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Supreme Court takes up case that will devastate public sector unions

Friday, September 29th, 2017

In what is all but certain to be a terrible blow to organized labor, the Supreme Court announced on Thursday that it will hear Janus v. AFSCME, a case seeking to defund public sector unions. The case presents an issue that was recently before the Court, and where the justices split 4-4 along party lines.

Now that Neil Gorsuch occupies the seat that Senate Republicans held open for more than a year until Donald Trump could fill it, he holds the fifth vote to deliver a staggering blow to the union movement.

The issue in Janus involves what are sometimes referred to as “agency fees” or “fair share fees.” As ThinkProgress explained when this issue was last before the Court:

Unions are required by law to bargain on behalf of every worker in a unionized shop, even if those workers opt not to join the union. As such, non-members receive the same higher wages (one study found that workers in unionized shops enjoy a wage premium of nearly 12 percent) and benefits enjoyed by their coworkers who belong to the union.

Absent something else, this arrangement would create a free-rider problem, because individual workers have little incentive to join the union if they know they will get all the benefits of unionizing regardless of whether they reimburse the union for its costs. Eventually, unions risk becoming starved for funds and collapsing, causing the workers once represented by a union to lose the benefits of collective bargaining.

To prevent this free-rider problem, union contracts often include a provision requiring non-members to pay agency fees.

The plaintiff in Janus asks the Supreme Court to declare these agency fees unconstitutional, at least in contracts involving public sector unions, under what can charitably be described as an aggressive reading of the First Amendment. Indeed, prior to his death, even conservative Justice Antonin Scalia sometimes appeared skeptical of the plaintiff’s legal theory (although he did join an opinionthat embraced much of it).

With Gorsuch on the bench, however, there is little suspense regarding how Janus will come down. Unions will almost certainly be severely weakened by this decision. And, as a benefit to the Supreme Court’s increasingly partisan majority, that will also weaken a key arm of the Democratic party’s political infrastructure, making it more likely that the Court will remain in Republican hands.

This blog was originally published at ThinkProgress on September 28, 2017. Reprinted with permission.

About the Author: Ian Millhiser is the Justice Editor for ThinkProgress, and the author of Injustices: The Supreme Court’s History of Comforting the Comfortable and Afflicting the Afflicted.

Supreme Court opens its new term with a direct attack on workers’ rights

Monday, September 25th, 2017

The Supreme Court returns next Monday from its summer vacation for the first full term where Neil Gorsuch will occupy a seat at the far end of the Court’s bench. And the Court will open this term with a trio of cases that are very likely to immunize many employers from consequences for their illegal actions.

The three cases — National Labor Relations Board v. Murphy Oil USAErnst & Young LLP v. Morris, and Epic Systems v. Lewis — all involve employment contracts cutting off employee’s rights to sue their employer for legal violations.

In at least one case, employees were required to sign the contract as a condition of beginning work. In another, employees were forced to give up their rights as a condition of keeping their job. These contracts contained two restrictions on the employees: 1) a “forced arbitration” provision, which requires any legal disputes between the employer and the employee to be resolved in a privatized arbitration system; and 2) a provision prohibiting employees from bringing class actions or other collective suits against their employers.

Requiring private arbitration favors employers over employees. As an Economic Policy Institute study determined, employees are less likely to prevail before an arbitrator than before a court, and they typically receive less money from an arbitrator when they do prevail.

Banning class action suits, meanwhile, effectively permits employers to violate the law with impunity, so long as they do not do too much harm to any individual employee.

If an employer cheats one employee out of $300,000 worth of wages, for example, that employee is likely to be able to find a lawyer who will take his case on a contingency basis — meaning that the lawyer gets a percentage of what the employee collects from the employer if they win. If the same employer cheats 10,000 employees out of $30 each, however, no lawyer is going to represent any one of these workers on a contingency basis. Plus, few employees are likely to bother with a $30 suit. It’s too much hassle, and too expensive to hire a lawyer who won’t work on contingency. The solution to this problem is a class action suit, which allows the 10,000 employees to join together in a single case litigated by a single legal team.

Banning such class actions effectively leaves these employees without remedy. As one federal judge explained, “the realistic alternative to a class action is not 17 million individual suits, but zero individual suits, as only a lunatic or a fanatic sues for $30.”

The employer’s claim that they can combine a forced arbitration clause with a class action ban arises out of two previous Supreme Court cases that took an extraordinarily creative view of a nearly 100-year-old law.

In 1925, Congress enacted the Federal Arbitration Act to allow, as Justice Ruth Bader Ginsburg once explained, “merchants with relatively equal bargaining power” to agree to resolve their disputes through arbitration. Beginning in the 1980s, however, the Court started to read this law expansively to permit forced arbitration between businesses and relatively powerless consumers and employees.

Then, the Court got even more aggressive. By its own terms, the Federal Arbitration Act exempts “workers engaged in foreign or interstate commerce.” Nevertheless, in its 5-4 decision in Circuit City v. Adams, the Supreme Court held that the Act applies to most workers engaged in foreign or interstate commerce. Thus, forced arbitration clauses in employment contracts were given special protected status, even though the federal law governing these clauses says otherwise.

