Category Archives: U.Miami: Strike’06

Former colleague Michael Fischl, now of the University of Connecticut School of Law, has a new article up at SSRN, The Other Side of the Picket Line: Contract, Democracy, and Power in a Law School Classroom which will appear in 31 New York University Review of Law & Social Change (2007).

Abstract:

This essay – from a forthcoming symposium on “teaching from the left” in the NYU Review of Law & Social Change – offers an account of the successful union organizing campaign among custodial and landscaping workers at the University of Miami during the 2005-06 academic year, focusing in particular on the role played by faculty during the course of the campaign. It examines a fractious debate generated by faculty who held classes off campus in order to support the striking workers and the author's own decision to put the question of whether to honor the picket line to a vote of his students. It offers an analysis of the pattern of argument that emerged – with opponents of off-campus classes invoking the rhetoric of contract and supporters invoking the rhetoric of democracy – and of what that pattern may reveal about the nature of ideological conflict in contemporary campus culture.

An engaging and thoughtful essay that will be of interest to contracts teachers, labor lawyers, and union supporters generally.

Also of interest is the post-posting history of this article, in which anti-union Google ads appeared automagically on SSRN alongside the article. See Google Ads on SSRN—and Some Odd (shall we say) Juxtapositions for details.

First, the good news: UM’s newly unionized workers have a new contract with a 30% pay increase and improved healthcare plans. The new contract takes effect next week. The UM contract is causing other local employers, notably FIU, to re-evaluate their employment agreements. The Miami Herald offered this summary of the new UM contract:

The 400 Unicco workers at University of Miami would be guaranteed minimum hourly rates ranging from $8.55 to $10.80 as part of their union-negotiated contract, which runs from Sept. 1 through Aug. 31, 2010. They would also get:

• Raises: Sept. 1, 25 cents an hour. In September 2007, 40 cents an hour. In 2008 and 2009, 50 cents an hour each year.
• Healthcare: VISTA Healthcare program will cost employees $13 for individual coverage. Family coverage will cost more than $500 a month.
• Other: One to three weeks of vacation, three personal days, nine holidays.

Further details at the picketline blog (now brought to you in horrible pink background — what were they thinking? — certain to evoke subliminal associations with pinkos and the like…)

The bad news is that we’re learning more about how UM handled student discipline cases arising out of strike support activities, and the allegations are not pretty. Prof. Jane Connolly has written two open letters describing what she knows about the process in two cases. They’re available at picketline blog, but I’m going to reprint them in full because they claims of self-dealing and fundamental unfairness by the UM administration are serious — and reflect what I’ve head elsewhere. I hope the UM administration has a good response to these charges, other than the oft-repeated claim that its rules give it the discretion to do what it did, but I have yet to hear such a response.

Continue reading →

I have no idea why the details are being reported by a columnist rather than the Miami Herald news section, but Ana Menendez’s opinion column yesterday has an account of Brian Lemmerman’s lawsuit against UM. The essence of the complaint appears to be a breach of contract claim predicated on the the University’s alleged failure to follow its own rules when disciplining him for his participation in strike-support activities.

According to the column, the other students subject to (secret) disciplinary proceedings over the summer have thrown in the towel, in part, I suspect, because most of their punishments were not as severe as the outrageous sanctions the University originally threatened.

I have not seen the complaint, but cases like this generally face two roadblocks: first, universities often write themselves a lot of discretion into their rules in part because they hate to tie their own hands, in part to avoid suits like this. The second problem is that it’s a contract case, not a tort case, so the possible damages are limited to the value of the contract. Mr. Lemmerman is claiming $15K, which I presume is based on some computation involving tuition, but I’d expect UM’s lawyers to press hard on the damages part of the claim.

Background on student discipline issue: Lessons and Faculty Sign Open Letter to Administration.

110 faculty signed the following letter to UM Vice-President Whitely and UM Dean Sandler; the number would surely have been much higher if it were not summer:

Dear Vice President Whitely and Dean Sandler,

It is with a mixture of indignation, sadness, embarrassment and weariness that we find ourselves forced to write another letter to advocate for justice at the University of Miami.

