Public sector unions under fire at the Supreme Court: Symposium on Friedrichs v. California Teachers Association

Is it unconstitutional to compel non-members to pay an “agency fee” to a labor union?

This fall, the US Supreme Court will hear oral arguments in Friedrichs v. California Teachers Association. The case raises two issues:

(1) Whether Abood v. Detroit Board of Education should be overruled and public-sector “agency shop” arrangements invalidated under the First Amendment; and

(2) whether it violates the First Amendment to require that public employees affirmatively object to subsidizing nonchargeable speech by public-sector unions, rather than requiring that employees affirmatively consent to subsidizing such speech.

The outcome will determine the financial health of public sector labor unions.

SCOTUSblog recently ran a symposium on the case, and the points made are summarized below.

Symposium: Overrule Abood to protect individual rights, by Deborah J. La Fetra, a Principal Attorney at Pacific Legal Foundation.

  • The Court’s grant in Friedrichs comes at an ideal time to review the public-employee unions’ ability to garnish workers’ paychecks for the inherently political act of collective bargaining for taxpayer-funded wages and benefits.
  • Unions rely heavily on peer pressure, coercion, and inertia to prevent dissenting members or nonmembers from opposing union political activities.
  • Public-sector bargaining is an inherently political activity. Therefore, the Court’s attempts to distinguish public-employee union collective bargaining from other types of political and ideological activities have proven illusory.
  • The interests of public sector unions sit on both sides of the collective-bargaining table. School board members stand for election and depend on the campaign support of their bargaining “adversaries.” Teachers’ unions pour tremendous resources into these elections and their favorites rarely lose.
  • Sweetheart pension deals cut with public-employee unions have created a financial crisis of Greek proportions.

Symposium: Public-sector unions, labor relations, and free speech, by Ann C. Hodges, Professor of Law at the University of Richmond School of Law.

  • What justifies forcing employees to pay fees to a union if they object? Labor peace and avoiding free riders.
  • If a majority of employees votes for union representation, the union represents all of the employees in the bargaining unit. The benefits of any contract negotiated apply to all, even those who oppose the union, and any grievance procedure to enforce the contract is open to all.
  • This system provides many benefits to employers – one set of negotiations, one contract, and one grievance and arbitration procedure to administer.
  • Without fair share fees, the union may lack the resources to engage in effective representation, which will eviscerate the entire system.
  • If the labor relations system that has served well for so long is in need of revision, that task should be left to Congress and the state legislatures.

Symposium: Will the Court continue to recognize a distinction between bargaining with government and lobbying the government?, by William Messenger, an attorney with the National Right to Work Legal Defense Foundation.

  • Friedrichs squarely presents the question wrongly decided in Abood: whether public school teachers can be forced to support union bargaining with a school district.
  • Harris v. Quinn (2014) suggests that the Court will be receptive to the Friedrichs petitioners’ arguments that there is no relevant difference under the First Amendment between bargaining with government and lobbying government, in that both are petitioning government over matters of political and public concern, and that Abood should be overruled on these grounds.
  • Harrisalso suggests that the Friedrichs respondents have a difficult path ahead of them, because Harris rejected most union arguments for compulsory fees.
  • For the respondents in Friedrichs to argue that union collective bargaining with government is merely an internal matter with no political component, and of no public concern, would be to ask the Court to deny the obvious.

Symposium: The Friedrichs petition should be dismissed, by Catherine Fisk, the Chancellor’s Professor of Law at the University of California, Irvine School of Law.

  • Friedrichs was rushed through the lower courts without any factual record, apparently in response to Knox v. Service Employees International Union, Local 1000 (2012).
  • In the trial court, the plaintiffs filed suit and promptly requested the court to enter judgment on the pleadings in favor of the defendants, which the court did, finding the matter controlled byAbood and other cases. In the Ninth Circuit the plaintiffs likewise requested and received summary affirmance in favor of the defendants.
  • The absence of a record will be a problem. In Friedrichs, the trial court did not allow the union to develop a factual record to make the showing Harris requires about the costs the union incurs in bargaining on behalf of teachers and in enforcing their rights under collective agreements and the likely extent of the free-rider problem.
  • The Court cannot rule against the union in Friedrichs for failing to make a showing that the union specifically tried to make.
  • Nor can the Court decide the opt-in /opt-out issue without a record because the First Amendment issue turns on factual questions.

