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New Supreme Court Term: Be Very Afraid




For the past seven days America has watched a government shutdown unfold, courtesy of the Tea Party-controlled House of Representatives – a moment of political vaudeville more worthy of the description “circus” than “theater.” Beginning this week, however, we may be in for the start of a truly Grand Guignol event befitting the Halloween season.

That’s because the Supreme Court will hear several key labor cases this term, along with yet another plea from billionaires to be allowed to purchase a larger share of the electoral process. Just as the shutdown has battered the economy and harmed countless Americans through its curtailment of Headstart programs, the closing of federal parks and suspension of government health programs, so could damage be done to the national welfare by a handful of pro-business decisions by the high court. If the present conservative majority continues to vote within its ideological groove, America will become a much harder place for workers to negotiate higher living standards – but an easier country for wealthy individuals to shape local and national legislative agendas.

The auguries are not encouraging: A string of rulings has revealed the court majority’s disdain for both organized labor’s traditional rights and egalitarian notions of participatory democracy. In 2010 the high court opened the Pandora’s Box of unlimited campaign spending when it ruled in favor of treating corporations and unions as individuals in Citizens United v. Federal Election Commission; the result was an orgy of spending and influence-peddling (overwhelmingly by private industry) in the previous two election cycles. Then last year the court used Shelby v. Holder to gut the Voting Rights Act – an unambiguous invitation to America’s minorities to kindly move to the back of the bus.

Also in 2012, in Knox v. SEIU Local 1000, the court made it onerously difficult for public employee unions to collect service fees from government workers who are “objecting nonmembers” – that is, employees who are covered by union contracts but who exercise a legal right to pay no dues. Labor previously had been able to periodically pro rate the service fees it charges these employees for union political activities, but the Supreme Court’s 7-2 ruling required unions to immediately offer objecting nonmembers the ability to opt out of these fees. But then the five conservatives went further and essentially created a new law by declaring that union members could only be charged fees for political activity if they actively opted in to accept such deductions.

Did this decision mark the end of organized labor? No, but it encumbered unions with more distracting administrative burdens and showed that this court was willing to go far beyond determining narrow case law. As Sanjukta Paul wrote on this site at the time:

All four justices outside the five-member majority agreed that this ruling was not only a break with well-established precedent, but that it also inappropriately answered an unasked question — in direct contravention of Court rules. The petitioners did not raise a challenge to the opt-out scheme, and it was not briefed or argued . . .

Make no mistake: The majority has strongly signaled its intention to create a so-called right-to-work regime in federal employment.

The court this year will consider two new labor cases that stem from suits filed against unions by the National Right to Work Legal Defense Foundation, an activist group with ties to the ultraconservative Koch brothers. “In one,” reports Reuters, “an employee seeks to limit the power of public-sector unions to collect dues. In the other, an employee aims to limit the ability of private-sector unions to sign up members.” The importance of these two cases is hard to exaggerate.

During last year’s Knox hearings, the conservatives on the bench seemed to invite lawyers anywhere in the country to bring them a case that would allow the court to overturn Abood v. Detroit Board of Education – the landmark 1977 ruling that formally recognized public sector unions and their right to collect dues or service fees. Someone was listening , for the right-to-work lawyers came running with Harris v. Quinn, a case challenging the right of an Illinois union to collect fees from the in-home health-care workers it represents.  On October 1 the court announced its intention to hear this case within the next nine months, although it has not yet been calendared.

Coming up November 13, however, is Unite Here Local 355 v. Mulhall, which originated from a case alleging criminal collusion between a private employer and a union. In this instance a UNITE HERE local agreed to promote a Florida gambling ballot initiative, and to refrain from picketing or boycotting Mardi Gras Gaming; in exchange, that casino operator agreed to provide the union with workplace access to its employees for the purpose of organizing them.

The plaintiff, Martin Mulhall, claimed this violated the Taft-Hartley Act’s anti-bribery provisions barring employers from giving unions a “thing of value.” That thing of value was the company’s offer of a card-check neutrality agreement. Such arrangements take place when workers at a company fill out cards indicating whether or not they wish to join a union; a simple “yes” majority means a union local can be formed without having to go through a long and often bitter election.

In 2012 the 11th Circuit Court of Appeals ruled in favor of Mulhall, but then UNITE HERE was granted the right to plead the case before the Supreme Court. The union will be doing so before a very tough house, however. If the court affirms the 11th Circuit, it could cripple the ability of unions to bargain with companies to gain the neutrality agreements that allow card-check votes — forcing unions to fight every organizing drive as a bare-knuckle war with employers.

“The aspects of the agreement attacked by Mulhall,” UNITE HERE has noted, “have been regular features of labor relations since the Taft-Hartley Act was passed. The plaintiff’s theory would wreak havoc with these and many other aspects of federal law—including the validity of collective bargaining agreements.”

But as the destabilization of the federal government by a cadre of congressional Tea Party members shows, the far right – whether dressed in Paul Revere hats or black robes – won’t shrink from creating havoc and chaos when it can’t get its way.

(Next — McCutcheon v. Federal Election Commission: “Citizens United” on Steroids.)

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