That is their job. The fact that the IEA's lawyer(s) have offered this opinion is neither surprising nor compelling. No more than would the converse be from the administration's side. The only way to determine if anything either side has done, or proposes to do, is actually illegal, is to go to court and get an actual ruling. The opinion of any lawyer does not decide the case, only a judge can do that.

    ReplyDelete
  2. True enough, Philosopher's Phalanx. It is good to see, though, that there appear to be some legal legs to stand on, here. And you are wise to remind us that legal decisions are made by judges and juries rather than popular, administrative, or employee opinions.

    ReplyDelete
  3. SF,

    Have you read the Illinois Educational Labor Relations Act?

    http://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=108&ChapterID=2

    The language is pretty straightforward, as are related rulings by the Illinois Labor Relations Board. There aren't a lot of ambiguities when it comes to acts of intimidation or threats of sanctions.

    Violations of this act are violations when they happen - as with any law. The University has an obligation to follow the law. Oh, and there will be no court or judge involved in the process. The Illinois Labor Relations Board will rule acting in their quasi-judicial capacity.

    Can I offer you a link to the IEA guide to your legal rights under state and federal law?

    http://www.ieanea.org/benefits/legal-help/your-legal-rights/

    And watch where you point that finger.

    ReplyDelete
  4. So, can legal action now be taken against Cheng in terms of the threats she has made?

    ReplyDelete
  5. Yes. Action can be taken in the form of an Unfair Labor Practice (ULP) filing with the ILRB. That's probably what you will see in this case.

    ReplyDelete
  6. I applaud the IEA for finally giving the grad students some solace regarding this. I have had countless grad students come talk to me over the past month very worried about all of this, and I keep telling them, the university cannot unilaterally go after them because they belong to a union and are doing something that is legally sanctioned, like a strike should it occur on and after November 3.

    This is one area where I am 100% disgusted at the administration. Well done, IEA!!

    ReplyDelete
  7. So you're saying that the GAs have a right to strike and that the university must pay them while they're carrying a picket sign and not doing their jobs? And pointing that out to them constitutes a threat?

    Oh boy!

    ReplyDelete
  8. Anon 3:12, I believe the reprisal issue (for ULP) relates to loss of tuition waiver, grad status, health insurance and student visa (for International students)--all of which are tied to their status as students and surely constitute threatening discourse to judge from the circumstances and fears that many GAs are struggling with. It also references post-strike reprisals. Perhaps someone might clarify this if I am incorrect?

    ReplyDelete
  9. I too hope that no harm will come to our GAs (or any of our students, graduate and undergraduate for that matter) as a result of a strike, but the issues are not as clear cut as some above would have us believe.

    Yes, I have read the IELRA. But the GAs dual status as students and employees complicates things. That may not be the the only statute that applies. With the law, nothing is ever as clear cut as we might think or wish it to be. As I said, the IEA's lawyers opinions are just that, their opinions and the position that they will argue. But any lawyer will tell you that for any argument there is a counter argument. Good lawyers will always find ways to make counter arguments, that is what they do. Both sides get to argue their case. Nothing is done until a judge has ruled. (And have no doubt, an ILRB administrative ruling can be challenged).

    My point is not to say that the IEA's position is not sound, but rather to suggest that we not take (or give) assurances based only on the opinion of one side's legal advisers. There are TWO dogs in this fight!

    ReplyDelete
  10. While the GAs' dual status does complicate some things, the benefits neatly accrue according to that status. For example, the health care the GAs get is not an employment benefit; it is standard student health coverage just like that of any other student. The tuition waivers have been ruled to be a form of scholarship rather than compensation for employment. If they were compensation, they would be taxable income. (This was worked out in the courts around 8-10 years ago, in fact, after a brief period when there was an effort to tax tuition waivers as income.)For international students who are here on student visas, their status becomes endangered if and when they cease to be students in good standing in their programs.

    Certainly, the university can legitimately threaten to withhold pay for work that is not done by GAs if and when they go out on strike, but some of this other stuff looks ill-advised and/or ill-informed. I would guess that the explanation they will give, if pressed, is that all of these student benefits could be "at risk" if the GAs not only strike, but refuse to attend classes and thus do not remain students in good standing--presuming that the administration is going to staff graduate-level courses and enforce attendance in them during any faculty strike.

    ReplyDelete
  11. So pointing out the "consequences and risks" of a strike is illegal? How is it a threat to state "you won't get paid while on strike"?

