A lot of people see SCOTUS decisions and think the matter closed, but congress with the flick of a pen could completely ban arbitration for employee contracts.
The employer/employee relationship is by its nature power imbalanced. If employers band together and all require arbitration (as they likely will via a standardised templated contract) employees cannot do much.
The supreme court is not a legislative body. It's fun when your side wins, but that's essentially the same as hoping for a benevolent dictator.
The most important SCOTUS cases are constitutional ones limiting the legislative branch, not becoming a second legislature.
e.g.
https://en.wikipedia.org/wiki/Dodd%E2%80%93Frank_Wall_Street...
https://en.wikipedia.org/wiki/Credit_CARD_Act_of_2009
https://en.wikipedia.org/wiki/Patient_Protection_and_Afforda...
https://en.wikipedia.org/wiki/Lilly_Ledbetter_Fair_Pay_Act_o...
etc.
It's certainly not going to do anything if the people assume advocacy is a lost cause and give up without even trying.
Making it marginally easier for those with means to save some money by reducing their taxes... because they took away some essential service from those without means.
Which "helps motivate" the people without means to stop being so lazy. /s
Another comment mentioned how California is considering arbitration in legislation. With their massive engineering and startup culture, I think employees there as a bloc have a tremendous influence for very specific employee rights (also why there is so much legislation against non-competes there as well). That doesn't really exist in the rest of the country.
You can't really just "vote the bums out" when all politics depends on various degrees of corruption, no matter how democratic the country. I mean really, you need more of the people to hold more of the income; therefore less income inequality for all. That way you move more of the replaceables into the influentials.
Here is them overturning attempts to protect the public with courts of law: https://www.forbes.com/sites/eriksherman/2017/10/25/republic...
The President is also involved (or a veto override). Neither seems likely in the near future.
> It is unlikely that Congress wished to confer a right to class or collective actions in §7, since those procedures were hardly known when the NLRA was adopted in 1935.
Kind of funny they use this as justification considering everything else they've upheld that was adopted decades prior to this without knowledge of modern custom or technology. Convenient argument when it's serving their purpose.
I don't think the courts would miss this, so I am probably wrong here somewhere. Would anyone care to correct me?
This bill would prohibit an employer from, as a condition of employment or as a condition of entering into a contractual agreement, prohibiting an employee or independent contractor from disclosing to any person an instance of sexual harassment that the employee or independent contractor suffers, witnesses, or discovers in the workplace or in the performance of the contract. The bill would also prohibit an employer from requiring any applicant for employment or prospective employment or any employee to waive any right, forum, or procedure for a violation of any provision of the California Fair Employment and Housing Act (FEHA) or other specific statutes governing employment, as a condition of employment, continued employment, or the receipt of any employment-related benefit. The bill would also prohibit an employer from threatening, retaliating or discriminating against, or terminating any applicant for employment or prospective employment or any employee because of the refusal to consent to the waiver of any right, forum, or procedure for a violation of specific statutes governing employment. The bill would establish a specific exemption from those prohibitions. Because a violation of these prohibitions would be a crime, the bill would impose a state-mandated local program.
https://leginfo.legislature.ca.gov/faces/billTextClient.xhtm...
It is great that SCOTUS is starting to uphold the laws as they are on the books. Frankly, the idea that not legislators but the courts get to write the laws should be abhorrent. Courts need to stick to "is this law contradict other laws and hence is invalid" decisions.
Want to change the law? Get congress and senate to pass a new law and have a president sign it.
The majority decision claims "It is unlikely that Congress wished to confer a right to class or collective actions in §7, since those procedures were hardly known when the NLRA was adopted in 1935." That's either an activist position or an original intent position; it relies on comparing circumstances today to the circumstances Congress is presumed to have had in mind.
The Court's current originalists are textualists to a man, and have consistently rejected arguments of the form "this law's authors didn't anticipate modern conditions". But today, they decided to restrict a right provided by the text of the law, and did so by appealing to circumstance and intent. (edited for clarity)
Legislation was written from the bench today, and it wasn't Ginsburg doing it.
The ruling today essentially says that if the FAA is ever in conflict with any other piece of legislation that it holds supreme. This is literally unprecedented.
- SCOTUSWe need the same for bitrotted legislation.
In effect, we do -- When SCOTUS says "We don't think past Congress made a decision about this, so we'll pick a default ruling", current Congress has every right and opportnity to hold a vote to make a decision. If they don't, that means they agree with the court, and just as well would have repealed the law if SCOTUS ruled the other way.
Now, in practice Congress doesn't do its job (to busy campaigning for reelection), so inertia wields as much power as any considered deliberation....
They further explain their approach to resolving claimed conflict between two pieces of legislation:
> And in approaching a claimed conflict, we come armed with the “stron[g] presum[ption]” that repeals by implication are “disfavored” and that “Congress will specifically address” preexisting law when it wishes to suspend its normal operations in a later statute.
And specifically for the Arbitrage Act, because this is apparently a tactic that people keep trying:
> In many cases over many years, this Court has heard and rejected efforts to conjure conflicts between the Arbitration Act and other federal statutes. In fact, this Court has rejected every such effort to date […] Throughout, we have made clear that even a statute’s express provision for collective legal actions does not necessarily mean that it precludes “‘individual attempts at conciliation’” through arbitration […] And we’ve stressed that the absence of any specific statutory discussion of arbitration or class actions is an important and telling clue that Congress has not displaced the Arbitration Act.
