Part II: U.S. Supreme Court Poised to ‘Weaken Workers’ Power’

By Steve Wishnia

Editor’s Note: This is part two of a two-part Work-Bites report

If the Supreme Court’s far-right majority wants to rewrite labor law, it can’t simply do it by fiat. Even “if they don’t care about stare decisis,” the general principle is that to overturn an established precedent, they have to establish that it was “egregiously wrongly decided,” explains West Virginia University Law School professor Anne Lofaso, a former National Labor Relations Board attorney.

The main arguments that far-right judges and litigation-and-policy outfits rely on to do this, lawyers interviewed by Work-Bites said, include the First Amendment, the Fifth Amendment’s “takings clause,” the Federal Arbitration Act, and the “major questions” doctrine.

The Court’s 2018 Janus v. AFSCME Council 31 decision used the First Amendment to end the precedent that although public-sector workers couldn’t be forced to support labor unions’ political activity, those who opted out still had to pay “agency fees” to cover the costs of representation. The 5-4 party-line ruling averred that all public-sector bargaining is inherently political, and thus agency fees amounted to compelling government workers to “subsidize private speech.”

The takings clause, that private property can’t be taken for public use without “just compensation,” is used to “put a premium on the property rights of the employer,” says American Federation of Teachers general counsel David Strom. The Supreme Court ruled in 2018 that workers who signed agreements that disputes would be settled by individual arbitration can’t file class-action lawsuits by claiming their rights under the National Labor Relations Act.

The major-questions doctrine — that some things are too big to be regulated by federal agencies unless they are specifically authorized to do so by Congress — is perhaps the farthest-reaching. Last year, the Court used it to void both the Occupational Safety and Health Administration’s vaccine-or-testing requirements for large employers and the Environmental Protection Agency’s strict limits on carbon-dioxide emissions from power plants.

Michael Duff, a former Teamsters member and NLRB staff attorney who is now a law professor at St. Louis University School of Law, calls that doctrine a tool that “hamstrings the ability to regulate.” The National Labor Relations Act is “very general,” he explains, so how it is applied in specific situations is generally determined by how the NLRB adjudicates those complaints.

For example, he says, the NLRB has ruled that it’s illegal to fire workers for clicking “like” when a coworker complains about working conditions on Facebook. If employers claim that “Facebook misconduct” costs them millions of dollars a year, does that become a “major question”?

The clear goal, says Strom, is to “take away the authority of the agency that has the most expertise.” The key precedent is the Court’s 1984 decision in Chevron v. Natural Resources Defense Council, which held that the courts should defer to federal agencies’ expertise in interpreting laws to set regulations, as long as they have a clear legal and rational basis.

“I think they’re going to get rid of Chevron this year,” says Lofaso. If the Court’s majority can’t find five votes to overturn it completely, she adds, they’ll impose an interpretation that diminishes it.

Enforcing Janus

Extreme-right groups are also suing to expand and enforce the Janus decision, says an attorney for a large national union, with much of this happening in state courts. For example, she says, unions get time during new employees’ orientation to explain their functions and benefits, and anti-union groups have sued for the right to get equal time.

The Buckeye Institute in Ohio is challenging unions’ practice of limiting when public-sector workers can withdraw to a once-a-year window, as is the National Right to Work Legal Defense Foundation in California.

The Freedom Foundation, based in Olympia, Washington, might be the most aggressive. It has filed at least four similar lawsuits, and canvassing public-sector workers personally to urge them to quit their unions. In Oregon, the national-union lawyer says, it has been sending workers postcards with the address listed as “SEIU LOCAL 503” in large type and “c/o the Freedom Foundation” in small print. It has also sued to demand that the state of Washington give it contact information for more than 1,000 public employees who had been the victims of domestic violence or sexual assault, so it could tell them about their right to opt out of union membership.

In January, a federal court in Washington dismissed the foundation’s lawsuit contending that permitting union representation at state employees’ training without letting to counter the union representative’s statements was “viewpoint discrimination.”

These groups have also argued that unions should not have the right to be the exclusive representative of workers in a bargaining unit, says Strom. (In a side note in his Janus opinion, Justice Samuel Alito said that exclusivity “substantially restricts the rights of individual employees,” such as to negotiate their own deal with their employer.) Since Janus, the Buckeye Institute has represented several teachers and college professors claiming that having a union represent them violated their First Amendment right to freedom of association. Federal courts, however, dismissed those cases, and the Supreme Court has declined to hear their appeals.

In Michigan, the Mackinac Center, representing Associated Builders and Contractors of Michigan, a nonunion construction trade group, filed suit last year to block the state from requiring contractors on public construction projects to pay workers the prevailing wage. A state court dismissed the suit, but the group is appealing. In Texas, the Pacific Legal Foundation is contesting a Department of Labor regulation that workers classified as managers can’t be exempted from being paid overtime unless their salaries are above a set threshold.

There are “dozens and dozens” of such cases pending in the courts now, and every one is being taken up to the Supreme Court — and filed with a request for attorneys’ fees, says Strom. “There’s a lot of money that’s fueling this litigation.”

The Freedom Foundation, Buckeye Institute, and Mackinac Center are all affiliates and the Pacific Legal Foundation an associate of the State Policy Network, a national network of more than 60 policy-and-litigation outfits whose main funders include the Koch brothers and the DeVos family.

The Chamber of Commerce, meanwhile, boasts that it filed 3,000 amicus briefs in 2022, “a new milestone over the Chamber Litigation Center’s history,” and claimed seven victories in the Supreme Court.

Broader anti-union goals

For decades, anti-union litigation has followed a strategy of chipping away at the edges of labor rights before trying to overturn precedents. For example, the Janus decision was preceded by a 2014 decision that exempted Medicaid-paid home health aides from agency fees on the grounds that they were only “partial public employees.” Justice Alito in a side note called the precedent requiring agency fees “questionable on several grounds.”

In the Glacier Northwest v. International Brotherhood of Teamsters Local 174 case that the Court is now considering, the national-union lawyer says she doesn’t expect that there will be five votes to reverse the current precedent, that the employer can’t sue strikers for alleged damages until after the NLRB has ruled on whether the conduct involved was legally protected. But, she adds, Justices Clarence Thomas, Neil Gorsuch, or Alito might file a concurring opinion inviting a challenge based on the takings clause.

Anti-abortion groups followed a similar chip-away strategy for decades. But once the Court had a majority of five extreme-right justices plus John Roberts, they won the reversal of Roe v. Wade last year.

“With the supermajority that they have,” says the national-union lawyer, “all the guardrails are gone.”