How Bad Could it Get (Legally)?

It’s a good moment to think creatively and expansively about how to revitalize the U.S. labor movement.  This important work is underway, with contributions from academics, labor lawyers, union organizers, and others.  Substantive debates about the future of labor law and labor organizing now populate the pages of publications ranging from the Yale Law Journal to Boston Review.  Much of this writing evidences an appropriate degree of optimism – the pieces assume a future in which, for example, progressive law reform might be possible, or in which workers can regain power through increased use of strikes even in the absence of law reform, or in which fundamental aspects of U.S. political economy (and political ideology) might be transformed.  This kind of optimism is necessary to visionary thinking, and it’s badly needed today.

But, I thought it might also be worth writing from the opposite perspective and asking how bad it might really/plausibly get over the next handful of years.  Most of us know much of this already, so you might wonder what the point of such a morose exercise would be.  The idea is not to wallow.  To the contrary, the idea is that putting in one place the major pieces of what could go wrong (legally) over the next few years could help as we continue to imagine and build a better future for the labor movement. As Van Jones put it recently, “hope for the best but expect and prepare for the worst.”

Some caveats.  One, and most important, what follows are not predictions, and I do not mean to suggest that these things are likely.  Instead, these are thoughts about the kinds of negative developments that seem within the realm of the possible (even though, with respect to every one, I think the better arguments are on the other side). Two, given the limits of my expertise, I focus exclusively on how bad labor law could get, leaving to others the question of how bad things could get on other fronts.  Three, I may be wrong in two directions: omitting other possible problems and including things that aren’t plausible.  For that reason, we invite follow-on posts that offer either kind of corrective. Four, and finally, it might be worth saying that this exercise goes against my own nature, which, for better or worse, skews optimistic (as I’ve been critiqued for being).

All that said, here’s what seems within the realm of the plausible: Continue reading

Today’s News & Commentary — April 25, 2017

The Supreme Court will soon be presented with the opportunity to decide whether unions can constitutionally charge non-members “fair share” fees.  According to Bloomberg BNA, “the National Right to Work Legal Defense Foundation intends by the end of May to file a petition asking the high court to review a Seventh Circuit decision dismissing a lawsuit by two Illinois government workers who challenged the fees on First Amendment grounds.”  The Supreme Court heard a similar challenge in 2016, Friedrichs v. California Teachers Association, but ultimately ruled 4-4 following the death of Justice Scalia, thus affirming a lower court decision finding that public-sector unions may continue to collect “fair share” fees from nonmembers.  The Seventh Circuit similarly upheld such fees in the case at issue now.

Using colorful language about a boss does not deprive a worker of the protections of the National Labor Relations Act, according to the Second Circuit.  Consumerist reports that the Second Circuit found that the operator of restaurants at New York’s Chelsea Piers illegally terminated a worker in retaliation for engaging in protected activity when, two days before a unionization vote, the worker posted a colorful Facebook post about his boss in urging support for unionization.  The Second Circuit concluded that “the NLRB could reasonably determine that the server’s “outburst was not an idiosyncratic reaction to a manager’s request but part of a tense debate over managerial mistreatment in the period before the representation election.”

America’s male-dominated industries want to diversity.  Per the Chicago Tribune, the “Iron Workers union this month leaped to the cutting edge of the effort, becoming the first building trades union to offer up to eight months of paid maternity leave to pregnant women and new moms” despite only 2 percent of union members being women.  The union and other traditionally male-dominated employers are driven to recruit women by the aging of baby boomers, a decline in enrollment in vocational education, and other factors.

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Today’s News & Commentary — November 14, 2016

While it has been covered many times in the past week, Marketplace further explores why labor had weakened support for the Democrats this election. While Trump did not win a majority of union households, “he did cut into President Barack Obama’s margin.” Various union members weigh in on why the ground game was not as effective as it was in past elections, and why various union members flipped from Clinton to Trump. For example, autoworkers, whose jobs the Obama administration restored, found themselves with lower pay and fewer benefits—a fact that Trump promised to fix.

