The Battle Over Unions to Be Settled by SCOTUS?
Three court cases before the Supreme Court could fundamentally alter labor relations in America. The three cases are Epic Systems v. Lewis, National Labor Relations Board v. Murphy Oil U.S.A, and Ernst & Young LLP v. Morris. The cases have been consolidated into one by the court, settling the constitutional issue of the National Labor Relations Board once and for all.
At issue is whether the Federal Government can mandate a 3rd party arbitration to settle disputes between employees and employers even if the employer is not interested in the mitigation occurring. That’s the legal issue at play, but from a pragmatic perspective of the reality of power, what’s at issue is the balance of power between three parties, the Employer class, the Employee class, and the Union Political Class. But more on that a little later.
First, let’s look at a brief summary of the case being argued, as well as the left (progressive) and right (conservative) perspective (as the political factions in America define themselves) on this case.
Here is an analysis of the case from Scotus Blog:
Issue: Whether arbitration agreements with individual employees that bar them from pursuing work-related claims on a collective or class basis in any forum are prohibited as an unfair labor practice under 29 U.S.C. § 158(a)(1), because they limit the employees’ right under the National Labor Relations Act to engage in “concerted activities” in pursuit of their “mutual aid or protection,” 29 U.S.C. § 157, and are therefore unenforceable under the savings clause of the Federal Arbitration Act, 9 U.S.C. § 2.
Here is an excerpt from the left-leaning publication, The American Prospect:
…..The case…..involves employees’ claims that employers denied them overtime pay and other required benefits, by misclassifying their jobs and other illegal devices. Such claims are anything but rare. On the contrary, one 2009 study showed that in three major U.S. cities, “76 percent of 4,387 full-time low-wage workers in large and small companies across a variety of industries faced unpaid or underpaid overtime and 26 percent reported being paid less than minimum wage.” Court decisions have documented “extensive and systematic wage theft” from workers in construction, garment manufacturing, nursing homes, agriculture, poultry processing, and restaurants…..
…… Minutes into the oral argument, Justice Stephen Breyer rebuked the business parties’ counsel, Paul Clement, for calling the matter “an arbitration case.” Instead, Breyer said that the Clement’s argument is aimed at “overturning labor law that goes back to … the entire heart of the New Deal.” In the same vein, Justice Elena Kagan curtly observed that the NLRA “establishes a set of rules” about how employers can deal with employees, and that one of those rules is “that employers can’t demand as conditions of employment … waivers of concerted rights.”
Indeed, to adopt business advocates’ perverse interpretation of the FAA, and insist that this questionable reading must prevail over other fundamental federal statutes, would ignore the unbroken practice of courts, legislatures, and real-world labor relations for more than a century. As noted by a friend-of-the-court brief from ten unions, “multi-claimant arbitration affecting workplace-wide terms and conditions of employment” was common from World War I onward, and a feature of numerous Supreme Court cases applying both the labor statutes and the FAA, as recently as 2009. The Congresses that enacted the FAA, and those that enacted and subsequently revised the New Deal labor laws, were well aware that, in employer-employee disputes, group resolution is a “fundamental attribute of arbitration,” a keystone, as the union brief concluded, of “eight decades of established national labor policy” codified in major federal statutes.
Here is an excerpt from the right-leaning publication, The Daily Caller:
Employees at a hospital in Pennsylvania are petitioning the National Labor Relations Board (NLRB) to overturn an NLRB regional director’s decision to unionize the workers without their consent.
Lehigh Valley Hospital-Schuylkill East’s 160 workers were forced into a union membership with the Service Employees International Union (SEIU) through the “accretion doctrine,” a policy that allows the NLRB to unionize a group of employees despite a majority opposing membership.
“This case demonstrates how the National Labor Relations Act, which is ostensibly about the rights of employees, has been weaponized against independent workers who wish to remain free of union bosses’ so-called representation,” National Right to Work Foundation President Mark Mix said in a statement. “These employees successfully opposed an SEIU organizing campaign at their workplace only to have a union partisan at the NLRB force the union on them without a vote or any showing of interest.”
The accretion doctrine is an exception to the National Labor Relations Act’s general commitment to the employees’ right to choose union membership over self-representation. An employer can unionize a group of workers without taking a vote by adding them to another group of employees already under union representation. As long as the newcomers don’t outnumber the unionized group and won’t compose a separate bargaining unit, the workers don’t have a choice.
What BOTH perspectives have in common is they BOTH seek relief from the Federal government. The progressive argument seems to be that, well, a century of tradition of allowing people to be involuntarily included in an association like a Union is enough of a precedent to assure that the forced inclusion in an association like a union continue.
The conservative argument focuses almost entirely on the coercive nature of the National Labor Relations Board declaring everyone in an enterprise are now part of a Union.
I understand why the progressives would see a real danger in allowing individuals in any organization to be able to choose to be a member of a Union or not. Unions, when used as collective bargaining agents, can be a powerful way for employees to negotiate a better deal for themselves from the, generally, more powerful employers.
If the employer is able to pick off employees one by one, rather than having to face a collective union that cannot be divided, it greatly enhances their position of power against employees.
The continued use of government guns to force people into associations, no matter how long that has been taking place, is anathema to an individual’s fundamental ‘right’ to free associations. If the Bill of Rights were actually an infallible document that people objectively adhered to, then the right to free association as articulated in the first amendment would never have allowed rulings to take place that allowed this.
However, the problem is that larger companies tend to gain great advantage over smaller companies thanks, in large part, to government guns, guns that enforce regulations that raise the cost of entry and the cost of operation that disproportionately affects smaller businesses. This artificial creation of monopolies (or regulation-created monopolies) means that there are a greater number of employees working for a smaller number of employers.
What you end up with is a balance of power heavily tilted toward employers, at the cost of the employees, who must compete for jobs among increasingly smaller numbers of employers. With employers having a balance of power tilted in their favor thanks to the benefit of government guns working in their favor, it’s no wonder the employees seek to have that power tilted back toward them with the same use of government guns.
The root of the problem is that coercive force is being applied, currently, to both protect the employers from the competition of other potential employers AND protect the Unions from having to actually sell their services to individuals, rather than simply being handed a block of members, members whom must be in their association, no matter what.
This last “protection,” I believe, has led to the rise of the Union Political class and its Union Royal Families, where the Union leaders are doing their part to exploit the workers almost as ruthlessly as the employers are alleged to be doing. In BOTH cases protection from competition results in the ones with no power, the employees who are NOT a part of the paid Union leadership, the Union Political Class, having nowhere near the bargaining power they might have if the government guns that are currently protecting both the Union Political Class and the Employers from competition were removed altogether.
The conservatives have no desire to see those guns removed that protect the employers, while the progressives have no desire to see those guns removed that protect the Union Political Class. If SCOTUS rules to strike down the power of the Federal government to assign people to a Union, whether they want to be in a Union or not, there will be an even-more imbalance of power.
It is hard to root for SCOTUS upholding the power of the Federal Government to force people into associations. It is also hard to root for the further empowerment of the Employers, who will continue to receive the protection of government guns even after the Unions have lost their protection.