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Posts Tagged ‘Shaun Richman’

The Legal Argument That Could Overturn ‘Right-to-Work’ Laws Around the Country

Monday, April 25th, 2016

in these times

Union supporters had reason to cheer earlier this month when Wisconsin Gov. Scott Walker’s hated “right to work” law was overturned by a Dane County Circuit Judge. Unfortunately, the decision is all but certain to be overturned by Wisconsin’s conservative Supreme Court. But contained in the case is a line of questioning over the constitutionality of the right-to-work concept that has quietly been playing out in federal courts.

The result could be that all right-to-work laws are nullified—and sooner than you might imagine.

“RTW” takes money and power from unions, but is that a ‘taking?’

The logic that the Wisconsin judge leaned upon in his decision has its origins in a federal case called Sweeney v. Pence, in which unions made an unsuccessful attempt to overturn Indiana’s recent right-to-work statute on constitutional grounds. Although the unions themselves did not raise this argument in the 2014 case, Chief Judge Diane Wood argued in her dissent that “right-to-work” provisions violate the U.S. Constitution’s Takings Clause.

“This is a law,” says Marquette Law Professor Paul Secunda, “that compels one private party to provide benefits to another private party with no compensation.” He is convinced that right-to-work laws, which permit represented workers to quit their union and stop paying fees while simultaneously obligating that union to continue to spend resources representing them, are an unconstitutional “taking.”

If the issue makes its way up to the Supreme Court, and the justices agree with Secunda, the result could overturn the section of the National Labor Relations Act that allows states to pass right-to-work measures as well as the statutes in all 26 states that have passed them in one fell swoop.

The Wisconsin case won’t get there. Because Wisconsin is in the same 7th Circuit that rejected the “takings” argument in Sweeny v. Pence (making it, for now, a settled matter there), unions filed their case in state court over the state’s constitution.

But West Virginia and Michigan are states that recently passed right-to-work laws, and they are both in different federal court circuits. Unions in those states could challenge the constitutionality of right to work on the federal level. Unions in Idaho already have a case pending, which is a particularly exciting prospect as that state falls within the liberal 9th circuit. (Keep an eye out for Operating Engineers Local 370 v. Wasden.)

The “takings” approach is not without its critics. Seattle University Associate Professor of Law Charlotte Garden notes that Judge Wood’s interpretation of the Takings clause is one more commonly advanced by anti-regulatory conservatives, and that labor taking up the cause could have unintended consequences. “There’s a difficulty of applying existing ‘takings’ law in this kind of context,” she says. “Takings” is generally applied to property, she says, and what’s being taken from unions is the labor of their staff.

As an alternative strategy, Garden points out that the NLRB has indicated an openness to considering whether unions in right-to-work states can charge a fee to non-members who want to file a grievance.

Any rulemaking by the Board on right to work can expect to be challenged by business interests, which could open different constitutional questions about the law. The Indiana unions actually argued in Sweeney v. Pence that the Taft-Hartley amendments to the NLRA were only meant to apply to questions of compelled union membership, not fees for service. But I believe there remains a compelling argument about legislative intent.

Remembering our history will be vital to success

The judges who rejected the “takings” logic in Sweeney vs. Pence argued that unions weren’t uncompensated for their duty to represent all workers in a bargaining unit. They wrote, “we believe the union is justly compensated by federal law’s grant to the Union the right to bargain exclusively with the employer. The reason the Union must represent all employees is that the Union alone gets a seat at the negotiation table.” This is a bunch of ahistorical nonsense that betrays a lack of understanding of labor relations and power dynamics.

But why should we expect a couple of judges to get this right when most union activists are so muddled on the history and effects of the duties of exclusive representation and the union shop? To win, we need to understand our history and have real clarity on our goals to regain power.

When the National Labor Relations Act was written, unions were “members-only” organizations that competed with each other. They contested for power in the same workplaces over who would make the best bargaining demands, who could extract the bigger concessions from management and who could organize the most successful job actions. Employers hated this.

In pursuit of labor peace, employers began signing contracts with unions as the “sole and exclusive representative” of their workers. These early contracts gave employers a one-year guarantee that there would be no new union demands and no strikes. Unions went with it because it helped knock out the competition. The NLRB, which had been certifying unions as representing their members only, also went with it and now certifies unions as exclusive representatives, exclusively.

