The Building Tradesman Newspaper

Friday, September 29, 2017

Supreme Court cases could further weaken clout of organized labor

By The Building Tradesman

By Mark Gruenberg
PAI Staff Writer

WASHINGTON (PAI)—The two top labor cases pending before the U.S. Supreme Court are part of a concerted corporate campaign to deprive workers of their rights and to defund unions, an attorney tracking the issues for the Service Employees says.

And if the corporations succeed in their arguments before the justices, unions would lose millions of dollars and workers would lose part of their rights to join together and defend themselves. Corporations would benefit in both cases, adds Claire Prestel, SEIU’s associate general counsel.

Prestel offered that analysis in a brief interview with Press Associates Union News Service following a Supreme Court preview session on Sept. 12. The American Constitution Society, a progressive lawyers’ group that includes many pro-worker attorneys, sponsored it. 
“It’s very clear these cases are part of a decades-old movement to weaken the collective power of workers and to keep them from advocating for themselves,” she said after covering the two workers’ cases for five-person ACS panel.

The labor cases pending before the nine justices are Janus v AFSCME and the Murphy Oil case, which is three cases rolled into one. It comes up first, on Oct. 2, the day the court re-opens its doors. The justices have yet to decide when they’ll hear Janus. 
But on Murphy Oil. the justices will plunge right in to another case important not just to workers, but to everyone nationwide, hearing arguments on whether political gerrymandering violates peoples’ rights by depriving them of constitutionally protected representation of themselves and their views.

Gerrymandering is important because a gerrymandered legislature can deprive workers of their rights – as Wisconsin and Iowa did in passing so-called “right to work” laws, and even let a right-wing governor appoint a financial czar to run a city or a school district. That’s what Michigan’s legislature let its governor do in Flint and in Detroit’s schools. The Detroit schools laid off all the teachers in 2011, despite a union contract. Flint’s czar ordered the city water company to switch sources to save money. That led to the resulting lead poisoning the water.
In the Murphy case, the court will wade into a thicket that businesses, especially financiers, are using to clobber consumers and workers: Forced mandatory arbitration. 

Though the case itself, involving workers at that firm and two others, is narrow, the issue is not: Whether the Federal Arbitration Act overrides other rights, including the right of workers to band together to protect themselves – via organizing, class action suits or any other way – under the National Labor Relations Act, said Prestel. 

Murphy Oil workers don’t want to unionize over the firm’s failure to pay them overtime. They want to sue as a class. The firm says they must go to forced arbitration, one by one. 

The National Labor Relations Board has tossed out forced arbitration agreements left and right, backing both union and non-union workers. Murphy is challenging the NLRB’s decision that labor law overrides forced arbitrations, period.

The Consumer Financial Protection Bureau is also battling forced arbitration. It just issued rules against financial institutions forcing credit card holders into arbitration, though the GOP-run Congress is scheming to overturn the rules. CFPB Director Richard Cordray cites studies showing the financiers win 93 percent of all arbitrations.

The Janus case challenges the right of public worker unions to collect “agency fees” from “free riders” in union-represented shops, just as the Friedrichs case did. The court tied 4-4 on that after Justice Antonin Scalia died. Conservative Neil Gorsuch has replaced Scalia.  
 Prestel said the National Right to Work Legal Defense Fund, which is financing the case – it pits a dissident AFSCME worker against the union and Illinois -- may not have the right to sue, because it hasn’t been directly hurt itself. 

“And it’s a heavy lift” the right-to-work group seeks, as they’re asking the justices to overturn a 1975 decision for unions and fees, she added. The anti-worker lobby also financed Friedrichs and recruited the dissident workers as “front men.”

But if the justices rule against AFSCME, unions would lose millions of dollars and have less ability to defend all workers, union and non-union, said Prestel. That’s because the ruling would make every one of the nation’s state and local workers a potential free rider. 

“The right to work group argues that non-members can get the unions’ services for free. When you get services for free, it’s rather hard to have members,” she said.