WASHINGTON (PAI) – From affirmative action to agency fees to whistleblower rights, a spate of worker-oriented cases either wound up before the U.S. Supreme Court in November, or are headed there, with the opposing sides laying out their positions this past month.
And while most of labor focuses on one of the looming conflicts – the agency-fee case Friedrichs vs. California Teachers Association – the others are important, too.
That’s because the court, and particularly its five-man Republican-named majority, appears poised to drastically rewrite not just labor law, but working conditions in the U.S.
The class action and worker pay case
The first case arose Nov. 10, when the justices heard a confused class-action dispute involving computing how much money Tyson Foods workers lost. The firm did not pay 3,300 of them, at its Storm Lake, Iowa, plant for mandatory time spent putting on and taking off protective gear, such as steel aprons, goggles and heavy work boots.
Ordinarily, a company keeps track, by time cards and clocks, of such donning-and-doffing time, which, under labor law and prior High Court rulings, it must pay for as part of the working day. Though the time involved is often only minutes per day, over the course of a year or more, those minutes add up. And when they’re unpaid, lost wages add up, too.
The catch, in Tyson Foods vs. Peg Bouaphakeo et al, is that Tyson didn’t add the minutes up. That led both sides, in lower courts, to duel over calculating how much unpaid time workers missed – and if all 3,300 workers should be in one class action suit against the poultry producer for violating the Fair Labor Standards Act (FLSA). Lower court judges said “yes.”
Tyson’s attorney, Carter Phillips, said “no.” He told the justices that because the 3,300 workers were split into more than 400 different jobs, each with separate amounts of time for putting on and taking off protective gear, the workers are not a class. If the justices agree, that would leave each worker on his or her own, just as the court majority left 1 million woman workers on their own in the Wal-Mart sex discrimination case several years ago.
Justice Ruth Bader Ginsburg promptly challenged Phillips’ claim. “As far as I understand this, there was some donning and doffing that was common… some sanitation and protective gear they all had to wear. And then there was a difference between the knife wielders and the others, but they weren’t all that different,” she said. “In one case, one wore mesh aprons and in the other case, rubber aprons. It didn’t seem to be that wide disparity” between the various workers’ time in putting on and taking off the protective gear, Ginsburg added.
Phillips basically ducked her question, even though other justices, with variations, repeated it.
David Frederick, the attorney for the workers, pointed out that Tyson already forced all 3,300 to toil huge amounts of overtime – which FLSA also governs-even before it did not count the time the workers spent on putting on and taking off the protective gear.
“The evidence at trial…by Tyson’s own witnesses was the average worker worked 48 hours per week before you even go to any of the counting of the donning and doffing, and that the plant ran on Saturdays 60 percent of the time, which would be a six-day workweek,” Frederick told Chief Justice John Roberts.
“And so the evidence, as the jury considered it, found that the vast majority of the class members were already going to be in overtime status, and that’s why the fulcrum of this case came down to whether putting on this gear, which was standard sanitary gear for every worker in the class, was compensable (payable) or not,” he said.
In short, Frederick said, all the Tyson’s workers should be kept together as a class, because they all got shorted pay for donning and doffing protective gear, regardless of how that’s computed, or how much pay each individual worker lost.
The AFL-CIO, Chicago-based pro-worker Interfaith Worker Justice and the National Employment Law Project filed friend-of-the-court briefs supporting the Tyson workers. The IWJ-NELP brief told the justices that letting Tyson get away with its argument would reward employers for breaking the law by not keeping accurate records of time their workers toiled.
The federation said the case is important to all workers covered by the Fair Labor Standards Act – the wage and overtime law – who are forced to sue when they don’t get paid.
“The employer cannot be heard to complain that the damages lack the exactness and precision of measurement that would be possible had he kept records in accordance with the requirements” of the law, Interfaith and NELP said, citing a prior Supreme Court ruling. “To not permit cases to proceed absent exact evidence of damages would reward ‘an employer’s failure to keep proper records in conformity with his statutory duty.'”
“Tyson’s argument is not actually about certification of the class, but about the quality of the evidence at trial concerning hours worked,” the AFL-CIO brief said. “Viewed from the perspective of the trial judge deciding to certify a class, the common questions” – about lack of pay for donning and doffing – “predominated because the individual questions did not require wholly individualized proof and could have been efficiently tried in a number of ways.”
The Friedrichs agency fee case
Both sides and their supporters have now filed briefs in the most-important workers’ case of the session, Friedrichs vs. California Teachers Association. The justices have yet to set an argument date for it.
