Will the Supreme Court fundamentally alter the laws governing labor unions and collective bargaining? A Q&A with Benjamin Sachs

							HLS Professor Benjamin Sachs					For nearly a decade, the Supreme Court had little to say on labor law. But in the past couple of years, the Court has taken on more involvement in labor cases, and this term it agreed to hear two major cases aimed at the very heart of both private and public sector unions. The first, Unite Here Local 355 v. Mulhall, presented the question whether employers and unions violate the law when they sign an agreement in which the employer promises not to interfere with a unionization drive. After agreeing to hear the case, the Court dismissed it as improvidently granted, a rare move usually reserved for just two or three cases a year. In the second matter, Harris v. Quinn, the Court has been asked to consider whether, consistent with the First Amendment, public sector collective bargaining agreements can require employees to pay fees to cover the union’s representational services. The Court heard oral arguments in the case on Jan. 21. Harvard Law School Professor Benjamin Sachs, a labor law specialist who focuses on unions in politics, sat down with a reporter for the HLS News office to reflect on the Court’s major moves and the state of labor law today.

In November, you told The New York Times that Mulhall was “the most significant labor case in a generation,” in part because it would limit unions’ ability to use private organizing agreements to organize campaigns. But why do unions need to rely on private deals in the first place?

The traditional rules for union organizing, established through the National Labor Relations Act (NLRA) and policed by the National Labor Relations Board (NLRB), are ineffectual. They do not enable workers to make a genuinely free choice about whether or not they want a union, and so organizing through the traditional NLRB process has become essentially impossible today.

Why?

The public rules of union organizing do not sufficiently protect workers against interference by employers when they’re debating and deciding the question of unionization. As a result, unions have begun to negotiate alternative organizing ground rules with employers. In the private sector today, the only viable way to organize new unions is through such privately-negotiated alternatives to the NLRB process.

Mulhall was a challenge to those private organizing agreements. It was based on a theory, which no one took seriously until now, that organizing agreements constitute bribes – illegal “things of value” – granted by employers to unions. If the respondents’ theory had prevailed, privately-negotiated organizing agreements would have become felonies, thereby closing the only open door to union organizing that’s available to workers in the private sector.

If this was so important, why did the Court dismiss the case as improvidently granted?

There was a host of problems with the case, which Jack Goldsmith pointed out on our blog. There’s probably no private right of action under the part of the statute that was used to challenge the agreements. There was a mootness problem. There was a standing problem. There was a very severe Iqbal [Ashcroft, Former Attorney General, et al v. Iqbal, et al] problem. Putting all these things together, it was a little confounding why the Court had taken this case in the first place.

Mulhall involved § 302 of the Labor-Management Relations Act, which is aimed at preventing agreements that could corrupt a union. But why is that a concern if the unions are the ones proposing these agreements in the first place?

The classic thing that § 302 is supposed to prohibit, and it’s an important thing to prohibit, is an employer handing a union official a brown paper bag with $10,000 in cash so that the union official will put her own personal interests ahead of the interest of the workers. When the thing that’s being given by the employer is organizing rights, it’s very hard to understand how that could have this kind of corrupting effect: organizing rights aren’t of personal use to the union official, they are only facilitative of the union’s statutory function of organizing workers. So, the grant of organizing rights in itself is not a corrupt act.

The Court heard oral arguments in its second labor case for the term, Harris v. Quinn, on Jan. 21. How important is that case?

The issues raised in the case are central to the future of public sector unionism. The question that’s presented is whether it’s constitutional in the public sector for an employer, that is the government, and a union to have a clause in a collective bargaining agreement that requires workers covered by the collective bargaining agreement to pay a fee to the union for the representational services that the union provides.

Although they didn’t raise the issue below, the petitioners have expanded their claim and are now arguing not just that mandatory fees are unconstitutional, but that exclusive representation is itself unconstitutional.

What is exclusive representation?

