Labor Day Weekend Reading

by Paul Garver

Getman cover

If you are as tired as I am of inane electoral political commentary in the media, why not take some time over the Labor Day weekend to consider the deep roots of the growing economic and political inequality that underlies the superficial campaign rhetoric?
I would not normally recommend sources on labor law and labor economics for your holiday reading. But here goes.

The Economic Policy Institute [EPI] just released a new research report, “Union decline lowers wages of nonunion workers: The overlooked reason why wages are stuck and inequality is growing,” Access at http://www.epi.org/files/pdf/112811.pdf

The EPI Report analyzes how the decline of organized labor in the USA has contributed to wage stagnation and economic inequality. If good jobs in industry are increasingly scarce and pay for private sector workers has barely budged in the last four decades, a major cause is the catastrophic decline in private sector unionism from 35% to 5%. Building walls along the borders and expelling undocumented immigrants will not help alienated working-class voters. As Hamilton Nolan advises them in his analysis of the EPI Report: “Don’t get mad at foreigners. Unionize. It’s the only battle in the class war that lies entirely within your power to win.”

However a major contributing factor to the decline of union organization is the way the U.S. Supreme Court has interpreted labor law over the same decades. Labor law professor and practitioner Julius Getman has written a concise and spritely study called The Supreme Court on Unions: Why Labor Law Is Failing American Workers (Cornell Univ. Press, 2016). In fewer than 200 pages, Getman demonstrates how a series of Supreme Court decisions on union organizing, collective bargaining, the right to strike, picketing, boycotts, the duty of fair representation, and the definition of “employee” have effectively gutted the ability of labor unions to organize new members and to bargain good contracts.

When over forty years ago I was hired by a local SEIU union to organize hospital workers (NLRB jurisdiction had recently been extended to the hospital sector), I was not prepared to confront the incredible number of tools the employer already could wield to frustrate the right of hospital workers to organize into a union. Despite several badly coordinated legislative efforts to improve union rights during the Carter and Clinton administrations, the legal framework for union organizing and bargaining has continued to deteriorate over the last half century. Getman shows how even many of the more liberal Supreme Court appointees do not comprehend or support interpretations of labor law that would reverse this trend.

Getman analyzes that it is unlikely that even better Court appointments and incremental legislative reform could overturn entrenched basic antiunion precedents After more than half a century of practicing and teaching labor law, Getman realizes that significant change will require a long hard struggle, would be bitterly opposed by wealthy political patrons of both Republican and Democratic parties, and would demand the election of a president willing to make strengthening union organization and collective bargaining as the highest political priority. “Significant labor law reform,” he reluctantly concludes’ “is more likely to follow from than to cause a resurgence of the labor movement.” That can only occur if the workers’ movement becomes part of a wider popular insurgency.

I recommend The Supreme Court on Unions: Why Labor Law is Failing American Workers as an indispensable resource not only for those active in the labor movement, but for all who are committed to building a wider movement for political revolution in the USA.

Friedrichs Reprieve, But We Are Not Out of the Woods Yet

NEA Patrick G Ryan - 2016-01-11 SCOTUS demo by Alexandra Bradbury
Yes, we dodged a bullet—for now. But any union that takes the Supreme Court shakeup as a cue to go back to business as usual will be making a big mistake.

Before Justice Antonin Scalia’s abrupt passing, a 5–4 hostile ruling in the case of Friedrichs v. California Teachers Association seemed virtually guaranteed.

The decision, expected by June, could have imposed so-called “right to work” on the whole public sector—meaning unions could no longer collect “fair-share” fees from the nonmembers they’re legally required to represent.

Now the court looks deadlocked, which could mean the lower court’s ruling in favor of the union is upheld; more likely, Friedrichs will be reargued after a ninth justice is confirmed.

There’s no question—this reprieve is good news. Losing fair share would be a serious blow.

The evidence is in, from state after state that’s gone “right to work.” Even for a union that’s well-prepared, the loss saps a portion of members, budget, staff time, and strength. For the unprepared, membership goes into freefall. That’s why anti-union forces keep pushing these laws.

So it’s no wonder unionists are breathing a sigh of relief. But we’re not out of the woods yet. Continue reading

Supreme Court Rules Disadvantaged Workers Should Be Disadvantaged Some More

by Harold Meyerson

Harold Meyerson

Harold Meyerson

The conservative majority on the Supreme Court Monday took up the case of some of America’s most disadvantaged workers, and ruled that they should be disadvantaged some more. The five-to-four ruling in Harris v. Quinn goes a long way to crippling the efforts that unions have made to help these workers get out of poverty.