Similarly, Justice Antonin Scalia wrote for a 5-4 Court in AT&T Mobility v. Concepcion that the Federal Arbitration Act has penumbras, formed by emanations from its guarantees that give it life and substance. The right of businesses to insert class action bans, Scalia claimed, is one of these penumbras contained in the 1925 law. And so businesses gained the power to add no class action clauses to their forced arbitration agreements, even if a ban on class actions violates state law — and despite the fact that the Federal Arbitration Act says nothing about class actions.

Nevertheless, the employees in Murphy Oil and its companion cases hope that another provision of law will protect them from signing away their right to join a class action.

A provision of the National Labor Relations Act (NLRA) provides that “employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” Several lower courts have held that an employee’s right to engage in “concerted activities” protects their right to join class actions, and they cite multiple previous Supreme Court decisions which lend credibility to this claim.

In a world governed by the text of the law, employees would have a strong case that they cannot be forced to give up their right to bring class action litigation. But we live in a world governed by Circuit City and Concepcion — both of which demonstrate the Supreme Court’s willingness to take liberties with the law in forced arbitration cases.

This article was originally published at ThinkProgress on September 25, 2017. Reprinted with permission.
About the Author: Ian Millhiser is the Justice Editor for ThinkProgress, and the author of Injustices: The Supreme Court’s History of Comforting the Comfortable and Afflicting the Afflicted.

Labor Opponents Already Have The Next ‘Friedrichs’ SCOTUS Case Ready to Go Under Trump

Tuesday, January 10th, 2017

The Supreme Court gave unions an unexpected victory last year when it issued a decision in a case that had threatened to take away the right of public sector unions to collect dues from workers they represent. That win may be short-lived.

Friedrichs v. California Teachers Association was meant to be the capstone in decades of cases that sought to have the courts determine that fair-share fees for public sector workers are unconstitutional. Fair-share fees, or agency fees, require workers represented by a union to pay the portion of fees that covers collective bargaining. They seek to balance the worker’s right to dissent from the union by relinquishing membership and not paying for activities that aren’t related to collective bargaining, with the union’s right to avoid free riders and not be forced to represent a worker who contributes nothing.

The Supreme Court, largely through decisions written by Justice Samuel Alito, had indicated that its 1977 case that allowed for fair-share fees in the public sector was ripe for a rare overturning by the Court. It all but invited a challenge. Several cases were in the pipeline, but Friedrichs took the unusual approach of conceding before each lower court that it should be dismissed so that it could move quickly to the Supreme Court. Friedrichs faced a hostile oral argument before a conservative majority; unions braced for the worst. Then, as the Court was drafting its opinion, Justice Antonin Scalia died, and with him, so did Friedrichs. The Supreme Court issued a tied 4-4 decision affirming the lower court in March.

However, there is another case in the pipeline that was stayed pending the outcome of Friedrichs. That case, which began as Rauner v. AFSCME, was originally brought by the ultra-wealthy Republican Illinois Gov. Bruce Rauner, who—shortly after taking office—issued an executive order placing all fair-share fees in an escrow account, rather than turning them over to unions. But Rauner screwed up a basic part of the case because he didn’t have standing to bring the case.

A federal judge wrote that Rauner “has no personal interest at stake. He is not subject to the fair share fees requirement. Instead, he essentially claims to have a duty to protect the First Amendment rights of all public employees in the state … In effect, he seeks to represent the non-member employees subject to the fair share provisions of the collective bargaining agreements. He has no standing to do so. They must do it on their own.”

To fix the problem, employees filed as intervenors (“undoubtedly with the Governor’s blessing,” as the judge noted), with the backing of the National Right to Work Legal Defense Foundation and the Liberty Justice Center.

Janus v. AFSCME, named after one of the workers, is pursuing the same strategy as Friedrichs in trying to get to the Supreme Court quickly. The Janus plaintiffs filed their second amended complaint in July, stating that the Supreme Court’s 1977 Abood v. Detroit Board of Education case, which permitted fair-share fees, remains good law, and all but invited the District Court in the Northern District of Illinois to dismiss their complaint. The District Court did so, and in their appeal to the Seventh Circuit Court of Appeals, the plaintiffs similarly state that their case must be dismissed. The goal, of course, is to get the case in front of the Supreme Court just as a Donald Trump appointee to the Court is seated.

Seattle University School of Law professor Charlotte Garden explains that this strategy also “allows the case to go up without a factual record. This means that there is no record that the unions can point the justices to in order to show the importance of agency fees.”

In Friedrichs, Justices Ruth Ginsburg and Stephen Breyer tried to give the union’s attorney the opportunity to state what he would have put in the record if he had had the opportunity to do so. But, as Garden explains, “being asked to make a proffer before the Supreme Court is tricky without the ability to engage in discovery.”

The Janus case is almost identical to the Friedrichs case in that both are premised on the idea that there is no line in the public sector between political and non-political activity. Conservatives justices have firmly embraced this rational, as was evident during the Friedrichs oral argument when Chief Justice John Roberts challenged California’s attorney to give his “best example of something that is negotiated over in a collective bargaining agreement with a public employer that does not present a public policy question.” The attorney responded that mileage reimbursement rates were such an example. Roberts shot back, “That’s money. That’s how much money is going to have to be paid to the teachers. If you give more mileage expenses, that costs more money.”