So they're not saying "we can't decide," they're stating (I think): Congress can give employees more protection in this arena, but the laws as written are (1) not unconstitutional and (2) are not being interpreted incorrectly by lower courts.
Is a semi-automatic rifle an "arm" as the term was understood in 1789? Yes, almost certainly, in the same way an aircraft carrier is a "ship" as the term was understood in 1789. If semi-automatic rifles had existed in 1789, would the framers still have used "arms" as they did? Maybe, maybe not, but that's irrelevant. We don't care about what they thought, just what they wrote.
Likewise, is a class action "concerted action" as the term was used in 1935? Probably not. Would the drafters of the NLRA have wanted class actions to be protected had those been common in 1935? Probably yes, but that's again irrelevant.
It would require an awful lot of creative reinterpretation to decide that class action lawsuits are a form of collective bargaining and this section granted some kind of right to them, especially since they didn't exist at the time and wouldn't be invented for several decades.
If workers want the law changed to ban arbitration clauses then they should ask their representatives to pass legislation to do exactly that. And if said representatives won't do so then they should elect someone else next election cycle who will.
> This isn't disappointing at all as it reflects the state of the laws as they're currently on the books.
4 out of 9 supreme court justices disagree with the ruling, so this really isn't the narrative to go with.
There is a vast power imbalance between worker and corporation, both money and power. Businesses control the contracts, they have far more money, and, as a result, they have vastly more powerful lobbying. So in practice, there is no defense for workers anywhere! Kicking the can to "elect someone else" is just as naive as claiming that this decision respects the law on the books.
> opens the door for legislation from the bench
In common law systems, indirectly this is what happens and has done for centuries. Through interpretation of statute and binding precedent, the bench does get to help define, albeit in far more limited fashion than the legislature, what "the law" is in a common law system. This is one reason why lawyers have to examine both the statute _and_ the case law.
Disappointing is the right word.
You're right that people don't understand the way the separation of powers works, but the system badly needs to be revised. The world has totally transformed in the last 75 years and it's much smaller now. Political and legal feedback loops need to become much more responsive. One can see how it all worked when it would take weeks or months to get news of things like national election results, and when most people lived mostly self-sufficient agrarian lifestyles, but we don't live in that world anymore.
Our entire political system, including the functional ability for normal private individuals to seek and obtain useful legal relief, has ground to a halt over the last several decades. Technology has made the old methods increasingly bad fits for the modern era.
It'd be great if we could renovate the system before we fully convince the populace that the elements of good governance, like separation of powers and an independent judiciary, are necessarily linked to stunning and clear deprivations of fairness (of which binding arbitration is just one good example).
The 7th amendment is dead.
That's not really a prerequisite for contracts. Contracts will often reflect substantial negotiating leverage on one side versus the other (e.g. a contract for sale of a house where the seller just lost his job, or a contract for sale of stock where the seller really needs money due to an unforeseen emergency). That's not a reason not to enforce them.
I think there are also 'no contracts can be made under duress' clauses that limit how much one can use leverage to unbalance a deal. Not sure what kind of limits there are to that though.
> But what happens when every company and employer has this language in their contracts? What do they lose by including the language? They lose nothing!
That is not true. Arbitration does not come free and not necessarily always in favour of the employer either. Which of the following would you prefer ?
1. Pay a monthly fee of $25 and whenever you get a traffic ticket you don't have to pay it 40% of the times. 2. Pay a traffic ticket only if you get it.
Every single car I have purchased made me sign similar agreement and I know at least one car dealer who got sued and lost pretty badly.
How can it be consistent with existing laws if the laws never mentioned arbitration at the time?
You're not really helping your case here if this is the strongest statement you can make in arbitration's favor – "you're not necessarily fucked!".
The New York Times ran a series about binding arbitration a while back, and a running theme was that arbitrators who repeatedly rule in favor of individuals quickly find themselves getting no more business, as you'd expect. Thus, the incentives of arbitrators are strongly skewed to favor employers (even if not at the individual level, then definitely at the ecosystem level via selection pressure) and I don't believe for a microsecond that their decisions are fair and reasonable.
So it used to be okay but in the new climate, CFPB has been gutted and is now the Corporation Financial Protection Bureau.
Uh, who's "we?" It sounds like you're describing textualism or strict constructionism, which are two of many types of judicial interpretation. https://en.wikipedia.org/wiki/Judicial_interpretation
The people of the Great State of $YOUR_STATE are reading the bills as they're written and electing, instructing, and/or recalling their representatives according to the contemporary mainline meaning of the actual recorded text of the bill. The people of $YOUR_STATE don't know that $YOUR_SENATOR meant X when he said Y. Or even if they do, there's no way to know that the people of $BORDERING_STATE, who also supported the bill, had the same implicit caveat.
Thus, the only way to understand the meaning of laws enacted by "the People" is to interpret the recorded text as an average person contemporary to its passage would have understood it.
The conservatives love it because it means their greed rules over all other laws. It is federal which means it superceeds states. As long as they are in enough power, you are ruled by their greed.