All of U.S. labor law is based on the principle of exclusive representation. If a majority of the workers in any given bargaining unit decide that they want to be unionized, all the workers in the unit are then covered by the collective bargaining agreement and represented by the union. So if you have 100 workers in a unit and 65 want the union, all 100 are covered. The challenge in Harris v. Quinn was originally: can everyone in the unit who gets the union’s representation be required to pay for it? The Petitioners have now expanded that challenge to: is it even constitutional to include all 100 workers in the bargaining unit?

The principle of exclusive representation means that everyone in the unit is covered by the union, but it also means the union has a statutory obligation to represent everyone in the union equally. Fair share provisions – like the one at issue in Harris – establish that everyone who gets the union’s representational services has to pay for them. It creates mutuality.

If the Court rules that these fair share provisions are unconstitutional, will that be a death knell for public sector unions?

It would mean that unions will still be obligated to represent everybody, but no one will be obligated to pay dues. We have that set-up in the private sector in right-to-work states. Does that destroy unions? Not exactly. It means unions have to figure out a different way of collecting dues and it sets up a profound free rider problem. The union has to provide this collective good, but no one has to pay for it.

If the Court went so far as to say that exclusive representation is unconstitutional, that would change the situation even more dramatically. It wouldn’t make unions illegal, but it would set up what we call a “members only” or a “minority union” context, which means that if the union is supported by 65 percent of the bargaining unit, it would represent only 65 percent of the workers. It by definition dilutes the union’s bargaining power and sets up a possibility of conflicting unions.

What did you think of the oral arguments in this case?

There was a good, careful analysis of relevant lines of doctrine. Justice Scalia seemed to be paying close attention to the Court’s public employee speech cases and noting that the strength of First Amendment claims varies with context. In the context of public employment, the Court gives states significant deference to decide how to act as an employer and employees’ speech rights become circumscribed in that context. That’s what we have in Harris v. Quinn.

There is a third labor-related case this term that has received a lot more attention than the others — NLRB v. Noel Canning, which involves a constitutional question concerning the presidential power to make recess appointments. Even though the case is about presidential power, could it affect labor?

The NLRB has been for decades a very politicized agency. It has a full complement of members now, but going forward, if the president can’t make recess appointments, the Board would be a natural place to worry about any president ever being able to fill seats. Noel Canning is not a labor law case, but it’s a case with obvious labor law implications.

You mentioned earlier that you’ve been following these cases closely on your blog, On Labor, which you run with Henry L. Shattuck Professor of Law Jack Goldsmith. What led the two of you to start it?

There’s a great deal going on in labor law today, with unions in general and unions in politics more particularly. But there wasn’t a blog out there that covered the kinds of legal and political developments that seemed important to Jack and me, and so we tried to fill that gap.  I’ve had to learn a lot, but it’s been a terrific experience.  We started OnLabor in the middle of last summer and we’ve developed a strong readership base among labor lawyers, academics, and those interested in labor policy more generally.

We also have 15 students working as contributors to the blog. Students do a daily news and commentary post, which summarizes the most relevant stories about labor – something that has itself become an important resource.  But students also do a substantive post each per month. This adds important content to the blog – some of our most popular pieces have been written by students – and it also makes the blog an interesting pedagogical vehicle.

Last year, you won the Sacks-Freund Award for Teaching Excellence. How did you get students involved in the blog, and what makes it a good teaching tool?

There’s a lot of interest in labor and the future of labor among the student body. The blog gives students a chance to do a kind of writing they otherwise wouldn’t get to do in law school: pieces that analyze current legal developments and that speak, quite immediately, to a real-world audience. Labor law, contrary a prevailing view, is dynamic and very much alive today. The blog gives students a way to apply the analytical tools they’re developing in law school to current developments in the field.

What other research are you working on now?

I just published an article called “The Unbundled Union: Politics Without Collective Bargaining” (123 Yale L. J. 148 (2013)) The Unbundled Union looks at the ways in which unions can serve as a tool for political equality and explores some novel legal reforms that would enable unions to better serve as a political voice for the poor and middle class.  Right now I’m working on a project with Daryl Levinson about political entrenchment, and we’re examining the ways in which political parties and incumbents use substantive law to entrench themselves in power.  One of the key examples is labor law.