Agency fee originated not merely as compensation for the financial costs of representing all the workers in a unit, but for the political costs. During World War II, patriotically motivated unions pledged not to strike, and were rewarded with government-dictated wage freezes. Workers protested by quitting their unions. In order to keep unions from dropping their no-strike pledges, the War Labor Board began to reward unions a “maintenance of membership” rule which prevented workers from quitting the union during the term of a contract. This evolved into the union shop and agency fees.

The combination of exclusive representation and agency fee does contain the potential for real power and real wins for unions, as well as labor peace for employers. But it also tends to make unions more conservative and less militant. Exclusive representation without agency fee is the worst of both worlds, and should be resisted.

For three quarters of a century the only way that the NLRB would “certify” a union was as the exclusive representative of all of the workers at a represented workplace, mostly with the union’s understanding that it could bargain for a contract clause that obligates represented workers to pay some fair share of the union’s expenses.

This “union certification” gives collective bargaining the force of law that an arm of the federal government—the NLRB—will drag an employer that refuses to recognize and bargain “in good faith” with a certified union to court to force them to. So, for a union to tear up this “certification” to represent all of the workers and say, “we only represent our members now” carries the risk of losing the backing of the NLRB—but the potential reward of forcing the courts to grapple with the tradeoffs of forced representation without taxation.

To win big, we need a union in a right-to-work state that is genuinely willing to cede exclusive representation to kick out the scabs.

What I think this would look like is that union, just prior to the expiration of their current contract, filing a letter with the employer and the labor board disclaiming representation of the entire bargaining unit but demanding to bargain for their members only (and subsequently refusing to bargain over a no strike clause). We’ve got a much stronger case if it’s brought to federal court by an employer complaining that a union won’t represent all the workers than one brought by a union complaining about a loss in agency fee revenue.

It is time to start using the courts more strategically

The idea that the Supreme Court could swing from seriously considering forcing the entire public sector to go right to work in this term, to weighing the very constitutionality of right-to-work laws two or three years later might seem too fantastical, but such is the strange lack of case law over the underlying legal justification for requiring that a union represent all the workers but forbidding them to mandate dues and fees for that service work.

“This isn’t stare decisis at all,” says Paul Secunda, describing the Latin term for the legal obligation of judges to stand by settled decisions. “You’ve got one decision from one circuit court. This is hardly settled case law.”

As I’ve noted, unions have tended to shy away from judicial strategies, and, on right to work in particular, labor has long favored a legislative solution. Repealing the Taft-Hartley Act that contained the right-to-work amendment to our nation’s main labor law was the top legislative priority of the AFL, the CIO and its merged successor from the time of its passage in 1947 well into the 1980s.

There were 12 right-to-work laws on the books—all in former slave states—at the time of Taft-Hartley’s passage. They had no force of law, as the federal NLRA preempted them—that is, until Taft-Hartley. And again, a close look at the legislative intent might reveal that Congress merely meant to allow states to ban union membership—not agency fees—as a requirement of employment. Or, more crudely, they may have basically been saying, “Let the Confederacy secede from the New Deal.”

The AFL and the CIO, which by 1947 had both abandoned organizing the south, seemingly wrote the former Confederacy off at the time. Since labor lost little to no membership as a result of those first 12 right-to-work states, little brainpower was devoted to challenging the constitutionality of the scheme. Likewise, when right to work next spread to western and plains states like Arizona and Nebraska, labor similarly wrote them off.

When right to work first spread to a bedrock labor stronghold, Indiana in 1959, the move was so controversial that within eight years labor had managed to overthrow the Republicans, who supported it in all three chambers of government and repeal the law. This win—the only instance of a right-to-work law being repealed legislatively—may have ultimately been counterproductive, giving unions false hope that killing right to work is a matter of making sure the bad guys don’t win re-election.

The labor movement of 1965 could entertain such fantasies. The labor movement that has seen bases of union power in Indiana, Michigan, Wisconsin and West Virginia go “right to work” within the same half decade must wake up to the fact that it will take more than elections to reverse the damage. It will also take a judicial activism agenda for labor, like I have advocated.

And ultimately, working people in America will gain no new rights without stoking a hell of a lot of chaos, through strikes and more. But we’ll also gain no new rights without legal demands like the Operating Engineers Local 370 v. Wasden case hanging out there. It is now up to the sisters and brothers in other “right to work” states—Michigan, West Virginia and beyond—to join the fight.