Veterans made up 44% of all full-time federal government job hires, according to the Washington Post. Just over two-fifths of these hires were disabled veterans. This news isn’t all positive: former servicemembers do not stay in government in jobs as long as non-veterans. Furthermore, the preferred hiring of veterans has “fueled culture clashes in some federal offices” and “resentment from job candidates who did not serve and see their prospects for getting hired diminish.” Several federal agencies—including the Pentagon—have complained that they cannot hire the skilled candidates they want because of the veteran-hiring constraints.

As the Guardian and Bloomberg BNA note, Trump’s administration poses threats to union rights: erasing Obama’s overtime pay regulations, promoting right-to-work laws (perhaps even on a federal level), and filling the Supreme Court with an anti-union justice, threatening to tip the balance in the next Friedrichs-like case.

Oh, and Donald Trump is now hiring. The New York Times weighs in on his plans and choices for top spots.

Friedrichs Rehearing Petition Denied

Months after reaching a 4-4 tie in Friedrichs v. California Teachers Association, the Supreme Court has denied the petitioners’ request for a rehearing. The Court waited until its final conference of the Term to vote on the petition, after postponing its decision eight times since April. No opinion was included with the Court’s denial.

While today’s announcement effectively brings the case to a close, the questions presented by Friedrichs — (1) whether Abood v. Detroit Board of Education should be overruled and public-sector “fair share” arrangements invalidated under the First Amendment, and (2) whether it violates the First Amendment to require that public employees affirmatively opt out of subsidizing nonchargeable speech by public-sector unions — may be litigated again and brought back before a (presumably full) Court in the future.

Weekend News & Commentary — April 9–10, 2016

The petitioners in Friedrichs v. California Teachers Ass’n have formally submitted a request for reargument to the Supreme Court, reports Lyle Denniston of SCOTUSblog. Specifically, the petitioners ask the Court to “rehear [Friedrichs] after it obtains a full complement of Justices capable of reaching resolution by a five-Justice majority.” They argue that the case presents questions of “profound nation wide importance” and that “[t]here is a circuit split over certain aspects of [California’s public-sector agency-fee scheme], and similar schemes affect tens of thousands of public employees every year.” The petitioners also note that “there are multiple cases pending in the lower courts that implicate the Questions Presented,” and suggest that “[r]ather than defer this issue for resolution in some future case at some future time, the better and more efficient course would be to hold the case this Court has already agreed to decide until it is capable of issuing a decision.”

However, Denniston observes that “[p]ersuading the Court to grant rehearing is a difficult proposition as a general matter,” and “is made more difficult by the specific requirements that the Court’s rules outline for action on such a request”:

Rehearing can only be granted, following such a request by lawyers in a case, if that request has the support of at least one Justice who had voted for the result for which a rehearing is being sought.  And rehearing can be granted only if a majority of the Court votes in favor of doing so.

With only an eight-Justice Court, however, it is not entirely clear which group of Justices on opposite sides of a four-to-four split would be the ones eligible to call for rehearing in response to a lawyer’s request.  Both blocs in such a tied situation may be said to have voted for the result — that is, disposing of the case because it could not assemble a majority.

As for the impact of the confirmation of a new Justice while the rehearing petition is under consideration, Denniston notes that “it has been the customary practice that the new member would not vote on whether to grant rehearing but — if rehearing were to be granted — could then take a full part in the process.”

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Today’s News & Commentary — March 29, 2016

The major story today is the Supreme Court’s ruling in Friedrichs v. California Teachers Association, upholding public-sector union agency fees.  The Atlantic and The New York Times have more on the decision.  Our complete coverage of the case can be found here.

California’s move to gradually raise the state minimum wage to $15 an hour has also garnered headlines.  Writing for The Washington Post, Jim Tankersley and Lydia DePillis note that it would give California the highest state minimum wage in the country and “would put the state in uncharted territory, carrying both hope and danger for workers in the nation’s largest economy.”  In The New York Times, Noam Scheiber and Ian Lovett report that “by moving toward a plan to raise the statewide minimum wage to $15 an hour by 2022, the state could raise living standards for millions of workers.  But it could also increase unemployment among some of the very same economically marginal workers the wage increase is intended to help.”

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Friedrichs Opinion

In case you missed it, the Supreme Court has handed down a 4-4 affirmance of the lower court’s opinion in Friedrichs v. California Teachers Association. The Court’s 1977 opinion in Abood v. Detroit Board of Education thus remains good law, and public-sector unions may continue to collect agency fees from nonmembers.