[1] https://en.wikipedia.org/wiki/Hall_Street_Associates,_L.L.C.....
We have been running with courts writing laws for years -- banana republics had less judicial interference into purview of legislative branch/executive branch. Now the rubber band is snapping the other way and those who have been happy at letting courts to write laws because it was their men/women on courts are now freaking out. Just wait until Kennedy retires in August and Trump gets another originalist there -- outsource unpopular legislation to courts group is in for a world of hurt for decades.
Edit: Not liking that water is wet does not change that the water is wet. Downvotes are not going to change this SCOTUS decision or other coming SCOTUS decision. Neither would they change a retirement of a swing vote and neither would they change that it will happen when Trump is in office and republicans control the Senate.
But...it does respect the law on the books. Your concern seems to be that the law is bad, and that the judiciary ought to change that law. I don't think there's a lot of disagreement about the former, it's the latter that's more controversial.
From an idealistic standpoint, enacting Federal law is necessarily onerous, owing to the requirement of a strong consensus so as to prevent a marginal majority from shoving Federal laws down the throat of a large minority.
> Okay sure. But don't lose track of reality in your quest for idealism though.
Okay sure, it sounds like you don't care much for the idealistic standpoint, so let's talk pragmatism. If we can't gather this consensus at the Federal level, we have the levers of state legislatures to pass those same laws at a more local level.
Liberal states have the political will, the systems, and (if we're being frank) the majority of businesses that would be affected by Federal law anyway. They just need to have the will and pragmatism to compromise and pass their desired law at the state level until such a time that there's Federal consensus for that law.
1. FAA is less broad than NRLA
2. NRLA does not override anything in FAA due to it being overbroad and/or things in the FAA not being "common policy"
are false, and thus the law on the books is not being respected?
#1 appears to be false and #2 is based on their erroneous position in #1. NRLA is more targeted than FAA and came 10 years post-FAA, so the argument that things covered in the FAA were not "common policy" at the time NRLA became law and thus wouldn't be overridden by NRLA seem ridiculous to me
No, it absolutely does not. It completely makes up a reason why this should be considered any different than any other instance where things have changed since a law was enacted.
Can you explain what the law on the books currently is, and how the majority opinion "absolutely does not" respect it?
> It completely makes up a reason why this should be considered any different than any other instance where things have changed since a law was enacted.
Things have changed since a law was enacted by legislative fiat. The thesis behind those arguing the intended function of the judiciary is that any instance in the past where the judiciary has actually changed a law since it was enacted is considered abuse and not to be repeated.
I'd argue the exact opposite. The pace of our system is just a reflection of the current ideological polarization. Enacting Federal law requires a strong consensus (to prevent abuse), and the more polarized we are, the more difficult it becomes to shove Federal laws down the throat of a narrow minority.
If we can't gather this consensus at the Federal level, we have the levers of state legislatures to pass those same laws at a more local level.
Liberal states have the political will, the systems, and (if we're being frank) the majority of businesses that would be affected by Federal law anyway. They just need to have the will to compromise and pass their desired law at the state level until such a time that there's Federal consensus for that law.
That's a nice theory, but no. Federal law preempts state law in this scenario[1] so states are completely unable to do anything to reign in arbitration.
[1] https://www.drinkerbiddle.com/insights/publications/2017/05/...
Technology has brought us all much closer, and it requires us to re-evaluate many of our old ideas. Maybe it was easier to say "each state will handle things on its own" in the 1800s, when it could take days or weeks of walking just to get to the state line. Now, many of us would be able to get to our state's border and back over the course of a long lunch break -- to say nothing of boarding an airplane and traversing the entire continent in a single evening.
In the old days, the saying was that a lie can get around the world before the truth can pull its boots on. Now, massive knots of information, too intermingled to classify definitively as either truth or error, traverse the earth literally at the speed of light. Unfiltered recordings of many important events are now available across the planet a few seconds after they occur. When our political processes were designed, it would take months for highly-diluted summaries of information to percolate to the masses.
As a species, we are still coming to terms with our ridiculous new powers of instantaneous global mobility and communication, but it seems patently silly to me to insist that systems designed for the much slower and bigger world of the past will map onto today's world essentially without modification.
This isn't all that different from the EU, a similar union of states with a similar population (500 million), where the vast majority of laws and regulations are passed at the member-state level and not at the EU level. Any American that argues "each state will handle things on its own" is just making the same argument that a European might make when saying "we should enact this healthcare system X, or that pension system Y, or that policy Z in Germany".
This was always the Framers' intent, Hamilton himself was well aware of the perils of the Tyranny of the Majority[1]. The prescription for this was to apply the subsidiarity principle and use concurrent majorities (i.e. "let the states decide"). Federalism was never about the logistics of walking to state lines.
You're missing the /sarcasm tag. Doing good for corporations has, since Reagan, eviscerated the living standards of the American people.
Plus you're ignorant of how people in this country are actually employed. For example, a number of the wealthiest individuals in this country, and most of the top 5%, actually work for or own partnerships (in the form of LPs, LLPs, or LLCs), none of which are corporate entities. This doesn't include those employed by the government agencies or armed forces at the state or federal or local levels.
