Trump’s Justice Department Is Trying to Turn Back the Clock on Workers’ Rights 100 Years

Moshe Z. Marvit October 4, 2017

U.S. Supreme Court Justice Judge Neil Gorsuch speaks as President Donald Trump looks on during a ceremony in the Rose Garden at the White House April 10, 2017 in Washington, DC. (Photo by Eric Thayer/Getty Images)

On Mon­day, the Supreme Court heard oral argu­ments in a trio of cas­es, cap­tioned as NLRB v. Mur­phy Oil, that exam­ined whether man­age­ment com­mits an unfair labor prac­tice when it requires employ­ees to sign arbi­tra­tion agree­ments that waive their right to wage class-action law­suits. The ques­tion of whether an employ­ee can give up her right to act in con­cert with oth­er work­ers may seem tech­ni­cal, but it impli­cates the very core of col­lec­tive action. 

Dur­ing the hear­ing, Trump’s Depart­ment of Jus­tice clear­ly sided with employ­ers, who are call­ing for sig­nif­i­cant cut­backs to work­ers’ rights to take col­lec­tive action.

The sig­nif­i­cance of this case was evi­dent through­out the oral argu­ments. On one side the Nation­al Labor Rela­tions Board (NLRB) and a Uni­ver­si­ty of Vir­ginia Law Pro­fes­sor argued that the issue impli­cates the basic employ­ment rights of tens of mil­lions of U.S. work­ers. On the oth­er side, the Prin­ci­pal Deputy U.S. Solic­i­tor Jeff Wall (“Solic­i­tor”) and an attor­ney for the com­pa­nies argued that these are tech­ni­cal issues relat­ed to con­tract and civ­il procedure.

The case revolves around a key ques­tion: Do forced arbi­tra­tion agree­ments that ban col­lec­tive or class legal actions vio­late Sec­tion 7 of the Nation­al Labor Rela­tions Act (NLRA)? That sec­tion per­mits employ­ees to engage in oth­er con­cert­ed activ­i­ties for the pur­pose of col­lec­tive bar­gain­ing or oth­er mutu­al aid or protection.”

The employ­ers’ and Solicitor’s posi­tion is that Sec­tion 7 only pro­tects work­ers’ rights to get to the cour­t­house door.” Accord­ing to the line of rea­son­ing this side pre­sent­ed in the court­room, the NLRA gives work­ers the right to act togeth­er at work, but the moment their work­place con­cerns get to a legal forum, they have no right to con­tin­ue togeth­er. Once they enter the court­room or arbitrator’s cham­bers, the argu­ment went, all par­ties must abide by the rules of the forum, be it the NLRB, the fed­er­al courts or the arbi­tra­tor. They argued that this prin­ci­ple applies even if those rules require work­ers to pro­ceed individually.

The prob­lem, of course, is that there is a long his­to­ry of employ­ers using forced con­tracts to require employ­ees to waive their rights as a con­di­tion of employment.

Jus­tice Ruth Bad­er Gins­burg invoked this his­to­ry when she asked the attor­ney for the employ­ers whether forced arbi­tra­tion agree­ments are sim­ply yel­low dog” con­tracts by anoth­er name. This was a ref­er­ence to con­tracts where employ­ees agree not to join a union as a con­di­tion of employ­ment. (“Yel­low dog” con­tracts were made ille­gal in the 1932 Nor­ris LaGuardia Act.)

Jus­tice Stephen Brey­er put an even fin­er point on the mat­ter when he expressed his con­cern that the employ­ers’ posi­tion is over­turn­ing labor law that goes back to, for [Franklin D. Roo­sevelt] at least, the entire heart of the New Deal.”

Nonethe­less, the argu­ments of the man­age­ment-side attor­neys appeared to gain trac­tion with con­ser­v­a­tive Jus­tices. This iss despite the fact that the employ­ers’ side con­sis­tent­ly failed to address a key prob­lem: the rules of the forum that they said every­one has to fol­low are not made by some neu­tral third par­ty. They are writ­ten by the employ­er, who then makes par­tic­i­pa­tion in the forum a con­di­tion of employ­ment for the employ­ee to sign the agree­ment. Research shows that almost 25 mil­lion non-union work­ers have been forced to sign such arbi­tra­tion agreements.

