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Posts Tagged ‘Friedrichs v. California Teachers Association’

Supreme Court Rejects Anti-Worker Attack in Friedrichs Ruling

Thursday, March 31st, 2016
Kenneth Quinnell

The Supreme Court today rejected an attempt by wealthy special interests to restrict the voices of America’s teachers, firefighters, police officers, nurses and others who provide vital services for our communities. The court issued a 4-4 decision in Friedrichs v. California Teachers Association, upholding a lower court ruling in favor of working people and their right to join together to build a better future for their families.

AFSCME President Lee Saunders said the ruling will continue to motivate working people:

AFSCME members are more resolved than ever to band together and stand up to future attempts to silence the voices of working families. As public service workers learn more about the Friedrichs case, they are shocked to hear about such a political attack through the Supreme Court, and more motivated than ever to step up, get involved and organize. It’s never been clearer that our most basic rights are at stake.

Randi Weingarten, president of the American Federation of Teachers, added that the fight is far from over:

Millions of working people who understand the importance of their unions in bettering their lives and the well-being of their communities are breathing a sigh of relief today. Even so, we know this fight is far from over. Just as our opponents won’t stop coming after us, we will continue full speed ahead in our effort to mobilize our members and their neighbors around a shared vision to reclaim the promise of America. While we wait for Senate Republicans to do their job and appoint a new justice to the [Supreme] Court, we’re working hard for the future we want to see—one with vibrant public education from pre-K through college; affordable, accessible health care; public services that support strong neighborhoods; and the right to organize and bargain for a fair wage and a voice on the job.

AFL-CIO President Richard Trumka said:

Today, working people have persevered in the face of another attack on our rights. All over the country working people are showing that we won’t allow wealthy special interests or their politicians to stand in our way to join collectively and make workplaces better all across America. In the face of these attacks we are more committed than ever to ensuring that everyone has the right to speak up together for a better life.

The well-funded attack in the Friedrichs case is part of a larger anti-worker agenda pushed by corporate special interests that has also sought to restrict voting rights, limit workers’ ability to have a voice, and suppress women and immigrants. This agenda has polluted America’s electoral system and civil political discourse, and has made it increasingly apparent to working families that the stakes of the 2016 election couldn’t be higher.

This blog originally appeared in aflcio.org on March 29, 2016. Reprinted with permission.

Kenneth Quinnell is a long time blogger, campaign staffer, and political activist.  Prior to joining AFL-CIO in 2012, he worked as a labor reporter for the blog Crooks and Liars.  He was the past Communications Director for Darcy Burner and New Media Director for Kendrick Meek.  He has over ten years as a college instructor teaching political science and American history.

A Scalia-less, deadlocked Supreme Court spares unions. For now.

Wednesday, March 30th, 2016

When Justice Antonin Scalia died, virtually every labor activist in the country thought one thing: “Friedrichs?” Now, the Supreme Court has announced its decision on the case in question—and all those labor activists are breathing a sigh of relief.

In January, the Supreme Court heard Friedrichs v. California Teachers Association, a case brought by anti-union groups to explicitly weaken public sector unions by allowing non-members to refuse to pay a fee for the representation they receive from the union. Longstanding precedent said that these workers did not have to pay for union political activity but did have to pay a fee for collective bargaining and other representation … but opponents of unions calculated that the time had come when the court would overturn that. Scalia himself was seen as a critical swing vote on this issue. He had stood by the precedent requiring fair share fees in the past, but in 2014, he had voted to chip away at the workers covered by that in Harris v. QuinnThe stakes were high:

One brief in the case indicates that in states where teachers are covered by collective bargaining but aren’t forced to pay agency fees, about 34 percent are “free riders.” Moreover, states that have the compulsory fees for workers have much higher union membership in the public sector—an average of nearly 50 percent—compared with states where such fees are banned (17 percent).