Nine anti-worker California teachers, funded and represented by the radical right so-called National Right to Work Committee, challenged a California law – and a 1977 U.S. Supreme Court ruling – saying that any public worker an union represents, whether the worker is a member or not, can be charged for basic services the union provides, such as contract negotiations and grievances and arbitrations.
In 2014, the five-man GOP-named court majority, in the Quinn case from Illinois, said workers with “dual employers” – namely home health care workers hired by families but paid by states with Medicaid money – did not have to pay such “fair share” agency fees, because they aren’t really public workers. In that ruling, Justice Samuel Alito literally invited a challenge to the wider 1977 Abood decision that covers all public workers’ agency fees.
The nine dissident teachers challenged the California law that implements that agency fee principle. They argue that ordering them to pay such “fair share fees” – which are less than union dues – violates their 1st Amendment free speech rights.
If the justices rule for the anti-worker group and its puppets, they would automatically turn every state and local government, from local school boards on up, into so-called “right to work” zones.
Doing so would deprive unions that represent the workers of needed money to do so, while leaving the unions stuck with the responsibility and costs for defending and bargaining for such “free riders,” unions defending the agency fee requirement argue.
AFSCME, the Service Employees, both teachers unions, the Fire Fighters, the Communications Workers and other unions with public workers would lose millions of dollars in revenue, crippling them. Depriving unions of money, thus killing them, is RTW’s goal.
Arguing for the fair share fees, the California Teachers Association and the American Association of University Professors concentrated on how a negative ruling would upset a careful balance between state interests and worker interests that the court and laws created.
And they discussed the impact not just on the unions, but on the school kids – and the harm to the dissident teachers themselves.
“Whether public employees should be allowed to avoid paying for the representation state law requires unions to provide them is a question debated in the political sphere for many years,” the two unions and their allies said. The RTW group and its recruits ask the justices “to end that debate by imposing petitioners’ preferred position as a matter of constitutional law.
“To do so, this court must overrule longstanding precedent that extends substantial protections to employees who may disagree with some union positions on political matters,
while at the same time respecting states’ authority to accommodate their own compelling interest in efficient management of their institutions and the competing 1st Amendment interests of unions and their members,” the California Teachers and AAUP said.
They pointed out that fair share fees cover much more than just “a handful of controversial issues.” They also “fund a wide range of other activities that promote the state’s compelling interest in providing students a high-quality education and directly benefit nonmembers like petitioners.”
Those include education reforms hammered out in collective bargaining, teacher training, “union participation on school health and safety committees that identify school hazards, design student health programs and help plan for emergencies.
Non-members may not always agree with the union, especially on politics, but “they cannot claim they disagree with everything” the union advocates (their emphasis) or “deny they benefit from union activities” to improve pay, working conditions, school safety and bargaining and grievances.
“Providing a constitutional right to a free ride will be far more disruptive to state educational systems than” Friedrichs and her sponsors “are willing to acknowledge. With reduced funds, unions will have fewer resources to devote to implementing school reform measures, participating in health and safety committees, or other collaborative projects.”
Friedrichs and the RTW crowd suggest unions could make up the difference by signing up the “free riders,” the California Teachers Association and AAUP said. Noting what happened in RTW states, that idea harms states’ interests in “collaborative working relationships” with teachers to improve schools, and makes relations nastier, the two retort.
By contrast, in non-RTW states, the union must go to bat for everyone – member or not-in both bargaining and defending members, their brief notes. “In exclusive bargaining states, a union’s ability to negotiate on behalf of its own members is conditioned on the union’s accepting the obligation to speak on behalf of nonmembers as well, a form of compelled speech that implicates core associational rights…It is difficult to see how this basic framework would survive” if the RTW committee’s view “were to prevail,” their brief dryly says
In a friend-of-the-court brief siding with the teachers unions, the Fire Fighters pointed out that contracts and laws that let them collect fair share fees also pay for bargaining for adequate fire department staffing, better health and safety programs for Fire Fighters and their communities and other advances that prevent fires, or help contain them when they start.
IAFF also told the justices that fair share fees are constitutional, directly countering the RTW’s 1st Amendment argument.
“IAFF locals in fair share states are better able to secure adequate staffing levels, which protect all employees, because they can properly fund bargaining efforts,” the union said. In
one example, “Local 42 in Kansas City, Mo., which also collects fair share fees from non-members, negotiated a collective bargaining agreement providing that fire apparatus shall be staffed in compliance with NFPA standards” of how many Fire Fighters must be on each run.