Symposium: Correcting the “historical accident” of opt-out requirements, by David B. Rivkin, Jr., and Andrew M. Grossman in the Washington, D.C., office of Baker & Hostetler LLP.

  • Friedrichs will likely mark the end of requirements that dissenting workers take action to “opt out” of funding public-sector unions’ political and ideological activities.
  • As the Court recounted in Knox, “acceptance of the opt-out approach appears to have come about more as a historical accident than through the careful application of First Amendment principles.”
  • As a practical matter, labor unions have not made it easy for workers to opt out of funding political activities.Workers must go through the process of objecting every single year, opt-out requests are typically permitted only during an annual “objection period,” and unions do the bare minimum required by law to publicize workers’ opt-out rights.
  • One can certainly understand why labor unions would want to collude with state and local politicians to exact political funds from unwilling employees who may not know how to satisfy convoluted opt-out procedures or are reluctant to bear the burden of doing so.

Symposium: Another battle in the war over union fees, by Charlotte Garden, Associate Professor at Seattle University School of Law and Litigation Director of the Korematsu Center for Law & Equality.

  • A major reason states choose to allow public-sector bargaining is to provide a productive and stable channel for workers’ voices, which is much more easily achieved when an elected union has adequate resources.
  • Agency fees are appropriate when – as in this case – unions are required to fairly represent all workers in the bargaining unit, whether or not they become members; the alternative would permit destabilizing free ridership.
  • Overturning Abood would set off a wave of contract renegotiations as unions attempt to internalize the costs of free riding. This might involve limiting non-essential union activities that benefit both workers and employers.
  • Constitutional rights often turn on whether the government is acting as a sovereign or in another capacity, such as employer. Conversely, public-sector workers have much greater First Amendment protection when they are acting as citizens, rather than as employees.
  • Bargaining is not the same as lobbying. Public employers bargain in their managerial capacities, whereas they receive lobbyists in their sovereign capacities.

 

With an artificially intelligent attorney, will you have to pay overtime?

Meet ROSS, “the world’s first artificially intelligent attorney.”

I recently wrote about a lawyer who put in for overtime, and may win if he can demonstrate that his work “did not involve the use of any legal judgment or discretion.” See Was lawyer doing robot work, so FLSA overtime is due?

The court bought in to this, saying that the lawyer was alleging that he “provided services that a machine could have provided.”

I wondered out loud whether the court had heard of smart machines that play chess or even do judicial work.

Better yet, Meet ROSS, “the world’s first artificially intelligent attorney.”

 

Was lawyer doing robot work, so FLSA overtime is due?

clockMy view: Robots don’t get overtime pay, but a lawyer alleging he does the work of a robot states a claim for overtime. Just allege you provide services that a machine could have provided, and you get to go to trial. [Opinion: Lola v. Skadden, Arps (2nd Cir 07/23/2015), reversing Lola v. Skadden, Arps (SD NY 09/16/2014).]

David Lola is a lawyer who got hired by a legal staffing company to perform services for the Skadden Arps law firm. Lola did his work in North Carolina – reviewing documents relating to litigation pending in federal court in the Northern District of Ohio. Lola is a licensed lawyer in California, but is not admitted to practice law in either North Carolina or the Northern District of Ohio.

Lola sued both the staffing company and the law firm claiming entitlement to overtime pay. The defendants argued that Lola was exempt from overtime due to his status as a professional employee – “Any employee who is the holder of a valid license or certificate permitting the practice of law or medicine or any of their branches and is actually engaged in the practice thereof,” according to DOL regs.

Lola argued that his work was not the practice of law because it was “mechanical” and “did not involve the use of any legal judgment or discretion.”