And last I checked, every major invention of the past century was funded in whole or in part by the government--there are no major discoveries wholly funded by corporate dollars.
The only way to keep the general populace from getting trampled as far as they will allow is to push back against all this.
I've said elsewhere, vote out every incumbent Congressperson. Once the current paid members are gone, if the new set appears to be voting by donor status, vote them out too.
Keep voting them out until we find a few decent souls who realize that we the people are serious about being represented, not sold.
I would use campaign contribution reports as a "who should be first out the door" list... individual personal donations of fixed maximum size only, everything else counts against.
The more a central authority takes and dictates, the more lobbying and money will be the influence that runs them. When you have a powerbase of politicians that can make or break conpanies, industries, and entire regions with a law or regulation, you will naturally have players interested in that space working for their own interests above all else.
When existing government gets hijacked by power brokers, that's where we the people should step up and say no by voting out the worst offenders. Tha's our check and balance, and where I despair of getting people to understand and care.
Power abhors a vacuum. If government cedes power somewhere, who do you think is going to pick it up?
You can suggest that certain uses of these tools are improper and that the agents who effect these uses should be restrained, punished, or otherwise legally addressed, but you don't phrase that as a punishment against the tool -- it is rather a punishment against the agents who manipulated the tool improperly.
Sometimes I wonder if the whole "corporation v people" thing is a propaganda tool intended to misdirect public anger off the robber barons themselves and instead put it onto a formless legal abstraction that can't be held accountable.
Using another example. Indentured servitude used to be a completely valid legal contract that benefited both sides. The reason it went away was because those writing the contracts started treating it like legal slavery.
The reason people go after corporations is because they are the ones in control of the government and what exactly will going after the people who own the corporations do? They often have private armies, write their own laws, and essentially function as royalty.
This is a flat out lie that has been disproven time and time again. More often than not, what's good for the company is bad for everyone else.
Non-originalists say "this law's authors didn't anticipate modern conditions, so we must project their intent onto modern conditions"
In this case, I think an original intent reading and a living Constitution reading lead to the same place. But I only mention that because the decision references intent; original intent scholarship is rare in general and basically absent on the court.
Original meaning is what's currently represented on the court, and is as you say: "the law must not change under modern conditions". That's what I'm suggesting was abandoned by its usual practitioners today.
If you want X', then pass the law that changes X to X'.
Edit: I'm editing this as NH blocked me from replying:
> Sure, we agree on that. But Law X will interact with condition Y somehow, so the question is what property of X is preserved when addressing Y. This is a pretty fundamental debate between constitutional scholars, not just a lecture on how laws work.
I apologize if it came across that I was trying to lecture anyone on how the law works.
> Law X says "the right of the people to keep and bear arms shall not be infringed". Condition Y is the development of new types of arms after the amendment was ratified. Textualists and original meaning scholars say that the text of the law should be preserved - the right to keep arms should remain uninfringed. Original intent scholars say that the intended effect on the world should be preserved, and then we have to decide what that is - to keep flintlock weapons legal, to keep military-grade weapons of the day legal, or something else?
It is the "Freedom of the press" argument. Does it mean that only "press" as it existed at the time is covered? The answer, in my opinion, based on the current body of law is "No" because we do not have a law on a books that restricted the freedom of the press to something other than a totalitty of abstract idea of "press" and abstract idea of "freedom". If we did, and if that law was found to be constitutional, then the newer law would have trumped the old one.
This applies to the existing argument. I simply believe that Gorsuch and Thomas arguments have been misinterpreted. They are not some evil masterminds that are able to speak out of two corners of their mouth. They are originalists and they are applying a very simple "is there a law that has been passed which is more specific and was not found to be unconstitutional that affects the current issue? Yes => defer to new law. No=> defer to the original law"
The classic example of a textualist or original meaning position is a broad view of the Second Amendment. Ignoring the 'militia' issue, Law X says "the right of the people to keep and bear arms shall not be infringed". Condition Y is the development of new types of arms after the amendment was ratified. Textualists and original meaning scholars say that the text of the law should be preserved - the right to keep arms should remain uninfringed. Original intent scholars say that the intended effect on the world should be preserved, and then we have to decide what that is - to keep flintlock weapons legal, to keep military-grade weapons of the day legal, or something else?
My point is that the decision today used original intent reasoning - law X established a right without without imagining Y, so Y should not be supported by X. But the textualist position is to apply the existing text of X to Y whether or not Y was even envisioned.
Gorsuch and Thomas are long-standing textualists, and I'm arguing that they took a basically non-textualist position today for political reasons.
But that's exactly what the majority decision here is saying! "Since class actions didn't exist back when the NLRA was enacted, we need to accommodate the NLRA for class actions" The court literally made up what they felt should happen!
Yeah, I'm not claiming that technology solves things. I'm claiming the opposite, at least as far as our current government processes are concerned. Those processes have effectively been "broken" by changes in communication and movement.
This is an example. Liberals are aghast that the court didn't overstep their constitutional function here. Conservatives are happy that the process was followed, but they're not really happy that companies can effectively force employees into kangaroo court.