If everything that a public sector union does is political, then it is a much shorter line to find that a worker should not have to pay any part of the costs of collective bargaining. This would be a very worrisome conclusion for unions, which must do what they can now to stop such an outcome from happening.

As Democrats and the labor movement prepare for a possible fight over Trump’s imminent appointment to the Supreme Court, they should recognize that several major labor cases, brought by some of labor’s most persistent enemies, are waiting in the wings. Senators should question nominees about their view of Abood and other Supreme Court precedents that protect public employees’ labor rights. And if labor has any sway within the Democratic Party, it should make it clear that these issues should be disqualifying for any new appointment to the Court.

This post originally appeared on inthesetimes.com on January 4, 2017.  Reprinted with permission.

Moshe Z. Marvit is an attorney and fellow with The Century Foundation and the co-author (with Richard Kahlenberg) of the book Why Labor Organizing Should be a Civil Right.

Why Supreme Court Nominations Are One of the Most Important Issues for Working People

Friday, September 2nd, 2016

Kenneth QuinnellThere’s a lot at stake in the 2016 presidential election. While U.S. Supreme Court nominations may not be the most headline-grabbing stories that come out of a presidency, they probably should be. With Supreme Court justices serving for life and having significant power in interpreting laws that affect our daily lives, the importance of court appointments cannot be overstated.

This election, in particular, could shape up to be one of the most important elections in terms of shaping the court in American history. After Antonin Scalia’s death earlier this year, Republicans in Congress have sworn to prevent a replacement from being chosen until after the election and have stalled President Barack Obama’s nomination of Merrick Garland for more than 150 days. In all likelihood, it will be up to the winner of the 2016 presidential election to choose Scalia’s replacement, be it Garland or someone else.

But that’s not the end of the story. According to a 2006 study by the Harvard Journal of Law and Public Policy, the average retirement age for Supreme Court justices is 78.7. As of the beginning of the next president’s term, three of the nine justices will be older than 80. Another will be 78. While those justices seem healthy and committed to staying on the court for the near future, Scalia seemed the same way before passing away at 79. It’s not outside the realm of possibility that the next president could literally appoint a majority to the court, especially if elected for a second term.

It isn’t necessarily the case that the appointment of one or two new justices will make a significant shift right away, but over time, replacing Scalia with a justice that is less of a right-wing ideologue has the potential to reshape many areas of American law—and, in particular, much of the law surrounding the rights and lives of working people. Here are six reasons that Supreme Court nominations are one of the most important issues in the 2016 elections:

1. Gerrymandering: With a case already moving its way through the courts, this one could come up soon. And it’s a big one. Ever wonder why the country keeps voting for Democrats for president, but Republicans control Congress? A key reason is gerrymandering, the process of drawing the district lines for congressional seats for partisan advantage. Currently, 55% of congressional districts were created to favor Republicans, compared to 10% drawn in favor of Democrats. That’s why, in 2012, when Barack Obama won re-election and a majority of votes for congressional seats went to Democrats (50.59%), Republicans managed to somehow get a significant majority of House seats (53.79%). In that cycle, 1.37 million more Americans voted for Democrats, only to see Democrats end up with 33 fewer seats in the House. If one spends any time reading constitutional law, they’ll find that the precedent is pretty strongly against this type of gerrymandering. A court appointed by Hillary Clinton would likely frown heavily on this type of manipulation of the electorate.

2. Voting Rights: In 2013, the court issued a ruling that shocked President Obama, legal scholars, civil rights groups and historians. The conservative majority on the court gutted the enforcement mechanism for the Voting Rights Act. This was almost immediately followed by states that were previously required, based on a history of discrimination, to get Department of Justice approval for changes to voting laws, passing a series of laws that made it harder for many, particularly African Americans, to vote. Republicans passed laws shortening voting hours, eliminating early voting and making it harder to register and harder to vote, among other new obstacles to people exercising their right to vote. Many of these laws have been rejected by courts, and it’s likely that the Supreme Court would look very negatively on them.

3. Citizens United: The court ruled that corporations can spend as much as they want to influence elections, as long as they spend it independently of campaigns. This led to tons of money flowing into elections and the creation of super PACs. Clinton wants this ruling overturned and said she’d appoint justices that would do so. Trump’s on the other side. Clinton-appointed justices are likely to take a stricter look at other attempts by corporations and the wealthy to have more influence on elections than the rest of the electorate.

4. Corporate Influence in Supreme Court Cases: A recent study found that between 2009–2012, the one entity most likely to get a hearing at the Supreme Court, out of all petitioners, was the Chamber of Commerce. The court was not only more likely to hear cases championed by the chamber, it was more likely to decide in favor of the corporate interests the chamber supported. The court also made it harder for citizens to engage in class-action lawsuits, making it harder for citizens to sue corporations like Comcast or Walmart for hurting working people or consumers and making it less likely those working people and consumers would win cases before the court. Additionally, in the notorious Hobby Lobby case, the court allowed some corporations a religious exemption, allowing them not to provide insurance coverage for contraception. Other anti-working people decisions in recent years involved making it easier for judges to dismiss cases earlier, without going to trial, and requiring some consumers to submit to arbitration, rather than going to court.

