Category Archives: Labor Unions

Friedrichs Oral Argument Transcript

Source: Juhyung Harold Lee, OnLabor blog, January 11, 2016

The Supreme Court has released a transcript of this morning’s oral argument in Friedrichs v. California Teachers Association. As OnLabor contributors have previously noted, Justice Scalia has been identified as the potential swing vote in the case. However, this early exchange between petitioners’ counsel (Michael Carvin of Jones Day) and Justice Scalia does not seem to bode well for the Friedrichs respondents: …..

SCOTUS v. the American worker: The upcoming Supreme Court case that could explode inequality

Source: Liz Kennedy, Salon, January 8, 2016

The Roberts court will hear oral arguments on Monday in a case that could determine the future of organized labor. …. The case, Friedrichs v. CTA, is ostensibly about one teacher’s right to not join her teachers union, but that choice is already available to any worker everywhere in America. This case is really just another attack on workers’ ability to join together and make their voices heard…… The true force behind the case is the Center for Individual Rights, a group that has driven it on a frenzied course through the legal system since filing suit in the district court in April 2013. The group, funded by the Koch brothers and others determined to continue manipulating the rules of our economy — and our democracy — fast-tracked the case through the district and 9th circuit courts to bring it to Chief Justice Roberts’ Supreme Court, which will hear oral arguments on Monday. …..

Argument preview: New threat to public-employee unions

Source: Lyle Denniston, SCOTUSblog, January 4, 2016

Next Monday, January 11, when the Supreme Court returns from its holiday recess, it will devote an expanded argument to a case that has made unions which represent government workers deeply fearful for their financial future and their public stature. A significant blow to their treasuries could come if non-union workers are able to turn broad hints by the Supreme Court into final victory in Friedrichs v. California Teachers Association.

Since 1977, the Court has allowed public-sector unions to charge the non-members whom they represent fees to cover the cost of bargaining over working conditions that will benefit those non-members as well as the union’s own ranks on the payroll. They cannot charge a fee to cover union political activity, such as lobbying or campaign spending. But, applying a bit of elementary logic, a group of non-union teachers in California seeks to nullify even bargaining-related fees.

How Defunding Public Sector Unions Will Diminish Our Democracy: The High Stakes of Friedrichs v. California Teachers Association

Source: Richard D. Kahlenberg, The Century Foundation, Issue Brief, January 7, 2016

From the summary:
On January 11, the U.S. Supreme Court will hear oral arguments in Friedrichs v. California Teachers Association. The case pits the right of public employees to band together and form effective unions to pursue the common interests of workers against the free speech rights of dissenting public employees to abstain from funding collective bargaining efforts with which they disagree.1 A decision by the Court against the teachers association could not only significantly weaken public sector unions, but also endanger the nation’s core democratic values. …. The report proceeds in four parts. Part I analyzes the claims in Friedrichs under the current framework of balancing envisioned by the Supreme Court, and concludes that fair share fees are justified. Part II broadens the discussion to consider the state’s powerful interest in promoting institutions that strengthen American democracy. Part III considers an objection raised by supporters of Friedrichs: that public sector unions will do just fine if they lose the Friedrichs case. Part IV concludes…..

What Drives Financial Reform? Economics and Politics of the State-Level Adoption of Municipal Bankruptcy Laws

Source: Stefano Rossi, Hayong Yun, Centre for Economic Policy Research (CEPR), CEPR Discussion Paper No. DP10984, December 2015
(subscription required)

From the abstract:
We investigate economic and political theories of financial reform to analyze state-level adoption of municipal bankruptcy laws (Chapter 9). Using a dynamic Cox hazard model, we find that interest group factors related to the relative strength of potential losers (labor unions) and winners (bond investors), courts efficiency, and trust in non-opportunistic behavior by local government explain the timing of Chapter 9 adoptions between 1980 and 2012. Similar factors also explain congressional voting on municipal bankruptcy law. After Chapter 9 adoption, municipal bond spreads decrease and firms experience higher revenues, profits, and investments, particularly in states in which more bond proceeds are used by the private sector. Our findings support political and economic theories of financial reform, and highlight a novel spillover channel from the public to the private sector.

The Labor Prospect: What to Watch in 2016

Source: Justin Miller, American Prospect, January 5, 2016

After a banner year of labor victories, 2016 may have an even bigger impact on workers. ….

The year 2015 was widely regarded as a reinvigorating one for the labor movement, with federal administrative rulings and local minimum wage ordinances breaking workers’ way. Last year, however, merely set the stage for a much more consequential 2016. This year could either go very badly or very well, depending on a whole host of labor prospects.

