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Labor Opponents Already Have The Next ‘Friedrichs’ SCOTUS Case Ready to Go Under Trump

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The Supreme Court gave unions an unexpected victory last year when it issued a decision in a case that had threatened to take away the right of public sector unions to collect dues from workers they represent. That win may be short-lived.

Friedrichs v. California Teachers Association was meant to be the capstone in decades of cases that sought to have the courts determine that fair-share fees for public sector workers are unconstitutional. Fair-share fees, or agency fees, require workers represented by a union to pay the portion of fees that covers collective bargaining. They seek to balance the worker’s right to dissent from the union by relinquishing membership and not paying for activities that aren’t related to collective bargaining, with the union’s right to avoid free riders and not be forced to represent a worker who contributes nothing.

The Supreme Court, largely through decisions written by Justice Samuel Alito, had indicated that its 1977 case that allowed for fair-share fees in the public sector was ripe for a rare overturning by the Court. It all but invited a challenge. Several cases were in the pipeline, but Friedrichs took the unusual approach of conceding before each lower court that it should be dismissed so that it could move quickly to the Supreme Court. Friedrichs faced a hostile oral argument before a conservative majority; unions braced for the worst. Then, as the Court was drafting its opinion, Justice Antonin Scalia died, and with him, so did Friedrichs. The Supreme Court issued a tied 4-4 decision affirming the lower court in March.

However, there is another case in the pipeline that was stayed pending the outcome of Friedrichs. That case, which began as Rauner v. AFSCME, was originally brought by the ultra-wealthy Republican Illinois Gov. Bruce Rauner, who—shortly after taking office—issued an executive order placing all fair-share fees in an escrow account, rather than turning them over to unions. But Rauner screwed up a basic part of the case because he didn’t have standing to bring the case.

A federal judge wrote that Rauner “has no personal interest at stake. He is not subject to the fair share fees requirement. Instead, he essentially claims to have a duty to protect the First Amendment rights of all public employees in the state … In effect, he seeks to represent the non-member employees subject to the fair share provisions of the collective bargaining agreements. He has no standing to do so. They must do it on their own.”

To fix the problem, employees filed as intervenors (“undoubtedly with the Governor’s blessing,” as the judge noted), with the backing of the National Right to Work Legal Defense Foundation and the Liberty Justice Center.

Janus v. AFSCME, named after one of the workers, is pursuing the same strategy as Friedrichs in trying to get to the Supreme Court quickly. The Janus plaintiffs filed their second amended complaint in July, stating that the Supreme Court’s 1977 Abood v. Detroit Board of Education case, which permitted fair-share fees, remains good law, and all but invited the District Court in the Northern District of Illinois to dismiss their complaint. The District Court did so, and in their appeal to the Seventh Circuit Court of Appeals, the plaintiffs similarly state that their case must be dismissed. The goal, of course, is to get the case in front of the Supreme Court just as a Donald Trump appointee to the Court is seated.

Seattle University School of Law professor Charlotte Garden explains that this strategy also “allows the case to go up without a factual record. This means that there is no record that the unions can point the justices to in order to show the importance of agency fees.”

In Friedrichs, Justices Ruth Ginsburg and Stephen Breyer tried to give the union’s attorney the opportunity to state what he would have put in the record if he had had the opportunity to do so. But, as Garden explains, “being asked to make a proffer before the Supreme Court is tricky without the ability to engage in discovery.”

The Janus case is almost identical to the Friedrichs case in that both are premised on the idea that there is no line in the public sector between political and non-political activity. Conservatives justices have firmly embraced this rational, as was evident during the Friedrichs oral argument when Chief Justice John Roberts challenged California’s attorney to give his “best example of something that is negotiated over in a collective bargaining agreement with a public employer that does not present a public policy question.” The attorney responded that mileage reimbursement rates were such an example. Roberts shot back, “That’s money. That’s how much money is going to have to be paid to the teachers. If you give more mileage expenses, that costs more money.”

If everything that a public sector union does is political, then it is a much shorter line to find that a worker should not have to pay any part of the costs of collective bargaining. This would be a very worrisome conclusion for unions, which must do what they can now to stop such an outcome from happening.

As Democrats and the labor movement prepare for a possible fight over Trump’s imminent appointment to the Supreme Court, they should recognize that several major labor cases, brought by some of labor’s most persistent enemies, are waiting in the wings. Senators should question nominees about their view of Abood and other Supreme Court precedents that protect public employees’ labor rights. And if labor has any sway within the Democratic Party, it should make it clear that these issues should be disqualifying for any new appointment to the Court.

