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Symposium: Latest assault against workers by the Supreme Court

Nicole G. Berner is general counsel and Claire Prestel is associate general counsel of the Service Employees International Union. SEIU joined an amicus brief in support of the employees in Epic Systems Corp. v. Lewis.

In recent years it has become increasingly common to hear chatter — even among progressives – that labor unions and worker organizing are obsolete relics of past glories.

Yet anti-worker corporate interests have never lost sight of the fact that workers can wield enormous power when they join together to protect workplace rights. The “Fight for $15 & a Union” campaign, supported by the Service Employees International Union, and the recent wave of teacher activism are only the most recent examples of what workers can accomplish when they act in concert. It is precisely to undermine this power that corporate interests and billionaire-funded extremists rush to pass “right to work” legislation wherever they can and why they have funded an extended battle in the courts to attack unions and divide workers.

The Supreme Court yesterday, in a 5-4 decision, gave another victory to these anti-worker extremists. Under yesterday’s Epic Systems opinion, the Supreme Court majority gave employers the green light to force their employees, as a mandatory condition of employment, to forfeit their decades-old right to join together with co-workers in class or collective actions, or even with just a single co-worker, to pursue claims for stolen wages, sex, race, age, or other discrimination and other workplace claims.

We have seen throughout history that it’s only when workers, particularly low-wage workers, can band together that they are protected from retaliation and are able to meaningfully enforce their rights. The anti-worker extremists know this and the teacher walk-outs in West Virginia and Arizona prove it. Could an individual teacher have succeeded if she or he walked out alone? Certainly not.

No worker should be forced to sign away his or her statutory rights just to have a job. This should not be a controversial position, yet many workers would be shocked to find out what they have been forced to give up when they try to find a lawyer to protect their basic workplace rights.

Certainly the Congress that enacted our federal labor laws — the Norris-LaGuardia Act in 1932 and the National Labor Relations Act in 1935 — would be shocked by today’s result. That Congress knew very well what the Lochner myth of “freedom of contract” really meant: freedom for employers to force employees to work long hours, accept poverty wages and work in dangerously unsafe environments. That’s why Congress enacted Section 2 of the Norris-LaGuardia Act and Section 7 of the National Labor Relations Act, to protect workers’ rights to “engage in … concerted activities” for “mutual aid and protection” and to prohibit “yellow dog contracts,” which are compelled agreements that require workers to forfeit their right, as a condition of employment, to join unions and to engage in other collective action.

But yesterday’s opinion by Justice Neil Gorsuch somehow manages to twist the meaning of these statutory provisions, which were aimed at exactly the kind of employer overreach and false claims of “freedom of contract” that we see today, so that they do not protect “concerted activity” for “mutual aid or protection” that involves a class, collective or even joint action — even though group action to improve workplace conditions comes within the labor laws’ plain language and has existed and has been understood to be protected for decades. The ruling is wrong as a matter of law, and requires Congress to heed Justice Ruth Bader Ginsburg’s call in her passionate and powerful dissent to “urgently” take corrective legislative action.

The majority’s decision demonstrates once again why unions are so vital to our nation’s workforce and to the overall well-being of our democracy. When working people join unions, they cannot be compelled to individualized arbitration, and they have the strength in numbers and collective voice to fight as one against unlawful employer practices and in support of better pay and benefits. Workers who organize have their co-workers by their sides and with that comes the power to ensure fair and equal treatment in the workplace.

Yesterday’s ruling is another assault on working people. When we forget the lessons of the past, we are doomed to repeat our old mistakes. In the 1920s and during the Great Depression we saw what happened when employers could impose “yellow dog contracts” on their workers and prohibit them from exercising strength through common effort. Simply because a lesson was learned long ago doesn’t make it any less true. Collective worker action is as important now as ever, and permitting employers to strip workers of their right to pursue collective action is as wrong as always. We the people know that America Needs Unions. We must now call upon our elected officials to stand with everyday working Americans to reverse the damage of yesterday’s ruling.

Recommended Citation: Nicole G. Berner and Claire Prestel, Symposium: Latest assault against workers by the Supreme Court, SCOTUSblog (May. 22, 2018, 9:40 AM),