Today’s News & Commentary — April 11, 2019


Published April 11th, 2019 - 04.11.194


On Tuesday the Massachusetts Supreme Judicial Court upheld the right of unions to serve as the exclusive representatives of employees in public sector bargaining units.  In Branch v. Commonwealth Employment Relations Board, four government employees represented by unions challenged the state’s labor law on constitutional grounds, claiming that the law’s mandatory agency fee and exclusive representation provisions violated the First Amendment.  The Supreme Judicial Court held that the employees’ First Amendment challenge to the mandatory agency fee provision was moot.  The Court pointed to the unions’ voluntary abandonment of fee collection following Janus v. AFSCME, which outlawed mandatory agency fees in the public sector.  On the issue of exclusive representation, the Court recognized that the policy “is necessary to effectively and efficiently negotiate collective bargaining agreements and thus promote peaceful and productive labor-management relations.”  The Court explained that an “uninterrupted line” of Supreme Court cases has affirmed exclusive representation for unions so long as it is coupled with a duty of fair representation.  The employees asserted that the law unconstitutionally compelled them to associate with unions because the unions barred them from having input into or participating in contract negotiations unless they were members.  But the Court said that the duty of fair representation in the bargaining context centers around whether the ultimate agreement discriminates against nonmembers, not about who the union includes in negotiations.  The Court also noted that nonmembers can vote against the union in an initial election or vote to decertify it, affording dissenters adequate protection.

Ed Rensi, the former president and CEO of McDonald’s USA, criticized the corporation’s recent announcement that it would no longer oppose campaigns to increase the minimum wage, calling it “a path of political correctness” and “a public relations coup for its detractors at the Service Employees International Union.”  Rensi stressed that the burden of higher wage mandates would fall on franchisees, who he claims are already struggling to turn a profit.  In December, franchisees formed a National Owners Association aimed at bargaining with corporate headquarters to push back against costly operational changes.

Bloomberg Law reports that the Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) intends to target corporate law firms that do business with the government for their lackluster diversity and discriminatory practices.  The announcement follows a surge of sex discrimination lawsuits against firms such as Jones Day, Ogletree Deakins, and Proskauer Rose.  One open question that the Department of Labor plans to answer through guidance is whether the OFCCP has jurisdiction over discrimination against firm partners since the partners are generally classified as shareholders or owners and not as employees.  At the least, the OFCCP believes it can investigate cases in which firms have failed to promote employees to partnership since those workers retain their status as employees.  Two priorities are sex discrimination related to paid leave and discrimination against people with disabilities.

As Martin discussed on Monday and as Politico reported yesterday, unions are taking a different approach to the presidential primary endorsement process for 2020 than they did for 2016.  When a handful of unions endorsed Hillary Clinton in the early months of the campaign that year, some rank-and-file members supportive of other candidates, particularly Bernie Sanders, protested.  Cautious about upsetting their bases this time around, union leaders are meeting with candidates but waiting to make an endorsement, if they plan on making one at all.  Yesterday nine candidates addressed a conference of the North American Building Trades Unions, where they talked about issues such as infrastructure spending, a $15 federal minimum wage, apprenticeships, and rolling back states’ ability to adopt right-to-work laws.

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