This post originally appeared on inthesetimes.com on January 4, 2017.  Reprinted with permission.

Moshe Z. Marvit is an attorney and fellow with The Century Foundation and the co-author (with Richard Kahlenberg) of the book Why Labor Organizing Should be a Civil Right.

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Separate and Unequal

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Cliff PalefskyCliff Palefsky of McGuinn, Hillsman & Palefsky disputes the assertion that sending a case to arbitration has no impact on substantive rights; that faulty premise, he contends, underlies much of the Court’s arbitration jurisprudence.

The Supreme Court has told us repeatedly that judges do not create public policy. Public policy, they say, must emanate from the Constitution or a statute passed by Congress. Docket clearing is not a public policy and the FAA did not and could not create a public policy that conflicts with the express mandates of the Constitution.

But if the goal of the Supreme Court’s jurisprudence on arbitration was to fulfill its judicially created public policy of “docket clearing,” it has failed.  In the past few Terms the Supreme Court has heard at least eight significant arbitration cases. Courts of appeals across the country are inundated with arbitration issues and trial courts are hearing contested motions to compel arbitration on a daily basis.  The reasons are obvious. Arbitration was always intended to be a voluntary process, or as the Court itself has declared, a matter of “consent and not coercion.”  It says that but it doesn’t really mean it. And parties who do not want to arbitrate and who do not trust the forum designed and imposed on them by a stronger party will use all available legal tools to avoid it. The mere act of forcing an arbitration program that you designed on an adverse party is inconsistent with the confidence in the process any justice system needs to succeed.  As a result of failing to distinguish between voluntary and coerced arbitration in its jurisprudence, the Court has actually dramatically increased the workload of the appellate courts and done serious damage to the Constitution and many of the most important laws passed by Congress.

But equally important, and ironic, is the fact that by further eliminating the safeguards of a fair arbitration process as the Court did this Term in Concepcion and last Term in Rent-A-Center v. Jackson, the Court has actually undermined the viability and integrity of the arbitration process and in doing so has done great harm to the credibility of all of the effective voluntary forms of ADR which might actually help provide more efficient justice to so many and help reduce the backlog in the courts.

Real consent was always intended to be the only check and balance necessary to ensure fairness and to keep these matters out of the courts. By ignoring and distorting the requirement of consent, the Court has opened the door to every permutation of abusive and unfair arbitration process.  As a fundamental concept, you can’t turn an adversarial system over to one side and invite it to design and control the process. It is thus no surprise that the abuses are getting all the attention and all of the positive attributes of voluntary ADR processes are lost in the noise.

It is easy to identify some of the ways in which the Supreme Court lost its bearings. It is also pretty easy to identify ways to make their future jurisprudence more faithful to the Constitution and restore the promise of voluntary forms of ADR.

It would be malpractice for any lawyer to tell a client that arbitration and our public court system are equivalent fora. Indeed, they are exact opposites in every material defining characteristic – public versus private, free versus costly, full discovery versus limited discovery, obligation to properly apply the law versus legal errors must stand, appeal versus no appeal. Arbitration is not just a change of venue, and it is not “just another forum”. And pretending that it is is the modernday version of “separate but equal”. The assertion that sending a case to arbitration has no impact on substantive rights is simply false as a matter of fact, yet that is the essential underpinning of much of the Court’s jurisprudence.  It isn’t even accurate to describe mandatory arbitration as a ‘justice system” because its goal is finality – not necessarily reaching the correct result. As the Court announced in Hall Street Associates v. Mattel, under the FAA even facially incorrect legal rulings must stand and the parties can’t even agree to expanded review to make sure the laws of Congress are properly applied. In a voluntary context, parties are free to flip a coin to resolve a dispute or agree to be bound by an incorrect ruling. But in a non-consensual setting, the weaker party is being deprived of the ultimate substantive right – the right to have statutes that were passed for its protection interpreted and enforced correctly – in other words, due process. Asserting that arbitration is ‘just another forum” disrespects the very reason for the creation of a public court system and the Supreme Court itself since arbitrators are not even required to properly apply Supreme Court precedent.

An agreement to arbitrate involves the waiver of several constitutional rights:  the First Amendment right of petition, the Fifth Amendment right to due process and the Seventh Amendment right to a jury trial.  And to be sure, there are numerous statutes that expressly provide for the right of access to a federal court, which is obligated to follow the law. But incredibly, the Supreme Court has never acknowledged the waiver of constitutional rights inherent in an agreement to arbitrate and has never specifically considered the constitutionally required standard for such a waiver. In every other context, the waiver of those rights must be ‘knowing and voluntary’.  The Court has repeatedly avoided this required analysis by ignoring the issue of consent entirely or by falsely proclaiming that the FAA requires courts to treat an arbitration clause as it would any other contract.

