The Judicial Assault on Unions

The Right Wing

It should come as no shock that Republicans in Congress would like to see the power of labor further diminished. The same is true of governors and state legislatures in red and purple states such as Wisconsin and Indiana. But now conservative courts have joined the fray.

Just this past week, the National Labor Relations Board was put in legal limbo — with the possibility that more than 300 of its decisions over the last year could be nullified — as a result of a federal appeals court in ruling in the nation’s capital that President Obama’s recess appointments to the Board were invalid.

Among the decisions that could be vacated are three recent rulings in which the Board had assumed a powerful role in telling companies that they can’t issue blanket prohibitions on what their employees say on Facebook, Twitter and other social media.

The Board said workers have a right to discuss work conditions freely and without fear of retribution, whether the discussion takes place at the office or on social media.

By ruling that Mr. Obama’s three appointments last January were illegal, the court’s ruling would leave the Board with just one member, short of the quorum needed to issue any rulings. If the Supreme Court upholds the decision, it would mean that the labor board did not have a quorum since last January and that all its rulings since then should be nullified.

Union officials voiced concern on Friday that if the federal court’s ruling denies the NLRB a quorum, it could take years for the Board to be able to act in legal disputes involving unionization drives or elections, strikes or the firings of pro-union workers.

Republicans and big business, in contrast, were elated. Most hold the view that a neutered and non-functioning NLRB is better than one controlled by Democrats. Without a quorum, workers will experience delays that can potentially drag on for years. And should the President make new appointments to the Board, a filibuster will likely greet them in the Senate.

It should be noted that the court went beyond the narrow dispute at issue and issued a far more sweeping ruling than expected. The panel’s reasoning would virtually eliminate the recess appointment power for all future presidents at a time when it has become increasingly difficult to win Senate confirmation for nominees. In this way, it bears a striking similarity to two recent Supreme Court cases, Citizens United v. FEC and Knox v. SEIU.

First, Knox. Under California law, public-sector employees in a bargaining unit may decide by majority vote to create an “agency shop” arrangement under which all the employees are represented by a union selected by the majority. Although employees are not required to join the union, they must nevertheless pay the union an annual fee to cover the cost of union activities related to collective bargaining.

The Supreme Court held in Knox that for at least for special assessments, non-union members can be charged for political activities only if they affirmatively choose to provide funds. In the words of Justice Alito: “…when a public-sector union imposes a special assessment or dues increase, the union must provide notice to nonmembers and may not exact any funds from them without their affirmative consent.”

The holding in Knox is narrow, but the five-member majority’s reasoning is not. Though limited to special assessments, the opinion couldn’t be clearer in espousing the view that non-members should be required to opt in before their funds can be used for political activities. And let’s be clear: Justice Alito is inviting a challenge to the longstanding proposition that the payroll portion of union dues can be deducted. Such a result would be a substantial impediment to political activity by all unions, public and private.

There is a profound irony attached to this decision. In 2010, in Citizens United v. Federal Election Commission, the Supreme Court expressly rejected the concern that corporations should not be able to spend the money of their shareholders on political expenditures. In prior decisions, the Supreme Court specifically said that the government could restrict independent political spending by corporations in order to protect shareholders from having their money spent for political candidates they oppose. But Citizens United brushed this concern aside, overruled these decisions, and held that corporations can spend unlimited sums to have candidates elected or defeated.

As Harvard law professor Benjamin Sachs points out in a recent article in the Columbia Law Review, the formal legal equality announced in Citizens United masks a fundamental inequality – or “asymmetry”, as he calls it - between unions and corporations when it comes to raising political funds. While unions are prohibited by law from spending employees’ dues on politics if the employees object, corporations are free to spend their assets on politics even if individual shareholders object.

Another interesting similarity between these two cases: Both Knox and Citizens United came to the court posing very narrow questions. In both instances, five conservative justices on their own substantially broadened the issues presented and ended up significantly changing the law. Together, they greatly increased the influence of corporations and diminishing the influence of unions. This is the essence of conservative judicial activism.

And that’s exactly the end game—the death of public unions and with them their political action war chests that are the lifeline of the Democratic Party and progressive causes everywhere.

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