Last week students may have had a break, but Portland State faculty and administrators remained at the bargaining table.
As each bargaining session expired without a resolution, members of the American Association of University Professors recently expressed their concern that the PSU administration will discriminate against AAUP members who exercise their right to strike.
A formal accusation was filed with the Oregon Employment Relations Bureau as an unfair labor practice charge—the second such charge that has been made against the PSU administration during this biennium’s contract negotiations. It was announced in a March 24 press release.
This particular charge takes issue with two documents released by the PSU administration online and emailed to faculty and staff.
One document is a strike FAQ which declares that PSU will bar union members from email and all other university online systems and databases if they strike.
The second document is a set of demonstration guidelines posted on the Campus Public Safety Office website. Faculty claim that the administration has suddenly decided to call attention to the guidelines in an effort to intimidate employees who plan to strike.
“The university’s decision to cut off email access to striking employees is discriminatory and retaliates against employees for exercising their right to strike,” said Phil Lesch, executive director of PSU-AAUP.
Lesch compares absence by strike to any other legally-protected unpaid absence from one’s employment, such as sick leave or maternity leave. Faculty who are on sick leave and cannot work do not lose access to their email or other resources associated with their job.
However, Scott Gallagher, PSU’s director of communications, disagrees with this comparison, asserting that sick leave is part of standard work benefits whereas going on strike is a choice more akin to temporarily quitting a position. Gallagher said that allowing a striking employee to use their university email would be like allowing a terminated employee to continue coming into the office.
“When faculty are on strike, they are choosing not to work; if they don’t work, we can’t pay them, and therefore they may not work,” Gallagher explained.
“Faculty have the right to strike, but it is common practice to not allow them access to the office and to any office tools such as email,” he said.
Lesch disagrees. “Striking is protected activity under law, and employees do not lose their employee status just by exercising that right,” he said.
“Email is a right protected by our contract and the administration is required to maintain email—along with all other contract provisions—while in the hiatus period of an expired contract,” Lesch added. “The Oregon [Employement] Relations Board has consistently held that email in these situations must be maintained. Cutting access to email is not standard procedure in strike situations. It is unlawful.”
‘A safe manner’
In terms of the demonstration guidelines that prompted the second part of AAUP’s allegations of potential discrimination against striking union members, Gallagher argues that such guidelines have been in place for decades and simply aim to protect the safety of all those involved.
“Demonstration guidelines have been in place going back to the ‘60s. They came into play in recent years when the Occupy movement extended to PSU’s Park Blocks.
“This is what they boil down to: students, faculty, staff or whoever has the right to protest or demonstrate, but they have to do so in a safe manner that is respectful to others.”
However, AAUP argues that the guidelines are now being selectively enforced in a way that constitutes discrimination.
“We believe that notifying us that the demonstration guidelines will be enforced is the first time any group has been so notified,” Lesch said in an email.
The code includes a ban on signs attached to wood stakes or other hard handles and also prohibits the use of megaphones or other sound systems without prior approval from the Office of Student Affairs. AAUP’s March 24 press release alleges that the guidelines are “vague and overbroad and improperly prohibit protest activities that are plainly protected by the Oregon and U.S. Constitutions.”
In Lesch’s words, AAUP is concerned that “picketers will be harassed for carrying picket signs, which would interfere with their right to picket and discourage them continuing,” to do so.
Questions of free speech
Gallagher said there is nothing illegal or unconstitutional in the demonstration guidelines, and challenged AAUP to cite specific examples of constitutional violations.
In response, Lesch described the 2001 court case Edwards v. City of Coeur d’Alene in which the Ninth Circuit Court of Appeals upheld that a ban on wooden or plastic sign-handles carried during parades or demonstrations is an unconstitutional restriction on the time, place and manner of speech.
The wording issued by the Ninth Circuit Court in the case states that “the classic image of a picketer—dating back to the early days of labor protests—is of an individual holding aloft a sign-bearing standard. Because social, economic and political protests are commonly associated with picket signs attached to handles, the ordinance’s ban precludes an important communicative aspect of public protest.”
Lesch also cited cases related to the protection of amplified speech under the First Amendment, listing three cases in support of this precedent. He also took the opportunity to quote the U.S. Supreme Court’s statement from the 1948 case Saia v. People of the State of New York: “Annoyance at ideas can be cloaked in annoyance at sound. The power of censorship inherent in this type of ordinance reveals its vice.”
Ultimately it will be up to the Oregon Employment Relations Board to decide whether AAUP’s filed complaint warrants a hearing. The hearing will then determine whether or not the charge does in fact constitute an unfair labor practice.
Gallagher dismissed the ability of AAUP’s recent complaint to hold water with the Employment Relations Board.
“The filing of the charge is an accusation; anyone can make an accusation and it does not mean it is true. We are confident that it will not be considered an unfair labor practice,” he said.
Editor’s note: It has recently come to our attention that Sara Swetzoff has been reporting on issues concerning the potential faculty strike while also maintaining personal involvement with the Portland State University Student Union—an organization that has come out in full support of the PSU chapter of the American Association of University Professors. The Vanguard recognizes this is a conflict of interest that contradicts our mission to serve as a fair and balanced news source for the PSU community. We apologize for failing to catch this problem before the stories made it to print and have since taken action to ensure it will not happen again.