The court said it needed to use state law standards in interpreting the federal “practice of law” rule.

And which state? The state where the work was performed (North Carolina). Not the state where the litigation was pending (Ohio), not the state where the law firm and staffing agency had their principal place of business (New York), and not where Lola had his law license (California).

According to a North Carolina ethics opinion, document review is the practice of law. But the 2nd Circuit pointed out thatinherent in the definition of ‘practice of law’ in North Carolina is the exercise of at least a modicum of independent legal judgment.” The court interpreted Lola’s complaint as alleging that he “exercised no legal judgment whatsoever,” and “provided services that a machine could have provided.” That’s enough to survive a motion to dismiss for failure to state a claim.

Obviously the court does not understand machines. Have they not heard of computers that can beat chess champions? Or experiments in which computers replace judges?

Free law school tuition, with a catch

IndianaTechGet a free legal education, with no guarantee that you can take the bar exam.

Indiana Tech Law School started out in 2013. Really close to the bottom of a long-term nationwide slide in the number of folks applying to go to law school. It’s the fifth law school in Indiana. Interesting to see someone enter a market where demand is declining and supply seems to be pretty strong.

Indiana Tech has applied for ABA approval, which is needed so grads can take the bar exam. Approval has been declined. The school is re-applying.

Nobody is saying why ABA approval was denied, and the school says it is working to fix whatever deficiencies the ABA noted.

The school has now announced that every student who is enrolled in the school during 2016 will receive a 100 percent scholarship. Of course they still have to buy books and cover their own living expenses. And take the risk that ABA approval might not be forthcoming.

Free tuition was offered at U Cal Irvine during its first year of operations. As part of the huge and well-financed U Cal system, it seemed clear that ABA approval would be a cinch, and the school got approval on the fastest track available. The jury is still out on Indiana Tech.

“Prisoner of AT$T” T-shirt can be banned

attprisoners3“Common sense sometimes matters in resolving legal disputes,” says the court.

Reversing a decision by the NLRB, the DC Circuit held that a telephone company can forbid employees to wear “Prisoner of AT$T” T-shirts when going into customer homes or were working in public. Southern New England Telephone v. NLRB  (07/10/2015).

During contract negotiations in 2009 Communications Workers in Connecticut wore T-shirts with “Inmate # ____” on the front and “Prisoner of AT$T” on the back. The boss said they could not wear them if they were going into customer homes or were working in public. Many did anyhow, and 183 got suspended.

The NLRB generally allows employees to wear union insignia while working, and keeps employers from firing workers who do so. There’s a “special circumstances” exception: A company may lawfully prohibit its employees from displaying messages on the job that the company reasonably believes may harm its relationship with its customers or its public image.

AT&T explained that it banned only employees who interact with customers or work in public from wearing the T-shirts. AT&T officials testified that the shirts could alarm or confuse customers, could cause customers to believe that AT&T employees were actually convicts, or could harm the company’s public image more generally.

One more NLRB overruling is coming

nlrbMy view:  It’s all about “temps.” The NLRB’s announcement that it wants briefs from the parties and from amici is a tip-off that they will overrule Oakwood Care Center343 NLRB 659 (2004), and return to the rule of M.B. Sturgis331 NLRB 1298 (2000).

In Miller & Anderson, pending at the NLRB, you have three groups of employees and the Sheet Metal Workers Union wants them all to be part of the same bargaining unit. The three groups are those who are: (1) employed by Miller & Anderson, (2) employed by Tradesmen International (a temp staffing organization), and (3) jointly employed by Miller & Anderson and Tradesmen International.

Current Board policy is that for these three groups of employees to be in the same bargaining unit it requires the consent of both employers. Otherwise, they’re in separate units. That’s Oakwood Care Center.

Prior policy was that the groups could be combined even without employers’ consent. That was M.B. Sturgis.

