As Unions Fall, Lawsuits Rise

Lawrence Joseph

Wave after wave of deregulation has resulted in a substantial increase in individual and class action lawsuits.

Thomas Geoghegan admits he’s biased. 

The labor lawyer writes in the opening pages of his fourth book, See You in Court: How the Right Made America a Lawsuit Nation (New Press, 2007), that his background colors his observations about labor and the labor movement. 

A 1975 graduate of Harvard Law School, Geoghegan has practiced labor law, mostly in Chicago, for more than 30 years, representing unions and employee groups in civil rights, labor and pension cases. He has helped bring lawsuits on behalf of workers defrauded of pensions and of union rank-and-file groups seeking union democracy, as well as filed public interest suits to enforce child labor laws and to stop the spread of tuberculosis among the homeless.

Geoghegan’s style captures the colloquial sharpness once found in the writings of the expert pamphleteer, using facts – what he sees on his street – as his vantage point for political, moral and legal insights. He writes out of the tradition of Chicago activists, such as Jane Addams, Saul Alinsky, Clarence Darrow, Studs Terkel and Richard Wright. 

Geoghegan is the most important writer of our time in one of the left’s most important – if not the most important – social traditions.

Geoghegan centers See You in Court around the fundamental and unfair fact that the bottom 40 percent of American families receives less than 14 percent of all national income (a percentage that continues to worsen). It has become harder, Geoghegan says, to use a term like us” to describe us as a country. In no other developed country, at no other time in history,” Geoghegan writes, has there ever been such a steady increase in inequality as there has been in the United States.”

The sense of futility experienced by those at the median income and below has become so destabilizing that it has eroded belief in the rule of law: If we do not expect the world to be reasonable and fair,” writes Geoghegan, then sooner or later we do not demand or expect those qualities from law, either.”

The result is that fewer people participate in social or political citizenship. The legal system is something they feel they haven’t consented to, something alien.

Labor lawyer that he is, Geoghegan returns us to the Wagner Act of 1935 – the original federal legislation that provides employees with the right to join unions and to bargain collectively. The economic rationale for the Wagner Act was that men and women who work for wages are, as individuals, in an inherently unequal bargaining position to negotiate for wages, hours and conditions of employment. 

The act’s social-political objective was to allow wage earners to hold their own – economically and as citizens – against those with wealth and political power who employed them. 

Collective bargaining contracts began containing provisions that a worker could not be fired except for just cause.” Neutral arbitrators could resolve grievances under collective bargaining agreements – kind of a private, contractual due process of law. Remedies included reinstatement and back pay, as well as the understanding that, under a contract, a relationship between the employer and the union would continue. 

Labor theorists have analogized unionized workplace relations to miniature social democracies. Although collectively bargained rights were contractual, they were rights, according to Geoghegan, that felt as if they were constitutional.

When he graduated from law school, Geoghegan did not realize that organized labor had already begun to collapse. In 1958, unions covered 34 percent of private sector employees (maybe more, some labor historians argue). In the North and Midwest (where the core of the economy was at the time) the percentage was as high as 60 percent. Now, unions cover only 7 percent to 8 percent of the private sector. 

What happened? Geoghegan explains that although employees had a right to organize under the Wagner Act, the act contained no sanctions against employers who fired labor organizers. In 1947, when the Republican-driven Taft-Hartley Act curbed labor’s power to hit back through wildcat strikes, secondary boycotts of neutral employers and mass picketing, the act’s weakness began to matter. 

During the 50s and 60s, when employers moved into the non-unionized South and West, unions found it was hard to rely on the Wagner Act to organize. Even when many employers openly – and illegally – threatened or fired pro-union workers, employers weren’t fined. While an employer could go to court when unions tried to strike, the workers themselves had no right to go to court. 

By the early 80s, Geoghegan notes, employers were firing at least one in 20 workers in the course of every contested organizing campaign. Worse, the Republican Party’s planned political destruction of social expectations embodied in New Deal-type laws exacerbated the paralyzing effect of these illegal threats and firings. 

The labor-centric social democracy that Geoghegan once envisioned has turned into a government autocracy that, for almost 30 years, has privatized the common wealth in favor of corporatist interests.

The 92 percent to 93 percent of private sector employees who work without a union contract, labor under a rule of law known as employment at will,” which means that a worker can be fired for any reason at any time, with no warning. Not surprisingly, after unions began to collapse, workers started flooding the courts with civil rights-related claims, analogous to claims in tort.

In See You in Court, Geoghegan writes that when a non-union worker comes to him and says that he or she has been fired, he runs through a not-so-short list of possible legal action to pursue: the 1878 Civil Rights Act, the 1964 Civil Rights Act (as amended in 1991), the 1967 Age Discrimination in Employment Act, the 1974 Employee Retirement and Income Security Act, the 1988 Worker Adjustment and Retraining Notification Act, the 1990 Americans with Disabilities Act and the 1993 Family and Medical Leave Act. Unlike the Wagner Act, these provide protection for individuals as members of a particular group or on the basis of a specified protected trait – not as workers. 

At the same time, hospitals and doctors are suing patients far more than their patients sue them. Some law firms exist solely to chase after patients – not only to collect bills, but also to garnish wages, legally attach bank accounts and, if need be, to press a patient into bankruptcy. 

Wave after political wave of deregulation resulted in a substantial increase in individual and class action lawsuits. Geoghegan tells us of a friend, a judge in collection court, who every day sits on the bench and goes through a morning’s call of 1,000 to 1,500 cases. Credit card companies, hospitals and banks sell their collection cases in bulk to assignees, who then come into his court to track down people, put a levy on their bank accounts and garnish their wages. Litigation costs have skyrocketed because of the creative ways that defense lawyers spend money on themselves.

Geoghegan does not see a solution to the problem in the courts. He writes that two legal cultures are presently represented on the U.S. Supreme Court – moderate right (Justice David Souter) versus extreme right (Justice Antonin Scalia).” 

The political, ideological center of the New Right” is the Federalist Society, founded in 1982, whose members have dictated appointments to the federal bench during five Republican administrations. The New Right believes that a government that socializes wealth for wage-earning people is illegitimate. Members or supporters of the Federalist Society openly twit lawyers like Geoghegan: If we bring up the Declaration of Independence, they say: Oh, these truths are self-evident? Well, they aren’t evident to us.’ Bring up the Geneva Convention, and they say: Are we going to let these little countries tell us what to do?’ “

Throughout See You in Court, Geoghegan proposes various strategies to remedy this labyrinth of social destruction:

  • Eliminate legal barriers that prevent union organizing. 
  • Provide workers with appropriate legal remedial means of enforcing the right to join a union, to collectively bargain and to strike. 
  • For those not covered by collective bargaining agreements, eliminate employment-at-will and replace it with a legislatively imposed just-cause requirement for employment termination. 
  • And – a major theme in this indispensable book – increase democracy in every possible way through the legislative branches of our government. That includes allowing for lawsuits on gerrymandering; changing the filibuster in the U.S. Senate; reforming the Electoral College; and eliminating restraints on voter registration. 

In other words, do what’s necessary to rebuild a public sense of democratic process – what used to be called civics.”

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