The FAA contains no such mandate, nor could it. It is a mere statute and does not have the power to reduce the constitutionally required standard for the waiver of constitutional  rights. When Congress passed the FAA in 1925 its express intent was to “permit” courts to enforce voluntary and otherwise valid arbitration agreements as they would other contracts. It certainly did not, and could not, mandate them to enforce involuntary and non-consensual waivers of constitutional rights. The FAA is only constitutional to the extent the underlying agreement is knowing and voluntary. Aside from the magical preemptive powers over state laws bestowed upon it, the Court has also granted it the power to trump the most fundamental dictates of the U.S. Constitution.

The surest way to fix much of what is wrong with the Court’s arbitration jurisprudence is to acknowledge that the order compelling arbitration and the entry of judgments obtained in arbitration are forms of state action in the performance of a traditional “public function.”  The Court needs to distinguish between truly voluntary agreements and “adhesion contracts,” which are really just a privilege extended to businesses to facilitate the inclusion of normal and customary commercial terms into a routine transaction. Adhesion contracts, especially in the employment context, are simply not sufficiently voluntary to support the waiver of constitutional and statutory rights. Adhesion contracts in most contexts are considered “procedurally unconscionable”. “Procedurally unconscionable” is the opposite of knowing and voluntary, and although an adhesion contract might be a vehicle for setting normal commercial terms, it can’t be an appropriate device for the forfeiture of constitutional and statutory rights.

The employment relationship is unique. The NLRA, the Norris LaGuardia Act, and numerous other federal statutes acknowledge both expressly or impliedly that agreements between companies and individual employees required as a condition of employment are not really voluntary. Indeed, most of these laws were passed because of the failure of the free market to protect workers.

It is interesting to compare the Court’s concern with the newly required “knowing” consent to class arbitration in Stolt-Nielsen S.A. v. AnimalFeeds International and Concepcion (when the issue is whether or not the corporation that created and crafted the arbitration agreement agreed to class arbitration), with its total lack of concern with consent when it is a consumer or employee objecting to the forced arbitration.  Similarly, the Court doesn’t hesitate to declare that arbitration is favored and ‘just another forum” with no impact on rights when it is imposed on a consumer, but at the same time to declare it a wholly arbitrary and inadequate process for the resolution of class actions – as Justice Scalia wrote in Concepcion.

Legal historians and academics are already looking at the Court’s arbitration jurisprudence as one of the low points in the Court’s history. And in that review, Concepcion will certainly be the lowest point . . . so far. In Concepcion, the Court spent most of its time explaining that it was improper to force a company to arbitrate a class action because of the deficiencies of arbitration – even though the lower court had done no such thing, but had instead merely held that the class action should proceed in court. The Court violated the express terms of the FAA and preempted state law protections of general application against unconscionable and unfair arbitration agreements and replaced them with nothing. It shockingly expressed concern for the unfairness to corporate defendants of having to be bound by an incorrect result while inflicting that unfairness on consumers and employees without any concern whatsoever.

Mandatory arbitration is a cancer in our justice system based on a phony public policy and legal and factual fictions.  In recent years Congress has passed numerous statutes prohibiting mandatory arbitration in many different contexts – for example, whistleblower claims under Sarbanes-Oxley, Title 7 claims against defense contractors, military lending agreements, auto dealer and farm contracts – while also expressly empowering the SEC and the new Consumer Financial Product Agency to prohibit mandatory arbitration clauses to protect investors and consumers.  Those, along with the Constitution, are the real contemporary public policies.  Public policy may encourage the truly voluntary use of alternative processes but it does not favor coerced and mandatory arbitration.  Never did and never will, no matter how many times they say it.

This post originally appeared on the SCOTUS Blog on September 14, 2011. Reprinted with permission.

About the Author: Cliff Palefsky is a nationally renowned employment and civil rights lawyer who has argued cases before the Supreme Court and testified before National and State legislative committees. He has been described as a “force of nature” due to his involvement in many of the leading cases and legislation that have come to define the field of employment law. Mr. Palefsky has contributed his knowledge and expertise to drafting the first pieces of legislation concerning worker privacy, drug testing and lifestyle discrimination laws. He is the founder of the National Employment Lawyers Association. Today, Mr. Palefsky serves as a partner to the San Franciscio Bay Area firm McGuinn, Hillsman & Palefsky.


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