The outcome seems inevitable, given the current makeup of the NLRB, but here are the questions the NLRB wants to be briefed:

  • How, if at all, have the Section 7 rights of employees in alternative work arrangements, including temporary employees, part-time employees, and other contingent workers been affected by the Board’s decision in Oakwood Care Center343 NLRB 659 (2004), overruling M.B. Sturgis331 NLRB 1298 (2000)?
  • Should the Board continue to adhere to the holding of Oakwood Care Center, which disallows inclusion of solely employed employees and jointly employed employees in the same unit absent the consent of the employers?
  • If the Board decides not to adhere to Oakwood Care Center, should the Board return to the holding of Sturgis, which permits bargaining units that include both solely employed employees and jointly employed employees without the consent of the employers? Alternatively, what principles, apart from those set forth in Oakwood and Sturgis, should govern this area?

Public sector unions tremble; Friedrichs is coming

. . . and fair share fees are at risk.

Unions collect dues from their members and “fair share” fees from nonmembers that they represent. Nonmembers say that violates the 1st amendment, but the US Supreme Court said it was OK in Abood v. Detroit Bd. of Ed. (US Supreme Court 1977).

Today the Court announced that it will review Friedrichs v. California Teachers Association.

Friedrichs is a head-on challenge of the 1977 Abood decision which upheld a state statute that allows an “agency shop” or “fair share” arrangement, whereby every employee represented by a union, even though not a union member, must pay to the union, as a condition of employment, a service charge equal in amount to union dues.

The Court has already called Abood “something of an anomaly.” And the Court has laid why Abood stands on thin ice:

  1. Abood relied on Railway Employes v. Hanson, 351 U. S. 225 (1956), but Hanson‘s first amendment analysis was “thin.”
  2. Abood relied on Machinists v. Street, 367 U. S. 740 (1961), but Street was a private sector case.
  3. The Abood Court fundamentally misunderstood Hanson‘s narrow holding.
  4. Abood failed to appreciate the difference between public sector union speech and private sector union speech.
  5. Abood failed to appreciate the conceptual difficulty in public sector cases of distinguishing union expenditures for collective bargaining from those designed for political purposes.
  6. Abood did not anticipate the administrative problems involved in classifying union expenditures as chargeable and non-chargeable
  7. Abood did not anticipate the practical problems that arise from the heavy burden facing objecting nonmembers wishing to challenge the union’s actions.
  8. The Abood Court’s critical “labor peace” analysis rests on the unsupported empirical assumption that exclusive representation in the public sector depends on the right to collect an agency fee from nonmembers.

[For a list of current employment law cases, see US Supreme Court Watch.]

SCOTUS postpones action on public-sector “agency shop” case

Rebecca FriedrichsMy view: If the US Supreme Court agrees to review Friedrichs v. California Teachers Association we should prepare for a sea change in the legality of “agency shop” (aka “fair share”) arrangements in the public sector. As of June 29, 2015 the Supreme Court has not decided, one way or the other, whether it will review this case. Now they’re on recess until October, so let’s wait and see. If the Court does grant certiorari in the fall, that could be the beginning of the end for  Abood v. Detroit Bd. of Ed.

A group of non-union teachers is asking the US Supreme Court to overrule Abood v. Detroit Bd. of Ed. (US Supreme Court 1977) and hold that public-sector “agency shop” arrangements violate the 1st Amendment.

At the Court’s June 25 conference, no action was taken on whether to grant certiorari. So let’s wait for October.

Friedrichs is a head-on challenge of the 1977 Abood decision which upheld a state statute that allows an “agency shop” arrangement, whereby every employee represented by a union, even though not a union member, must pay to the union, as a condition of employment, a service charge equal in amount to union dues.

