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Think It’s Tough for Labor Now? Just Wait Until Trump Takes Office in January

Friday, November 18th, 2016

photo_321703[1]In 63 days, organized labor is going to find itself in a new political reality, which it seems totally unprepared for. Donald Trump will be president; the Republicans will control the House and Senate and one of Trump’s first tasks will be to nominate a new Supreme Court justice. Though Trump was tight-lipped about specific policy proposals, his campaign and the current constitution of the Republican party do not bode well for labor.

Trump’s actions will largely fall into one of four categories: judicial, legislative, executive and at the level of federal agencies. Each potential move will take various levels of cooperation from other branches of government and varying amounts of time to complete.

On Day 1 of his new administration, President Trump can simply rescind many of Barack Obama’s executive orders that benefited large groups of workers. Chief among these were EO 13673, which required prospective federal contractors to disclose violations of state and federal labor laws, and helped protect employees of contractors from wage theft and mandatory arbitration of a variety of employment claims. Similarly, EO 13494 made contractor expenses associated with union busting non-allowable, thereby helping to ensure that workers can exercise their labor rights.

At the agency level, Trump will have the opportunity to fill vacancies on the five-person National Labor Relations Board (NLRB), effectively turning what has been one of the most pro-worker boards in recent memory into one that is more concerned with employers’ interests. The NLRB is one of the more politicized federal agencies, and it is not uncommon for a new NLRB to overturn a previous board’s rulings. A conservative board would put into jeopardy recent gains, including the requirement of joint employers to bargain with workers, the rights of graduate students to form unions, the rights of adjuncts at religious colleges to form unions and the protections from class action waivers in employment arbitration agreements, which effectively block access to justice for too many.

Similarly, Trump can immediately dismiss the entire Federal Service Impasses Panel (FSIP) and appoint his own members. The FSIP is a little-known federal agency that functions like a mini-NLRB to resolve disputes between unionized federal employees and the government.

Donald Trump may be able to not only roll back many of Barack Obama’s accomplishments, but also change the face of labor law for decades to come. (AFL-CIO/ Facebook)

Donald Trump may be able to not only roll back many of Barack Obama’s accomplishments, but also change the face of labor law for decades to come. (AFL-CIO/ Facebook)

At the legislative level, various anti-worker bills sit ready for a GOP-led push. Perhaps chief among them is the National Right to Work Act, which would place every private sector employee (including airline and railway employees currently under the Railway Labor Act) under right-to-work. Right-to-work is the misleading law that prohibits unions from requiring that workers represented by the union pay their fair share. Such a bill was introduced last year by Sen. Rand Paul, and it had 29 co-sponsors, including Senate Majority Leader Mitch McConnell. Trump announced on the campaign trail that his “position on right-to-work is 100 percent,” so this will likely be an area where he has common cause with the GOP-controlled Congress.

At the judicial level, there is also a strong possibility that we will see a sequel to the Friedrichs case at the Supreme Court. Friedrichs was widely anticipated to bar fair share fees and place all public sector employees under right-to-work, but ended in a deadlock after Justice Antonin Scalia’s death. It is likely that any Supreme Court justice that Trump chooses will be as critical of fair share fees as Justices Samuel Alito and John Roberts, and would provide a critical fifth vote in changing long-standing precedent regarding the allowance of such fees. Groups like the National Right to Work Committee and Center for Individual Rights often have cases in the pipeline that could be pushed to the Supreme Court when the opportunity arises.

Similarly, at the judicial level, Trump will likely have his Department of Labor drop appeals to court decisions that enjoined or overturned pro-worker rules, such as the rule requiring union-busters to disclose when they are involved in an organizing campaign. Dropping the appeals would be an easy route to kill the rules, rather than going through a more time consuming rulemaking process to rescind them.

All indications are that labor has been caught unprepared for a President Trump and a GOP-controlled Congress and Supreme Court. With such broad control over every branch of government, Trump may be able to not only roll back many of Obama’s accomplishments, but also change the face of labor law for decades to come.

This post originally appeared on inthesetimes.com on November 17, 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.

Yesterday’s ‘Friedrichs’ Arguments Show Labor’s Difficulties in a Post-‘Citizens United’ World

Tuesday, January 12th, 2016

Editor’s note: In These Times has covered the Friedrichs case since the beginning. For more pieces on the case and its potential impact, see this roundup.

Yesterday, the Supreme Court heard extended arguments in Friedrichs v. California Teachers Association. The case is ostensibly a First Amendment case about whether public employees who do not want to join a union can withhold all fees—the same as “right to work”—or whether unions can charge those employees fees—“agency” or “fair share” fees—to cover activities germane to collective bargaining. The plaintiffs, 10 objecting teachers and a Christian education association, were asking the Supreme Court to overturn the 1977 case Abood v. Detroit Board of Education that declared that agency fees were the proper compromise between workers’ constitutional rights and the government’s interest in promoting labor peace.

However, despite a fairly clear issue before the Court, the arguments proceeded bizarrely, jumping repeatedly between disparate issues. This seemed to be largely the result of two fairly unique circumstances surrounding this case.

