Friday, October 4, 2013

Sachs & Secunda on Supreme Court Labor Cases

Supreme CourtReuters has a story today on the three union-related cases on the upcoming Supreme Court term, which features Ben Sachs (Harvard) and Paul Secunda (Marquette).  Two of the cases, Mulhall and Noel Canning, we've discussed before, but we (really, "I") have been derelict in mentioning the third: Harris v. Quinn.  

In Harris, the Court may be reconsidering the Abood decision from 1977, when it permitted a state to require employees who receive union representation to pay for that representation through mandatory dues.  Established Supreme Court law, from Abood to several other cases in the public and private sectors, have allowed mandatory dues that do not include political and other extraneous spending.  But the recent Knox opinion had dicta suggesting that several Justices question that basic premise.  I agree with Paul & Ben that if the Court overturns Abood et al., it will be a huge deal for unions.  In effect, it put the entire country under a right-to-work regime.  From the article:

Taken together, the two organized labor cases [Mulhall & Harris] raise significant questions about union power, Harvard University Law School Professor Benjamin Sachs said.

"These are not cases about arcane rules of organizing, rules like where on an employer's property can a union talk to employees," he said. "These are cases that go to the heart of the legal regimes that are necessary to enable unionization.". . .

"Knox put into serious question whether Abood is still good law," said Marquette University law professor Paul Secunda. "Harris might be the vehicle for overruling Abood, making it more difficult for public unions to raise dues."


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Of course, disaster will ensue of you're right: Unions will be able to rely on dues only from those whom they are able to persuade to join them.

That's quite an endorsement of unions' ability to do so.

Posted by: James Young | Oct 4, 2013 5:50:06 PM

That's "if," not "of."

Posted by: James Young | Oct 4, 2013 5:50:33 PM

And the unit members who refuse to pay for the services they receive ... you will no doubt support legislation exempting them from any benefits negotiated by the union and relieving the union of the obligation to service them.

Posted by: john | Oct 5, 2013 7:49:21 AM

Well, "john," aside from the self-serving and self-congratulatory presumption that there are "benefits negotiated by the union," your assume that unions don't retain the right to represent only those who want their representation. Of course, your assumption is wrong. The Supreme Court long ago reaffirmed the right of a union to negotiate only for those who want representation, and demonstrate that desire by joining the union and paying its dues voluntarily. Consolidated Edison Co. v. NLRB, 305 U.S. 197, 236-37 (1938); ILGWU v. NLRB, 366 U.S. 731, 736 (1961); Retail Clerks v. Lion Dry Goods, 369 U.S. 17, 25-26 (1962).

Posted by: James Young | Oct 6, 2013 9:12:43 PM

Great, glad to hear you support minority bargaining, strikes, etc. and prohibiting employers from extending benefits to non-members under such circumstances! Look forward to your amicus on the former issue should it come up again.

Posted by: john | Oct 8, 2013 3:50:03 PM

Come on James. You know that those minority unions are essentially social clubs with none of the rights and protections held by recognized unions. Principles such was Weingarten don't even apply so I am not sure how they can really represent much.

Posted by: Jared Gross | Oct 9, 2013 8:10:18 AM

So union's position is: we'd be useless social clubs without the government granted powers we have under the NLRA? That's not an inspiring message about the support they would have absent those powers.

It also suggests those powers are more than sufficient to "compensate" union officials for the few obligations that come along with exercising monopoly representation power. (If they weren't there would be no unions in Right to Work states.)

Further it's simply not true that they all benefit from the unwanted union "representation" they are forced to accept. What about the inspiring young teacher who loses her job because when the district gets smaller the contract says a number of clearly less effective teachers can't be let go due to tenure? Or what about the hardworking autoworker who is being paid less because the UAW negotiated a two-tier contract that favors older workers? Almost by definition, union contracts treat all workers the "same" which hurts any number of above average employees.

Posted by: Samuel G | Oct 10, 2013 11:54:37 AM

John, you presume too much with your last, which speaks to relationships to which a minority union would be a stranger.

And Jared --- nice to address you by your real name! --- surely an appropriate statutory regime could be enacted once the NLRA's coercive and monopoly elements are removed.

Posted by: James Young | Oct 10, 2013 3:21:57 PM

Samuel G.--yes, unions would be useless social clubs if they had no statutory regime behind them if the statutory regime still exists that regulates them such as the Union unfair labor practices, various DOL requirements, etc. In other words, Unions can be quite powerful if you eliminate all of the statutes, but isn't what the point of the NLRA was about? I mean, do you want a regime where there are no bans on wildcat strikes, hot cargo clauses, secondary strikes, lock outs, political strikes, sit ins, etc. I am sure many unions would love that.

Posted by: Jared Gross | Oct 11, 2013 1:30:38 PM

I do think that "regime" would be preferable but I think you're wrong that unions want that. Unions depend on monopoly representation and mandatory bargaining to get employers to the table. They depend on the NLRA to prohibit employees from signing union-free so-called "yellow dog" contracts. I think if Congress moved to repeal the entire NLRA Big Labor would be the biggest opposition. Do you not disagree?

Posted by: Samuel G | Oct 18, 2013 12:44:57 PM

Sam. I honestly do not know the answer about unions in general, but I am sure some more activist unions (e.g. SEIU) would love to be free to act without restraint. Yellow dog on one hand, tertiary strikes on the other. In other words, both sides get something out of the NLRA. On a light tangent--few labor law scholars of any stripe believe that the NLRA is any good anymore and believe that it should be scrapped and re-written.

Posted by: Per Son | Oct 21, 2013 7:01:07 AM

I forgot--with no NLRA you can have very interesting state-law based outcomes. For example, yellow dog contracts can be forbidden in one state and not another.

Posted by: Per Son | Oct 21, 2013 7:01:52 AM

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