    The admin. FAQ was pretty thorough. Somehow I think the GAU wasn't going to tell its constituency what a strike involves. In this case, the student "right to know" was enhanced by the administration -- unless you believe that an employer must be utterly silent.

    ReplyDelete
  12. Quiet One says:

    The GA's are too vulnerable with or without a union. They should not be involved in this at all.

    ReplyDelete
  13. I believe that Madam Cheng is determined that the strike will and must go on! So is Glenn Poshard and the Board of Trustees. Else why would they not have acted before this? It is not very much that the various unions are asking for! The plan is really to break the unions and shrink SIUC into becoming a miniscule college and then they will all leave for greener pastures!

    ReplyDelete
  14. Yes 7:51. That is so insightful! And it makes so much sense too!

    ReplyDelete
  15. Research the FactsOctober 25, 2011 at 9:48 PM

    Actually, information in the FAQ's on the Chancellor's website doesn't indicate that the GA's will lose any benefits that are strictly part of their student status.

    You are correct that their health insurance is provided as part of their student status. However the 50% subsidy of the Student Medical Benefit fee is part of the GA's employment. That subsidy could be cancelled if the GA does not provide the services required by their GA appointment. The tuition waiver is tied to the GA's employee status, and in fact the IRS does consider part of such waivers to be taxable income.

    The prohibition in the "Act" against “interfering, restraining or coercing employees in the exercise of the rights guaranteed under this Act” also means that the collective bargaining representative cannot interfere, restrain, or coerce employees in exercising their right not to participate in a called strike.

    It looks like "Obama's Finger" may be right. The administration is providing better information to GA's to help them make an educated choice....

    ReplyDelete
  16. Mister X,

    The IELRA also prohibits discrimination against employees that exercise their rights under the Act. If the University were to continue giving the same compensation to striking employees who don't report to work as they give to those exercising their right not to strike, this would constitute discrimination against those who cross the picket line....

    ReplyDelete
  17. Anon 7:51. Yes. Poshard removed Wendler and Trevino for even less and the former was fired because of his inability to get on with other people. Cheng has acted in a provocative way since her arrival and it is not too hard to see that she has full backing from Poshard and the BOT. This is an ideal opportunity for "President Plagiarist" to get back at those who gained their qualifications honestly.

    ReplyDelete
  18. "President Plagiarist," "Dragon Queen Cheng" (or was it "Oriental Despot" from an earlier posting?). This site is sickening. I have yet to hear anti-union folk call Randy Hughes and the union leaders such despicable names.

    I know, I know -- "but it is true!," you say. She is a despot, the Board is part of a national campaign to bust unions, blah, blah.

    ReplyDelete
  19. Be very careful Anonymous 11:26. You might be accused of being mentally deranged like Disgusted was yesterday.

    ReplyDelete
  20. (from http://www.chancellor.siuc.edu/pastmessages/index100711.html)

    "Graduate Assistants who go on strike, rather than work, put at risk their eligibility for a waiver of tuition and partial payment of their Health Service fee, which may make them fully responsible for payment of tuition and fees."


    FULLY RESPONSIBLE goes beyond not paying the amounts while students are on strike to not paying them at all. That would be completely removing a benefit of employment for legally participating in a strike, including removing benefits accrued before the strike or accrued because of graduate student status.

    ReplyDelete
  21. FULLY responsible could mean different things, such as "no one else will share the responsibility for the tuition and fees during the strike period".

    ReplyDelete
  22. I don't see the phrase "during the strike period" in the sentence. You are being generous to the chancellor, to say the least. FULLY, without a qualifier, means completely or in total.

    ReplyDelete
  23. FYI: From The Southern

    University: Striking grad assistants could lose pay, benefits

    http://thesouthern.com/news/local/education/article_ed107c36-ffd1-11e0-82b7-001cc4c002e0.html

    ReplyDelete
  24. I'd be very curious in learning just how the administration plans on determining whether any individual graduate student is striking. Will the Deans be polling individual faculty to ask if their grad students are showing up for class, or leading sections?

    ReplyDelete
  25. I presume that duty will fall to individual Chairs.

    ReplyDelete
  26. Of course, grad students will lose something proportional to the time they are on strike and the university will lose their services proportionately.. That is what a strike is all about.

    ReplyDelete
  27. Mike:

    Thank you for the link. The GAU has responded. http://gaunited.org/2011/10/26/communication-about-the-threatening-statements/

    There is no mention of 13 weeks in the GA contract (http://www.gradschool.siuc.edu/GA_UNITED.pdf). The mentions of 13 weeks that I find on the university Web site refer to the length of the appointment or the length of the position, not the length of time working.

