Posts Tagged ‘U.S. Supreme Court’

Audio & transcript of Friedrichs anti-union Supreme Court hearing

Thursday, January 21st, 2016

On January 11, SCOTUS heard oral arguments in a case designed to overturn a 39-yr. precedent involving public sector unions. Since the 1977 Abood decision, government workers had the right to enjoy all the benefits of union membership without paying all of the dues owed to unions. That is, Abood split dues into “fair share” fees and expenses ostensibly not related to collective bargaining and the mere protection of workers’ rights. Non-members were to pay only the bargaining-related fees.

The Friedrichs case found 10 California teachers who wanted to claim the right to refuse to pay any dues, even costs associated with protecting their workplace rights. Right-wing, anti-union groups used the case to bring to the pro-corporate/pro-employer Roberts SCOTUS to put what might be the final nail in the coffin of the strongest unions left in the country, public-sector unions.

You can read the NY Times SCOTUS watcher, Linda Greenhouse, as she interprets the oral testimony.

Details of the case can be read here.

You can read the entire transcript here.

Or listen to the audio of the oral arguments.

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Decision is expected in June.


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American public sector labor unions’ future weighed by Supreme Court today

Monday, January 11th, 2016

A most important 80 minutes of oral argument is heard today, Jan. 11 2015 by the nine justices of the U.S. Supreme Court. The case is Friedrichs v. California Teachers Association (CTA), Docket No. 14-915.

The case was brought by a group of California teachers who don’t want to pay any fees to unions for anything. Essentially, they want to enjoy benefits of having a contract — wages and other work condition protections (alas, not full protection from bullying yet) that are negotiated — for free. The CTA represents teachers in public schools; public school districts are government employers.

There are 39 years of history dealing with this issue. A May 1977 unanimous U.S. Supreme Court (SCOTUS) decision, Abood v. Detroit Board of Education [431 U.S. 209 (97 S.Ct. 1782, 52 L.Ed.2d 261)] divided union dues into two parts. One part is costs associated with providing union workers with a contract, the collective bargaining agreement with the employer, and its administration, the subsequent services of representation at adversarial meetings with management, grievances and arbitrations. Fees for those services are called “fair use” or “agency” fees. In other words, Abood said that non-members who benefit from union services have to help cover costs.

The second part of union dues is “expenditures for ideological causes not germane to its duties as a collective-bargaining.” This has been dubbed the political activity of the union, including overt politicking, lobbying lawmakers for specific legislation and financial support for political candidates. People who object to this part of union activity can refuse to pay that portion of dues to the union.

In the specific case before SCOTUS today, Friedrichs, plaintiffs are challenging California law. If a teacher wants to protest the political portion of the CTA dues, she or he can give the union a written objection — an “opt out” declaration. That portion of the contested fee is then refunded or a portion is reduced. The anti-union plaintiffs want that teacher to have to “opt in” and agree to the fees. Plaintiffs frame the issue as one of free choice and the First Amendment (whether or not the non-administrative fees constitute speech).

The Case’s Strange Origin

The union-busting groups, typically with a libertarian or right-wing political bent, found this case in order to abolish the last bastion of unionization in America — in government. The private sector unionization rate is now under 7%. If government, public sector, unions can be further weakened, the U.S. labor movement will be effectively gutted.

According to Maryann Parker, SEIU Associate General Counsel, speaking at an American Constitution Society expert panel, Friedrichs v. California Teachers Association made it to the Supreme Court in two fast years without any facts associated with the case. The reason is that the plaintiffs filed the case in both District and Appellate courts and asked for a verdict against them just so they could take the case to the Supreme Court. Since the union-busting groups are well funded, the case raced to the Roberts pro-employer court. Unlike any other case, no facts have been argued in court before a judge or jury. No discovery of evidence on either side was completed.

The only facts have come via several amicus briefs written by advocates for both sides. The list of briefs filed before the Nov 6, 2015 deadline can be found here. On the anti-union side are organizations such as Pacific Legal Foundation
National Right to Work Legal Defense Fund, Mackinac Center for Public Policy, Goldwater Institute, Former California Governor Pete Wilson, Cato Institute and the NFIB. On the defense side, briefs were filed by Kamala Harris, California Attorney General (who also argued the case before SCOTUS today), California State Employees Association, and several California and New York cities that, as government employers, described the benefit of having a unionized workplace.

The other unusual aspect of the origin of the case is that the five majority justices in the 2014 Harris v. Quinn decision called for a reconsideration of Abood. In other words, the doctrine of stare decisis, of letting earlier case decisions stand, is betrayed by calling out for a case to challenge Abood.

