The Supreme Court and collective action

During its 2015-16 term that began on Monday, the Supreme Court will decide two cases in which it may limit the ability of ordinary people to act cooperatively in exercising their rights by forming a labor union or filing a class-action lawsuit. 

One case—Friedrichs v. California Teachers Association— involves the ability of public employees, in this case, teachers, to secure effective workplace representation by choosing a single union to enter into collective bargaining with their employer and assuring that all workers who benefit from representation cover a fair share of the cost.

{mosads}The other case—Tyson Foods v. Bouaphakeo— involves the ability of individuals to band together in a class-action suit, rather than each acting separately, to seek redress for common injuries, in this case, the denial of overtime pay to meatpackers.

Who crafts the arguments for curbing collective action in an era of widening inequality? In Friedrichs, it is lawyers who have previously appeared before the Supreme Court to ask it to strike down the Affordable Care Act and the Violence Against Women Act. In Tyson Foods, it is corporations such as Dow Chemical, Exxon Mobil, and R.J Reynolds Tobacco that have filed amicus briefs asking the Court to restrict class-action lawsuits.

The Supreme Court has long validated modes of collective action that enable individuals to work together in pursuing aspirations and seeking protection.  In 1937, speaking for the Court in upholding the National Labor Relations Act of 1935, Chief Justice Charles Evans Hughes declared that “union was essential” if working people are “to deal on an equality” with their employer.  In 1980, Chief Justice Warren Burger found that “aggrieved persons may be without any effective redress unless they may employ the class-action device.”

Repeatedly the Court has affirmed these decisions, embedding principles of collection action in constitutional law.  Speaking for the Court in Abood v. Detroit Board of Education in1977, Justice Potter Stewart cited the responsibility of unions, selected by a majority of workers in a bargaining unit, “equitably to represent all employees,” which entails the “expenditure of much time and money.”  Accordingly, a fair-share contribution from all employees may lawfully be required to insure vigorous representation within that system of workplace democracy. 

The Court has also emphasized that class-action suits—which often challenge  discrimination or harms caused by defective products—offer recourse to individuals unable or afraid to exercise their rights alone, either because a potential recovery would be outweighed by the costs of litigation or because of the fear of retaliation.  As Justice Ruth Bader Ginsberg explained in 1997, class-actions permit “vindication of ‘the rights of groups of people who individually would be without effective strength to bring their opponents into court at all.’”

Recently, however, a divided Court has questioned these precedents, chiseling away at the rules supporting cooperative action, weakening the ability of working people to negotiate collectively and restricting access to class-actions.

Last year, a 5-to-4 majority of the Court struck a blow against the efforts of low-wage homecare workers, mainly women of color, more than a million of whom have unionized as public employees during the last decade.  The case, Harris v. Quinn, gutted the fair-share rule in the homecare sector, removing a key element of the system of public sector collective bargaining adopted by legislatures in many states.  According to the Court’s majority, homecare workers are not “full-fledged public employees,” though paid wages by the government under programs such as Medicaid, because they are hired and fired by the clients they serve.  And the majority invited a broader challenge to the fair-share principle, dismissing the logic of Abood as an “anomaly.”

At the same time, the Court has made it more difficult to seek relief for wrongs through class-actions.  In a 2011case involving Wal-Mart, a 5-to-4 majority ruled that more than a million female employees alleging sex discrimination in pay and promotion could not bring a class-action suit.  The Court found no “commonality” in their claims, rejecting statistical evidence of gender disparity in the company’s stores across the country as “Trial by Formula”—a ruling that raises the bar for proving common injury and using class-actions to enforce civil rights.

This term, the Court must determine whether to strike further against the means of collective action available to people with little power, wealth, or other forms of influence.  In Friedrichs, the Court has been asked to nullify the fair-share principle in the public sector—to overturn Abood.  Here the Court must decide whether a mandatory fair-share contribution in return for the benefits of union representation restricts free speech.  In Tyson Foods, it has been asked to deny thousands of employees at an Iowa pork-processing plant the right to proceed as a class in claiming they were denied overtime pay for time spent cleaning and sharpening knives and changing into protective clothing.  Here the Court must decide whether slight variations in withheld wages override the meatpackers’ “commonality,” precluding a class-action.

The Court may not decide the cases until next June. We certainly hope that a Court that has increasingly afforded the rights of persons to the corporation—an instrument of collective action by owners of capital— will proceed no further in eroding the power of real persons to come together in order to make themselves heard.

Becker is general counsel to the AFL-CIO, Greenberg is the executive director of the National Consumers League; and Henderson is the president of the Leadership Conference on Civil and Human Rights and the Joseph L. Rauh, Jr. Professor of Public Interest Law at the David a. Clark School of Law, University of the District of Columbia.