Again, we’re talking about workers paying for things unions do that directly benefit them: Bargaining contracts with better pay and working conditions, and representing them in grievances. And where workers don’t have to pay a fee, they still get the same level of representation as their coworkers who are union members. Antonin Scalia seemed prepared to join in Justice Samuel Alito’s anti-worker crusade and dramatically weaken unions by forcing them to represent non-members for free. And then he died, and the decision we get is:

The judgment is affirmed by an equally divided Court.

That means the precedent stands and unions aren’t gutted. At least as long as Scalia isn’t replaced by another hardcore conservative, anti-union vote on the court. That’s our fight now.

Please donate $3 today to help turn the Senate blue. The future of the Supreme Court depends on it.

This blog originally appeared in dailykos.com on March 29, 2016. Reprinted with permission.

Laura Clawson has been a Daily Kos contributing editor since December 2006 and Labor editor since 2011.

When Scalia Died, So Did ‘Friedrichs’—And an Even Grander Scheme To Destroy Unions

Wednesday, February 24th, 2016

Conservatives had a great plan in motion to decimate unions. If Justice Antonin Scalia hadn’t died in his sleep, they almost certainly would have pulled it off.

First they got the Court to rule their way in 2014’s Harris v. Quinnwhich targeted home healthcare unions. Like “right to work” laws, the case sought to gut unions’ funding and diminish solidarity by saying that union members can’t be required to pay dues. The Court agreed, holding that the First Amendment does not allow the collection of fair share fees from home healthcare workers. The decision, written by Justice Alito and signed by the Court’s four other conservatives, also not-so-subtly invited further attacks on the funding and membership of unions.

Next came Friedrichs v. California Teachers Association, which sought to expand Harris to impose right-to-work on all public sector employees. The conservative Center for Individual Rights (CIR) rushed Friedrichs to the Supreme Court by essentially conceding at every lower court that under current law, it should lose. Friedrichs could only win if the Supreme Court overturned 39 years of precedent that date back to the 1977 Abood v. Detroit Board of Education decision.

When the Court accepted Friedrichs, there was some hope that Justice Scalia might provide the critical vote to save public-sector unions. This was not because Scalia had any great love for labor—he did not—but because he understood the basic economic theory of free riders: Just like any other enterprise, it can be difficult for a union to get its members to pay dues when they can get all the benefits of the contract for free. Scalia had said as much in a 1991 concurrence-dissent, and many were hoping that he would exercise consistency with Friedrichs.

However, the oral arguments on Friedrichs last month destroyed any such illusions. Justice Scalia, never coy about his beliefs, made it clear that he now believed that fair share fees should be eliminated. Though it’s often difficult to divine the Court’s final decision from oral arguments, it was plain after the Friedrichs arguments that labor would lose.

Accordingly, labor was scrambling to figure out how best to run a union in a post-Friedrichsworld. Meanwhile, conservatives already had a plan in the works to expand what they saw as a certain win.

Last week, in a little-noticed case called D’Agostino v. Baker, the National Right to Work Legal Defense Foundation lost at the First Circuit in their attempt to argue that the First Amendment does not allow exclusive representation of home healthcare workers. This case sought to expand theHarris holding by arguing that the First Amendment prohibits home healthcare unions not only from collecting fees from workers who don’t want to pay, but also from bargaining on behalf of any worker who doesn’t opt to be a member.

Former Supreme Court Justice David Souter wrote the decision for the First Circuit inD’Agnostino, relying heavily on Abood and its progeny. If history is any indication, National Right to Work was planning on appealing this case to the Supreme Court. The case  provided a glimpse of what the likely post-Friedrichs plan of attack would have been: After you win on the dues front, go after membership.

In addition, other cases, such as Bain v. CTA, that attacked the membership rights of unions but had been thrown out by lower courts, were likely to reappear.

However, on Saturday it was reported that Justice Scalia had been found dead. With his absence from the Court, conservative plans to attack union dues and membership through Supreme Court challenges may have dissolved for now.

