In May, Trump’s dark-side gift to the Supreme Court, Neil Gorsuch, penned a major decision that should galvanize the American public to change Congress in 2018 in favor of the Democrats.
That sounds backwards. Usually it is the conservatives who tout the current president’s ability to change the court. This power to nominate has become one of the last surviving selling points for Trump. But now the court is making decisions on workers’ rights that can be readjusted to normalcy only through the actions of a changed Congress pressuring the president.
Gorsuch just handed progressive and moderate candidates a huge issue that will require a new Congress to stand up for the American worker and rectify the damage. It could become a major rallying cry for November.
On May 21, Gorsuch, writing for all the conservatives on the court, prevented employees from joining together to file class-action lawsuits on wages and working conditions because of arbitration clauses in their contracts. Aside from how it harms the #MeToo movement since complaints about sexual abuse are also affected, the decision should motivate all quarters of the labor movement, union and non, to demand a new Congress change things.
In effect, using a law written in the 1920s, SCOTUS said the National Labor Relations Act written in the 1930s must give way to arbitration agreements when employees surrender their right to pursue class-action litigation (often the unnoticed Big Ask in arbitration agreements) as a condition of their employment.
In a powerful dissent delivered from the bench, speaking for the four justices who disagreed, Justice Ruth Bader Ginsburg called Gorsuch’s reasoning “egregiously wrong” and derided him for preventing aggrieved employees from banding together in collective action when a company chronically misbehaves on wages and working conditions.
Labor experts agree with Ginsburg, though Gorsuch in his decision struggled to say this was not legislating from the bench and almost encouraged Congress to make a policy ruling on the dispute between the 1925 Federal Arbitration Act and the 1935 National Labor Relations Act, which seemed to trump it “to protect the rights of employees and employers, to encourage collective bargaining, and to curtail certain private sector labor and management practices.” It is now clear what sort of private management practices the 1935 law meant to curtail.
The NLRA led to a nationwide network of NLRB offices and hundreds of experienced lawyers and staff to rule on labor disputes. Gorsuch’s argument that NLRB’s authority was in no way diminished by his decision was greeted with laughter at the AFL-CIO.
OPEIU union organizer Seth Goldstein said, “Wake up people! This is how fascism arrives.”
The May 21 ruling seems to have already spawned an effort by companies to take their cases – particularly secondary cases when they are accused of retaliating against employees who tried to force collective action – to federal court in the belief they will get a kinder hearing than at the NLRB. Which is ironic, because the major appeal of arbitration decisions was to relieve pressure on the court system by letting employers and workers work out individual issues. It’s a useful function of arbitration, but the NLRB has been stepping in to prevent the kind of overreach protected by the NLRA.
It is also a dangerous echo of the sort of chilling of informants that Trump is now engaged in with the Russian investigation. Historically, workers who testified before the NLRB had reason to believe they would be free of retaliation, just like whistleblowers in federal agencies. That should be the law. But now the workers are not so sure as their protected testimony is challenged in state and federal courts.
For instance, Menard’s may have won an arbitration case in 2017 against truckers who felt mislabeled as independent contractors, but three months later the company terminated one of the chief testifiers against it at the NLRB, Kevin Fisher, owner of K & S Delivery Services. The NLRB agreed to look at the case of Fisher to see if it was unfair retaliation, but this May Menard’s suddenly moved its objection against the NLRB to a Wisconsin federal court, where it now assumes a kinder hearing. NLRB sources May 23 say the agency intends to challenge the Menard shift to US court because Fisher was engaged in protected action.
Under previous administrations, the NLRB had been moving to limit arbitration agreements that prevented class action suits or to charge companies that listed actual employees as independent contractors so they would be denied worker benefits. In fact, in that May 21 Wisconsin case, Epic Systems Corp. v. Lewis, the Obama administration had entered on the side of the workers while the Trump administration entered on the side that Gorsuch took.
NLRB sources estimate that recently the NLRB has issued as many as 50 complaints against companies for misusing arbitration clauses – most of which will now be overturned because of the SCOTUS May 21 decision.
The case is also notable as a prelude – perhaps the first of two body blows to the American worker. SCOTUS is also deciding in the next weeks on union agency fees for public workers and while Antonin Kennedy is often seen as the sometimes swing to the left vote on the court, his conservative animosity toward unions has long been obvious. As in the Epic case, he may be the fifth vote.
The emerging lesson for the United States is that it will take an act of Congress – in both cases! — with enough votes to override a bizarre president. That will overturn what SCOTUS has done, even as SCOTUS itself acknowledges it is stepping in where Congress was not clear. (Some of that “lack of clarity” is intense work by teams of conservative lawyers.)
If the Democrats take over Congress in the fall, if the churn on the streets is relentless on the issue of American workers and collective bargaining, the pain may be short-lived. But those are big ifs requiring big motivation.
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