First, the Supreme Court had almost no record that could be used to address basic questions. Usually, cases that end up in front of the Supreme Court take a slow path in front of lower courts, where evidence is introduced and a conversation of sorts develops between the parties and the judges. By design, the conservative Center for Individual Rights, which represented the plaintiffs, pushed this case through the system in record time.

At each lower court, the plaintiffs’ position was that the case should be dismissed on the basis of longstanding Supreme Court precedent. As a result, the plaintiffs were able to get the case in front of the Supreme Court in less than two years. But they did so without much evidence from which either side could draw from.

This led to arguments that were, at best, abstract political positions talking past each other. At one point, the attorney for the California Teachers Association tried to explain to Justice Scalia about the history of public sector agency fees and public services, arguing that in New York City the use of such fees helped the city deliver better transit services. When pressed by Scalia on how the fair share fees led to this result, the union attorney basically had to throw up his hands and state that without a factual record, he has little to rely on other than what was raised in the various amicus briefs.

However, it was not just the lack of a record in this case that made it so peculiar—it was also the broad assumption among the Justices and the attorneys that money is speech. Being required to pay a fee for a benefit is now considered compelled speech, and any expenses negotiated between a union and a government employer constitute political speech. In one telling moment of the argument, when the attorney for the State of California tried to argue that mileage reimbursement rates are among the prosaic matters that public sector unions negotiate, Chief Justice Roberts shot back, saying, “It’s all money. That’s money.”

Chief Justice Roberts further articulated this position when, in one of his classic simplifications (recall his 2007 affirmative action formula: “the way to stop discrimination on the basis of race is to stop discrimination on the basis of race”) he stated, “If your employees have shown overwhelmingly that they want collective bargaining, then it seems to me the free-rider concern that’s been raise is really insignificant.” Completely missing from Justice Roberts’ statement was any awareness of how people act in the real world, or half a century of social science research on collective action and the free rider problem. Instead, it’s as simple as: if they approve, then they will pay; if they don’t pay, they don’t approve.

According to the Court’s current First Amendment jurisprudence, money appears to be not only speech, but also the type of speech that deserves the highest form of protection. The problem with this view is that even if one assumes that money does represent some form of speech, it would represent among the most imprecise and inscrutable type of speech.

When someone buys a banana from Walmart, does that purchase signal that the buyer believes in Chiquita’s use of paramilitary organizations in Colombia, or affirms Walmart’s use of union-busters, or buys into the myriad of conservative causes supported by the Walmart and Walton Family Foundations? Or does it mean that the person craved a banana and found herself near a Walmart? It is impossible to know without engaging in actual speech with the individual.

In the yesterday’s arguments, Justice Breyer tried fruitlessly to point out that we have to beware in ascribing too much meaning to money. “You will go out this door and you will buy hundreds of things, if not thousands, where money will go from your pocket into the hands of people, including many government people, who will spend it on things you disagree with.” But with a quick out-of-context quote by James Madison, the attorney brushed aside Justice Breyer’s concerns.

In this case, which was purportedly all about the First Amendment, it was shocking how little speech or the political positions of the unions were discussed in the oral arguments. Indeed, though several of the Justices repeatedly cast teacher pay and merit pay as highly political issues over which teachers could disagree, it appears that Rebecca Friedrichs (the lead plaintiff in the case) actually agrees with the union on these issues.

This leads to the natural question of what happens when conservatives have completed the project of going after union money and actually go after union speech. Contrary to the picture painted by many of these conservative organizations, unions are not simply massive war chests secretly funding the Democratic Party. They are organizations that represent millions of workers each and every day in grievances, contract negotiations, the press, the legal system, the political sphere and in a variety of other domains. Unions engage in an enormous amount of “speech” on behalf of their memberships—is each and every part of that speech open to First Amendment attack?

Judging by the briefs submitted in this case and the oral arguments, there is good reason to be concerned about future attacks. After union dues and fees, the likely next attack will be about exclusive representation. If the Supreme Court here determines that the requirement to pay fees for representation violates public sector workers’ First Amendment rights, it is hard to see how they won’t also soon determine that public sector unions’ representation of workers does not also violate their First Amendment rights. While some union advocates have argued for the elimination of exclusive representation (especially in response to “right to work”), one has to recognize that American labor law was established with a careful balance in mind. Without required fees and without exclusive representation, the horizon will change greatly.

Though it’s impossible to divine from oral arguments which way the ultimate decision will go, yesterday’s argument showed a lack of understanding on the part of some of the justices of how unions function, an antipathy towards their activities on behalf of their membership and a view of them as being at odds with the Constitution. None of that bodes well for the outcome unions are hoping for in this case.

This blog originally appeared in inthesetimes.com on January 12, 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.

What's This Friedrichs Case Really About?

Monday, January 11th, 2016
Jackie Tortora

You may have heard something about the upcoming U.S. Supreme Court case on Friedrichs v. California Teachers Association. The main thing you need to know is that this is an attack on working people’s freedom to come together and form unions, plain and simple. These are the nurses who make sure their patients have what they need to get well and the teachers who advocate for their students and class sizes.

Here’s a handy graphic you can share with your friends and family.

Friedrichs_3_800
This blog originally appeared at aflcio.org on January 5, 2016.  Reprinted with permission.
Jackie Tortora is the blog editor and social media manager at AFL-CIO.

 

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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