    This distinction between length of appointment and time working matters. For example, faculty could collect unemployment over the summer or while on strike if our appointments ended during these times.

    The GAs will be 10.6 weeks into the semester by the beginning of the strike and could stay on strike until the end of November before this dubious threat would have teeth.

    ReplyDelete
  28. "...could stay on strike until the end of November before this dubious threat would have teeth."

    Well, if it is a fact, how can it be a threat? Someone needs to be honest with the grad students. The IEA sure isn't.

    And how can you be so sure that a strike won't last, say, well into December.

    ReplyDelete
  29. If WHAT is a fact?

    That 10.6 + 2.4 = 13?

    That the university is trying to find the slightest sliver of something that they can use to threaten GAs with completely removing their tuition waivers, regardless of whether it is true?

    ReplyDelete
  30. Well, if they're worried about it, maybe they shouldn't go on strike. No work...no pay. Right?

    It could be a loooong strike.

    Someone should start laying odds on how long a strike would go, how many come crawling back to work after certain lengths of time, will this be the end of the FA, ACES, etc.

    ReplyDelete
  31. We/they will strike in spite of the worry and carry that worry daily. We/they will strike because of principles, not paychecks. We/they take a stand, and standing is never crawling. We/they stand with those more (and less) economically vulnerable because that is what "union" means. We/they put our bodies on the line and our names in the public square.

    I also want to acknowledge and accord respect to those who choose not to strike for reasons of principle, or because the weight of their worries is more than they or their dependants can withstand, or as a means to take a stand as they see it, and who will put their bodies on the line and their names in the public square in choosing to cross picket lines. I struggle to understand that choice; I struggle to accept & respect it; but such is the challenge of civic debate or genuine "civility" to acknowledge there may be reasoned, principled, and consequential reasons for taking a stand so different from my own. a stand that opposes and makes more vulnerable my own.

    There is no 'crawling' in that.

    ReplyDelete
  32. Thanks, Elyse. Sometimes I wish there was "like" button for this blog. What we can't do with buttons, we'll just have to do with words.

    ReplyDelete
  33. Who is John Galt? That's the answer to this situation.

    ReplyDelete
  34. Perhaps the following info will help clarify some of the confusion that "paranoid" has about the GA's status in the event of a strike...

    From the FAQ's on the Chancellor's website at:

    http://www.chancellor.siuc.edu/labor/faqfacultystaff.html

    13.Will Graduate Assistants who honor the strike continue to be paid?

    Graduate Assistants who honor the strike will not be paid their stipend. Graduate Assistants who report to work and continue to perform their assigned duties will receive their regular monthly stipend.

    14.How will the strike affect Graduate Assistants’ tuition waivers?

    Depending on the timing and length of the strike, Graduate Assistants who honor the strike may be responsible for the tuition amount covered by the waiver provided as part of their employee compensation.

    15.Will Graduate Assistants be covered by health insurance during the strike?

    Health insurance for Graduate Assistants is provided as part of their student status and is not tied to their employment. Therefore, all Graduate Assistants who maintain their student status will continue to be covered by their student health insurance. However, depending on the timing and length of the strike the University may discontinue the 50% payment of the Student Medical Benefit Primary Care Fee for any Graduate Assistant that honors the strike.

    ReplyDelete
  35. Dear Research the Facts,

    I didn't dispute what the was in the FAQs. When I first read the FAQs, I didn't think anything of them. Like Anon October 26, 2011 11:42 AM, I expected that GAs could lose something proportional to their time out and read the FAQs that way.

    Then this post brought to my attention the other things that the chancellor and the university spokesperson are saying, which are things that suggest the loss of the waiver would be total, not just for the time of the strike.

    The chancellor's message, uses the phrase "fully responsible" without qualification.

    From the Southern Illinoisan, "Under the GA contract, the person must work 13 weeks of the semester to get their tuition waived. Depending on how long the potential strike lasts, it could put those waivers in jeopardy, Sievers said.

    If I'm "confused", maybe that's because the chancellor and the university spokesperson are sending messages to scare the GAs rather than to give them the facts.

    ReplyDelete

I will review and post comments as quickly as I can. Comments that are substantive and not vicious will be posted promptly, including critical ones. "Substantive" here means that your comment needs to be more than a simple expression of approval or disapproval. "Vicious" refers to personal attacks, vile rhetoric, and anything else I end up deeming too nasty to post.