5. Workplace Fairness: A series of 5–4 decisions during the John Roberts Court era have come down against working people and their rights on the job. These rulings will be ripe for challenges once Scalia’s seat on the court is filled. Among the key rulings that are under scrutiny are those that make it harder to sue in cases of pay discrimination, make it easier to retaliate against and fire employees who report job bias claims, make it harder to prove age discrimination on the job, weakened the Family and Medical Leave Act, made it easier to promote “right to work” at a national level, weakened overtime protections, made it easier to dismiss wage theft claims and made it easier to fire public employees for public statements made in the course of their duties.

6. Deportations: Earlier this year, the court effectively killed an executive order from Obama that would have shielded as many as 4 million undocumented immigrants from deportation. It will likely be considered again under a new court.

Any number of other issues that affect working people could also come before the Supreme Court, including, but not limited to: education funding, Medicaid expansion, public funding of elections, solitary confinement of inmates, prison overcrowding and many other issues.

This blog originally appeared in aflcio.org on August 30, 2016.  Reprinted with permission.

Kenneth Quinnell: I am a long-time blogger, campaign staffer and political activist.  Before joining the AFL-CIO in 2012, I worked as labor reporter for the blog Crooks and Liars.  Previous experience includes Communications Director for the Darcy Burner for Congress Campaign and New Media Director for the Kendrick Meek for Senate Campaign, founding and serving as the primary author for the influential state blog Florida Progressive Coalition and more than 10 years as a college instructor teaching political science and American History.  My writings have also appeared on Daily Kos, Alternet, the Guardian Online, Media Matters for America, Think Progress, Campaign for America’s Future and elsewhere.  I am the proud father of three future progressive activists, an accomplished rapper and karaoke enthusiast.

Where Would Obama’s Supreme Court Nominee Merrick Garland Stand on Labor Issues?

Monday, March 21st, 2016

Despite hardline Senate Republican opposition to meeting with, let alone voting on, any potential replacement for recently deceased Supreme Court Justice Antonin Scalia, on Tuesday, President Obama nominated Chief Judge Merrick Garland of the U.S. Court of Appeals in Washington, D.C., to fill the vacancy left by Justice Antonin Scalia after his recent, unexpected death.

Garland is a highly qualified, well-respected judge, first appointed in 1997 by President Bill Clinton to the D.C. Circuit Court and confirmed by a vote of 76 to 23 in the Senate. Garland has been under consideration for a seat on the Supreme Court previously; he has a reputation for judicial restraint (quite unlike Scalia’s highly ideological attempt to use the Supreme Court to re-write the nation’s law).

It’s hard to give him a clear political label, but Garland does not seem to be as progressive on workers’ rights issues as Scalia was reactionary. In 2010 Tom Goldstein, publisher of SCOTUSblog, wrote that Garland was “essentially the model, neutral judge. He is acknowledged by all to be brilliant. His opinions avoid unnecessary, sweeping pronouncements.” On criminal law (and cases involving Guantanamo detainees), Goldstein wrote, Garland leaned a bit conservative, on first amendment, environmental and “open government” issues, a bit liberal. One consistent thread seems to be deference towards regulatory agencies, letting them make decisions without the Supreme Court always second-guessing or rewriting the law.

That sentiment may be important for labor issues before the Supreme Court, which has frequently acted to restrain the National Labor Relations Board and crimp worker rights in decades past. Scalia’s vote was crucial in the many 5-4 decisions by the Supreme Court that weakened rights and protections for American workers. His death, for example, seemed to have eliminated (for the moment) a likely 5-4 court decision in the Friedrichs case, which would have prevented public employee unions from charging non-members of the union a fee that paid for the benefits of union bargaining and grievance representation that union by law must provide.

But as Catherine Fisk notes in On Labor, the large number of 5-4 cases on labor issues suggests that “the importance of confirming a progressive is enormous,” both for future cases and potential review and overturn of earlier decisions.

Even if Garland is not a full-fledged “progressive,” his votes on NLRB cases involve more than deference to regulatory agencies,according to Hannah Belitz. In the four cases in which Garland did not agree to defer entirely to the NLRB, she wrote, Garland upheld pro-labor and voted to overturn pro-employer positions, leading her to describe him as having “an outlook that is generally favorable to union activity.”  But deference to the NLRB does not always imply support for workers.

AFL-CIO president Richard Trumka, Service Employees International Union (SEIU) president Mary Kay Henry and UAW president Dennis Williams were labor leaders who quickly welcomed the nomination and urged speedy consideration of Garland’s nomination. Trumka, a coal miner and lawyer before his labor career, praised his “impeccable credentials and deep experience.” Henry, whose union is not part of the AFL-CIO, said he would be

a good choice for working families. His record shows that he believes in the duty of government to protect regular Americans, and our democracy, from being corrupted by the excesses of the super wealthy and their corporate agenda. He has shown that he respects the opinion of the National Labor Relations Board…, and he has upheld disclosure requirements to keep a check on the outsized influence ‘dark money’ has on our government.

Garland appears to be a judge who is pretty nonpartisan in his rulings, caught in a moment of extreme political combat that threatens the public good and could reinforce many politicians’ lack of credibility. Sen. Orrin Hatch (R-UT), the senior Republican on the Senate Judiciary committee last week argued that President Obama should nominate Merrick Garland, “a fine man,” but the president won’t because he would have to satisfy his base with a liberal appointee.  Will Hatch now vote down a “fine man” to stymie a president he does not like?