The Anti-Union Argument

Here’s the argument by the union busters in Friedrichs v. California Teachers Association. Collective bargaining in the government context is inherently political because government worker wages are public funds. Therefore, if the government compels “fair use” fees collection, it is a violation of a worker’s First Amendment rights. It forces an association with a political cause (bargaining with the state) with which a worker might not agree.

Abood had separated the functions of the union, administrative work versus political activity. Fredrichs says that ALL activity of unions is political.

If the Supreme Court decision agrees with Friedrichs, it will overturn Abood. It will end the practice of a “union shop.” The absence of any requirement to pay unions for services rendered will make it too easy to be a “free rider.” In turn, unions will wither and die from not having a budget.

Remember, even with a negotiated union contract, employers — only governments in this case — are entitled to all rights over workers which are not covered in the contract. With this line of reasoning, without unions, employers will have unchallenged, unbridled control over workers with no ability to contest mistreatment or abuse.

The undermining of unions, the only organizations that advocate for rights of workers, will contribute to the Republican-led state legislatures’ move to right to work laws. Currently 25 states have right to work provisions. The RTW advocates characterize states where unions represent government workers as “forced-unionism” states.

Advocates for “free bargaining” states label the right to work as the “right to work for less.” The quality of life for workers in RTW states is lower than in public sector union states — lower wages, more low wage jobs, higher rates of workers without health insurance, higher poverty and infant mortality rates. And if working in a RTW state, you have a 54% higher chance of dying at work.

Finally, by gutting union budgets, opponents will also thwart overt political activity by unions. Unions support Democratic candidates. Union-busting groups are partisan. By reversing Abood, the law of the land since 1977, Republicans will be able to reduce funding for Democratic opponents. However, this is not a realistic fear by Republicans. It seems closer to a zero-sum game in which Republicans want to eliminate all opposition. According to the Center for Responsive Government, 2015-16 interest group donations to the upcoming elections finds that labor has given to date a total of $19.2 million compared to $839.6 given by donors other than unions. Non-labor groups outspend unions by 43.7 times. A successful Friedrichs SCOTUS decision would nearly eliminate the influence of unions on candidates. Rights of workers will be driven further underground buried in a corporate post-Citizens United deluge of cash.

If the Court does not overturn Abood, the plaintiffs could still win a partial victory. Its a nuanced part of the practice in California. Contained in the fees charged to non-members are other expenses not involved with the costs of collective bargaining. If a teacher wants to protest that portion of the fee, she or he can give the union written objection — an opt out declaration. That portion of the contested fee is refunded or a portion is reduced. The anti-union plaintiffs in the case also argue that an employee should have to “opt in” and agree to the fees.

Stay tuned. The decision should be announced in June.


You can listen to the oral arguments and read the transcript of Jan. 11 hearing here.


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Posted in Fairness & Social Justice Denied, Rulings by Courts, Unions | No Archived Comments | Post A Comment () »

NLRB gutted by Supreme Court

Thursday, June 26th, 2014

We wrote in Jan. 2013 about the Republican attempts to block Pres. Obama’s appointments to the National Labor Relations Board (NLRB). Sen. Mitch McConnell kept convening and recessing the Senate during the break at the end of 2011. Using this pro forma technique, the Senate was technically never recessed for more than three days at at time. During one of those 3-day recesses, Obama appointed two of his desired NLRB Commissioners.

Following their appointments, the NLRB made several pro-worker decisions, reversing years of anti-worker decisions by Republican-led Boards. If two of the three NLRB members were to be invalidated, the decisions could also be considered invalid.

A federal court vacated Obama’s recess appointments, deeming them unconstitutional. In the NLRB v. Noel Canning Supreme Court June 26, 2014 decision, the high court supported the lower court’s decision. SCOTUS concluded “Three days is too short a time to bring a recess within the scope of the [Recess Appointment] Clause [of Article 2 of the U.S. Constitution], so the President lacked the authority to make those appointments.” Obama’s appointments to the NLRB are unconstitutional, so sayeth a unanimous (9-0) Supreme Court. The typical liberal justice Breyer wrote the opinion with Scalia writing his own concurring opinion criticizing the majority for being too narrowly focused.

The Court did think it important that a recess be more than 3 days. A review of past recess appointments by Presidents showed that 10 days was the shortest period on record. So, there must be a magic time between 3 and 10 days to make it right. With regards to the Court reviewing actual work done during pro forma sessions (none) and challenging their legitimacy, the Court said it would not “engage in an in-depth factual appraisal of what the Senate actually did during its pro forma sessions in order to determine whether it was in recess or in session for purposes of the Recess Appointments Clause.”

Read the Supreme Court decision.


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Posted in Commentary by G. Namie, The New America | No Archived Comments | Post A Comment () »

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