Yet, some Jus­tices bought the man­age­ment-side argu­ment. At one point, Jus­tice Antho­ny Kennedy, who seemed to be the swing vote in this case, insist­ed that work­ers can still engage in col­lec­tive action because they can sim­ply go to the same attor­ney and ask her to rep­re­sent them each individually.

Pre­sum­ably, Jus­tice Kennedy did not intend to imply that the attor­ney could share the details of each of the cas­es with each work­er, because that would vio­late the con­fi­den­tial­i­ty clause in many of these agree­ments. And pre­sum­ably, he did not mean that the attor­ney could share con­fi­den­tial infor­ma­tion, because then there would be no attor­ney-client priv­i­lege protection.

The employ­ers’ coun­sel agreed with Jus­tice Kennedy, and said that even though the con­fi­den­tial­i­ty clause would pro­hib­it the attor­ney from shar­ing infor­ma­tion among the work­ers, it couldn’t stop the same lawyer from think­ing about the three cas­es in con­junc­tion.” In Jus­tice Kennedy’s words, that is col­lec­tive action.”

In real­i­ty, forced arbi­tra­tion agree­ments that pro­hib­it class or col­lec­tive action have grown expo­nen­tial­ly in recent years through a tac­ti­cal deci­sion by cor­po­ra­tions to strip Amer­i­cans of their rights to lit­i­gate their claims togeth­er. The NLRB respond­ed in 2012 to the grow­ing use of these forced arbi­tra­tion agree­ments by find­ing that these agree­ments vio­late fed­er­al labor law.

The lib­er­al Jus­tices repeat­ed­ly demon­strat­ed that this case is not about neu­tral rules of a forum, or tech­ni­cal issues of civ­il pro­ce­dure, but about basic con­cepts of power.

Jus­tice Gins­burg asked the Solic­i­tor, What about the real­i­ty? I think we have in one of these cas­es, in Ernst & Young, the indi­vid­ual claim is $1,800. To pro­ceed alone in the arbi­tral forum will cost much more than any poten­tial recov­ery for one. That’s why this is tru­ly a sit­u­a­tion where there is strength in num­bers, and that was the core idea of the NLRA. There is strength in num­bers. We have to pro­tect the indi­vid­ual work­er from being in a sit­u­a­tion where he can’t pro­tect his rights.”

Jus­tice Gins­burg was mak­ing the point that if work­ers can­not bring class or col­lec­tive actions, many who have low-dol­lar claims will be denied jus­tice because it would be more expen­sive to bring their cas­es than they could pos­si­bly win.

The Solicitor’s response was telling. He claimed that the dif­fer­ent arbi­tra­tion agree­ments have dif­fer­ent claus­es, which deal with issues of costs and fees. In essence, he insist­ed, the con­tract takes care of those con­cerns. And, in the final analy­sis, the employ­ers’ attor­ney and Solic­i­tor explained that the con­tract — even if it is a forced con­tract — should trump any pos­si­ble rights work­ers may have to bring their actions collectively.

In a sense, this posi­tion answered Jus­tice Breyer’s ini­tial ques­tion: Yes, this case does bring us back to a pre-New Deal frame­work, and the employ­ers and Trump admin­is­tra­tion are com­fort­able with that.

This case is poised to have a far-reach­ing impact. When the Supreme Court struck down a Cal­i­for­nia law pro­hibit­ing con­sumer arbi­tra­tion agree­ments that waive con­sumers’ rights to file a class action, such arbi­tra­tion agree­ments bal­looned. If the Court sim­i­lar­ly holds that work­ers do not have a sub­stan­tive right under the NLRA to vin­di­cate their labor and employ­ment rights col­lec­tive­ly, then it is like­ly that soon almost every non-union work­er will face even more lim­i­ta­tions to real justice. 

Moshe Z. Mar­vit is an attor­ney and fel­low with The Cen­tu­ry Foun­da­tion and the co-author (with Richard Kahlen­berg) of the book Why Labor Orga­niz­ing Should be a Civ­il Right.

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