Posted on January 23rd, 2009 by Tim Eavenson | No Comments »
Filed under: ., Labor Law | 
The Supreme Court has issued a decision about the rights of non-union employees in unionized jobs.
See, even if a bargaining unit chooses to be represented by a union, individual employees have the right (usually) to not be in the union. But the Court decided long ago that unions can collect “service fees” from these employees to cover the expense of representing them.
Since then, there have been numerous fights over just what service fees can cover. The prevailing rule has been that service fees must be “necessarily or reasonably incurred for the purpose of performing the duties of an exclusive representative…dealing with the employer on labor-management issues.” Ellis v. Railway Clerks, 466 U.S. 435 (1984). In other words, service fees can be collected for negotiating the collective bargaining agreement or otherwise representing the workers with the employer, but they can’t be used for political purposes like fundraising or lobbying to which the workers might be opposed.
In a rare unanimous decision (a unanimous labor case? Is that possible?) the Court held in Locke v. Karass (07-610) that unions can collect service fees that go to the union’s national affiliate to help pay for national litigation.
In the case, Maine state employees argued that using service fees for national union litigation violated their 1st Amendment right of free association by requiring them to fund lawsuits that they didn’t believe were right.
Citing and extensively quoting its prior case law on service fees, the Supreme Court disagreed, saying
[U]nder our precedent the Constitution permits including [national litigation] in the local’s charge to nonmembers as long as (1) the subject matter of the (extra-local) litigation is of a kind that would be chargeable if the litigation were local, e.g. litigation appropriately related to collective bargaining rather than political activities, and (2) the litigation charge is reciprocal in nature, i.e., the contributing local reasonably expects other locals to contribute similarly to the national’s resources used for costs of similar litigation on behalf of the contributing local if and when it takes place.
Other than showing a textbook-worthy example of the difference between e.g. and i.e. (it would behoove most lawyers to pay attention to just that), the reasoning stands up for the most part. I will admit, I was skeptical of the union’s chances up until I read the opinion. But this makes sense: if the litigation advances the interests of the employee (part 1) and isn’t unfairly weighted against the local, such that other unions are receiving a greater benefit from the pooling (part 2), then paying for national litigation actually fits straight into the acceptable line of charges delineated by the Court’s prior rulings.
Indeed, the Court pointed out that in Ellis, which set the standard for what was or was not chargeable, it approved the union’s charge to cover the expense of a national convention. It said:
We can find no sound basis for holding that national social activities, national convention activities, and activities involvedin producing the nonpolitical portions of national union publications all are chargeable but national litigation activities are not.
This language is a suprising, stark statement from a unanimous Supreme Court.
Usually 9-0 decisions are either easy or vague. Chalk this one up to the first column, I guess.
Posted on July 26th, 2008 by Tim Eavenson | 1 Comment »
Filed under: HR Issues |
In case you haven’t heard, the Immigration and Customs Enforcement (ICE) section of the Department of Homeland Security (yeah, that’s where immigration is now) raided Agriprocessors – a Kosher meatpacking plant in Iowa, and arrested over 300 of its employees. That’s over 1/3 of Agriprocessor’s workforce and over 10% of the entire population of Postville, where the plant is located.
This raid marks a shift in enforcement policy for immigration. Usually, when illegal immigrants are caught, they are subject to civil penalties or deportation. But these workers are faring much worse. They are being prosecuted and sentenced in federal court. Over four days, 270 of those arrested were each sentenced to five months in prison and 27 more received probation after pleading guilty to the use of false immigration documents.
A lot of immigration attorneys are up in arms – calling the prosecutions unconstitutional. From the NY Times:
The unusually swift proceedings, in which 297 immigrants pleaded guilty and were sentenced in four days, were criticized by criminal defense lawyers, who warned of violations of due process. In addition to 260 immigrants sentenced to five months for using false documents, two immigrants were sentenced to one year for that crime and another eight were sentenced to prison for a separate crime, while twenty-seven immigrants received probation. The American Immigration Lawyers Association protested that the workers had been denied meetings with immigration lawyers and that their claims under immigration law had been swept aside in unusual and speedy plea agreements.