This blog originally appeared at InTheseTimes.org on April 21, 2016. Reprinted with permission.

Shaun Richman is a former organizing director for the American Federation of Teachers. His Twitter handle is @Ess_Dog.

How the Friedrichs v. Calif. Teachers Association SCOTUS Case Could Actually Be a Boon for Unions

Wednesday, December 16th, 2015

in these timesAs unions file their legal briefs in the epic Friedrichs vs. CTA anti-union Supreme Court case, one clever legal scholar argues that Friedrichs is “an unexpected tool for labor.”

University of Chicago Teaching Fellow Heather Whitney’s forthcoming paper in the NYU Journal of Law and Liberty makes a compelling case that an adverse decision in Friedrichs would hand unions a first amendment argument to refuse to represent non-members. And, as I have argued, that is a roadmap to union competition at workplaces, competing demands on individual employers and the end of contractual no-strike agreements.

Chaos, in other words—and just the sort of chaos that this attack on unions deserves in response.

Friedrichs and labor’s response

The First Amendment is at the heart of the Friedrichs case. It is a right-wing argument that public sector employers (in other words, the government) violate individuals’ First amendment rights by compelling employees, through contracts negotiated with unions, to pay a fee to a union. Currently, unions that are certified to represent a group of employees in a bargaining unit are legally compelled to represent all of the employees in that unit. That means not just bargaining on their behalf, but expending significant resources on grievances, meetings, communications and everything else that goes into running a union.

But union membership, including the payment of dues, is completely voluntary. That’s why unions negotiate agency fees into contracts. These fees are calculated through complicated formulas to only represent the true cost of bargaining representation. Agency fees do not pay for things like political activity (unions usually have separate voluntary political funds).

But the Friedrichs case argues that any interaction that a union has with the government, including bargaining, is inherently political. Agency fees, therefore, are compelled political activity.

This ridiculous argument is only before the Supreme Court now because Justice Samuel Alito inserted the issue into last year’s otherwise unrelated Harris Vs. Quinn case. That case was only a partial defeat for unions, as Alito lacked the fifth vote to totally do away with agency fee in the public sector. In his written decision, Alito basically solicited for someone to bring a case with exactly Friedrichs’ set of facts, and it has raced up to the Supreme Court. This is the stuff of a vast right-wing conspiracy.

Unions have mounted an excellent legal case, backed up by a broad array of supporting briefs. A ruling against the unions would reverse a 37-year-old precedent. The Supreme Court is supposed to be guided by the principal of stare decisis, which is essentially to let long-settled precedent stand. And finally, the case will be decided in the middle of a presidential election that is already turning on questions of inequality and workers rights. In his handling of the Obamacare and gay marriage cases, Chief Justice Roberts has shown that he does seem to care about his legacy. Would he support such a nakedly partisan political move by his Court in this election cycle?

So, on the facts, on the law and on the politics, unions really ought to win this case. And, to be clear, agency fee and exclusive representation are worth defending. They create the conditions for tremendous worker power at workplaces that have both.

But if unions lose agency fee, then exclusive representation no longer makes sense. This is not simply because of the free-rider problem that will drain union resources. It is because exclusive representation is essential to labor peace, and a Friedrichs ruling that guts union rights is the clearest signal that the billionaire class does not want—nor does it deserve—any kind of peace.

Labor’s First Amendment rights

If the Supreme Court rules that every interaction that a union has with its government employer is inherently political, Heather Whitney argues in her article, then that would open the door to unions claiming their own First Amendment right—to choose who they represent. In other words, if agency fee is compelled speech, then the duty of exclusive representation imposed on unions is also compelled speech.

Imagine a group of registered nurses at a public hospital who want to bargain for much larger raises than the rest of the members of the bargaining unit. Or imagine a group of young workers who want to bargain away pensions in exchange for larger salaries in the here and now. (Forget for the moment that both scenarios are just bad unionism.) Once these contract demands are considered by the Court to be political speech, then the fact that these workers are compelled by the government to represent workers who disagree with them, and who could outvote them, is a violation of their First Amendment rights!