This blog originally appeared in aflcio.org on March 17, 2016. Reprinted with permission.

David Moberg, a senior editor of In These Times, has been on the staff of the magazine since it began publishing in 1976. Before joining In These Times, he completed his work for a Ph.D. in anthropology at the University of Chicago and worked for Newsweek. He has received fellowships from the John D. and Catherine T. MacArthur Foundation and the Nation Institute for research on the new global economy. He can be reached at davidmoberg@inthesetimes.com.

Notorious RBG Offers Hint to Whether Post-Scalia Court Will Be Better for Workers, Consumers

Wednesday, February 24th, 2016

Paul BlandMany different aspects of Justice Scalia’s legacy on the Supreme Court have been discussed extensively since his death, but one important issue has largely escaped attention: his outsized role in promoting the use of forced arbitration in consumer, employment and a wide range of other types of contracts. Fine print forced arbitration clauses bar consumers and workers from going to court, but require them to go into a corporate-designed private dispute resolution system where they are forbidden to be a part of a class action. As the New York Times set forth in a series of remarkably thorough and well-researched stories, forced arbitration has allowed corporations to break the law and get away with it in a wide variety of settings.

Justice Scalia played a central role in bringing about this state of affairs. He was not only a reliable vote for enforcing arbitration clauses and expanding the 1925 Federal Arbitration Act far beyond the intentions of its framers, but he also wrotethe most controversial and significant of the Court’s decisions enforcing forced arbitration clauses. In American Express v. Italian Colors, for example, in 2013 Justice Scalia wrote the majority opinion in a sharply divided 5-4 decision holding that a take-it-or-leave-it arbitration clause could be used to prevent small businesses from actually pursuing their claims for abuse of monopoly power under the antitrust laws.This built upon Justice Scalia’s 2011 opinion for the Court in AT&T Mobility v. Concepcion, which overturned (without mentioning) more than 100 decisions where appellate courts in 20 states and the majority of circuits, and district courts throughout the country, had previously held that where a provision banning class actions in an arbitration clause was proven to prevent individuals from vindicating their rights under consumer protection or civil rights laws, that the clause couldn’t be enforced. In Concepcion, Justice Scalia invented a new rule of federal law that wiped away basic state contract law rules against contracts that let corporations just opt out of basic laws.

So what does this mean for what will happen to forced arbitration now that Justice Scalia is no longer on the Court? Well, obviously everything hinges upon who ultimately succeeds him. But if the next Justice is one who refuses to put corporations’ rights to force people into arbitration ahead of all other federal and state laws, there is reason to believe that the Court may reverse decisions such asItalian Colors and Concepcion.

One of the strongest hints as to this possibility was offered by none other than Justice Scalia’s close personal friend Justice Ruth Bader Ginsburg, just a few weeks before his death. In speaking at Brandeis University, Justice Ginsburg was reflecting on a disastrous series of U.S. Supreme Court decisions from the early decades of the 1900s, where it struck down minimum wage laws and many other worker protections as supposedly violating the corporate right to freedom of contract. And Justice Ginsburg linked this long discredited line of cases (the most famous of which is Lochner v. New York) with Italian Colors and Concepcion:

I was reminded of Lochner reading some decisions of the Court concerning workers, consumers, credit card holders who signed agreements saying “if you have a dispute with us, you can bring it only in arbitration — not in court — and you cannot use the class action. You must sue for your individual claim, which might be 30 dollars, and that’s it.” And that has also been described as tied to liberty of contract.

It is hard to read these words without understanding that Justice Ginsburg is indicating that Concepcion and Italian Colors are not just wrong, they are disastrously wrong, usurping the power of legislators to protect workers and consumers. Similarly, in a dissent in a very recent decision (DirecTV v. Imburgia), Justice Ginsburg noted that the Court’s “decisions have predictably resulted in the deprivation of consumers’ rights to seek redress for losses, and, turning the coin, they have insulated powerful economic interests from liability for violations of consumer-protection laws.”

That’s telling it like it is!

Justice Ginsburg is hardly the only justice to question the legitimacy of Justice Scalia’s most aggressive opinions promoting forced arbitration. In the Italian Colors case, Justice Kagan wrote an eloquent, even fierce dissent, that described the majority opinion as a “betrayal” of both the Court’s own prior arbitration decisions (the Court always used to say that arbitration just meant shifting a case from one forum (court) to another (arbitration), but was not supposed to mean that people lost their underlying substantive rights) and of the antitrust laws.

With Justice Scalia gone from the Court, no one can say what will happen next, with respect to forced arbitration or any other issue. But the exceptionally strong words of Justices Ginsburg and Kagan raise a very real possibility that the Supreme Court’s love affair — with forcing Americans into arbitration even when it lets corporations break the law with impunity — may finally be over.

This post originally appeared on thehuntingtonpost.com on February 23, 2016.  Reprinted with permission.