In the course of the last few months, our students have shown an array of human and civic virtues that one does not see often these days. Through peaceful and respectful demonstrations and with minimal disruption to campus life, they supported the fight for justice and dignity of people they barely knew. Anyone who has spent any time with these young people knows that they are gentle and respectful, that they care deeply about their academic careers, and that they have a keen sense of justice. These are qualities we all unequivocally encourage in our students. As former President Tad Foote told one professor, there was something noble in what these students did and he was proud of them. We agree.

The university administration has responded to the students’ actions on behalf of the janitors and groundskeepers first with harshness, and now with underhanded and petty strategies aimed at thwarting their right to an unbiased and fair hearing. We find this behavior deeply reprehensible and unacceptable at a university. A university is first and foremost about its students. These are our students. These are the people to whom we dedicate the largest part of our professional lives. These young people are the raison d’etre of what we do as faculty, staff, and administrators of this university.

The administration has used some deplorable tactics with the students. They served summonses to them in class, a violation of federal law (the Buckley amendment guarantees a student’s privacy) and of faculty rights as well as a disruption of the academic mission. They called students to “preliminary hearings” about potential serious charges, leaving the possibility of these charges hanging over them through commencement. They also were told that they had an “administrative stop” placed on their registration (in the middle of registration period) and they would have to see Associate Dean Singleton to register for classes. He is not an academic dean. He is their prosecutor and ought not to have anything to do with their registration. Along with the students and their lawyers, we see all of this as intimidation, something that should never take place at a university.

We deeply regret that these students have been targeted for disciplinary action for acting on the principles we teach regarding democracy and social justice. As currently implemented, the process by which they are being judged is profoundly flawed and characterized by arbitrary and unfair decisions. Specifically:

1) Students who pleaded not guilty were denied postponement of their hearings to the Fall, at which time they would appear before a University Disciplinary Hearing Panel including their peers. Instead, Associate Dean Singleton, who is a witness in some of the cases, now serves simultaneously as investigator, prosecutor, judge and jury. There are clearly multiple conflicts of interest here, and the students cannot possibly have an impartial hearing. Moreover, by holding the hearings in the summer, the students are deprived of valued advisors and witnesses to support their cases who are out of town. The first summonses were delivered on 21 April, which allowed sufficient time for hearings to take place with a full panel to adjudicate the cases and with supporting witnesses and advisors still on campus. This was not done, however, because the Dean of Students granted his own office a continuance to do additional investigation. How is it possible that the Dean of Students grant one side a continuance to be able to present its best case but not the other? The cards are clearly and purposefully stacked against the students and they cannot possibly have a fair hearing in these circumstances.

2) Some students have now seen added to their previous charges the further charge of unauthorized distribution of printed material. The violation cited from Students’ Rights and Responsibilities Handbook is B.16, which references the Poster Distribution and Advertising policy on p. 47. The policy refers specifically to advertising, and requires the approval of the Vice President for Business Services. The materials distributed by the students were not advertisements but statements relating to social justice. They were acts of free speech and therefore not covered by any advertising policy.

3) The students who pleaded guilty or no contest to the charges brought against them were given absurd and even insulting penalties, including community service. They are being punished precisely because they did hundreds of hours of community service to improve the University and South Florida’s communities by assuring that workers at UM have freedom of choice, the right to work with dignity and respect, and to earn a living wage. Moreover, these students regularly do other community service, working at clinics and homeless shelters, for various environmental and civic groups, etc. And now you are going to punish them by making them do such work? How inappropriate! Adding to this absurdity, students who have graduated or will graduate this summer or fall have been given two semesters of probation. When asked how this affects them, Associate Dean Singleton told these students that this punishment means nothing for them. Then why give it, except to be vindictive? Finally, two students have been singled out for a particularly spiteful punishment: the loss of campus housing in the fall at University Village.

We ask that all students who have been charged with offenses in relation to their peaceful and respectful protests during the janitors’ and groundskeepers’ strike be granted amnesty. We need to be a model of openness and dialogue, a beacon for the free exchange of ideas and true learning. To punish these students is to undercut these fundamental goals.