If President Obama can get a new justice confirmed by a Republican-controlled Senate and that justice is permitted to take part in Friedrichs, then the case will likely be decided 5-4 in favor of labor.  If Republicans leaders made good on their vow to thwart any nomination by Obama, or the new justice does not take part in Friedrichs—either because the Court decides not to set it for rehearing or the justice must recuse herself—then all indications are that the case will be decided 4-4. In the event of such a tie, the lower court ruling is upheld—in this instance, the 9th Circuit’s dismissal of the case.

When the Supreme Court ties 4-4, no precedent is set. Anyone in labor worried about that outcome in Friedrichs can rest a bit easier remembering that no precedent is needed here. Aboodcreated the precedent in 1977, and Friedrichs was a shameless ideological ploy to overturn that longstanding precedent. In Friedrichs, the CIR did not present the Supreme Court with the typical grounds for review: either a “a circuit split,” where lower courts issued conflicting decisions, or proof that circumstances had changed so significantly since Abood that the Supreme Court needed to reconsider its ruling. (Justice Stephen Breyer pointed to the absurdity of the Court overruling good case law for no good reason when he asked in oral arguments whether the Court should also revisit its landmark 1803 decision in Marbury v. Madison, which helped set the very terms of judicial review.)

Therefore, unlike other cases on the Court’s docket, if Friedrichs goes away quietly, it will stay gone until there is another conservative majority.

Without a Friedrichs decision that bans fair share fees, it is unlikely the Supreme Court would accept D’Agostino, and even less likely that it would decide against labor in such a case. Other cases attacking the membership rules of unions on specious Constitutional grounds are similarly unlikely to make it to the Supreme Court. With Justice Scalia’s unexpected death, conservatives will have to go back to attacking labor the old-fashioned way: at the state and federal legislatures.

This post originally appeared on inthesetimes.com on February 15, 2016.  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.

 

As Long As the Supreme Court Is Setting Labor Policy, the Labor Movement Can Never Revive Itself

Tuesday, February 23rd, 2016

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First published at Jacobin.

With the death of leading anti-union reactionary Antonin Scalia, the current docket of Supreme Court cases has been thrown into turmoil.

For the labor movement, Scalia’s departure means narrowly escaping the anticipated anti-union decision in Friedrichs v. California Teachers Association. While most commentators expected a 5-4 anti-union ruling, the most likely result now is a 4-4 decision, momentarily leaving intact the agency shop for public-sector workers and preventing the establishment of a legal beachhead for future attacks.

Contrary to those who saw a silver lining in Friedrichs, judges would never have used the precedent to expand the rights of government workers on free speech grounds. Instead, as Moshe Marvitpoints out, union busters would’ve deployed the rationale in Friedrichs to argue any form of exclusive representation violates public workers’ free speech rights.

This would’ve turned the clock back over 60 years, to a time when all public employee bargaining was suspect precisely because it was deemed political. Additionally, it would’ve only been a matter of time before Friedrichs was applied to the private sector, imposing “right to work” on every workplace in the country.

But for Scalia’s death, a Supreme Court majority would have almost certainly overturned 50 years of settled law. In doing so, five individuals would have substituted their political beliefs for those of elected officials in agency shop states—participating in the broader attack on public employee rights spearheaded by politicians like Wisconsin governor Scott Walker and Illinois governor Bruce Rauner.

All of which is to say that rather than being a body above politics, the Supreme Court reflects the political trends of the day. Take last year’s gay marriage ruling. The words of the Constitution hadn’t changed, nor had some nebulous thing called “the law.” What changed, after decades of grassroots activism, was the political reality. The same forces that prompted the Supreme Court justices to change their view likely prompted establishment politicians such as Hillary Clinton to reverse their own position.

If judges simply interpreted “the law,” the death of a justice would not matter. But it does matter, and so a debate will rage over Scalia’s replacement.