Paul Bland manages and leads a staff of nearly 30 attorneys and other staff, guiding the organization’s public interest litigation docket and other advocacy.  As staff and senior attorney, he was responsible for developing, handling, and helping Public Justice’s cooperating attorneys litigate a diverse docket of public interest cases. Paul has argued and won more than 30 cases that led to reported decisions for consumers, employees or whistleblowers in six of the U.S. Courts of Appeals and the high courts of nine different states.  Paul is a 1986 cum laude graduate of Harvard Law School and a 1983 magna cum laude graduate of Georgetown University, where he received a B.A. in Government. Prior to coming to Public Justice, Paul was Chief Nominations Counsel to the U.S. Senate Judiciary Committee, and worked for nearly seven years with Kieron F. Quinn in Baltimore, Maryland, where he handled consumer and toxic tort class actions, prosecuted qui tam suits and defended libel suits.

 

Post-Euphoria: SCOTUS Gears Up To Destroy Unions

Tuesday, July 7th, 2015

jonathan-tasiniI’ve kind of laughed at the analysis percolating around that, oh, surprise, the Supreme Court is a liberal bastion…or not so conservative. Well, it was a great day when marriage equality became the law of the land. But, while everyone can now marry, the Supreme Court has a very clear five-vote conservative bloc when it comes to empowering business, enhancing class warfare and making it impossible to make a decent living…married or not.

And it is now gearing up to potentially destroy public sector unions.

The Court has now accepted for argument Friedrichs v. California Teachers Association. Essentially, the case is another one ginned up by right-wing, anti-union forces to eviscerate public sector unions by challenging the right of unions to collect dues and use them for the whole range of activities unions perform, particularly political lobbying.

The Court’s conservatives have been pining away for a case to destroy public sector unions. In June 2012, The Court essentially invited a huge challenge, in a ruling in Knox v. Service Employees International Union. As the incomparable Linda Greenhouse wrote:

But Justice Samuel A. Alito Jr., writing for a five-member majority that included Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Anthony M. Kennedy, and Clarence Thomas, went beyond the confines of the case to suggest strongly that the decades-old accommodation between union members and non-members in public workplaces violates the First Amendment rights of the non-members.To avoid the problem of “free riders,” agency-shop provisions require that those who object to joining the union nonetheless pay a fee that represents the portion of union dues that goes to the collective bargaining activities from which all employees benefit. The non-members, at their request, are entitled to be excused from contributing to the union’s political activities. Since the non-members must affirmatively exercise this “opt-out” option, this system tends to favor the union; as students of default rules well understand, inertia inevitably keeps some people from bothering to assert their rights.

The opt-out system “represents a remarkable boon for unions,” Justice Alito wrote in his majority opinion characterizing the arrangement as one the court had endorsed haphazardly and without adequate thought. He went on to challenge the basic agency-shop structure, calling it “an anomaly.” Compelling nonmembers to pay any portion of their dues to a union with which they don’t care to be associated is a substantial impingement on the First Amendment right to be free from compelled speech and association, Justice Alito said, adding: “Our cases to date have tolerated this impingement and we do not revisit today whether the court’s former cases have given adequate recognition to the critical First Amendment rights at stake.”

In case he hadn’t made it sufficiently clear that 60 years of Supreme Court precedents are now hanging by a thread, Justice Alito continued: “Our prior decisions approach, if they do not cross, the limit of what the First Amendment can tolerate.” As for the special dues assessment at issue in the case, he concluded, the opt-out system was constitutionally insufficient, and the objecting employees were free of any obligation unless they chose to opt in.[emphasis added]

Then, came Harris v. Quinn–and an almost fatal blow to public unions. It was bad:

The petitioners in Harris were several home-care workers who did not want to join a union, though a majority of their co-workers had voted in favor of joining one. Under Illinois law, they were still required to contribute their “fair share” to the costs of representation — a provision, known as an “agency fee,” that is prohibited in “right to work” states.The ability of unions to collect an agency fee reflects a constitutional balance that has governed American labor for some 40 years: Workers can’t be forced to join a union or contribute to its political and ideological activities, but they can be required to pay for the cost of the union’s collective bargaining and contract-administration activities.

The majority in Harris saw things differently. Making workers pay anything to a union they oppose is in tension with their First Amendment rights — “something of an anomaly,” in the words of the majority. But the real anomaly lies in according dissenters a right to refuse to pay for the union’s services — services that cost money to deliver, and that put money in the pockets of all employees.

And:

While a majority declined to strike down agency-fee arrangements for “full-fledged” public employees, as the petitioners had requested, and as unions had feared, the majority makes clear that such fees now rest on shaky constitutional ground, at least in the public sector, and are vulnerable to broader attack in the future.

What the Court did not do was strike down a 1977 case, Abood v. Detroit Board of Education, which really is the basis for the framework for public sector unions being able to charge fees to pay for the costs of operations–particularly, the costs that go into collective bargaining. The only reason the conservatives did not destroy Abood in the Harris decision was because Justice Alito said that home healthcare workers were not actually “full-fledged” public employees, so putting a stake into Abood was not necessary.

That, however, is what the Court will attempt to do with this new case, which will be heard in the coming term, and likely be decided in 2016. The issue is clear:

Whether Abood v. Detroit Board of Education should be overruled and public-sector “agency shop” arrangements invalidated under the First Amendment; and (2) whether it violates the First Amendment to require that public employees affirmatively object to subsidizing nonchargeable speech by public-sector unions, rather than requiring that employees affirmatively consent to subsidizing such speech.