Aiming squarely at the GOP-named justices – who tossed out the fair share fees in the Illinois case – and at swing Justice Anthony Kennedy, who provided the vital fifth vote then, the IAFF quoted both in explaining the constitutional justification for upholding the fair share fees.
“The court has repeatedly reaffirmed and refined the bedrock 1st Amendment principles” set forth in the Abood case, which started in Detroit decades ago, IAFF said.
“Justice Scalia, in an opinion joined by Justice Kennedy in all but one part, aptly describes the rationale underpinning Abood, which still is true today: ‘Where the state imposes upon the union a duty to deliver services, it may permit the union to demand reimbursement for them; or, looked at from the other end, where the state creates in the non-members a legal entitlement from the union, it may compel them to pay the cost.”
Those principles are consistent with the 1st Amendment, IAFF said.
“As further explained in Justice Scalia’s opinion, ‘What is distinctive, however, about the free riders who are non-union members of the union’s own bargaining unit is that in some respects they are free riders whom the law requires the union to carry – indeed, requires the union to go out of its way to benefit, even at the expense of its other interests.’ The interests in promoting labor peace and in preventing free riders are still compelling four decades later.”
The whistleblower case
The justices will hear arguments on Nov. 30 on USPS whistleblower Marvin Green’s case. Green, who is African-American, says he was “constructively discharged” – in essence forced to quit, which is illegal under labor law – after he filed a whistleblower complaint in 2009.
His complaint arose out of a racial job discrimination claim after he sought a supervisory post in Englewood, Colo. He was turned down, because, he told federal equal employment officials, of his race. USPS later suspended Green for allegedly delaying the mail – a false charge – and the harassment and pressure forced him to quit.
The court must decide how long a whistleblower such as Green has to sue. The Postal Service argues that whistleblowers have 45 days to sue from the time the agency committed the offense – if it did. Green says the time starts from the day he was forced to quit.
“Just as a claim for wrongful termination cannot be brought before an employee has been fired, a claim for constructive discharge cannot be brought until an employee has quit,” his lawyer’s brief says. “Prior to an employee’s resignation no cause of action exists, and any suit brought before resignation will fail to state a claim.”
Green’s case involving a time limit is similar to that more than a decade ago when the five-man GOP-named majority ruled against Lilly Ledbetter in a sexual pay discrimination case. The justices then said she had 180 days the law allows to sue, but that’s 180 days from when her firm, a tire company, broke the anti-discrimination law – 20 years before.
The court majority threw her case out, over the impassioned dissent of Justice Ginsburg. But Congress later passed, and President Obama signed, the Lilly Ledbetter Act, reversing the court and saying any worker could sue within 180 days of learning of past discrimination.
The affirmative action case
In a rerun of a case, the justices thought they had decided several years ago, a woman is again suing the University of Texas, arguing that its “affirmative action” plan discriminates against whites. The court will hear that case on Dec. 9.
The justices said then that Texas’ prior plan discriminated against Amy Fisher and told the university to try again. It did, but Fisher says the university’s new plan is still “affirmative action” and still discriminates.
The two teachers unions, the AFL-CIO and AFSCME – along with many other organizations and individuals, plus private and public colleges and universities – side with the University of Texas. So does the Obama administration.
Fisher and her allies want to toss out affirmative action and substitute a plan where Texas, and any other university, must accept a guaranteed set percentage of graduating seniors from each state high school. They say that would be race-neutral.
The unions reply that it would be negative.
“Racially diverse classrooms produce long-range benefits because they break the cycle of segregation in neighborhoods, schools, social networks, and occupations. Equally to the point, they demonstrate that by closing the door on racial diversity in schools, we open the door to further racial prejudice and discrimination by perpetuating the racial isolation that breeds such prejudice and discrimination,” their brief says.
“Such percentage plans at the higher education level depend entirely on the existence of segregated high schools, which in turn is bottomed on continued residential segregation,” the unions’ brief responds. “Vestiges of de jure residential segregation by race remain today, intertwined with the country’s economic and social life. It is race consciousness, not blindness to race, that drives such plans.”
Photo: The Roberts Court, October 2010 Back row (left to right): Sonia Sotomayor, Stephen G. Breyer, Samuel A. Alito, and Elena Kagan. Front row (left to right): Clarence Thomas, Antonin Scalia, Chief Justice John Roberts, Anthony Kennedy, and Ruth Bader Ginsburg, by Steve Petteway, Collection of the Supreme Court of the United States – The Oyez Project. Licensed under Public Domain via Commons.