From a state's rights perspective, there's no reason that the federal government should be dealing with any of this really, states should be plenty capable of handling employment law. The federal government exists to set tariffs, administer borders and national defense, and ratify treaties. But because people and information can now move so freely, we've spent the last 100 years, more or less, ignoring the on-paper purview of federal and state governments.
You can say "Get Congress to pass a law" all you want but it's little consolation (in part because Congress is paralyzed in this environment). I would guess that most Americans on both sides of aisle want employees to be able to sue their employers in these cases -- hardly an instance of "virulent polarization" -- but that message is getting obscured by pedantry and partisanship on the boundaries of judicial interpretation. There are many similar issues, where most people don't really disagree per se, but the media and politicians still make sure things are arranged for maximum loyalty exploitation.
> Any American that argues "each state will handle things on its own" is just making the same argument that a European might make
Yeah, I'm a conservative, I understand and support the argument for state's rights, and I know how it's supposed to work theoretically. And before you point at the EU too enthusiastically, ask yourself how a similar situation would've played out there.
> Federalism was never about the logistics of walking to state lines.
I mean, it may not have been about it, but it was much more practical in a pre-telecommunication, pre-automobile, pre-airplane world.
Because I support state's rights, I recognize that we need to be realistic about things and make reasonable adaptations. It's not reasonable to pretend that the massive changes in movement and communication don't impact the way our republic functions.
Dogmatically grasping to processes established 200 years ago is only convincing everyone else that conservatism and governance by ruthless, cold pedantry are inextricable. That's bad. Maintaining conservative principles is not necessarily the same as enslaving oneself to the heartless rehearsal of dead scripts.
There's decades of laws that made interracial marriage illegal (Loving v. Virginia), and the supreme court overruled them too. If the constitution forbids a government action then it's up to the supreme court to overrule it.
I'm not a lawyer and you'll be able to cite a thousand cases to my one. My sister's neighbor is on the state Supreme Court where I live. He's said to me that a good lawyer can argue any case and cite a bunch of reasons to support his/her case.
For me the case is simple. The collectively bargained rules apply to everyone in the workplace. As such those who benefit from said bargaining ought to pay for it. This has been an established practice for many, many years. Each state has the right to negate this and many have enacted misnamed right to work laws. There is no compelling reason to change the current practice. Janus' speech is not currently threatened and the greater public interest should be the one that prevails. It won't though.
I'd agree with you if it weren't for the fact that this is about the government and government employees everywhere you look.
I never understood how we as a society and how the labor union movement could tolerate the existence of public employee unions in the first place, as they end up intermingling two otherwise very distinct worlds, as I believe has happened here.
What you call "collective bargaining" in this case I could call "pure political pressure", since the "bargaining" is against politicians.
That sounds awfully Constitution-ey to me.
Disagree with your ipse dixit labeling. The FAA is broad and general, at least according to SCOTUS precedent, covering all contracts between all parties, covering all types of conduct in all industries, as long as "commerce" is involved. In contrast, NLRA § 7 was targeted to one specific category of contractual parties, namely employees and employers, and protected employees' right to engage in one specific type of conduct, namely concerted activity in two specific areas, namely (1) wages and (2) the terms and conditions of employment.
Moreover, as Ginsburg's dissent correctly pointed out, as the later-enacted statute, § 7 implicitly overruled anything to the contrary in prior legislation — because it's risible to think that Congress, in enacting a court-enforceable right to concerted action by employees, intended to allow the very target of employees' concerted action, namely the employer, to unilaterally strip away that right as a practical matter, whether by insisting on a no-class-action arbitration provision or by any other means.
I'm reminded of a conversation I had many years ago as a law student: Knowing little (then) about litigation, I innocently asked a litigation partner: "A nonsuit [a unilateral dismissal of a case in Texas state court] can only be filed by the plaintiff, right, and not by the defendant?" He laughed and said "Right; otherwise I'd be hurrying back to my office and dictating a whole lot of defendants' nonsuits." But now under this SCOTUS decision, employers get to do essentially much the same as a defendant unilaterally dismissing a plaintiff's case, without so much as a by-your-leave to a court or anyone else.
Public sector unions are nothing but trouble and every step toward their destruction is a good thing. The very idea of having organizations funded by tax dollars that subsequently influence their own regulation, pay rates, benefits, and pensions with those same tax dollars in exchange for votes from their members is ludicrous. It's the ultimate slush fund feedback loop and unless it's reigned in the rest of the tax base ends up holding the bag (or municipal bankruptcy!).
[1]: https://en.wikipedia.org/wiki/Janus_v_AFSCME
[2]: https://www.nbcnews.com/think/opinion/supreme-court-decision...
It is a little disturbing when there is a chain of force exerted by government all the way from the original funds back to some kind of political activism.
The individual workers never have a chance to intervene in that chain. They have a collective right through their union vote, but free speech is an individual right. It would clearly be a free speech problem if you were forced to pay dues to the Republican or Democratic parties even though you have a vote within it.
It appears your position is that there is nothing good about public sector unions. Have they done no good? That's an extreme position. You say that every step toward their destruction is a good thing. I suppose that means you'd support illegal methods of destruction?
I'm in a public sector union. I pay union dues. That money comes from my pay and not taxpayers. My salary is paid for by the state but my dues come from my salary and are not part of my benefits. The union is not taxpayer funded. If you really think this then to the extent that my salary is used to pay for groceries does that make the supermarket partially taxpayer funded?