The year 2016 could be the one that a majority of the United States becomes right-to-work. It will be the year that the Supreme Court decides one of the most consequential union cases in decades. While the Obama administration’s labor legacy was polished in 2015 with new Department of Labor rules and a blockbuster NLRB decision, 2016 could see even more such rulings. The elephant in the room—the Trans-Pacific Partnership—could tarnish Obama’s labor record, though the trade deal’s passage is more uncertain than ever. And finally, what will happen with the Fight for 15 this year? Will it maintain its surging momentum, or will it wither?….

Election Speed and the NLRB: How Unions Fare in the Representation Process

Source: Bureau of National Affairs, 2016

From the blog post:
Since the National Labor Relations Board’s controversial amendments to its representation election rules took effect last April, supporters and opponents alike have asked two questions: Have the new rules served to speed up the election process? And, if so, has this pickup in tempo favored unions more than employers?

Bloomberg BNA has released a report, Election Speed and the NLRB: How Unions Fare in the Representation Process, which suggests that the answer to both questions is yes. …

….So, to summarize our findings, in the four months following the rule change:
– the NLRB resolved more elections than in the same period the previous year;
– these elections were resolved more quickly;
– unions prevailed more frequently; and
– the overwhelming majority of the quickest elections went labor’s way…..

Economic consequences of workplace injuries in the United States: Findings from the National Longitudinal Survey of Youth (NLSY79)

Source: Xiuwen Sue Dong, Xuanwen Wang, Julie A. Largay and Rosemary Sokas, American Journal of Industrial Medicine, Early View, Article first published online: January 4, 2016
(subscription required)

From the abstract:
Background: This study explored economic consequences of work-related injuries using a longitudinal data source.

Methods: Data were from the National Longitudinal Survey of Youth, 1979 cohort. Short-term consequences were measured when the injury was reported. “Difference-in-differences” approach was applied to estimate income and wealth disparities between injured and non-injured workers before and after injury. Fixed effects models were used to identify variations over time.

Results: The annual earnings growth was $3,715 (in 2000 dollars) less for workers with DAFW injury and $1,152 less for workers with NDAFW injury compared to non-injured workers during a 10-year follow-up. Lost wages and disability following injury contributed to income loss for injured workers, but the loss was moderated by union membership. After controlling for confounders, income disparities persisted, but family wealth differences did not.

Conclusions: Occupational injuries exacerbate income inequality. Efforts to reduce such disparities should include workplace safety and health enforcement.

Revitalising young workers’ union participation: a comparative analysis of two organisations in Quebec (Canada)

Source: Mélanie Dufour-Poirier and Mélanie Laroche, Industrial Relations Journal, Volume 46 Issue 5-6, November 2015
(subscription required)

From the abstract:
This paper examines how two trade union organisations in Quebec (Canada) manage to integrate issues of concern to young members (30 years old and under) and spur changes in their agenda, structures and practices. Between 2009 and 2014, 25 interviews were conducted in these two organisations, while 41 focus group discussions were held with more than 430 members. We contend that improving young members’ feeling of belonging to the union, enhancing internal network density and implementing more participatory forms of democracy are key elements when it comes to increasing their participation. Our findings reveal that unions must dare to integrate young members, without seeking to mould them to fit with the values and practices they deem to be outdated. It means not only training young members to carry the necessary message to their peers but also allowing them to challenge the strategic orientations suggested therein.

Friedrichs v. California Teachers Association – amicus briefs

Source: OnLabor blog, 2015

In the run-up to oral argument in Friedrichs v. California Teachers Association — now set for January 11, 2016 — OnLabor will be reviewing some of the significant amicus briefs that have been filed in the case.

Friedrichs Reply Brief
Source: Juhyung Harold Lee, OnLabor blog, December 14, 2015

The petitioners have submitted their reply brief in Friedrichs v. California Teachers Association….

….The petitioners then go on to assail several of the other arguments raised in the respondents’ respective briefs, including the state’s interest in labor peace (pp. 16–19), concern for the effects of free riding (p. 20), and the burden imposed by the duty of fair representation (pp. 20–22).

As for the lack of record, the petitioners observe that the “Court has made many other important decisions on the basis of allegations in contexts identical to this one,” including in Abood. They also note that if the respondents wish to dispute a material fact, “they are welcome to litigate it on remand.”

The petitioners also attempt to dispose of the respondents’ arguments regarding stare decisis by arguing that the Supreme Court has never “deferr[ed] to prior precedent that erroneously eradicated a fundamental right.” Furthermore, the petitioners suggest, upholding Abood would be more disruptive to First Amendment doctrine than overturning it, and invalidating agency fees would have minimal impact on states’ public employment schemes.

Finally, with regard to the opt-out vs. opt-in question, the petitioners seek to distinguish cases where “individuals . . . have to affirmatively invoke constitutional rights” by insisting that those cases involved scenarios where the state “ha[d] no reason to suppose the recipient objects to the requested benefit.” In contrast, they argue, this case involves a scenario where a state is taking something that its employees presumably want to retain, i.e., money, and so an opt-out arrangement is impermissible.