Five Justices have already made it quite clear that they are ready, willing, and able to overrule Abood. In  Harris v. Quinn (US Supreme Court 06/30/2014) the Court majority wrote out a list of reasons why Abood is now hanging by a thin thread:

  • Abood relied on Railway Employes v. Hanson, 351 U. S. 225 (1956), but Hanson‘s first amendment analysis was “thin.”
  • Abood relied on Machinists v. Street, 367 U. S. 740 (1961), but Street was a private sector case.
  • The Abood Court fundamentally misunderstood Hanson‘s narrow holding.
  • Abood failed to appreciate the difference between public sector union speech and private sector union speech.
  • Abood failed to appreciate the conceptual difficulty in public sector cases of distinguishing union expenditures for collective bargaining from those designed for political purposes.
  • Abood did not anticipate the administrative problems involved in classifying union expenditures as chargeable and non-chargeable
  • Abood did not anticipate the practical problems that arise from the heavy burden facing objecting nonmembers wishing to challenge the union’s actions.
  • The Abood Court’s critical “labor peace” analysis rests on the unsupported empirical assumption that exclusive representation in the public sector depends on the right to collect an agency fee from nonmembers.

[For a list of current employment law cases, see US Supreme Court Watch.]

DNA sample to find “devious defecator” leads to $2,225,000 verdict

ginaGenetic Information Nondiscrimination Act violation 

My view: Jurors don’t like it when they see a clear-cut and undebatable violation of a clearly-written statute, and then the employer tries to justify that in court. Really, what’s there to like?

Atlas Logistics operates warehouses to store stuff that’s sold in grocery stores. Imagine Atlas’s frustration when a mystery employee began habitually defecating in one of its warehouses. What to do? Atlas requested some employees to submit to a cheek swab (no double entendre intended) to get some DNA to compare to the fecal DNA. 

Two employees sued under the Genetic Information Nondiscrimination Act (GINA), which generally prohibits employers from requesting genetic information from employees. The trial judge granted summary judgment [order] for the employees on the issue of liability, leaving it to a jury to assess damages. 

The jury award: $250,000 to one employees, $225,000 to the other, plus $1,750,000 in punitive damages. Total: $2,225,000. 

By the way, all employees who were tested were cleared. The devious defecator is still at large. If spotted, please call Atlas. 

 Read all about it in the Daily Report.  

Union fair share fees in the crosshairs at Supreme Court

Rebecca FriedrichsBeginning of the end for Abood?

My view: If the US Supreme Court agrees to review Friedrichs v. California Teachers Association we should prepare for a sea change in the legality of “agency shop” (aka “fair share”) arrangements in the public sector.

A group of non-union teachers is asking the US Supreme Court to overrule Abood v. Detroit Bd. of Ed. (US Supreme Court 1977) and hold that public-sector “agency shop” arrangements violate the 1st Amendment.

The Court will have a conference on June 25 to decide whether to grant certiorari. If so, briefs will be filed over the summer, and oral arguments will be scheduled for the fall.

Friedrichs is a head-on challenge of the 1977 Abood decision which upheld a state statute that allows an “agency shop” arrangement, whereby every employee represented by a union, even though not a union member, must pay to the union, as a condition of employment, a service charge equal in amount to union dues.

Five Justices have already made it quite clear that they are ready, willing, and able to overrule Abood. In  Harris v. Quinn (US Supreme Court 06/30/2014) the Court majority wrote out a list of reasons why Abood is now hanging by a thin thread:

  • Abood relied on Railway Employes v. Hanson, 351 U. S. 225 (1956), but Hanson‘s first amendment analysis was “thin.”
  • Abood relied on Machinists v. Street, 367 U. S. 740 (1961), but Street was a private sector case.
  • The Abood Court fundamentally misunderstood Hanson‘s narrow holding.
  • Abood failed to appreciate the difference between public sector union speech and private sector union speech.
  • Abood failed to appreciate the conceptual difficulty in public sector cases of distinguishing union expenditures for collective bargaining from those designed for political purposes.
  • Abood did not anticipate the administrative problems involved in classifying union expenditures as chargeable and non-chargeable
  • Abood did not anticipate the practical problems that arise from the heavy burden facing objecting nonmembers wishing to challenge the union’s actions.
  • The Abood Court’s critical “labor peace” analysis rests on the unsupported empirical assumption that exclusive representation in the public sector depends on the right to collect an agency fee from nonmembers.

[For a list of current employment law cases, see US Supreme Court Watch.]