My union influences my workplace rules to the extent that they bargain my working conditions on my behalf. They have negotiators much more knowledgeable about negotiation than I am and they negotiate on my behalf. By law our workplace rules cover everyone whether or not they are in the union. It's reasonable to expect that everyone who benefits from the negotiation help pay for said negotiation.
Clearly, I'm not going to change your mind on the efficacy of unions; public or not. However, perhaps you will consider that your position is quite extreme. You can find no good?
I ask my liberal friends who decry Trump (as I do) can you name some good things he has done. Most can't. They are too extreme to even consider the other side. You sound like an extremist on this issue.
The most relevant one to Janus is the fact that you can't choose which union your dues go to - but you have a number of choices about how to feed yourself with your dollars. You can go to a restaurant; go to Smart & Final; go to Whole Foods; in general, those dollars are fungible and decisions about how they are spent are made by you, not by the state. In contrast, your only options with a union are to either attempt to influence union leadership as a member (which, by definition, every member with differing opinions cannot succeed at) or to switch jobs. For example. let's say you're a prison guard in California (and a member of the CCPOA), but you disagree with your union's lobbying and donations to increase prison sentences for non-violent drug offenders. Ostensibly, this is negotiation you are benefiting from, and fully within the responsibilities of a union. Union dues aren't really your money.
To society as a whole I'd say the net effect is negative. Note that I'm specific talking about public sector unions and not unions in general. And by net effect I'm referring to the overall effect on States and municipalities, not just the handful of members who receive direct benefit from the unions.
> That's an extreme position.
As a member of public sector union it may be extreme to you but that's your personal opinion. Being on the receiving end of any benefit of said unions would imply that you have biases of your own.
> You say that every step toward their destruction is a good thing. I suppose that means you'd support illegal methods of destruction?
You'd suppose incorrectly and I never suggested anything like that. Cheering the destruction of institutions that (IMHO) are a net negative to our society is neither illegal nor promotes illegal activity.
> I'm in a public sector union. I pay union dues. That money comes from my pay and not taxpayers. My salary is paid for by the state but my dues come from my salary and are not part of my benefits. The union is not taxpayer funded. If you really think this then to the extent that my salary is used to pay for groceries does that make the supermarket partially taxpayer funded?
The primary issue is that there is no competition for the public sector. By definition there is one government for a given region / level and it's in the interests of the public sector unions to ensure that government gets larger and pays them (and their members) more. That's the vicious feedback loop.
> My union influences my workplace rules to the extent that they bargain my working conditions on my behalf. They have negotiators much more knowledgeable about negotiation than I am and they negotiate on my behalf. By law our workplace rules cover everyone whether or not they are in the union.
Eliminating public sector unions doesn't mean that OSHA disappears. And if the pay or benefits are not enough to retain talent vs. the private sector then you're free to go find employment in the private sector. IMHO it's not the government's responsibility to provide you with a job.
> It's reasonable to expect that everyone who benefits from the negotiation help pay for said negotiation.
Again perhaps to you it is but you're also not giving someone the right to negotiate separate terms or avoid the system entirely. I say that right trumps yours.
> Clearly, I'm not going to change your mind on the efficacy of unions; public or not. However, perhaps you will consider that your position is quite extreme. You can find no good?
Again, I can't see any net good in the concept. It's too susceptible to abuse. Google "public sector union bankruptcy" for some fun reading.
> I ask my liberal friends who decry Trump (as I do) can you name some good things he has done. Most can't. They are too extreme to even consider the other side. You sound like an extremist on this issue.
I find it interesting that you've attempted to label me as an extremist three times in a single comment. A difference of opinion, a strong opinion, or a vocal one are never grounds for such crap.
They're not. And plenty of other organizations which receive tax dollars (any company that's ever done government contracting, for instance) engage in lobbying as well, and they're a much, much bigger problem.
I dunno about that — my guess is that Congress intended a heavy presumption: Anything that materially diminishes the right to concerted action is unlawful. I know, materiality will often be hotly contested. Here, though, an employer's ability to unilaterally take away one of employees' key enforcement weapons, viz., the class action, seems pretty freakin' material.
Janus is not really about free speech. It’s an attempt to destroy unions by letting people benefit from collective bargaining without paying for it. It’s called the free rider problem.
Because one is the government and the other isn't. That's my whole point about it being reasonable that this is a Constitutional issue.
There's also the, arguably separate, issues of incentives and who ultimately pays. In the case of private employers, it is, presumably a powerful few trying to exploit the labor of the many. In the case of government, it's the taxpayer/voter who is ultimately being bargained "against".
What are public employee unions trying to prevent? The exploitation by the many (voters) of the labor of the few? That seems wholly unreasonable to me.
> Why shouldn’t a union be political? Don’t workers have a right to gather in a group and be political? Government workers should be excluded from this activity?
(Again, not a union, but a public employee union:)
Because they are, in effect, circumventing the normal political process. By using the power to strike, they're seizing power from the voters.
Unions do not circumvent the normal political process. They are not seizing power from voters. Your view appears a bit extreme.
> Why shouldn’t a union be political?