Again, the reply brief is available in full here. Oral argument, as previously noted, is scheduled for Monday, January 11, 2016. The California Attorney General’s office (15 minutes), the union respondents (15 minutes), and U.S. Solicitor General Donald Verrilli (10 minutes) will argue on behalf of respondents…..

Friedrichs Amici Brief: State Public Policy Research Organizations
Source: Juhyung Harold Lee, OnLabor blog, December 9, 2015

As Professor Fisk previously observed, Justice Scalia’s concurring and dissenting opinion in Lehnert v. Ferris Faculty Association may provide some insight into how he will come out on the first question presented in Friedrichs. There, Justice Scalia rejected the Court’s application of a three-part test for identifying union activities that are chargeable to nonunion members. That test emphasized the “germane[ness]” of the activity to collective bargaining. Yet Justice Scalia called for the application of a “statutory duties” test, whereby charges to nonunion members “must at least be incurred in performance of the union’s statutory duties.” ….. Professor Fisk — as well as the union respondents in both their brief in opposition to certiorari (courtesy of SCOTUSblog) and their brief on the merits — cite this part of Justice Scalia’s opinion to illustrate not only how “the union’s statutory duty of fair representation creates the free rider problem,” but also how the statutorily created free-rider problem gives rise to the “compelling state interest” in requiring nonunion members to contribute their fair share of bargaining costs. Yet in an amici brief filed in support of the Friedrichs petitioners, a number of “state public policy organizations” attempt, among other things, to minimize the burden imposed by the duty of fair representation, and to distinguish the context of Justice Scalia’s Lehnert opinion from that of the present case. …..

Friedrichs Amicus Briefs: The Problem with Free Riders
Source: Juhyung Harold Lee, OnLabor blog, December 2, 2015

Two opposing views have emerged on the effect of free riders on unions’ capacity for collective bargaining and, relatedly, the state’s interest in exclusive bargaining. ….

….The Mackinac Center for Public Policy, which bills itself as a “Michigan-based, nonprofit, nonpartisan research and educational institute advancing policies fostering free markets, limited government, personal responsibility, and respect for private property,” has filed an amicus brief in support of petitioners in which it attempts to further “test[] the theory” that “there is an inextricable link between the state interest in preserving a viable exclusive bargaining agent for public-sector workers and permitting unions to charge agency fees to non-union members.” The Center had previously submitted a brief at the certiorari stage in which it determined that “the union membership rate among workers covered by a collective bargaining agreement . . . stayed relatively constant over time, showing no signs of the endemic free-riding that would weaken unions as exclusive bargaining agents.”….. Based on the SASS data — “which measures actual CBA coverage of union member teachers as well as their non-union colleagues” — the amici calculate “a much higher CBA free-riding rate than Mackinac reports.” The social scientists’ analysis further indicates “that under ‘open shop’ conditions, unions will clearly have less capacity in bargaining and services, gain less for the workers they represent, and lose significant membership as a result.” Consequently, unions’ ability to fulfill their duty of free representation will be seriously impaired…..

….On the other side of the ledger, however, is a trio of social scientists whose amici brief in support of respondents contends that “Mackinac’s measure of the incidence of free-riders is inaccurate, and grossly underestimates [free riding’s] extent.”

…[T]he Mackinac Center’s brief is available here, and the social scientists’ brief is available here.

Friedrichs Amicus Brief: United States
Source: Juhyung Harold Lee, OnLabor blog, November 19, 2015

Although federal employees are not directly implicated by the questions raised by Friedrichs, the U.S. Solicitor General has nonetheless filed an amicus brief asking the Supreme Court to preserve public-sector agency-fee arrangements in the states — arrangements which, as the Solicitor General observes, are derived from two federal statutes (the NLRA and Railway Labor Act). The Solicitor General begins by assailing petitioners’ contention that “conditions of public employment that advance a public agency’s interest as an employer are subject to ‘exacting’ scrutiny under the First Amendment”…..

Friedrichs Amici Brief: States for Respondents
Source: Juhyung Harold Lee, OnLabor blog, November 19, 2015

A number of states have also weighed in on the side of the Friedrichs respondents. In a brief submitted by the Attorney General of New York on behalf of twenty additional states and the District of Columbia, the amici emphasize their interest in “preserving the flexibility to structure public-sector labor relations that Abood [v. Detroit Board of Education] allows.” Part of that flexibility entails the ability to impose agency-fee requirements upon non–union members — requirements that have been essential “to ensuring a stable collective-bargaining partner with the wherewithal to help devise workplace arrangements that promote labor peace.”….

Friedrichs Amici Brief: States for Petitioners
Source: Juhyung Harold Lee, OnLabor blog, November 19, 2015

Dozens of states have now signed on to amici briefs in favor of either party. Supporting petitioners are eighteen states who contend that “collective bargaining in the public sector . . . does implicate matters of public concern.”

