Tag Archives: Supreme Court

New Labor Forum Highlights, June 25th, 2018

The New Labor Forum has a bi-weekly newsletter on current topics in labor, curated by the some of the most insightful scholars and activists in the labor world today. Check out some highlights from the latest edition below.

The future of public sector unions in the U.S. hangs in the balance, awaiting the Janus v. AFSCME Supreme Court decision due this week, even as soon as tomorrow. This case will decide whether public sector workers in a workplace represented by a union and benefiting from a collective bargaining agreement negotiated by that union will have to continue paying an “agency fee” to the union for the work it does on their behalf. With a public sector unionization rate five times that of the private sector rate, the expected ruling against the American Federation of State, County, & Municipal Employees threatens to undermine what has been a redoubt of union strength, heightening the need for bold new ideas to rebuild the labor movement.  That is what we offer here.

We begin with a provocative think-piece (due out in our September 2018 print issue) by Larry Cohen, Board Chair of Our Revolution, the successor organization to Bernie 2016, and past President of the Communications Workers of America. Cohen argues that the future of enterprise-based collective bargaining in the U.S. is bleak, and that now’s the time to move to a sectoral bargaining system, which protects industry-wide wages and conditions of employment for workers in many other countries, from South Africa to Norway. He discusses why organized labor and progressive democrats should make universal, sectoral bargaining a top demand and why it will make other victories possible.

Next we offer a strategic proposal by Luke Elliott-Negri and Marc Kagan for what may be a new opportunity to organize the tens of thousands of public sector adjuncts in New York State in the post Janus environment. This chance for organizing results from a recent law unions managed to pass in New York, intending to blunt the expected blow of the Janus decision. Unions in states like California have made similar legislative inroads that may also offer similar promising options for organizing.

Chris Brooks weighs in on the question of whether unionists should press for a “members only” brand of unionism made more likely in the wake of the anticipated Janus decision. Examining a 2011 Tennessee law targeting teachers’ unions, Brooks cautions against embracing “members only” trade unionism and the resulting competition among unions that may vie to represent workers in the same bargaining unit. He argues that inter-union competition, which has long been promoted by strategists on the right and some on the left, more often benefits employers than workers.

With this newsletter, we take a hiatus for the summer season, returning on Labor Day. In parting, we leave you with a wildly imaginative, searing poem by Alberto Rios, Arizona’s first state poet laureate. In it, he contemplates the very nature of a border, giving us all something to ponder as we respond to the fact of the thousands of children at our border, incarcerated and separated from their parents into the unknowable future.


Table of Contents

  1. The Time Has Come for Sectoral Bargaining/ Larry Cohen, New Labor Forum
  2. An Odd Twist: Might a Response to Janus Make Adjunct Organizing Easier in New York State?/ Luke Elliott-Negri and Marc Kagan, New Labor Forum
  3. The Cure is Worse than the Disease/ Chris Brooks, New Labor Forum
  4. The Border a Double Sonnet/ Alberto Rios, New Labor Forum

Photo by Richard Gillin via flickr (CC-BY-SA)

Supreme Court Won’t Weigh in on Age Discrimination in Hiring Practices

Amid the shockwaves from the Supreme Court yesterday — in particular the decision to allow parts of President Trump’s travel ban to go into effect until the court hears arguments this fall — came a decision that got notably less attention. The court has decided not to hear a case involving age-discrimination, allowing a lower court ruling to stand. From a ProPublica article in March:

For the past half century, federal law has banned employers from discriminating against people based on their age. But since the early 1990s, corporate lawyers and conservative judges have sought to shrink what counts as discrimination, making it substantially harder to prove age bias. […]

The case involves an Atlanta man named Richard Villarreal, who applied online for a sales manager job with R.J. Reynolds Tobacco Co. in 2007 and heard nothing. When he applied in subsequent years, he had no better luck.

What Villarreal, who was 49 at the time of his first application, didn’t know was that Reynolds had retained a subcontractor to review the applications, supplying guidelines that led reviewers to discard his resume and those of almost 20,000 other older applicants. Of the roughly 1,000 sales managers the tobacco company hired between 2007 and 2010, when Villarreal was applying, fewer than a score were over the age of 40. After a whistleblower emerged in 2010, Villarreal sued.

The significance of the case is two-fold. It highlights the hurdles for job seekers as hiring has increasingly moved online, where it’s easier for companies to reject whole classes of applicants and harder for people to keep track of their bids for work. And it illustrates how age discrimination protections have been progressively narrowed. The tobacco company’s defense challenges decades of precedent for how the law has been interpreted and enforced. Continue reading Supreme Court Won’t Weigh in on Age Discrimination in Hiring Practices

Time to double down: What the demise of Friedrichs means for labor

By Allison Porter

When Antonin Scalia died in Texas last month, public sector unions got some breathing room.  Friedrichs vs California Teachers Association — the case that was expected to overturn Abood vs Detroit Board of Ed in April — is likely to languish in a 4-4 stalemate until a new justice is appointed.  The danger, of course, is that unions will slow down or even stop the internal reforms that were underway. Instead of putting on the breaks, they should see this gift of time as an opportunity to be even more innovative and aggressive in transforming their organizations.