I am not optimistic.

This blog was originally posted on Working Life on June 30, 2015. Reprinted with permission.

About the Author: The author’s name is Jonathan Tasini. Some basics: I’m a political/organizing/economic strategist. President of the Economic Future Group, a consultancy that has worked in a couple of dozen countries on five continents over the past 20 years; my goal is to find the “white spaces” that need filling, the places to make connections and create projects to enhance the great work many people do to advance a better world. I’m also publisher/editor of Working Life. I’ve done the traditional press routine including The Wall Street Journal, CNBC, Business Week, Playboy Magazine, The Washington Post, The New York Times and The Los Angeles Times. One day, back when blogs were just starting out more than a decade ago, I created Working Life. I used to write every day but sometimes there just isn’t something new to say so I cut back to weekdays (slacker), with an occasional weekend post when it moves me. I’ve also written four books: It’s Not Raining, We’re Being Peed On: The Scam of the Deficit Crisis (2010 and, then, the updated 2nd edition in 2013); The Audacity of Greed: Free Markets, Corporate Thieves and The Looting of America (2009); They Get Cake, We Eat Crumbs: The Real Story Behind Today’s Unfair Economy, an average reader’s guide to the economy (1997); and The Edifice Complex: Rebuilding the American Labor Movement to Face the Global Economy, a critique and prescriptive analysis of the labor movement (1995). I’m currently working on two news books.

This Week in the War on Workers: Supreme Court Case Could Sharply Restrict Union Organizing

Saturday, November 16th, 2013

Laura ClawsonUnion organizing campaigns run up against the fact that labor law enforcement, wealth, and power in the workplace are all stacked against workers, and if bosses fight a union with everything at their disposal, it is damn hard for workers to win. That environment could get a lot worse, though, with the Supreme Court hearing a case this week that challenged the legality of a key organizing tool.

As Labor Notes’ Jenny Brown explains:

Neutrality agreements create rules for union and employer behavior during organizing drives. Often an employer signs such an agreement only after years of targeted union pressure. The employer promises not to try to sway workers’ opinions, allowing them some breathing room when labor law is mostly on management’s side.

For their part, unions may offer the employer some promises—for instance, that they will avoid strikes. But in the case the Supreme Court heard this week, a federal appeals court ruled that neutrality agreements may violate a provision of the Taft-Hartley Act prohibiting employers from giving unions “anything of value.” According to the appeals court, the fact that Mardi Gras gaming gave UNITE HERE access to its facilities and the names and addresses of employees could count as something of value.

The paragraph is designed to keep employers from bribing unions with money, jobs, loans, or other inducements, said Massachusetts labor lawyer Robert Schwartz.“No employer would think to bribe a union by making it easier for the union to organize,” noted UNITE HERE in a press release.

The Supreme Court hearing a case that could seriously limit union organizing efforts is a terrifying prospect. There were some promising moments during questioning:

Justice Elena Kagan said that the argument from Mulhall’s lawyer, William L. Messenger, could mean that employers would never be able to do simple things like invite union representatives on their property to talk to their employees without running afoul of the law.”So this is to say that the National Labor Relations Act prohibits employers from providing access to their premises, from granting a union a list of employees, or from declaring itself neutral as to a union election?” Kagan said.

Messenger agreed, prompting a reaction from Justice Anthony Kennedy. “Do you acknowledge that your answer to Justice Kagan is contrary to years of settled practices and understandings?” Kennedy said.

But still. This is not a pro-worker Court, and it’s going to be a nervous wait for the decision.

This article was originally printed on Daily Kos on November 16, 2013.  Reprinted with permission.

About the Author: Laura Clawson is the labor editor at Daily Kos.

SCOTUS 2013-14 Labor Law Preview

Wednesday, October 9th, 2013
philip_miles_smallAnother Supreme Court season is upon us! The Court has a pretty decent lineup of labor law cases this year. I’ll break the employment law cases into a separate post. Let’s cut to the chase:

Recess Appointments

NLRB v. Noel Canning will probably get the most media attention of the bunch. The case will address whether President Obama’s appointments to the NLRB were constitutional. Per the cert. petition, the questions presented are:
1. Whether the President’s recess-appointment power may be exercised during a recess that occurs within a session of the Senate, or is instead limited to recesses that occur between enumerated sessions of the Senate.

2. Whether the President’s recess-appointment power may be exercised to fill vacancies that exist during a recess, or is instead limited to vacancies that first arose during that recess.

This case could have a big impact on the President’s recess-appointment power beyond just the NLRB. Argument set for December 4, 2013.

Compensation for Changing Clothes
Sounds silly, right? But, in Sandifer v. U.S. Steel, steel workers claim they spend up to a few hours per week changing into their work attire. Under an FLSA exception, “changing clothes” may be excluded from compensation by a CBA.

Here, the “clothes” include things like flame-retardant jackets, metatarsals (steel-toed boots), and “snoods” (head and neck protectors). In other words, “donning and doffing” safety gear that is ordinarily compensable – but the gear is kind of clothes-y so maybe it’s not. SCOTUS will hopefully draw the line.