By that argument, why shouldn't the government force you to donate money to political advocacy groups that it chooses, whether or not you support the group's agenda?
Heck, what if your employer decided that a portion of your paycheck would be deducted as a mandatory donation to either the Democratic or Republican party, as part of the terms of your employment?
And also negotiates on his behalf for better working conditions and pay.
At the end of the day, that person wants all the benefits of being in the union (enhanced negotiating power, benefits, etc), without any of the cost.
Since you are making a distinction about public vs. private unions it appears that this is not a constitutional issue. It seems to be one where you don’t like that they generally endorse and support one party over the other. There are very few entities that are neutral. All sufficiently large entities become political to some degree.
This is completely false. People absolutely are forced to join unions.
Furthermore, the overwhelming majority of union members - over 90% - never voted in a certification or authorization election. That means that, even if they're members of the union, their membership cannot in se be considered an endorsement of the union by the bargaining unit. Because it's all-but-impossible to successfully decertify a union in practice[0], it's not uncommon to have the majority of employees oppose union membership, but still be compelled into membership.
> They are, for the time being, in some states required to pay for fair share dues to cover the costs of collective bargaining, grievances, and other administrative costs
People within the bargaining unit are usually forced to pay dues whether or not they are members.
[0] The NLRB has the power to overturn the results of decertification, and a very strong incentive to do so. In addition, unions have learned that they can change the definition of the bargaining unit after an election is held in order to invalidate the election retroactively.
Private entities can limit free speech all they want; public entities cannot.
Yes, the fact that workers face a monopsony (and one which can and does exempt itself from generally-applicable workplace laws) is why public sector unions are even more critical to avoid abusive employment conditions than private sector unions.
Source? Last I checked the public sector is covered by OSHA.
What rules apply to the private sector that don't apply to the public sector?
[1]: https://www.osha.gov/OshDoc/data_General_Facts/federal-emplo...
Federal agencies can apply alternate standards if they decide general OSHA rules don't work for them; while this requires DoL sign-off, IIRC, this option is not available to individual private employers.
> What rules apply to the private sector that don't apply to the public sector?
Aside from the above, another example is that a variety of regulations under FLSA, including standards for exemption, do not apply to federal employees when adopted by the Labor Department; OPM sometimes adopts conforming regulations that apply similar standards to the federal civilian workforce and sometimes does not.
Similarly, states often limit the applicability of their own labor laws to themselves, though they are of course bound by federal laws to the extent that they aren't either specifically exempted or Constitutionally immune.
And all Workman's compensation claims go through a government agency (Department of Labor).
With zero ability to sue or claim damages like you would have in other businesses.
If you get hurt via some hilariously OSHA-illegal workplace incident, the most you can hope for is a schedule reward of some number of your work weeks plus forced retirement, and most people have to fight to get that using their own resources and legal help. All the while being treated as a criminal or a draft dodger.
So in the end, an OSHA-unsafe environment has no repercussions to governmental organizations ($$ as normal or firing).
It is law that everyone gets the benefit from a union’s collective bargaining. It’s unreaonable to expect people who benefit from the bargaining to not pay for it. In economics it’s known as the free rider problem.
No, it's not. It's the law that unions must represent anyone whom they claim as part of their bargaining unit.
However, unions have great freedom to define bargaining units how they like. They already take advantage of that ability, in order to invalidate decertification elections (by retroactively choosing a differently-sized unit from the one that was eligible for the election).
The law you are citing exists because unions are authorized to collect dues from all members of a bargaining unit, including those who don't belong to the union. The law ensures that unions don't extract money from non-members while also refusing them representation. Otherwise, they would literally be allowed to charge as much as they want, and people who don't join would simply be paying for the benefits of the people who do.
There is no free-rider problem, because those members are only included in the bargaining unit because unions want to use them to pad their numbers. If they weren't able to collect dues from them, they would simply redefine their units and walk away with the same net revenue from their members.
The free rider problem occurs once so called right to work gets enacted. There is no free rider no because everyone pays fair share (in states that don’t have right to work laws).
This is false; you can choose your workplace based on the union.
Is the landlord I rent from supported by taxpayer money because I’m a public employee that rents from him?
Only because unions choose only to make contracts that cover non-members as part of their bargaining unit.
> The free rider problem occurs once so called right to work gets enacted. There is no free rider no because everyone pays fair share
There is no free-rider problem. Unions are free to create contracts that don't consider non-members to be part of the bargaining unit. That court ruling is 80 years old and completely uncontroversial and uncontested. Unions have systematically refused to do that, because they'd rather take an "all or nothing" stance.
It makes for a great political stance to pretend, "oh, we have to charge these other people fees because otherwise we'd be giving them representation for free", but in reality, they're the ones who are refusing to do business any other way. There is no free-rider problem, and there never has been.
Wikipedia points to Lehnert v. Ferris Faculty Association, which has:
"Non-chargeable expenses include: Lobbying, electoral, or other political activities not directly related to contract bargaining or implementation;[144] political or public activities aimed at winning a greater budget for the collective bargaining unit;[140] litigation or publications reporting on litigation that does not concern directly concern the bargaining unit;[145] and public relations efforts (including informational picketing, media purchases, signs, posters, and buttons) designed to enhance public respect for the workers' profession"
I'm not a lawyer and I'm not sure what the difference is between this upcoming case and that one. But it sounds like the supreme Court has already ruled that lots of the behavior I find objectionable is not chargeable as an agency fee to nonmembers.