Unions have good reason to resent the open shop.  The average person does not want to pay for what they can get for free.  Federal law recognized this “free-rider” problem in upholding the right to collect fair share fees and it is a cynical and calculated agenda that is fighting against it. Unfortunately, the legal trend is against us on this one. In the Friedrichs arguments we got an up close look at the future: fast or slow, fair or unfair, labor is losing fair share. 

Whenever there is an existential threat, we humans are shocked out of complacency. It gets our attention.  However, it can also result in panic, paralysis and short term thinking.  In taking Friedrichs to the brink, and then pulling back, history gave unions a look into the abyss without having to take the actual fall.  This is a gift that we need to appreciate.  

It’s important to learn from both what the threat revealed about the internal workings of unions and what their response revealed about their readiness for change. Continue reading Time to double down: What the demise of Friedrichs means for labor

Scalia’s Death & The Future of Labor

The death of Antonin Scalia has marked a significant and surprising development in US politics. Republican senators are vowing to reject any nominee Obama makes to the court and attempting to call into question the legitimacy of the President making a nomination at all, while Obama, the Democrats, and most of the attention-paying public are baffled by this anti-constitutional posturing, all in the name of so-called constitutional filiality.

Of course, however this political showdown turns out, one thing is for certain: Scalia’s departure means things will be shaken up. Whether a new Justice is appointed during Obama’s term or not, the Court is down one arch-conservative, leaving only eight justices behind to wrestle with the cases remaining on the docket.

This year, one of the most controversial cases on the Supreme Court is slated to be Friedrichs v. California Teachers Association. At issue is the union’s right to collect “agency fees,” and the implications of the decision will be far reaching. Will public sector unions be able to sustain themselves through the collecting of fees from public sector workers?

In this case, Scalia’s death is likely to mean a 4-4 decision on the case, sending the decision back to the victor in the lower court, which, in this case, was the union. Alternatively, the case could be re-argued once a new justice is appointed — whenever that may be. Continue reading Scalia’s Death & The Future of Labor

Friedrichs Case, Unions and the Public Sector

By Penny Lewis

The Friedrichs case argued before the Supreme Court yesterday will decide the near-term fate of public sector unions in the United States. In this and the next blog post I am mulling over the roots and implications of this case; in the next I want to consider what it means for us here at CUNY and our current contract fight.

The basic issue facing the Court is whether the “agency fees” collected by public unions from public workers violate the first amendment rights of non-union workers. The plaintiffs are making the case that, because bargaining in the public sector involves issues like merit pay, public workers who do not support the positions their unions take on such issues are being forced to pay for political speech with which they disagree. (For more background on the case, please look here and here.)

The ideological — and more importantly, material — roots of this argument lie in the decades long assault launched by conservative groups, their corporate funders and their political allies to discredit and dismantle the collective power of workers.

Continue reading Friedrichs Case, Unions and the Public Sector

Public Sector Unions: On the Chopping Block?

Today, the Supreme Court will hear a case with huge implications for public sector unions. The case is Friedrichs v. California Teachers Union, and at issue is the question of whether members of public sector unions can be required to pay dues to support union efforts.

Over at Gawker, Hamilton Nolan breaks it down (Today They Try to Break the Public Unions):

If you are a government employee in a unionized workplace—a teacher, for example, belonging to a teachers union—you and all of your colleagues pay a set fee to the union, to cover the costs of the union’s work to negotiate a contract that you work under. This is simply the principle of everyone paying their fair share for work that benefits everyone. If you are a teacher and you happen to dislike teachers unions for some political reason, you are not required to be a member of the union; if you do not want to be a member of the union, you cannot be required to pay fees to cover strictly political activities that the union undertakes, like lobbying or political donations to favored candidates. But since the union negotiates the contract that covers everyone, you are still required to pay your fair share fee, called an “agency fee,” to cover bargaining costs.

The Friedrichs case aims to do away with the requirement that those who enjoy the benefits of public union contracts pay an agency fee to cover the cost of getting those contracts in the first place. Why? The legal argument in the case is that all union activity is inherently political, even contract negotiations, and therefore requiring non-members to pay fees to cover bargaining costs still amounts to compelling them to pay for political speech that they disagree with. Because public sector union bargaining involves government spending priorities and whatnot, the plaintiffs say, it is political, and the decision to support it with fees should be purely a choice, rather than a requirement—even if someone is reaping the benefits of the contract the union negotiated for them.

Unions point out the very obvious problem with this idea, which is that it allows “free riders” to get all the benefits of union membership without paying any of the costs. In this sense it would be akin to a local government telling its citizens they only have to pay local taxes to collect garbage and repair roads and clean the streets if they agree with the government politically. It would allow plenty of people to opt out of paying, but still enjoy all of the benefits that the taxes pay for. And if enough people chose to be free-riding leeches rather than voluntarily good taxpaying citizens, it would only be a matter of time before such a government weakened or collapsed.

Read more at Gawker.

Photo by Phil Roeder via flickr (CC-BY).