Fun fact: I interned at a U.S. Steel plant in Pittsburgh in the IT department in 1998. When I went into the mill I wore the jacket and metatarsals (and hardhat and goggles), but no “snood” – I guess they didn’t care that much about me ;-). Argument set for November 4, 2013.

Mandatory Dues
In Harris v. Quinn, the Supreme Court was petitioned to review the following questions:

1. May a State, consistent with the First and Fourteenth Amendments to the United States Constitution, compel personal care providers to accept and financially support a private organization as their exclusive representative to petition the State for greater reimbursements from its Medicaid programs?
2. Did the lower court err in holding that the claims of providers in the Home Based Support Services Program are not ripe for judicial review?
This could make union dues-collecting more difficult. Set for argument on November 13, 2013. Update: Not yet set for argument, but probably January of February 2014.
Labor-Management Organizing Agreements
In Unite Here Local 355 v. Mulhall, the employer promised not to oppose union representation and granted union access to its property, and the union agreed to forego rights to picket, boycott, etc. The question presented:
Whether an employer and union may violate § 302 [of the Labor-Management Relations Act] by entering into an agreement under which the employer exercises its freedom of speech by promising to remain neutral to union organizing, its property rights by granting union representatives limited access to the employer’s property and employees, and its freedom of contract by obtaining the union’s promise to forego its rights to picket, boycott, or otherwise put pressure on the employer’s business?
Set for argument on November 13, 2013 (same day as Harris v. Quinn – it’s a labor law doubleheader!).
This article was originally printed on Lawffice Space on October 7, 2013.  Reprinted with permission.
About the Author: Philip K. Miles III, Esq. is the creator of Lawffice Space.  He is an attorney with McQuaide Blasko, a full-service law firm headquartered in State College, Pennsylvania.  He belongs to the Labor and Employment, and Civil Litigation Practice groups.  Lawffice Space is an independent law blog focusing on labor and employment law.

Supreme Court Increases Regulation on Unions

Friday, June 29th, 2012

mike elkA recent Supreme Court ruling in Knox v. SEIU Local 1000 has some labor advocates howling that the Court is beginning to come after workers. The 7-2 ruling last week states that public sector employees must opt in to have their money spent on political action, instead of opting out as had been previously mandated in the case Beck v. CWA. The ruling could dramatically decrease the amount of money that public-sector unions, whose members currently compose 37 percent of all union members, have to spend on political action. Many public-sector union members are already financially strapped and may choose not to give their money to political campaigns.

The drop in the number of public employees giving money could increase dramatically if employers put pressure on public employees to not opt in to giving money to their unions’ political action funds. The recent Supreme Court ruling Citizens United eliminated protections that previously barred employers from pressuring workers on political matters. Now, combined with the Citizens United ruling, employers in the public sector could possibly pressure their employees to decline to give money to their unions’ political action funds.

“Unfortunately this decision continues the attack on the right of public-sector workers to act collectively to impact their workplace on important issues” says SEIU Local 1000 spokesperson Jim Herron Zamora, whose union was sued for imposing an assessment fee for political action on workers without first getting their consent.

“I think it’s more symbolic than anything. It’s going to be a pain for unions. Unions are going to have send in affirmative opt-in notices. The court is right in the basic principle that public employees have a right not to pay for that political work of unions and I agree with that even if it goes against the union,” says Elon University labor law professor Eric Fink. “It bothers me more for what it symbolizes, in that the court is going out of [its] way to fuck unions, and what that symbolizes in future cases”.

A few days after the decision, the Court also struck down a 1912 Montana law that limited the amount of money corporations could spend on local and state elections in Montana. Fink sees the Supreme Court setting a double standard in its increasing regulation of how unions spend political money while deregulating how corporations can spend money.

“Corporations have a fiduciary duty to their shareholders. However, unlike unions, corporations don’t have to ask their shareholders to make any political expenditure,” says Fink. “The Supreme Court doesn’t say a word about that when it comes to shareholders, but they say something about unions. It’s unions that are more democratic than any other institution [and] they want to sit down and micromanage how they spend their money.”

Unions are some of the most heavily regulated institutions in America. Under the Labor-Management Reporting and Disclosure Act of 1959, every union is required to file quarterly LM forms with the Department of Labor that lay out all of their expenses in detail, including salaries of officials, political action expenditures and reimbursement of expenses. These databases are searchable online at the Department of Labor’s website. Corporations, by contrast, are not required to file forms outlining all of their expenditures.

UE Political Action Director Chris Townsend says that unions must stand and be defiant of this Supreme Court decision and protest it with vigor.

“We can’t let them get away with this decision. If we let them get away with this decision, we are only another two or three court decisions away from the Court saying right-to-work is a constitutional right,” says Townsend. “It’s time for labor to fight back on this issue, and tell the Supreme Court to go to hell if needed. Has the labor movement pressed the current regime to end the intrusive and unfair regulation of unions? Of course not. Until we do, we can expect more of these attacks. Do Democrats stand up for us on this issue, even though they benefit for the most part from labor’s efforts? Of course not.”

This blog originally appeared in Working In These Times on June 28, 2012.

About the Author: Mike Elk is an In These Times Staff Writer and a regular contributor to the labor blog Working In These Times. He can be reached at mike@inthesetimes.com.

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