> A public employee union is not the government.
I'm not suggesting it is, as such. It is, however, made up of the people who operate the "machinery" of government, and it's the government witholding the dues from the paycheck that funds this union, so, again, of Constitutional significance.
> There should not be distinction between public employee union and private employee unions.
And I say there should. There's my assertion :)
> Unions do not circumvent the normal political process. They are not seizing power from voters. Your view appears a bit extreme.
They may be extreme, but that doesn't make them invalid on their face. I don't have a vested interest here, either.
Here's my vision of public employee unions not circumventing the normal political process:
Instead of "negotiating" with the power to strike, they can just go to the voters (and elected representatives) and campaign for their share of the tax dollars (or working conditions or whatever other legislation), just like every other special interest.
Of course this is just my opinion. I can’t claim it’s objectively correct.
It's one thing merely to disagree, but those words are another matter. They call for a bit more effort, especially since "reason" is usually objective.
I have made a concerted effort to outline how I come to the conclusion of circumvention of political process and Constitutionality, yet you've not directly responded to any of those explanations, especially not how someone reasonable might reach a less extreme conclusion.
> Workers should be able to band together to advance their cause without regard to whether or not they are public employees.
No disagreement there, but that's never been at issue. What's at issue is money, and money that's being forcibly taken. Alternatively, it's workers being forced to "band together".
What I'm saying is really going on is that they're able to "band together" to influence government appropriations in a way other than the normal political process (without saying normal process if fair/effective or not, since that's another topic).
> Working for the government should not necessarily mean that your rights get limited.
Why not? What happened to the notion of public service? No amount of wishing will ever turn it into the same kind of relationship as an employee has to a private employer.
> There are exceptions. Like for the military.
And why the inconsistency with respect to the military? To me, drawing a bright line there (instead of, say, at either, carrying a gun or "critical" public services) approaches a position of extremity.
Sounds like he doesn't believe that they do, and would prefer to be left out of the bargaining unit.
> At the end of the day, that person wants all the benefits of being in the union (enhanced negotiating power, benefits, etc), without any of the cost
There's literally no evidence that he wants the union to provide any of that.
If that were true, then he would be suing to be left out of the bargaining unit.
If so, could you point to such lawsuits, especially successful ones?
You can't have it both ways. If it's the employee's money, they have the right to do what they want with it, whether that means giving a portion to a union or keeping it for themselves.
If they don't have that legal right, then the money isn't theirs, and it's coming from taxpayers, because it's paid by the government.
1. Unions are not government funded. 2. Those who benefit from collective bargaining ought to help pay for it.
If your rent is automatically withheld from your paycheck as terms of your employment and given directly to your landlord, then yes, that logic might hold.
However, I'm betting that's not the case.
This is absolutely not true in the least. Unions tend to support candidates that will help and support them, just like anyone else who backs any other candidate.
Why are you asking me? Go find some conservatives and ask them.
Perhaps asking someone who has actually made both those statements would be more helpful than asking me.
I don't think those words mean what you think they mean. The word you're looking for is "unpopular".
> Most people do not see unions co-opting the normal political process.
You keep saying "unions", but I allege that this remains a verbal trick on the part of public employee unions, to lump themselves in with other unions.
I'm sure your statement is true on its face, but I'm not so sure it's true when applied only to public employee unions.
I'm much less sure of its truth when applied specifically to local groups of voters. Try asking some of the ones living in bankrupted municipalities.
> The exceptions I mentioned are exceptions in current law
This makes your argument/opinion very hard to follow, since you string together "should" statements with "is". Is that by design?
It's not. The suit Janus actually filed is the closest thing to that.
You keep hammering on this claim, except it's clear Janus doesn't believe that he's benefiting from it. It's actually quite easy to find examples - from the very beginning of the labor movement up through today - of labor unions screwing over certain classes of members for political reasons. So it's pretty easy to imagine how Janus would have reason to believe he's being forced to pay for something that has a net negative impact on him.
He’s already entitled to a refund of the portion of union dues (if he decided to join it) that go to political activities. This is the Beck decision in the late 80s.
Actually, it is the role of the judiciary to determine if the legislature has overstepped the bounds of the authority granted to it by Congress, by providing public labor unions with a degree of special authority granted to no other entity. And, as explained elsewhere in this thread by an actual lawyer, there's a pretty solid case that it has.
Again, if this is what he believed, then he would be suing to get out of the bargaining unit.
The entire suit is a scam to weaken the power of unions. If the union has to act on behalf of you, but you don't have to pay, then very, very few people are going to actually pay for the union, and it will die.
The courts have already ruled that the unions can create contracts that exclude non-members from bargaining units (and therefore refuse representation to non-members) as long as they don't charge the non-members agency fees. If Janus wins the right not to pay an agency fee, that's what they'll do.
The only scam is in pretending that the unions are forced to represent people like Janus whether or not they receive fees. That's nonsense; it's their decision entirely to include non-members in the bargaining unit.