Weekend News & Commentary — August 29–30, 2015

On Friday, SCOTUSblog wrapped up its week-long symposium on Friedrichs v. California Teachers Association. As discussed extensively on this site, that case could present a vehicle for the Supreme Court to find fair-share payments for non–union members in union shops unconstitutional and thereby overrule its decades-old decision in Abood v. Detroit Board of Education. In addition to Deborah La Fetra, whose post we described earlier this week, the symposium featured contributions from:

• Professor Ann Hodges, who recounts the many benefits of unions and this country’s system of labor relations;
• William Messenger, counsel for petitioners in Harris v. Quinn, who contends that “Friedrichs likely represents the terminus of th[e] line of reasoning” developed in Harris and Knox v. SEIU that has questioned Abood;
• Professor Catherine Fisk, frequent OnLabor guest contributor, who attacks the lack of a developed factual record in the case;
• David Rivkin and Andrew Grossman, who rely in part upon the Knox majority’s characterization of union opt-out requirements as a “historical accident” to suggest that the Court will likely use Friedrichs to usher in an opt-in regime;
• Professor Charlotte Garden, who questions the wisdom of disrupting decades of reliance upon Abood, highlights the distinctions between collective bargaining and overtly political activity such as lobbying, and challenges the characterization of opt-out requirements as unduly burdensome upon non–union members.

Earlier this week, Julia Carrie Wong of SF Weekly took a closer look at the ongoing labor issues surrounding Bay Area tech shuttle drivers. Although the drivers for a number of notable tech firms — including Apple, Facebook, Yahoo, and eBay — have successfully organized, one bus company has responded to recent unionization efforts by creating its own “company union.” Bauer’s Intelligent Transportation, which provides transportation services to companies such as Cisco and EA Games, created and “collectively bargained” with the “Professional Commuter Drivers’ Union” just days after its drivers were contacted by Teamsters Joint Council 7. However, in a recent petition for a temporary injunction pursuant to NLRA § 10(j), the NLRB alleged that Bauer’s had “unlawful[ly] foist[ed] upon its employees . . . a textbook, sham ‘company union,'” and further characterized the PCDU as a “charade” and part of a “carefully orchestrated scheme to prevent unionization.”

There certainly has been no shortage of commentary regarding Thursday’s NLRB decision in Browning-Ferris on joint-employer status. The Wall Street Journal attacks the Board’s decision for “radically rewrit[ing] U.S. labor law and upend[ing] thousands of business relationships,” and goes on to call “[t]he Obama NLRB majority . . . a case study in unaccountable government.” In contrast, the New York Times lauds the Board for “do[ing] its job of protecting the right to unionize” by “adapt[ing] labor law to the new patterns of work life in America,” and expresses hope that “at long last, [corporations] may be forced to be better employers.”

Finally, Republican presidential candidate and New Jersey Governor Chris Christie says that he would turn to a company that has had its own share of labor issues to help devise a strategy for tracking the movements of immigrants to the U.S. The New York Times reports that Governor Christie pointed to the parcel tracking system employed by FedEx as a potential starting point for a similar system to track immigrants. “At any moment, FedEx can tell you where that package is. It’s on the truck. It’s at the station. It’s on the airplane,” he explained at a campaign event in New Hampshire. “Yet we let people come to this country with visas, and the minute they come in, we lose track of them. . . . We need to have a system that tracks you from the moment you come in.”