The case concerned some 28,000 home care aides in Illinois whose paychecks come from Medicaid. Before the state agreed in 2003 that they could form a union, they made the minimum wage. (It’s the state that sets their wage rate, since their pay comes entirely from Medicaid.) Currently, as a result of their union contract, they make $11.85 an hour rather than the minimum of $7.25. Tomorrow, by the terms of their contract, their hourly rate is raised to $12.25, and on December 1st to $13.

The right to hire and fire these workers remains solely, of course, that of their home-bound patients and their families. The workers, then, are joint employees of both their patients and the state. And since the state allowed them to vote on whether to join a union, and since they voted to join the Service Employees International Union, these 28,000 workers have seen their pay doubled and have received, for the first time, health care coverage. Like all unionized public employees, they don’t have to pay that portion of their union dues that goes to their union’s political activities, but they do have to pay that portion of dues that goes to the union’s bargaining with the state that has produced their contract. The extent of and limits on their dues obligations were established in the 1977 Abood decision of the Supreme Court, which has structured the dues obligations of unionized public employees ever since.

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Why Harris and Hobby Lobby Spell Disaster for Working Women

by Sarah Jaffe

The Supreme Court ruled in favor of Hobby Lobby Monday, allowing "closely held" businesses to claim religious rights and avoid federal healthcare regulations that require employers to include birth control in insurance plans.   (Nate Grigg / Flickr / Creative Commons)

The Supreme Court ruled in favor of Hobby Lobby Monday, allowing “closely held” businesses to claim religious rights and avoid federal healthcare regulations that require employers to include birth control in insurance plans. (Nate Grigg / Flickr / Creative Commons)

Retail sales and home healthcare work are two of the three fastest-growing jobs in this country. That’s an important consideration when looking at the decisions the Supreme Court handed down today in Harris v. Quinn and Burwell, Secretary of Health and Human Services v. Hobby Lobby Stores: If you are not affected by these rulings yet, you well could be in the future.

Both 5 – 4 decisions were written by Justice Samuel Alito, a conservative Catholic from New Jersey appointed by George W. Bush, and both rested on narrowly tailored legal arguments that just happen to cut wide enough to impact groups of workers who are almost exclusively female. Harris creates the special designation of “partial public employees” for publicly-funded home healthcare aides who work both for the client and for the state—who are 90 percent female, most of them poor, immigrants, and of color. Hobby Lobby, meanwhile, in deciding whether an employer with religious beliefs can be required to provide health insurance that covers contraception, singles out women by targeting its arguments towards workers who use birth control—but not any other form of healthcare.

As Sheila Bapat, author of Part of the Family? Nannies, Housekeepers, Caregivers and the Battle for Domestic Workers’ Rights, tweeted, “These decisions speak squarely to the value of women’s labor.”

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Will the Supreme Court take its latest chance to weaken unions?

by Laura Clawson

The justices of the U.S. Supreme Court gather for a group portrait in the East Conference Room at the Supreme Court Building in Washington, October 8, 2010. Seated from left to right in front row are: Associate Justice Clarence Thomas, Associate Justice A

In late January, the Supreme Court heard arguments in the latest of a series of cases that have the potential to dramatically weaken unions. In Harris v. Quinn, an Illinois home care worker, backed by a major anti-union organization, is challenging the fair share fees paid by public employees who are not union members but benefit from contracts negotiated by unions. These fees cover the cost of negotiating for and representing workers, but no political activity by the union. The charge in this case is that those fees represent, not work done to improve wages and working conditions for home care workers, but forced speech, making it a First Amendment issue.The Supreme Court previously ruled in favor of fair share fees in a 1977 case, but this is the Roberts Court.

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Supreme Court aligns against the have-nots

by Harold Meyerson

Harold Meyerson

Harold Meyerson

Among the causes most frequently cited for the dizzying rise in American inequality in recent decades — globalization, technology, de-unionization — one culprit is generally left off the list: the Supreme Court. But the justices (more precisely, the conservative justices) must be given their due. In cases ranging from Buckley v. Valeo in 1976 to Citizens United v. Federal Election Commission in 2010, they have greatly increased the wealthy’s sway over elections — which, in turn, has led to public policies that have reduced taxes on the rich, curtailed regulation of Wall Street and kept workers from forming unions.