Friedrichs Amici Brief: Civil & Economic Rights Groups
Source: Juhyung Harold Lee, OnLabor blog, November 18, 2015

Over seventy organizations “committed to civil rights and economy opportunity” have filed an amici brief in support of the Friedrichs respondents. The coalition describes unions as “one of the most successful vehicles for providing economic and professional opportunities for American workers, and, in particular, for women, people of color, and lesbian, gay, bisexual, and transgender (‘LGBT’) workers”….

Friedrichs Amicus Brief: National Right to Work Legal Defense Foundation
Source: Juhyung Harold Lee, OnLabor blog, November 18, 2015

In September, the National Right to Work Legal Defense Foundation submitted an amicus brief in support of the Friedrichs petitioners’ position that Abood v. Detroit Board of Education should be overturned. The organization first points to Justice Alito’s criticism of Abood in Harris v. Quinn to argue not only that “collective bargaining with government is a political activity,” but also that “Abood is unworkable in practice.” It then proceeds to focus on a “single, dispositive point: the power of exclusive representation is a great benefit to unions that assists them with recruiting and retaining dues-paying members.”….

Friedrichs Amici Brief: AFL-CIO & AFSCME
Source: Juhyung Harold Lee, OnLabor blog, November 16, 2015
In the run-up to oral argument in Friedrichs v. California Teachers Association, OnLabor will be reviewing some of the significant amicus briefs that have been filed in the case. On Friday, several of the country’s largest unions filed amici briefs in support of the respondents in Friedrichs. The AFL-CIO and AFSCME mount a largely doctrinal defense of agency-fee arrangements in their joint brief: ….

Friedrichs Amici Brief: AFT & AAUP
Source: Juhyung Harold Lee, OnLabor blog, November 16, 2015

The AFT and AAUP also filed an amici brief for the Friedrichs respondents on Friday. In contrast to the AFL-CIO and AFSCME, the AFT and AAUP focus more so on the practical implications of overruling Abood than on Abood‘s doctrinal footing. First, the amici direct the Court’s attention to the fact that fair share fees “fund a wide range of . . . activities that promote the state’s compelling interest in providing students a high quality education and directly benefit nonmembers like petitioners”….

Friedrichs Amici Brief: Constitutional Law Professors
Source: Juhyung Harold Lee, OnLabor blog, November 16, 2015

…Back in September, eight constitutional law scholars lent their names to an amici brief in support of petitioners (the Judicial Education Project and the Center for Constitutional Jurisprudence also signed on the brief). The brief echoes petitioners’ characterization of Abood v. Detroit Board of Education as an “outlier” for “plac[ing] the ‘common cause’ of the public employee union over the First Amendment interests of the dissenting employee to justify compelling payment of an agency fee to subsidize the union’s First Amendment activity.”…

Union Respondents File Brief in Friedrichs
Source: Juhyung Harold Lee, OnLabor blog, November 6, 2015

The union respondents in Friedrichs v. California Teachers Association have now filed their brief as well, which is available here. The respondents call for Abood v. Detroit Board of Education to “be reaffirmed because it correctly respects public employers’ prerogative to manage their workforces to ensure the efficient provision of public services to their citizens.” As did the California Attorney General in her brief, the unions focus on the state’s interests as an employer relative to employees’ First Amendment rights:… The full union respondents brief is available here. Petitioners’ brief, which was filed in September, is available here; their reply brief is due in mid-December, with oral argument to follow early next year.

Friedrichs Amici Brief: Corporate Law Professors
Source: Juhyung Harold Lee, OnLabor blog, November 6, 2015

Earlier today, an amici brief in support of the Friedrichs respondents was submitted on behalf of nineteen corporate law professors. The brief — which is available for download here through SSRN) — is intended to “assist[] the parties and the Court in understanding corporate law and the rights of shareholders, insofar as that law and those rights are relevant to the questions presented in this case.” Although at first glance, Friedrichs may not appear to implicate questions of corporate law, amici observe that the Supreme Court “has often looked to the rights of corporate shareholders in determining the rights of union members and non-members to control the union’s use of their funds for political spending, and vice versa” (this point of comparison may be familiar to those of you who have read Prof. Sachs’s article on the political opt-out rights of union members vis-à-vis corporate shareholders).

California AG Files Brief in Friedrichs
Source: Juhyung Harold Lee, OnLabor blog, November 6, 2015

The office of California Attorney General Kamala Harris has filed its brief in Friedrichs v. California Teachers Association. The brief, which is available here, begins by asking the Supreme Court to reject petitioners’ contentions that the “Court erred in deciding Abood [v. Detroit Board of Education], and that California may not use mandatory agency fees as part of a structure for managing public-sector labor relations.” ….