Union activists should have a different discussion. Instead of engaging with the prevailing debate—which will likely consist of whether to appoint an ultra-right Republican or a corporate Democrat—those in and around the labor movement should use the confirmation battle to spark a conversation about the role of unelected judges in setting labor policy.

And we should note the role both parties have played in establishing and maintaining the present system of labor law. Even during oral arguments in Friedrichs, the liberals on the Supreme Court did not mount a rousing defense of public employee unionism. They simply warned the conservative majority about the dangers of overturning settled law—which they worried would threaten the appearance of impartiality the Supreme Court relies on to maintain its legitimacy.

Much of the body of settled law they were keen to defend—and which corporate liberals on the Supreme Court have been key to establishing—blocks effective trade unionism. Judicially created rules hamstringing labor include restrictions on class-wide solidarity and important tactics such as intermittent strikes, the permanent replacement of striking workers, and the use of the business form to evade unionism. Regardless of which candidate is eventually sworn in as Scalia’s replacement, this bipartisan consensus will almost certainly remain undisturbed.

Indeed, nowhere is the need for a Bernie Sanders–style political revolution more apparent than in the selection of Supreme Court justices. Sanders correctly rails against a bipartisan establishment encompassing politicians from both parties, corporate lobbyists and establishment media forces. But the federal judiciary, and in particular the Supreme Court, is perhaps the most quintessentially establishment grouping in American politics.

Which brings us to the bigger question at stake for unions. As long as labor allows nine establishment figures to dictate policy, we will never revive ourselves as a movement. The rules will continue to be stacked against us. Legislative or National Labor Relations Board initiatives, however well intentioned, will be nullified by the courts.

Over 100 years ago, a school of thought called Legal Realism shattered the idea that judicial decisions were anything but political decisions. Led by Oliver Wendell Holmes and firmly situated within the Progressive Movement, the Legal Realists rejected the idea that judges somehow divined decisions from abstract analyses of the law. To study law, they held, was simply to predict what judges would decide. This subversive idea—that there is no such thing as the law independent of actual decisions—proved highly destabilizing to a fundamentally undemocratic judiciary.

Around the same time, the labor movement was agitating against “judge-made law.” Understanding that labor policy was set by elites with no ties to the working class, unionists agitated not just for better judicial decisions but to remove labor policy entirely from federal courts’ jurisdiction.

For conservative unions like the AFL to radical ones like the IWW, defying judicial injunctions was a matter of official union policy. Unionists understood the law was not on their side. The anti-judicial sentiment reached its peak with the 1932 passage of the Norris-LaGuardia Act, which attempted to get federal courts out of the business of making labor policy. (Over the succeeding decades, the act was defanged by the same federal judges it was supposed to protect labor from.)

Today, the labor movement shouldn’t waste time pondering which elite Supreme Court justice will get confirmed, the latest NLRB initiative waiting to be overruled by the federal judiciary, or the newest scheme to revive labor within the confines of an unjust system of labor control. The more important discussion is the one posed by unionists a century ago: how do we break from the constraints of judge-made law?

While there is no easy answer to this question, shedding liberal illusions about the role of the Supreme Court is a start. It is also important to call out the many restrictions on union rights. We can educate, agitate and organize, but if the rules of the game are rigged, we will never succeed.

Winning requires first challenging the rules of the game and the prerogative of elite institutions to govern labor relations. Judicial support for public employee union rights, we shouldn’t forget, was only secured after millions of public-sector workers struck against a bipartisan consensus that rejected those rights.

There are no easy answers about how we knock down the barriers imposed by labor law. But let’s use the death of an arch-nemesis of labor to at least start the discussion.

This blog originally appeared at inthesetimes.com on February 17, 2015. Reprinted with permission.

Joe Burns is a former local union president active in strike solidarity, is a labor negotiator and attorney. He is the author of the book Reviving the Strike: How Working People Can Regain Power and Transform America(IG Publishing, 2011) and can be reached at joe.burns2@gmail.com.

 

 

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