I’ll also point out that unions’ rights to freely engage in actual political speech is already impeded by the duties of exclusive representation. Unions are politically cautious and loathe to wade into non-economic controversies for fear of alienating a segment of their bargaining unit. For instance, most unions were slow to oppose the wars in Afghanistan and Iraq for fear of alienating bargaining unit members who were veterans or who had children in the military. Even in a so-called “Right to Work” state, those people may not be members but they could still express their displeasure by voting to decertify the union. Does that not coerce unions into more limited political activity?

This is not an abstraction. The day after the Friedrichs decision, if the Court kills agency fee by making all public sector union work “political,” does anybody doubt that the first time a non-member walks into a union office with a grievance that she will be told, “Join the union or get the hell out of our office?” And then we’ll be off to the races with a case that will go to the Supreme Court to revisit exclusive representation in the public sector without agency fee.

Then, the only question would be whether the government has a “compelling interest in requiring unions to negotiate and grieve their nonmembers’ complaints without receiving just compensation.” And here scholarship would demonstrate that it has been the employers’ preference to deal with one exclusive representative because it is easier for them, and, as Whitney writes, “convenience is no response to whether exclusive representation is properly tailored to the government’s legitimate interest.”

Breaking the peace

So far, we’re just talking about public sector unions because having the government as employer, Alito’s right-wing conspirators argue, converts all of the activities of those unions into inherently political acts. But if thisFriedrichs logic takes hold, then arguably having the government—in the form of the National Labor Relations Board—compel unions to represent workers they would choose not to (and perhaps vice versa) might become unconstitutional as well.

Currently, the NLRB will only certify unions as exclusive representatives of all of the workers in a bargaining unit, and only if the union can win a majority vote. This is often an insurmountable threshold for unions to reach in the face of intense employer opposition. In his 2005 book The Blue Eagle at Work,  law professor and labor law expert Charles J. Morris documented that in its early history the NLRB used to certify minority unions as the bargaining agent for their members only. Morris argued that this pathway was still technically open to unions to gain a foothold at a workplace and legally compel an employer to recognize a non-majority union.

The modern NLRB has dodged efforts by unions to get an advisory ruling on Morris’ theory. But if the Friedrichslogic holds, private sector unions may have a First Amendment challenge to the NLRB’s continued refusal to grant certifications for just the members they choose to represent.

And that, if you’ll follow me down this rabbit hole, could spell the end of contractual no-strike clauses. They would simply be unenforceable in an environment of competing, non-exclusive, members-only unions. Workers would simply drop their union memberships to participate in wildcat job actions. Or else join new workplace organizations that have not signed agreements committing to labor peace.

Don’t get me wrong. I don’t have any fantasy of some huge wave of potential strike actions that would occur tomorrow if only the enraged working class would stop being “repressed” by current union leadership and our current collective bargaining agreements. But these no-strike clauses go well beyond total shutdowns of production to include all manner or slow-downs, work-to-rule and refusal to carry out selective duties.

Any experienced union rep reading this can recall at least one incident of having to talk his members off a ledge—out of refusing a new duty or clocking out for lunch at the same time. These actions would be concerted protected activity in a non-union workplace, but under a “no-strike” contract could result in all participants legally getting fired. How the hell are we supposed to get workers who don’t enjoy union protection fired up about taking action against their bosses, when their unionized peers can’t set any kind of example in terms of actually enjoying their supposed protections?

It’s funny that the First Amendment could make this possible. Union rights in this country are not constitutionally rooted in the First Amendment, but in Congress’ power to regulate interstate commerce—which is one of the reasons that our labor laws make no damn sense. So, yes, Friedrichs could be a useful tool for labor by finally connecting our work to our rights of free speech and free assembly.

But if you’ve followed me down this rabbit hole and are starting to get a little excited about a possible post-Friedrichs world, let me give you an “on the other hand.” Heather Whitney’s First Amendment argument for ending the duty of exclusive representation would come before a Court that would not be weighing it against a long-established precedent as Roberts’ Court is considering Freidrichs. It will be weighing the argument against a very recent Court decision.

If labor successfully causes enough chaos of the nature I’m driving at—or even poses a credible threat to do so—don’t be surprised if the Supremes try to put the lid back on Alito’s can of worms.

This blog originally appeared at InTheseTimes.org on December 11, 2015. Reprinted with permission.

About the Author: Shaun Richman is a former organizing director for the American Federation of Teachers. His Twitter handle is @Ess_Dog.

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