Respectfully,

One of the hard lessons we all learn growing up is that people who have power often abuse it. The Framers well understood this problem and tried to separate power among three branches of government. They also understood the vulnerabilities of their Great Experiment: faction and popular passions. The existence of this tradition, its deeply ingrained roots in the American psyche, still provide the best hope for a reaction against the excesses of the Republican domination of all three branches of government: a Republican-appointed judiciary that awarded an election without allowing for an accurate count of the votes; a Republican-dominated Congress that refuses to call that Republican President to account.

But you don’t have to be a Republican to abuse your power. And you certainly don’t have to be in government. It may even be easier in the private sector. Consider the behavior of the University of Miami, led by Donna Shalala, no Republican she (although she is paid over half a million a year and lives like one): according to the Miami Herald, her university is manipulating the process in its academic disciplines case against students charged with misbehavior during a quite well-behaved protest in favor of the unionization effort.

And the terms on which the University is settling the cases seem harsh: several students — the exact number isn’t clear — are being kicked out of university housing, which means they’ll probably be paying more to live somewhere less convenient. Here’s how Herald columnist Ana Menendez characterized the state of play:

Faced with a rigged system — lawyers say administrators were to function as witness, prosecutor, judge and jury — students began settling their cases with the university at about the same time the union announced a majority of janitors had voted to join.

The settlements continue. Punishments have included academic probation, a 500-word essay and, most ironically of all, community service.

”Here we are being sentenced to community service when we’re being tried for a service we did to the community,” said Amy Sun, 21, a psychology major who pleaded no contest.

…

Far more troubling than anything the students did is the way UM administrators have chosen to deal with it, going after students with a zeal that seems to have more to do with retribution than justice.

First, administrators threatened students with major charges that could get them expelled or suspended. When a who’s-who of Miami’s legal talent stepped forward to defend the students, UM quickly retreated, downgrading the complaint to “university offenses.”

”Under their own rules, a student who is charged with a university offense is not entitled to right of counsel,” said attorney Lida Rodriguez, who is advising Jacob Coker-Dukowitz, one of the student leaders. “They did it not out of kindness but out of trying to deprive them of the assistance of an advisor.”

…

Late Tuesday, Coker-Dukowitz, who had been one of the hold-outs, joined the others in settling his case. He, too, loses his housing at the coveted University Village, punishment that also imposes a financial burden.

[UM attorney Eric ] Isicoff maintains that the case against the students is not about free speech. UM, he said, is simply “representing the right of a whole other group of people who do not wish to engage in this manner.”

To which I have only one — carefully considered — reply: bull.

The kindest take on the administration’s position that I can construct is this: it wanted to send students a message that if they make life hard for the administration, and disrupt its operations, they will pay. And to the extent that the administration is worried about the long-run consequences one can see why it might be afraid to look as if it were setting a precedent that administrative offices can be occupied with no penalty. In fact, I think I’d be worried about that issue in their shoes too.

So if we’re going to see it that way — and remember that is the kindest construction I can put on what the administration is up to — then we have to also admit that the actual proceedings, none of which involve the actual occupation, are a complete abuse of process. (Not to mention that it’s unclear to me to what extent the two groups of students overlap.) The ostensible charges, failing to disperse from a peaceful gathering and leafleting with non-commercial political tracts, are NOT the sort of things that universities should punish. They are the signs of engaged citizens in a community. We should value and celebrate them.

For if we don’t encourage the creation of engaged citizens, then the engine that would keep the Great Experiment from collapsing will lose an essential mainspring.

Fortunately, my sense is that the students involved have not been cowed. Instead, they’ve been radicalized. And we may well reap the harvest when they come back in the fall.

I said at the start of the strike that it presented a teaching moment. At the time, many law students who wanted more than anything just to get on with their lives hated this characterization (and some of their reactions taught me something). But I still think it was a good description. It just turns out that the lessons were a little different than I expected.

As predicted:

A majority of janitors and other contract workers at the University of Miami decided to join the Service Employees International Union, the organization announced Thursday, capping a battle with their private employer that included a walkout and hunger strike by some employees.

More than 60 percent of the 425 workers with Unicco Service Co. favored joining the union, organizers said. The results were certified by the American Arbitration Association.

“We are invisible no more. It is an incredible feeling to finally have a voice and the strength to improve our lives,” said Maritza Paz, a janitor.

Unicco spokesman Doug Bailey said the two sides will now begin collective bargaining.

–AP via bradenton.com.