The illegal immigrants, most from Guatemala, filed into the courtrooms in groups of 10, their hands and feet shackled. One by one, they entered guilty pleas through a Spanish interpreter, admitting they had taken jobs using fraudulent Social Security cards or immigration documents. Moments later, they moved to another courtroom for sentencing.
The pleas were part of a deal worked out with prosecutors to avoid even more serious charges. Most immigrants agreed to immediate deportation after they serve five months in prison.
The immigration advocates took their case to the hill today. In a hearing before the Judiciary Committee, attorneys and others noted the speed and language barriers as being obvious warning signs for constitutional violations. From Jurist:
During the Committee hearing Thursday, American Immigration Lawyers Association (AILA) [advocacy website] vice-president David Wolfe Leopold reiterated the group’s previous criticism [letter, PDF] of the convictions process, saying [testimony, PDF]:
“A prosecutor’s professional, moral, and ethical duty is to do justice, not merely to convict. This cardinal principal was ignored by the government in its zeal to criminalize undocumented workers. In essence, the expedited justice or “Fast Tracking” system concocted by the government, with the willing assistance of the US District Court for the Northern District of Iowa, was a conviction / deportation assembly line which could not be burdened with protecting the fundamental rights of the defendants, mostly poor uneducated Guatemalan farmers.”Interpreter Erik Camayd-Freixas also criticized the system [testimony, PDF], saying that the immigrants were unable to understand their rights, the charges against them, or the plea bargains to which many finally agreed. The Washington Post has more.
Representatives from both the Department of Justice (DOJ) and ICE [testimony transcripts, PDF] defended the government’s arrest and conviction processes, saying that the immigrants’ constitutional rights were strictly applied. In general, US immigration prosecutions continued to increase in March 2008, jumping nearly 50 percent from the previous month and nearly 75 percent from the previous year, according to a report [text; press release] released by the Transactional Records Access Clearinghouse (TRAC) [official website] at Syracuse University. Federal immigration prosecutions have risen since February [JURIST report], when such prosecutions hit a record high. TRAC attributed the increase to Operation Streamline [Washington Post backgrounder], a joint federal program under which federal prosecutors levy minor charges against illegal immigrants crossing the US-Mexico border.
Posted on April 17th, 2008 by Tim Eavenson | No Comments »
Filed under: Uncategorized |
In a closely-watched case, the Third Circuit Court of Appeals has ruled that a New Jersey high school football coach violated the Constitution by initiating and participating in student-initiated pre-game prayers.
Marcus Borden, East Brunswick High School’s football coach for 23 years, sued the school after the superintendent informed him that his actions during grace at the pre-game dinner and conducting a pre-game “take-a-knee” type prayer had to stop. Borden claimed that the restrictions violated his 1st amendment rights of speech and association.
The case garnered attention during litigation, and blew open when the federal district court ruled in Borden’s favor, saying he could bow his head or take a knee when his team captains led the team in prayer.
The odd thing is, while the Third Circuit completely overruled the district court’s opinion, it didn’t really disagree with that idea.
The crux of the Third Circuit’s decision is the way in which a violation of the Establishment Clause is defined:
A school district also violates the Establishment Clause if “a reasonable observer familiar with the history and context of the display would perceive the display as a government endorsement of religion. The test does not focus on the government’s subjective purpose when behaving in a particular manner, but instead focuses on the perceptions of the reasonable observer.
The Court then explained that, while “not every religious display of a school official will have the necessary ‘history and context’ to be an Establishment Clause violation,” Borden’s history of picking players to pray, asking everyone to stand for grace, and leading the team prayer before games meant that any continued act by him would cause a reasonable observer to believe that he, and therefore the school district, was endorsing the religious activity.
This case-by-case, person-by-person analysis caused a lot of sparks on both sides.
Borden’s lawyer, who has said he will appeal to the Supremes, noted that it was “clear from the Third Circuit opinion…that public school coaches who do not have a history of praying with their players can bow their head and take a knee.” A fact that he called “a bit of an ambiguity.”
Rev. Barry Lynn, director of Americans United for Separation of Church and State (who helped defend the district) praised the opinion on this point, saying it would rein in “coaches who want to act like pastors” without overly restraining coaches who just want to support their teams.
HT’s: NY Times, ABA Journal