On Tuesday, the justices were presented with a golden opportunity to further increase inequality. The court heard arguments in Harris v. Quinn , a case testing whether home-care providers who work under a union contract with the state of Illinois can avoid paying dues that support the union’s collective-bargaining work. (Under the law, they already can decline to pay the share of dues that goes to the union’s political work.) Continue reading

Supreme Court Hears Arguments on Neutrality Agreements

Ironically, the employer broke the neutrality agreement that’s at issue in today's Supreme Court case testing whether such agreements are employer bribes. “Neutral” Mardi Gras Gaming fired 10 employees for their union activism—which led to a rally of hundreds and arrests of 26.

Ironically, the employer broke the neutrality agreement that’s at issue in today’s Supreme Court case testing whether such agreements are employer bribes. “Neutral” Mardi Gras Gaming fired 10 employees for their union activism—which led to a rally of hundreds and arrests of 26.

(Nov. 13) Today the Supreme Court will hear arguments on whether “neutrality agreements,” where the employer promises not to fight the union, are really just a bribe, and therefore illegal.

As the legal system keeps choking organizing possibilities, it’s now a rare campaign in the private sector where the union doesn’t first extract a neutrality agreement to blunt the boss’s wrath.

Neutrality agreements create rules for union and employer behavior during organizing drives. Often an employer signs such an agreement only after years of targeted union pressure. The employer promises not to try to sway workers’ opinions, allowing them some breathing room when labor law is mostly on management’s side. Continue reading

SCOTUS and the Uncertain Future of Organized Labor

English: United States Supreme Court building ...

(June 27) This has been a blockbuster week for the Supreme Court to say the least. With DOMA, Proposition 8, Title VII, and affirmative action decisions dominating the coverage, few have taken note of the Supreme Court’s move on Monday to grant review to a set of cases that could strike a severe blow to private sector union organizing.

The first case, Noel Canning, challenges the ability of the President to make recess appointments to the National Labor Relations Board when the Senate has technically kept itself in session. Due to GOP obstruction in the Senate, the NLRB has for years struggled to maintain a three-member quorum. The Supreme Court held in New Process Steel that, absent such a quorum, the NLRB cannot legally rule on cases brought before it. If the Supreme Court decides that the President’s recess appointments to the NLRB are unlawful, the NLRB will become basically non-functional for as long as Senate Republicans continue to deny the NLRB a quorum by blocking new appointments to the agency. In a world with a non-functional NLRB, private sector unions will find themselves with nowhere to turn when employers illegally coerce, intimidate, and otherwise unlawfully obstruct organizing campaigns. Continue reading

Understanding the Supreme Court—Some Thoughts For Labor Activists

by Joe Burns

Joe Burns

Joe Burns

In the last week, a flurry of decisions has thrust the Supreme Court on center stage of the nation’s political agenda. Interspersed with truly horrible decisions on voting rights and anti-discrimination law was a victory on the issue of gay marriage. While others have analyzed those decisions in more detail, here the focus is on the role of the Supreme Court in setting labor policy.

What these decisions collectively show is that the Supreme Court, at the end of the day, makes political decisions. By this is meant not merely that these decisions are somehow tainted by politics depending on your perspective, but that the essence of what the Supreme Court does is making political decisions. For a labor movement largely crippled by decades of unfavorable Supreme Court decisions, this understanding is crucial to labor’s revival.

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Class war at the Supreme Court

Harold Meyerson

By Harold Meyerson

(June 26) n the eve of the Supreme Court’s much anticipated ruling on Obamacare, here is a simple test for detecting the politics behind a decision: When reading the rulings, look for the double standards and answers to questions not posed by the cases themselves. By those measures, the Supreme Court’s record in the past week fairly reeks of the justices’ politics.

Exhibit A is Justice Samuel Alito’s majority opinion in Knox v. Service Employees International Union, Local 1000, in which nonunion California state employees whose wages and benefits were nonetheless set through the collective bargaining process of SEIU — the state’s largest union — sued the local to get back a special dues assessment it levied in 2005 to fight two ballot measures. The union’s normal practice was to allow nonmembers to opt out of paying the roughly 44 percent of dues that went to matters not directly related to collective bargaining, such as election campaigns. In this instance, however, no such opt-out was allowed.

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